Freeman and Moss: Speaking the truth when truth was under attack.

August 31, 2023

           The inexorable march toward accountability for those who attempted to overturn the 2020 election took several steps forward on Wednesday. From Rudy Giuliani to Peter Navarro to a state representative in Alabama, Republicans are finally facing consequences for their lawlessness. Every victory helps to dissuade future potential lawbreakers from acting on their extremist fantasies.

          The federal judge handling the defamation claims of Ruby Freeman and Shaye Moss against Rudy Giuliani entered a default judgment against Giuliani. As a result, Giuliani’s liability for defamation is fixed and the only question remaining is the amount of damages that Giuliani must pay to Freeman and Moss. In the order entering judgment in favor of Freeman and Moss, the judge also ordered Rudy Giuliani to pay Freeman and Moss $132,856 (plus interest) in attorney fees. See Freeman v Giuliani, Mem. Op. (8/30/23)

          Before turning to the details, it is appropriate to acknowledge the debt of gratitude the nation owes Ruby Freeman and Shaye Moss—starting with the fact that they served as election workers to help ensure that the 2020 election was free and fair. If that is all they did, they deserve praise and thanks from each of us. But in serving in that role, they became targets of the sick conspiracy theories of Trump and Giuliani designed to overturn the election. They endured racist attacks and personal harassment that would have crushed most Americans. But Ruby Freeman and Shaye Moss stood up to MAGA extremists by testifying before the January 6th Committee. The video of their testimony is here (Freeman Moss | Jan 6 Testimony). It is worth 9 minutes of your time to recall their bravery in speaking the truth at a moment when the truth was under attack.

          The reckoning for Giuliani is appropriate on many levels. Giuliani and Trump believed that they were above the law and had a license to lie with impunity in service of Trump's attempted coup. Giuliana and Trump wove their conspiracy theories around two innocent Black women in Georgia. The powerful politicians believed the two women would be unable to fight back. Trump and Giuliani could not have been more wrong in their choice of victims. The courage and dignity displayed by Freeman and Moss is responsible (in part) for two indictments against Trump and one indictment against Giuliani.  

          Giuliani’s arrogance and hubris have continued, infecting his defense of the defamation claims brought by Freeman and Moss. Giuliani refused to obey court orders that required him to produce electronic evidence from Giuliani’s phone and computers. He not only refused to comply with the orders, but he also lied and slithered his way to entry of a default judgment for failing to comply with the court’s orders. Judge Beryl Howell wrote:

Defendant Rudolph W. Giuliani is taken at his word that he understands these obligations [to produce electronic discovery]. He assured this Court directly that he “understand[s] the obligations” because he has “been doing this for 50 years[.]”

In this case, however, Giuliani has given only lip service to compliance with his discovery obligations and this Court’s orders by failing to take reasonable steps to preserve or produce his ESI. Instead, Giuliani has submitted declarations with concessions turned slippery on scrutiny and excuses designed to shroud the insufficiency of his discovery compliance.

The bottom line is that Giuliani has refused to comply with his discovery obligations and thwarted plaintiffs Ruby Freeman and Shaye Moss’s procedural rights to obtain any meaningful discovery in this case.

Rather than simply play by the rules designed to promote a discovery process necessary to reach a fair decision on the merits of plaintiffs’ claims, Giuliani has bemoaned plaintiffs’ efforts to secure his compliance as “punishment by process.”

Donning a cloak of victimization may play well on a public stage to certain audiences, but in a court of law this performance has served only to subvert the normal process of discovery in a straight-forward defamation case, with the concomitant necessity of repeated court intervention.

          As a sanction for his refusal to produce the requested electronic evidence, Giuliani is now precluded from contesting his liability for defamation and intentional infliction of emotional distress. A jury will determine the amount of compensatory and punitive damages. It is possible that the damages will exceed Giuliani’s quickly diminishing wealth.

          Judge Howell’s ruling provides a bracing reminder to defendants (and their lawyers) that there are consequences for misleading judges. Imposing sanctions against defendants in criminal cases is more complicated than in civil cases. But as Trump's lawyers learned on Monday before Judge Chutkan, taking bad faith positions in federal court usually results in negative outcomes for your client. If Trump is unclear on that concept, he should look to the consequences suffered by his former lawyer, Rudy Giuliani.

Former Trump adviser Peter Navarro is ordered to stand trial.

          In a similar vein, Trump's trade adviser Peter Navarro refused to testify before the January 6th Committee and was cited for contempt of Congress. A federal judge rejected Navarro’s claim that he was protected by Trump's executive privilege and thus excused from compliance with the congressional subpoena. See Politico, Judge rejects Navarro’s ‘executive privilege’ claim for defying Jan. 6 committee.

          Navarro’s trial has been set for September 5th. A jury will decide whether Navarro is guilty of contempt of Congress for refusing to testify and produce documents to the J6 Committee.

          Like Giuliani, Navarro is a privileged, powerful white male who believes that rules are for suckers. His trial will be another morality tale for Republicans who think they are above the law. Navarro should have spoken to Steve Bannon, who is currently appealing his conviction for contempt of Congress for refusing to appear before the January 6th Committee.

Yes, Virginia, there was voter fraud in Alabama—just not the kind Trump was looking for.

          Although this story does not relate directly to efforts to overturn the 2020 election, it relates to the GOP lie that voter fraud is a Democratic problem. To the contrary, the reason that Republicans are so concerned about voter fraud is because they engage in it with such regularity. Alabama state assemblyman David Cole, a Republican, was arrested this week “on a charge of voting at multiple or unauthorized locations.” See AL.com, Madison County lawmaker David Cole arrested on illegal voting charge.

          Cole’s crime may be more serious than merely voting in the wrong district. Per AL.com,

Cole was elected to the Legislature in November, representing District 10. But AL.com’s Kyle Whitmire reported in July that Cole lived in District 4.

          Despite the discrepancy between Cole’s residence and the district he represents, the Alabama legislature did nothing to address the situation. The Alabama attorney general therefore stepped in to charge Cole, whose campaign website features a prominent button to “Check your registration.” If Cole had clicked on that button, he would have learned that he was voting in—and representing—the wrong district in Alabama.

          If—heaven forbid—a Black woman had voted in the wrong district in Alabama, it would be non-stop news on Fox. Hypocrites!!

A few other notable developments.

           A handful of MAGA extremists in the Georgia legislature are floating the idea of “defunding” Fulton County D.A. Fani Willis. That idea is both depraved and illegal. The GOP Speaker of the Georgia House sent a letter to his colleagues slamming the idea. See The Hill, Georgia’s GOP House Speaker slams push to defund Fani Willis amid hurricane.

          Per The Hill, the letter from the GOP Speaker said, in part,

“While this real-time crisis unfolds, unfortunately, we continue to have a few members of the General Assembly making misleading or false claims about the General Assembly’s lawful powers regarding an ongoing criminal case before our Judiciary,” he wrote in the letter that was obtained by The Hill.

He also explained how reducing the pay of an individual district attorney or assistant district attorney would mean reducing the pay of all district attorneys across the state, noting that funds are not provided to individual circuits on an individual basis.

“Targeting one specific DA in this manner certainly flouts the idea of separation of powers, if not outright violates it.”

          In Texas, a state court judge ruled that the GOP legislature’s effort to impair the ability of large cities to enact progressive policies is unconstitutional. See The Texas Tribune, Judge declares Texas “Death Star” bill law unconstitutional. Because large cities in Texas tend to be more Democratic and progressive, the Texas legislature passed a bill that prohibits them from passing ordinances that affect businesses.

          The GOP-dominated legislature is, in effect, appointing itself as a “state-wide city council” for Texas’s urban areas. The rural lawmakers from hundreds of tiny counties with populations of less than a few thousand residents have granted themselves the authority to govern cities with millions of residents. Can you see why Texas Republicans look to the future with apprehension and fear—and why Democrats should be confident that they will one day rule Texas at the statewide level.

Hurricane Idalia and insurance recoveries.

          In a state where insurance recoveries are vital to a population buffeted by annual hurricanes, Ron DeSantis made it harder for Floridians to sue insurers who engage in bad faith practices. See Mother Jones, DeSantis’ New Insurance Law Could Make It Harder to Rebuild After Hurricane Idalia. Why would Ron DeSantis take an action that hampers the ability of Floridians to obtain insurance recoveries? Per Mother Jones,

Insurance industry employees donated at least $3.9 million to his gubernatorial race and to the “Friends of Ron DeSantis” political committee between January 2018 and December 2022. Additionally, a Heritage Insurance subsidiary and People’s Trust Insurance together donated a total of $125,000 to DeSantis’s 2023 inaugural celebration.

          So, what does it cost to convince a politician to sell out the citizens of Florida? Answer: $4.025 million.

          Ron DeSantis was on television most of the day praising the efforts of Florida’s first responders and the determination of Floridians battered by Idalia—praise that was well-deserved and hard-earned. But when he was in back rooms before the hurricane, DeSantis was less concerned about the citizens of Florida than his own doomed presidential aspiration.

I hope that readers affected by the water and winds of Idalia are safe and that their homes are intact. On Thursday, the Comments section will be open to all during morning hours so that readers in Florida can share their experiences and insights into the hurricane and recovery efforts.

Join me and Jessica Craven in an event to support Democratic state parties.

On Thursday, September 7 at 4:00 PM Pacific / 7:00 PM Eastern, Jessica Craven and I will speak at an event for the State Party Advancement Network (SPAN).

SPAN is committed to rebuilding Democratic state parties, which eroded in strength and effectiveness between 2010 and 2016 (when Democrats lost 14 governorships and both chambers of 13 state legislatures).

SPAN brings together donors who recognize the importance of state parties' work and want to invest in programming to elect more Democrats up and down the ticket. Join us to learn how state parties are building lasting infrastructure with the support and collaboration of SPAN staff, who meet regularly with states on progress towards goals.

In addition to Jessica Craven and me, featured guests include Lavora Barnes (Chairwoman of the MI Dems), Ben Wikler (Chair of WisDems), and Martha Laning (SPAN).

You can click this link to register and see more information in the invite below and attached.

Concluding Thoughts.

          On Wednesday, Trump made comments about his sought-after second term that were so disturbing I will not repeat them here. But if you heard or read them, remember that the wilder and more unhinged Trump is during the campaign season, the less likely he is to attract support from independent voters. In closely divided races, a handful of votes can make the difference between victory and defeat. Given Trump's comments, he is surely alienating Americans who yearn for a return to the rule of law. So, after a week of good developments for Democrats, we have every reason to be hopeful, but no reason to be complacent!

          Talk to you tomorrow!