“The 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 statements were false,” Giuliani said in a signed statement attached to the court filing.
But he said the stipulation does not affect his argument that his statements “are constitutionally protected statements or opinion.” And he conceded, “solely for the purposes of this litigation ... that the statements carry meaning that is defamatory.”
Atlanta attorney Bruce Brown, who specializes in First Amendment and defamation law, said he’s never seen such a motion — in this case, called a “no lo contendre stipulation” — filed in a civil case. Such a motion, which means “I do not contest it,” is usually filed in a criminal case when someone is entering a plea, he said.
In this case, “it’s different than admitting the allegation,” he added. “It would not be technically correct that he’s admitting he made those statements or that they were defamatory per se. He’s simply not contesting it.”
Atlanta lawyer Peter Canfield, who also specializes in First Amendment law, agreed. He also said it appears that the former New York City mayor may be trying to avoid having the judge in the case toss out his defense as a sanction for his failure to turn over evidence to Freeman and Moss’ legal team.
“So he’s offering an alternative, but it’s not much,” Canfield said. “He’s saying the court can go ahead and find what he said was false. But he’s not conceding that he knew or should have known that it was false when he said it, or even now. ... The plaintiffs are asking for a lot more than that.”
Ted Goodman, a political advisor to Giuliani, downplayed the significance of the court filing.
“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,” Goodman said in a statement to The Atlanta Journal-Constitution.
“This is a legal issue, not a factual issue,” Goodman said. “Those out to smear the mayor are ignoring the fact that this stipulation is designed to get to the legal issues of the case.”
Soon after the 2020 election, as Trump and his aides searched for instances of voter fraud, Giuliani keyed in on State Farm Arena in Atlanta. That December, he unveiled snippets of surveillance video from ballot counting there that he said was a “smoking gun” for election fraud. He later accused Moss and Freeman of fraud by name.
During one state legislative hearing, Giuliani accused Moss of handing her mother “USB ports like they were vials of heroin or cocaine.” In fact, Moss testified before the Jan. 6th congressional committee, what she handed her mom was “a ginger mint,” not a USB port.
State and federal investigators quickly determined the allegations were false. After months of harassment and threats, Freeman and Moss filed defamation lawsuits against Giuliani, One America News Network and the Gateway Pundit.
OAN settled the claims against it. The lawsuits against Giuliani and the Gateway Pundit are still pending.
Giuliani’s latest court filings come as he seeks to avoid severe sanctions for failing to turn over electronic evidence in the defamation lawsuit filed in U.S. District Court in Washington, D.C. Though Giuliani has turned over some evidence, the plaintiffs’ lawyers said they found through other means electronic communications that Giuliani never turned over. They said Giuliani’s failure to turn over such evidence has severely hindered their case.
U.S. District Judge Beryl Howell recently ordered Giuliani to pay more than $89,000 in attorney’s fees related to the plaintiffs’ efforts to obtain evidence.
In Tuesday’s court filing, Giuliani’s attorney, Robert Costello, argued his client doesn’t have the emails and other documents in question. Costello said federal authorities in New York seized Giuliani’s electronic devices in a criminal investigation in 2021. Giuliani was not charged in that investigation of his lobbying activities.
The court filing says Giuliani has provided to Freeman and Moss the material he has received back from federal authorities. It says his failure to produce all the communications sought “stems from the fact that the government seized files, some of which were corrupted, and then wiped from the devices.”
Michael J. Gottlieb, an attorney who represents the plaintiffs, said Giuliani’s stipulation “concedes what we have always known to be true — Ruby Freeman and Shaye Moss honorably performed their civic duties in the 2020 presidential election in full compliance with the law, and the allegations of election fraud he and former President Trump made against them have been false since day one.
“While certain issues, including damages, remain to be decided in court, our clients are pleased with this major milestone in their fight for justice, and look forward to presenting what remains of this case at trial,” Gottlieb said.
The defamation lawsuit isn’t Giuliani’s only challenge related to the false fraud allegations. He is a target of the Fulton County investigation of Trump’s effort to overturn the 2020 election in Georgia. And a New York court suspended his law license, citing his false voting fraud allegations in Georgia and other states.