Preet Bharara:

From CAFE and the Vox Media Podcast Network, this is Stay Tuned In Brief. I’m Preet Bharara. You may think you spent a lot of money during the holidays, but it probably wasn’t nearly as much as Rudy Giuliani was ordered to pay two Georgia election workers that he defamed. In December, a federal jury in D.C. decided that Trump’s former attorney and my predecessor as U.S. Attorney for the Southern District of New York owed $148 million to Ruby Freeman and Shaye Moss, a mother and daughter who suffered after Giuliani accused them of trying to steal the 2020 election. Giuliani’s actions in the days since the decision have led the election workers to file yet another lawsuit against him, seeking a court order to stop Giuliani from continuing to defame them.

So there’s a lot to discuss here. I’m joined by my friend Michael Gottlieb, who has been representing the two plaintiffs in their legal pursuits against Giuliani. Michael is a partner at the law firm Willkie Farr & Gallagher. He formerly served as associate counsel to President Barack Obama. He clerked for Justice John Paul Stevens on the Supreme Court. And most importantly of course, he was my colleague on the Senate Judiciary Committee during the hearings of John Roberts and Sam Alito. Mike, welcome to the show.

Michael Gottlieb:

Thanks for having me, Preet, and honored you’d call me a colleague rather than your water boy.

Preet Bharara:

I didn’t want to say intern, but we’ve all aged and grown and done many things since then, 17 years ago.

Michael Gottlieb:

I appreciate it.

Preet Bharara:

So before we get to the case, could you just describe to folks who Ruby Freeman and Shaye Moss are and were?

Michael Gottlieb:

Sure. So Ruby Freeman is Shaye Moss’s mother. They are lifelong residents of Atlanta, Georgia. Shaye has worked or had worked for Fulton County in its elections department for her entire career since leaving college. It was the only job she ever had. And during the 2020 election, her mom, Ruby Freeman, raised her hand to coven as a temporary worker to help. This was in the middle of COVID, and so there was an unprecedented flood of absentee ballots to process and count. And her mom raised her hand and the two of them worked together at State Farm Arena in Atlanta, counting ballots in the 2020 election. And that is how they got mixed up in all of this mess.

Preet Bharara:

So to summarize, they’re patriotic public servants who worked in support of democracy. Is that fair?

Michael Gottlieb:

Absolutely. Yes.

Preet Bharara:

So you represented them in connection with the lawsuit, the defamation suit against Rudy Giuliani. Could you provide maybe the most damaging examples of what you folks claimed and then proved were defamatory with respect to this mother and daughter?

Michael Gottlieb:

Sure. There’s so much of it that it’s hard to boil it down to-

Preet Bharara:

Yeah. That’s why I was asking… It’s all terrible. Let me ask it this way. What were some of the things that Giuliani said that were most damaging to your clients?

Michael Gottlieb:

Sure. So the core of the allegations that he made against our clients and then spread all around the internet were that they were engaged in a plot to rig the election in Georgia for Joe Biden. And that the way they did that was on election night, they allegedly made up an excuse that there had been a water main break. They kicked everybody out of the counting facility at State Farm Arena. They locked the doors, they cased the joint. Then when everybody was gone, all the election observers were gone, they then pulled out suitcases of ballots from underneath the table. They scanned them five, six, seven times, manufacturing what ranged in his allegations from 30,000 to a 100,000 votes for Joe Biden. Then he also alleged that they had a history of voter fraud participation. And that earlier in the day, they had been seen on video passing around to USBs to rig the dominion voting machines that Giuliani claimed were being used in the facility. That was the sum of the allegations and every single piece of it was false.

Preet Bharara:

And was he doing this at a small venue of three or four drunk friends or some different platform? Because that’s what’s important here, it turns out, right?

Michael Gottlieb:

Yeah. So this was a story that began on December 3rd at a hearing before the Georgia legislature where the Giuliani legal team presented these claims based on misleadingly cut clips of surveillance video from the night of election in United State Farm Arena. And then they used the social media tools available to them, which were extraordinary really. The reach that President Trump’s accounts had, that other members of the Giuliani legal team and then the echo chamber that they had access to, just took this information. And over the course of a few weeks in December of 2020, really spread it around the world to the tune of what our expert calculated as hundreds of millions of impressions of these statements generated across social media platforms, traditional media platforms, print. So they basically took two patriotic civil servants with no criminal record, no history of anything, and made them the face of election fraud in a matter of a few weeks.

Preet Bharara:

And if you can describe, how did you counteract the mountains and mountains of evidence that Giuliani had in support of his allegations of election fraud? What’s nice about having a podcast, Mike, is you can ask totally improper questions.

Michael Gottlieb:

No, I love it. No, I wouldn’t object to that one. The thing about your question, and this is one of the frustrating things about handling cases in this space, and handling cases involving political disinformation is that the promise of the conspiracy theorist is always that proof is just around the corner. It’s coming. Winter is coming.

Preet Bharara:

It’s just like infrastructure week.

Michael Gottlieb:

Yes.

Preet Bharara:

It’s similar. It’s always a week away.

Michael Gottlieb:

Yeah. And the thing about discovery, as you know, is that if you really-

Preet Bharara:

There’s a deadline.

Michael Gottlieb:

Well, it’s not just that, but if you really believe what you’re saying, then discovery is great because you get subpoena power. So think about what if Rudy Giuliani really believed all of the things he was saying, think about what he could have accomplished for free in discovery. It wouldn’t have even cost him anything. He could have issued third party subpoenas to Georgia State investigators to third party platforms, to social media platforms, to assemble all this evidence using subpoena power, and then used that to prove his defense of substantial truth, which is a defense in a defamation case. And of course, he did none of those things, not one effort. We subpoenaed in the case the Georgia State investigators who looked into these claims and wrote reports and concluded an investigation that fully exonerated Ruby and Shaye and also everybody else who was involved at State Farm Arena and found them to have been engaged in normal ballot processing and counting.

We subpoenaed them and deposed them, and Giuliani didn’t even show up to the deposition to ask them questions. So one of the frustrating things about seeing how he then reacts to this after the verdict and claiming that he didn’t have a opportunity to present evidence or is saying it was a sham trial or things like that. He had vast powers granted to him if he wanted to actually prove this stuff to be true, and he didn’t even try. He didn’t even show up.

Preet Bharara:

Well, one of the reasons why he had a ruling issued against him even before the trial, that was mostly for the purpose of determining damages, was his failure to be responsive in discovery. Am I right?

Michael Gottlieb:

Yeah. It’s the dog ate my homework defense.

Preet Bharara:

Right. Can I ask you, not as a legal question, but what the hell was going on there? What’s your theory about why he would basically mosey into a default judgment? It’s not quite a default judgment, but mosey into a judgment against him that left to the jury, just a question of how much money he should be able to be forced to pay.

Michael Gottlieb:

Well, it was a default judgment. It was just an unusual default judgment. So it was usually when we’re talking about default judgments, we’re talking about Al-Qaeda or Iran gets sued, they don’t show up for anything, and you get a default judgment and then you proceed with that.

Preet Bharara:

He showed up for some stuff, but not for other stuff.

Michael Gottlieb:

Yeah. He showed up to litigate the motion to dismiss, then to do a few things, and then decided that he wasn’t interested in the case anymore and stopped participating.

Preet Bharara:

But in what universe does that make any rational? One question I have for you is if it doesn’t prejudice, your client to answer, is Rudy Giuliani a rational actor in any sense?

Michael Gottlieb:

In any sense, yes, I think.

Preet Bharara:

Okay. In what sense is Rudy Giuliani a rational actor?

Michael Gottlieb:

Well, I deposed him. He showed up for the deposition.

Preet Bharara:

How’d that go?

Michael Gottlieb:

He answered questions rationally during the deposition. So I think there are certain things that he does and did that are rational. He clearly has a press strategy and an audience that he speaks to. And I think that there is a reason for what he does with that audience. It is, I think, designed to provide a source of income and sustain an image that he believes he’s created for himself. So I think there’s reason behind all that. I don’t think there was a rational strategy to showing up and then defaulting and then showing up again to contest damages at trial.

Preet Bharara:

Not just damages at trial. I wanted to ask you this since I found out you were available to come on the show. During the trial, when he goes out to a podium, he says, “All that stuff I said is totally true,” even though it had already been determined by the judge to not be true. Just as a person that’s a lawyer, what did you mutter or how did you react when you saw the defendant doing that?

Michael Gottlieb:

Well, I had two reactions to it. I think the first of which you understand as a former prosecutor, if you saw the defendant in your case go out and do that, that’s a gift. Right? That’s true. So that’s a gift. And we knew that that was going to get in front of the jury and that was not going to end well for him. But on behalf of my clients, it’s frustrating because there’s been a default judgment in the case. He stipulated to liability before the entry of the default judgment. So he agreed he wasn’t going to contest that the statements were false, that they were made with actual malice, that it caused harm to our clients. He stipulated to those things. So then seeing him out in public undermining that is frustrating because one of the objectives of a defamation case is to restore your client’s reputation-

Preet Bharara:

Stop the harm.

Michael Gottlieb:

Yeah. You want to stop the harm. And you mentioned before that we’ve filed this follow-on lawsuit. One of the reasons we had to file that is to prevent him from continuing to go out and saying these same things because it does cause harm. And you could see in the evidence in the case, the spikes in the threats and the derogatory online comments about our clients that would happen after major events. So every time you have somebody like Rudy Giuliani or Trump or whoever going out and saying things like this about our clients, it does cause them additional harm. So it’s a serious thing that we have to take action against. But it just as far as from a litigation perspective, as soon as he said that, I thought he was done.

Preet Bharara:

Yeah. Could you describe for listeners what the legal strategy was in the damages trial? And what stories you told and how you wanted to convince the jury that they should render such a sizable damages verdict?

Michael Gottlieb:

Yeah. So it was challenging in the sense that we had a default judgment. So liability was established. But to demonstrate, to prove the elements of reputational harm and also punitive damages, we had to get into why the statements about our clients were so harmful, how far they traveled, the fact that Giuliani was repeating them. So a lot of the liability issues that you would think about in a case like this had to come in, but in really abbreviated form. So we only had about three days of trial to fit a fairly long story into… But the idea was to show the jury in very real concrete terms the harm that our clients suffered, and to demonstrate that Giuliani had been a proximate cause of that harm in terms of the timing of what he said and how threats to them followed. But to really let the jury feel and experience those threats.

So we had voicemail messages that Ruby and Shaye received. We had text messages that they had received. We had physical mail that had been sent to Ruby Freeman’s house that had these just grotesque pictures and drawings in them. So we had physical evidence to actually let the jury see what it looked like. And then we had our clients take the stand and testify under oath to tell from their perspective how they had experienced going from completely private unknown civil servants to these infamous face of election fraud, basically overnight. And the jury heard stories of how people came to perform a citizen’s arrest at Shaye Moss’s grandmother’s house. And they heard story about how Shaye… And this is the one that I think got to me the most, but when Shaye testified, she told the story about how when all this happened, it was during COVID and her son was 14 years old, and was at home doing remote school, and he used his mom’s phone as a wifi hotspot type of way of logging into remote school.

And he kept getting kicked off of class because people were calling Shaye’s phone because she got doxxed, and they were calling, making these vile racist, just awful threats. So you just imagine this 14-year-old getting rooted from his classes during COVID because these people are harassing his mom based on just terrible lies. So the strategy was to make that feel and seem real, which it was, I think. And then to convince the jury that the worth of someone’s reputation is not a product of their income bracket, that you measure harm to reputation based on the damage that’s been done, not based on lost business deals or how much-

Preet Bharara:

But also a theory that you pursued, which was to explain to the jury how much it would cost to restore the reputation. Is that a common strategy?

Michael Gottlieb:

That is a strategy that I would say we’ve been working on for a few years. This is not the first case that we worked on that theory with this particular expert, Dr. Ashley Humphreys. There’s one case prior to this that didn’t wind up going to trial, where we had developed that theory and worked with Dr. Humphreys on presenting it. And then she wound up being the testifying expert in the Eugene Carroll case where she used a similar theory of cost of repair. But it’s a simple theory. It’s essentially, imagine that a arsonist comes in and burns down your house. You want to figure out how much damage did the fire do. And one of the ways you figured that out is you ask how much would it cost to rebuild it?

Preet Bharara:

Replace the house, right?

Michael Gottlieb:

That might be a function of the value of the house. But depending on, if you imagine, and we use this example with the jury, if you imagine that not just the house burned down, but they used hazardous chemicals that totally corroded the foundation of the home and made it unlivable such that it was impossible or difficult to repair it in that location, that the cost might be far in excess of whatever the value of the house might’ve been before the fire. So we tried to come up with a straightforward way of explaining the concept of how somebody who wasn’t a millionaire could still suffer tens of millions of Dollars in reputational damage. And I think it stuck.

Preet Bharara:

Can I ask you, that’s another question that I’m not asking you in your capacity as a lawyer, but as a person, did the facts of this case make you angry? What emotions did you experience, if any, in litigating this case on behalf of Ruby and Shaye?

Michael Gottlieb:

Wow. Yeah. Anger-

Preet Bharara:

This isn’t cable news, buddy.

Michael Gottlieb:

I think whatever the full 12 stages are. Anger, rage…

Preet Bharara:

Look, as you described the facts and as I’ve read them. And my first encounter with your clients through the January 6th committee proceedings, I got angry from my seat.

Michael Gottlieb:

Yeah. So there are pieces of it that are heartbreaking and depressing, but heartbreaking for Ruby and Shaye and their family and fill you with rage on behalf of them, but also on behalf of all the other people who worked in Fulton County elections and at State Farm, who are all branded as criminals and crooks. These people were working 16, 18 hour days in the middle of the pandemic to help process votes. So on their behalf just anger and rage and all of those emotions. And then just some amount of frustration and depression over the fact that so many people come to believe things like these USB allegations. When you actually break them down as a litigator, a prosecutor, and you actually think about them in terms of proof, and you realize how absurd they are, how many just logical questions people were not asking, like this alleged USB video that they said were our clients, were passing USBs in order to rig the vote counts the big bump that happened for Biden votes.

It turns out that video that is the source of that alleged passing off of a USB, which was actually a ginger mint, was the day after the election. We didn’t even get into any of this stuff in the trial. But, so there’s this frustration with how easily people can come to believe some of this. But then I would tell you emotionally it was uplifting and hopeful at the end of the trial. That even before the verdict, it was uplifting seeing the power that the justice system, seeing the inversion of power of Ruby and Shaye testifying under oath on the stand, telling their truth and establishing a clear, unimpeachable historical record about what happened, and that was uplifting.

Preet Bharara:

The story of indication?

Michael Gottlieb:

Absolutely.

Preet Bharara:

So the question I’ve gotten most frequently with respect to your clients in particular since the judgment of $148 million by the jury, is how do they get it? Because Giuliani doesn’t have $148 million. How does that process work, if you can say, and how much might they ultimately see?

Michael Gottlieb:

So to answer the question’s a little different now than it was the day after the judgment because Mr. Giuliani filed for bankruptcy.

Preet Bharara:

But he can’t discharge this debt, right?

Michael Gottlieb:

That’s right. So we believe, although this hasn’t been litigated yet, but we believe this debt is not dischargeable. But what happens once somebody files for chapter one bankruptcy is the other litigation that exists out that is related to the bankruptcy, all gets stayed. So for example, our additional suit that we filed seeking injunctive relief is stayed at this point. But there’ll be a bankruptcy process. Our clients will be involved to some extent in that and will seek to recover from whatever distribution is made. And there is a path for this. This isn’t unprecedented. So in the Alex Jones case, the Sandy Hook families have this very large judgment against him, and he’s filed for bankruptcy, and the families are pursuing relief against him. And so there’s a playbook to follow for Ruby and Shaye, but also some of the other creditors of Mr. Giuliani.

So it won’t be an easy process, and I’m not going to… No one should think that they’re going to recover $148 million through it, certainly. But there is money for them to recover through that process. And then they have an ongoing lawsuit against The Gateway Pundit and its founder in Missouri, and there are other people who continue to defame them. And our clients are willing to continue taking this fight to the people that want to bring it to them. I should mention, this case, it’s not a Michael Gottlieb case or a Willkie Farr case. This is a case that we brought in partnership with the amazing people at Protect Democracy. And the project that they established called Law for Truth and the work that they’re doing is really extraordinary work, that is bipartisan or nonpartisan work designed to protect victims of disinformation, along with our co-counsel [inaudible 00:24:05] De Bose Miller. So I would commend folks who want to learn more about this to check out the work that the good people at Law for Truth and United to Protect Democracy are doing.

Preet Bharara:

You keep at it, my friend. Congratulations on all this very important work, not just for your particular clients, but for lots of other folks who hopefully will not be defamed and attacked in this way, in the way that they were. So I’m very proud of your work. It’s great and important work. Thanks so much, Michael Gottlieb. For more analysis of legal and political issues making the headlines become a member of the CAFE Insider. Members get access to exclusive content, including the weekly podcast I host with former U.S. Attorney, Joyce Vance. Head to cafe.com/insider to sign up for a trial. That’s cafe.com/insider.

If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me at Preet Bharara with the hashtag #AskPreet. You can also now reach me on Threads. Or you can call and leave me a message at 669-247-7338. That’s 669-24-Preet. Or you can send an email to letters@cafe.com. Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The editorial producer is Noa Azulai. And the CAFE team is Matthew Billy, David Kurlander, Jake Kaplan, Nat Weiner, and Claudia Hernández. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay tuned.