Rudy Giuliani has been a lawyer a long time, 55 years to be exact. That’s longer than many readers of this column have been alive. And he took pains to highlight his long career in front of Judge Beryl Howell. Howell was evaluating whether the former New York City mayor had defamed Georgia election workers Ruby Freeman and Shaye Moss by falsely claiming after the 2020 election that they had committed election fraud. After Giuliani failed to comply with lawsuit subpoenas, Howell ruled that his wild claims were simply false. “Giuliani has submitted declarations with concessions turned slippery on scrutiny and excuses designed to shroud the insufficiency of his discovery compliance,” Howell wrote in a 57-page opinion Wednesday.
Now Giuliani has been held in default, meaning his liability for defaming the Georgia election workers is settled. His fate is sealed.
Now Giuliani has been held in default, meaning his liability for defaming the Georgia election workers is legally settled. His fate is sealed. The only question now is how much he will have to pay. A jury will determine how much Freeman and Moss were harmed and what damages are appropriate.
But this was Giuliani’s case to lose. Famously, defamation cases are hard for plaintiffs to win, and purposefully so. Since the New York Times v. Sullivan in 1964, the Supreme Court has set a high bar for plaintiffs in libel cases because the First Amendment requires “breathing space” to citizens and the press. False statements are not always defamatory. For false statements about famous and powerful people, there must be “actual malice,” meaning the speaker knows that they are false or makes them with “reckless disregard” for the truth. Freeman and Moss are not powerful folks, and for them the legal path is easier.
As we all know, Freeman and Moss’ ballot counting became grist for a mill of lies and a mob that followed. They were accused of election fraud, falsely as Giuliani himself now admits. Racial slurs and threats of lynchings and hangings poured in. Strangers turned up at their homes, and they were forced into hiding. Moss’ teenage son was also targeted by threats and racist messages and started failing in school. Trevian Kutti, a publicist for hip-hop artist and Trump supporter Kanye West, claimed that Freeman would be arrested and sought to pressure her into confessing to election fraud. Of course, Freeman had nothing to confess.
Giuliani’s lies helped sow chaos and fear, which brings us back to defamation. Each state has laws protecting citizens from lies, but the burden of proof for defamation plaintiffs is so high that only a tiny percentage of defamation cases succeed. This case is different for two big reasons. First, according to court papers filed in July, Giuliani did not contest that his statements about Freeman and Moss were false. But, he argued, Freeman and Moss had suffered no damage as a result of those statements. (Ted Goodman, a Giuliani spokesman, claimed in a statement that Giuliani “did not contest it in order to move on to the portion of the case that will permit a motion to dismiss.” Obviously that motion to dismiss did not succeed.)
Second, despite having been a lawyer for more than 50 years, the judge said Giuliani was destroying evidence in the defamation lawsuit even as he was warned repeatedly about the consequences. Destroying evidence risks the nuclear bomb of consequences in any lawsuit, namely, a default judgment. A default judgment means the defendant’s liability is sealed, and fault is determined. Key to the issuance of the most egregious of sanctions is whether the party who destroyed evidence did so in bad faith. But according to the judge’s order, over a period of months, repeated hearings and repeated warnings, Giuliani hid, mislead and even destroyed evidence after Giuliani admitted to having been notified of an obligation to preserve evidence in “early 2021.” Key to the issuance of the most egregious of sanctions is whether the party who destroyed evidence did so in bad faith. This, despite Giuliani’s storied and often-invoked career as an attorney. Sometimes failures to preserve evidence lead to lighter sanctions, especially if the destroyer doesn’t know any better. Giuliani does know better. As Howell noted on Wednesday: “The fact that Giuliani is a sophisticated litigant with a self-professed 50 years of experience in litigation …. only underscores his lackluster preservation efforts.” In other words, said Howell, Giuliani “plainly should have known better.” The evidence destroyed was “irretrievable,” and key to the case. Default was really the only option. And thus, once again, Giuliani has only himself to blame. He is no victim here. But there are victims, beyond the horror that befell Ruby Freeman and Shaye Moss. There are also the other thousands of Americans who volunteer to ensure our election process works, who wake up early to staff the polls, and who are now under attack. No one wants to be the next target of an election denying mob. And the legal system itself has been sullied, too, by a man who was once a hero to folks of all political stripes but is now a self-admitted fabulist who helped trigger a mob. Defamation cases are hard to win. But not when an experienced and once respected lawyer destroys evidence and hides the truth.
Gerry Weber
Gerry Weber is a constitutional law attorney and adjunct professor at Emory University School of Law and Georgia State University School of Law 
