Rudy Giuliani Wants To Testify In Freeman/Moss Defamation Case. Just Not To A Jury.

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(Photo by Alex Wong/Getty Images)

Rudy Giuliani has been doing some weird stuff in court this week.

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No, wait, come back! It’s not Borat “chram” grabbing, or brain matter leaking. It’s regular law stuff … just of the highly irregular kind.

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It started last week when the parties in the defamation case brought by Atlanta poll workers Ruby Freeman and Shaye Moss submitted their witness lists for the trial scheduled to begin on December 11. And there on the list of defense “will call” witnesses was one Rudolph W. Giuliani, who “may testify regarding: the statements he made regarding Ms. Moss and Ms. Freeman; and the circumstances surrounding those statements.”

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Guiliani falsely accused Freeman and Moss of tabulating thousands of fraudulent ballots, unleashing a maelstrom of threats and harassment that forced them out of their homes. He is currently under criminal RICO indictment in Fulton County, Georgia, in relation to those very statements. Is he planning to call himself to the witness stand then take the Fifth? What is going on here?

Then yesterday Rudy made another surprise move, requesting that Judge Beryl Howell cancel jury selection and instead hold a bench trial in the case. Which is, again, in three weeks. It’s also before a judge who has already issued a default judgement and sanctioned the hell out of him for his years-long failure to comply with discovery — not exactly a sympathetic jurist.

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But, Guiliani argues through his lawyer Joseph Sibley IV, that there is no absolute right to a jury trial once a default judgment has been entered, and so his client would like to elect, at this late date, to throw himself on the mercy of the court:

“[A]fter a default judgment has been entered under Fed. R. Civ .P. 37(b)(2), a party has no right to jury trial under either Fed. R. Civ .P. 55(b)(2), … or the Seventh Amendment.” Adriana Int’l Corp. v. Thoeren, 913 F.2d 1406, 1414 (9th Cir. 1990), cert. denied, 498 U.S. 1109, 111 S. Ct. 1019, 112 L.Ed.2d 1100 (1991); see also Eisler v. Stritzler, 535 F.2d 148, 153 (1st Cir.1976) (holding that after entry of a default judgment, a hearing, but not a jury trial, is required to assess damages). This includes a hearing any setoff to determine the appropriate amount of damages, Case 1:21-cv-03354-BAH Document 107 Filed 11/20/23 Page 1 of 3 2 which is also not appropriate for a jury. Olcott v. Delaware Flood Co., 327 F.3d 1115, 1124 (10th Cir. 2003). In the only case undersigned counsel has found from this District or Circuit addressing the issue, this doctrine has been followed. See Mwani v. Bin Ladin, 244 F.R.D. 20, 24 (D.D.C. 2007) (following Goldman, Antonetti, Ferraiuoli, Axtmayer & Hertell v. Medfit Int’l, Inc., 982 F.2d 686, 692 (1st Cir. 1993) and citing multiple authorities from other Circuits in accord).

Again, the default judgement was entered against Giuliani in August. He’s only deciding now that he’d rather not face twelve citizens of the District to explain how he didn’t actually harm these women by lying about them being at the center of a conspiracy to steal the election for Donald Trump.

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Whether this is a gambit to avoid the adverse inferences Judge Howell promised to instruct the jury to take as a result of Giuliani’s last round of sanctions, or simply a bid to cut down his legal fees is unclear. Maybe he thinks he’ll wow Judge Howell on the stand with his amazing legal chops, maybe regale her with stories of his days as a federal prosecutor.

Or maybe Rudy isn’t quite the master legal strategist he thinks he is. Either way, it should be a wild ride.

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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.

Topics

Government, Rudy Guiliani