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Rudy Admits He Defamed Georgia Poll Workers, But Claims He Had A First Amendment Right To Do It.

Ummm ... is that how it goes?

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(Photo by Alex Wong/Getty Images)

Last night, Rudy Giuliani waved the white flag in the defamation lawsuit filed by Ruby Freeman and Shaye Moss, the two Georgia election workers whose lives were upended when they found themselves at the center of a conspiracy theory flogged by the sitting president’s lawyer.

In a document signed only by the defendant (Giuliani), he stipulated that he had, indeed, defamed both election workers. Rudy said that he was “desirous to avoid unnecessary expenses in litigating what he believes to be unnecessary disputes” and was thus conceding that he made and published the statements at issue, and that they were defamatory per se. But, he preserved his right to assert “constitutional” defenses:

That Defendant Giuliani, for the purposes of this litigation only, does not contest that, to the extent the statements were statements of fact and otherwise actionable, such actionable factual statements were false. This stipulation does not affect Giuliani’s ability to seek setoff, offset or settlement credit, or his argument that his statements are constitutionally protected statements or opinions or any applicable statute of limitations, or that Giuliani’s statements, in fact, caused Plaintiffs any damages, and the amount of any alleged damages which Giuliani’s statements may have caused or any other legal defense not expressly waived by this Stipulation;

It’s not entirely clear what caused this about-face, although recent developments in the case suggest that this may be an attempt to avoid further discovery obligations.

After a year of screwing around on discovery, Judge Beryl Howell just ordered Giuliani to cough up $89,172 to the plaintiffs’ lawyers at Willkie Farr. There’s yet another pending motion for sanctions alleging that Giuliani failed to preserve or spoliated evidence. Earlier this week, Giuliani’s buddy Bernie Kerik capitulated to the plaintiffs’ discovery demands after being threatened with monetary sanctions of his own.  Kerik, a former law enforcement official with his own checkered past, accompanied Giuliani on his efforts to overturn Biden’s electoral college win. It’s probably not a coincidence that Giuliani had a change of heart just a day after Kerik agreed to turn all of his comms over.

Indeed, Giuliani’s own filings imply that he intends this stipulation to end discovery and obviate the need to pay any future sanctions. He submitted an affidavit from his own longtime lawyer Robert Costello accusing the plaintiffs’ counsel of lying about Giuliani’s discovery shortcomings, and in response to the sanctions motion, he wrote:

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As discussed above, Giuliani has not engaged in any conduct that constitutes spoliation. However, out of abundance of caution, and to avoid any potential controversy, Giuliani has agreed to stipulate to the factual aspects of liability as to Plaintiffs claims, except damages, as such discovery or information would be solely in possession of the Plaintiffs. See Giuliani Stipulation attached. While Giuliani does not admit to Plaintiffs’ allegations, he—for purposes of this litigation only—does not contest the factual allegations. See id. Thus, Plaintiffs do not need any additional discovery or sanctions regarding striking Giuliani’s answer based on his concession of facts establishing liability.

Rudy appears to believe that his stipulation obviates the need for further discovery, presumably to include the scheduled deposition of Kerik and his agreed-upon document disclosures.

“Mayor Rudy Giuliani did not acknowledge that the statements were false but did not contest it in order to move on to the portion of the case that will permit a motion to dismiss,” his spokesman Ted Goodman told Politico. “This is a legal issue, not a factual issue. Those out to smear the mayor are ignoring the fact that this stipulation is designed to get to the legal issues of the case.”

And perhaps he would be able to “get to the legal issues of the case” if he were not still claiming defenses which bring his state of mind into question. But if he is going to assert his right to, say, comment on issues of public concern, then the plaintiffs are unlikely to agree to waive further disclosures, much less forego the fee award for time already expended to get to this point. Similarly, the plaintiffs reached the agreement with Kerik as a condition of withdrawing their motion for sanctions against him and his attorney Tim Parlatore. So, it’s not clear that Giuliani can unilaterally yaddayaddayadda that away either.

In short, the former president’s lawyer looks to be attempting an end run around the embarrassing bits of this case. Let’s see if Judge Howell intercepts the play.

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

Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.

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