Monday, October 31, 2022

See You In Discovery

Another day, another defeat for the defendant/respondent formerly known as America's Mayor.

Chief Judge Howell of the United States District Court for the District of Columbia denied in total his motion to dismiss a defamation and related actions brought by two Georgia poll workers

Giuliani seeks complete dismissal of this lawsuit, claiming that plaintiffs have failed to state a claim on all three counts in their Amended Complaint. For the reasons set forth below, Giuliani is wrong. Plaintiffs have stated a claim as to each of the three counts, and Giuliani’s arguments to the contrary are unpersuasive.

The complaint

Despite the repeated debunking of the Trump Campaign’s claims of voter fraud in the election in Georgia by state officials and private organizations, Giuliani persisted in pushing those very claims—and began taking direct aim at plaintiffs in the process. That began in December 2020, when Giuliani orchestrated and implemented a strategic plan “to educate the public on the fraud numbers, and inspire citizens to call upon legislators and Members of Congress to disregard the fraudulent vote count and certify the duly elected President Trump.” Id. ¶¶ 57, 58; see also “Strategic Communications Plan[,] Giuliani Presidential Legal Defense Team” (the “Strategic Plan” or “Plan”) at 2, ECF 26-3. A section of the Plan was dedicated to exposing the alleged voter fraud schemes in Georgia. See Am. Compl. ¶¶ 62, 63. Freeman was named in the Plan as being “under arrest” and part of “coordinated effort to commit voter/election fraud.” Id. ¶ 63. Giuliani specifically accused Freeman and the other workers in the Edited Video of “ballot stuffing” by
rolling out “suitcases” filled with ballots when “press and all third parties were required to leave the premises”—an event the Strategic Plan calls “Suitcase Gate.” Id. On December 23, 2020, Giuliani, on his podcast, named Freeman as someone with “a history of fraud participation,” and claimed that she, with the help of other election workers, counted  the same ballots “eight times,” “cheating” in manner that “look[ed] like a bank heist.” Id. ¶¶ 66, 67. On December 25, 2020, Giuliani, again on his podcast, accused “Ms. Freeman and her crew” of attempting to scan ballots multiple  times, likening them to “crooks spr[i]ng[ing] into action.” Id. ¶ 69

The court

Giuliani’s weak effort to distance himself from authorship of the Strategic Plan also falls. Given that the title of the Strategic Plan specifies Giuliani by name, see id. at 2 (emphasis added) (“STRATEGIC COMMUNICATIONS PLAN GIULIANI PRESIDENTIAL LEGAL DEFENSE TEAM”), that this document identifies “Rudy Giuliani” as the first person under “Key Team Members,” see id. at 7, and that Giuliani’s conduct after its publication shows he was integrally involved in “launch[ing],” “orchestrat[ing],” and “execut[ing]” the Plan, see Amend. Compl. ¶¶ 9, 57, 136; see also id. ¶¶10–12, 58–64, 134, 137, 190, plaintiffs have done more than  plausibly to allege that Giuliani bears at least “some degree of authority and some degree of responsibility” over authoring the Plan. See Nyambal, 344 F. Supp. 3d at 191.

Next up is Giuliani’s claim that purportedly defamatory statements, which do not mention Freeman and Moss by name, should be dismissed because no reasonable listener would plausibly read them as concerning Freeman and Moss, respectively. Giuliani fails to cite, address or distinguish the holding of Croixland Properties Limited Partnership v. Corcoran, where the D.C. Circuit explained that a plaintiff can satisfy the first element of defamation—that the defendant made a false and defamatory statement “of and concerning” the plaintiff—without specifically identifying the plaintiff by name.

Defamation

Freeman has plausibly alleged Giuliani made statements about her criminal activity/history with actual malice. When taken together, these allegations at least plausibly suggest that Giuliani fabricated Freeman’s arrest and criminal record out of whole cloth: Giuliani accused Freeman of election fraud before the Strategic Plan was allegedly published, even though the Strategic Plan (which Giuliani was at least plausibly an author) noted that the Trump Campaign still needed
evidence that she was arrested for that very criminal activity. Cf. Zimmerman v. Al Jazeera Am., LLC, 246 F. Supp. 3d 257, 284 (D.D.C. 2017) (denying defendants’ motion to dismiss on actual malice grounds in a defamation case because plaintiffs alleged that defendants “failed to uncover a single reported piece of evidence corroborating [the sole source’s] outlandish claims”). When viewing the Amended Complaint’s factual allegations in the light most favorable to the plaintiffs, this evidence is enough to suggest that Giuliani recklessly accused Freeman of being arrested for election fraud.

There is also sufficient evidence of intentional infliction of emotional distress and civil conspiracy

The Strategic Plan and other conduct provide ample circumstantial evidence of a civil conspiracy between Giuliani and members of the Trump Campaign. 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.” Am. Compl. ¶ 58. One of those acts was to accuse Freeman of “ballot stuffing” by rolling out “suitcases” filled with ballots when “press and all third parties were required to leave the premises”—an event the Strategic Plan calls “Suitcase Gate.” Id. ¶ 63. The Plan lists Giuliani and others as “[k]ey [t]eam [m]embers,” Strategic Plan at 7–8, which also suggests that the Plan was a coordinated action. Furthermore, Trump also employed the Strategic Plan’s description of “Suitcase Gate” in his call with Secretary of State Raffensperger, when he alleged Freeman and others “stuffed” ballot boxes with fake ballots hidden in suitcases. Id. ¶ 80–81. 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. Plaintiffs have pled a plausible civil conspiracy.

The court set out the harassment suffered by the Plaintiffs

Moss enjoyed her job before Giuliani’s actions, but she eventually left because her “workplace became a toxic environment.” Id. ¶ 159. Moss must order groceries online because she now fears for her life in public. Id. ¶ 160. Like Freeman, Moss has retreated from public and social life because of continued violent threats and harassment. Id. ¶¶ 160–62

Discovery will proceed. (Mike Frisch)

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