Government

Rudy Giuliani Spams Court With Gobbledygook In Leadup To Freeman/Moss Defamation Trial

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Rudy Giuliani And Trump Legal Advisor Hold Press Conference At RNC HQ

(Photo by Drew Angerer/Getty Images)

Rudy Giuliani may be banned from the practice of law at the moment, but he’s still coming up with new and interesting ways to piss off federal judges.

After two years of refusing to comply with discovery in the defamation suit brought by Atlanta poll workers Ruby Freeman and Shaye Moss, Judge Beryl Howell issued a default judgment in August against the former New York mayor. Further defiance of the court’s order that he disclose the corporate structure and finances of his podcast company earned him even more sanctions in the form of adverse inference instructions to the jury. And then last week, just days before voir dire was supposed to start on December 11, Giuliani purported to assert his right to a bench trial.

Giuliani’s antics in this case have reduced Judge Howell to furious, thousand-word minute orders instructing him to knock it off or else. And so it’s more than a little bit funny that Giuliani has decided that he’d rather throw himself at Judge Howell’s feet than face a DC jury. As the plaintiffs point out, Giuliani has repeatedly shittalked the jurist in public. For instance, on the day she issued the default judgment, he complained to Newsmax’s Greg Kelly “There’s no way to describe this judge as fair. You can’t possibly describe this judge as anything other than an over-the-top Biden acolyte who has put people in jail for ridiculously terrible periods of time for merely committing trespass and is—delights in it.”

But Freeman and Moss are distinctly not amused. In an opposition filed Monday, the plaintiffs vigorously object to Giuliani’s last-minute maneuver.

The begin with the equitable argument that it would be fundamentally unfair to allow a defendant to “abrogate a plaintiff’s constitutional right to a jury trial by engaging in willful discovery misconduct and then stipulating to a partial default judgment to cure that misconduct.”

They distinguish the instant case from a 2005 ruling by DDC Judge Colleen Kollar-Kotelly, in which she found that there was no Seventh Amendment right to a jury trial in cases where the defendant has defaulted. But the defendant in the 2005 case was Osama bin Laden, who had unsurprisingly absented himself from the jurisdiction for the entirety of the proceedings. Here, Giuliani has contested the case throughout (if erratically), and is anticipated to be in the courtroom during the trial. 

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They add that Giuliani failed to make his wishes known during the several months the parties dickered over jury instructions and the court set a date for voir dire, waiving his right to wriggle out of it at this late date. Freeman and Moss also note that the motions deadline was October 16, and captioning his Hail Mary pass as a two-page “trial brief” doesn’t get around the fact that Rudy is way too late.

The court has yet to rule on Giuliani’s latest gambit, but in a 539-word minute order last week, it directed him to “submit briefing fully explaining, with citations to applicable law: i. why the 93 August 30, 2023, Order directing the entry of default judgment against defendant (“Default Judgment Order”) does not resolve “all elements of [defendant’s] liability, including the fact of harm and causation, JPS at 27 (§ XII); ii. why “all of the elements of civil conspiracy” have not been satisfied in light of the Default Judgment Order, id. at 28 (§ XII); iii. why the members of the conspiracy include not only persons specifically listed in the 22 Amended Complaint and those individuals the parties agree to stipulate were members[.]” (Among other things.)

Giuliani responded yesterday by arguing that Freeman and Moss failed to name his co-conspirators in their initial and amended complaints, and are thus barred from supplementing the record at this late date. He points to his own motion to dismiss filed in June, but fails to note that the court denied that motion in October of that year, writing with respect to the civil conspiracy count:

The Strategic Plan and other conduct provide ample circumstantial evidence of a civil conspiracy between Giuliani and members of the Trump Campaign. 6 The stated goal of the Plan was to engage in a “[n]ationwide communications outreach campaign to educate the public on the fraud” in the election to “inspire citizens to call upon legislators and Members of Congress to disregard the fraudulent vote count and certify the duly-elected President Trump.”

[…]

A reasonable jury could accordingly infer that (1) Giuliani, Trump, and the “[k]ey [t]eam [m]embers” listed in the Strategic Plan (2) created a plan to sow doubt in the outcome of the 2020 election by (3) launching a misinformation campaign, which included accusing Freeman, Moss, and others of participating in schemes of electoral fraud, and (4) injuring plaintiffs in the process.7 Plaintiffs have pled a plausible civil conspiracy.

In the unlikely event that Giuliani prevails on his backdoor motions, the “win” will involve appearing before Judge Howell in three weeks to value the plaintiffs’ defamation and intentional infliction of emotional distress claims. And that is likely to hurt a lot more than a sternly worded minute order.

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Freeman v. Herring Networks [Docket, via Court Listener]

Liz Dye lives in Baltimore where she writes the Law and Chaos Substack and appears on the Opening Arguments podcast.

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