The End of Giuliani?

The jury now has the case and a verdict could issue at any moment.

Defendant Rudy Giuliani addresses reporters outside the Courthouse. Photo by AP.

In his opening remarks to the jury, Rudy Giuliani’s lawyer, Jay Sibley, begged the jury not to award what the plaintiffs had asked for. He claimed the tens of millions in damages would be the “civil equivalent of the death penalty” and “would be the end of Mr. Giuliani.”

Don’t promise such a good time, Mr. Sibley.

The jury now has the case and is deliberating even as I write this, having failed in the first 3.5 hours to reach a verdict. It isn’t clear yet how much they will award election workers Ruby Freeman and her daughter Shaye Moss, who suffered racial death threats and forever lost the ability to go about their lives in peace and without fear. In some ways, from a collection standpoint, it almost doesn’t matter whether it’s a few hundred thousand or the $48 million they’ve requested. Giuliani likely lacks the means to pay any considerable judgment, having driven himself into near bankruptcy through his own criminal actions around the 2020 election, and his list of creditors is already quite long.

What matters more, however, is whether the jury will help put a stop to a far bigger problem: the growing threat of online “stochastic” terrorism. This occurs when statements by people like Donald Trump and Rudy Giuliani against private citizens carry predictably horrifying consequences, as their armies of MAGA followers, whom they know include some truly unbalanced characters, do their dirty work.

Stochastic terror and our legal system

Trump and Giuliani understand the power of asking to be “rid” of a “meddlesome priest,” as the old saying goes. So far, the criminal justice system has been unable to do much to stop them. 

That’s because our system assigns criminal liability for speech only when it is likely to incite imminent unlawful action or violence. A prosecutor must prove clear intent and causality beyond a reasonable doubt. And for better or worse, that standard simply isn’t met when men like Trump or Giuliani hurl false accusations against innocents like Freeman and Moss—or for that matter court staff, Capitol police officers or even convenient MAGA scapegoats whom they falsely claimed were FBI agents. 

Courts are still grappling with where the right to political speech ends and the right of witnesses and court staff to a safe and proper administration of justice begins. True, people like Trump and Giuliani have given up many of those speech rights in exchange for being released pending trial, and the appellate courts are coalescing around this. But even under such circumstances, the threats and violence that follow from “political” statements often remain attenuated and do not necessarily follow logically or immediately from the words themselves.  

That’s why civil lawsuits such as the one brought by Freeman and Shaye are so important. In such cases, the standard of proof is much lower. In fact, here the plaintiffs have already prevailed on the question of liability in their motion for summary judgment. The only question for this jury is how much to award them. And financial consequences may be the only thing people like Giuliani or Trump truly understand.

The need to send a message

In determining the amount of damages, the plaintiffs’ lawyer, Michael J. Gottlieb, argued to the jury that it should send a message.

“Send it to Mr. Giuliani,” Gottlieb said in his closing argument. “Send it to any other powerful figure with a platform and an audience who is considering whether they will take the chance to seek profit and fame by assassinating the moral character of ordinary people.”

Giuliani himself isn’t helping on this question. Outside the courthouse, a defiant Giuliani brazenly and foolishly repeated his election-based lies about Freeman and Moss, insisting that everything he had said was true. 

“Of course I don’t regret it. I told the truth,” Giuliani said to the gathered cameras. “They were engaged in changing votes.”

This echoed the way Trump repeated his defamation of E. Jean Carroll after losing his first case to her. (Carroll asked for and received the right to sue Trump for more.) In Giuliani’s case, Gottlieb used the defendant’s statements on the courthouse steps in his closing arguments to show that Giuliani has learned nothing and will continue to harm his clients.

“Mr. Giuliani has shown over and over and over again that he will not take our clients’ names out of his mouth, that facts have not and will not stop him,” Gottlieb told the eight member jury panel. “He’s telegraphing that he will do this again. Believe him.”

Where was Rudy?

Giuliani had pledged that he would testify at trial, and that as a result of his testimony, he would establish that his lies were actually true. “When I testify, you will get the whole story, and it will be definitively clear that what I said was true,” Giuliani had told reporters at the start of the trial.

But just like the Trumps, when it came time for him to take the stand, Giuliani chickened out and faded back, and he did not attempt it. It was almost certain from the get-go that this would happen. After all, the question of liability was already established, and any attempt by Giuliani to relitigate it would have been quickly shut down by the judge.

Throughout the case, Giuliani has strenuously resisted discovery of his true financial status, and it was his intransigence over this that led to punishing sanctions and a finding of liability by the judge, who was sick of Giuliani’s squirming and dodging. In the end, Giuliani put on no defense at all. His lawyer claimed that Giuliani decided not to take the stand so as not to put Freeman and Moss through more pain.

“These women have been through enough,” Sibley said, though I doubt anyone believed his rationale.

Please, no “catastrophic” damages!

Rather than adopt a tough stance against the plaintiffs, Sibley opted instead to appeal to the jury’s mercy and compassion. “I’m asking you to be reasonable and just,” he said, by not meting out a “catastrophic” punishment.

Sibley argued that Giuliani had admitted he was wrong—a claim belied by Giuliani’s statements outside the courthouse. He compared his client to a “flat earther” who will never stop believing the election conspiracies. He argued that the attacks on Freeman and Moss were not wholly his client’s responsibility. And he claimed that no amount of money would restore the plaintiffs’ reputations before those who believed election lies. 

This last bit seems an interesting approach, because it suggests that the women’s lives really have been damaged beyond recompense.  A jury could take that claim and decide to return the maximum amount requested, fulfilling its role as best as it is able given the circumstances.

Finally, Sibley asked the jury to remember how, 20 years ago, Giuliani was once “America’s mayor” during 9/11 and had served as a federal prosecutor who went after the mob. Giuliani “shouldn’t be defined by what’s happened in recent times,” Sibley pleaded. “This is a man who did great things.”

But this is also a man who has done really terrible things, especially since associating himself fully with Trump. It underscores how everything that Trump touches rots, and how important it is for our judicial system to send a clear message that such behavior is never acceptable or excusable, and that, yes, it will result in massive and, if necessary, catastrophic damages.

Fox learned this recently the hard way when it settled in the high nine figures against Dominion Voting Systems and then canned its most poisonous anchor, Tucker Carlson. And while it will take a unanimous vote by the jury to award damages, two of the jurors in this case already have signaled, if inadvertently, that they are sympathetic to the plaintiffs: During testimony, two panelists wept upon hearing how the women’s lives were upended and ruined by the deliberate smearing of their names. 

If the jury does return a judgment in the millions or even tens of millions, it very well could be the “end” of Giuliani. And it could even help put an end to this kind of stochastic political terrorism.

And that wouldn’t be a bad thing at all.