The travesty verdict against Rudy Giuliani and the left’s lawfare against lawyers

A mother and daughter duo sued Rudy Giuliani in Georgia, alleging that he had defamed them in connection with the Fulton County vote count. They just received a $148,000,000 verdict (and yes, that’s the right number of zeroes). But all is not as it seems, and the story is a reminder of the multi-level lawfare being practiced against conservatives, especially Trump supporters.

The headlines are screamers: The jury awarded one plaintiff $16,171,000 in compensatory damages and the other $16,998,000 in compensatory damages. In addition, the jury ordered that Giuliani pay each plaintiff $20,000,000 for intentional infliction of emotional distress and pay an additional $75,000,000 to both as punitive damages. The grand total is $148,169,000. These verdicts aren’t meant to punish someone; they are meant to destroy him.

But as I said, all is not as it seems. You see, Giuliani’s case was never actually tried before a jury. No jury saw the videos of the plaintiffs or even heard their or Giuliani’s testimony before, during, or after a full trial.

Instead, Judge Beryl Howell, an Obama appointee, sanctioned Giuliani for failing to produce documents…and she used the harshest sanction available to a judge, which is an automatic verdict against the party who failed in his or her discovery obligations. What this means is that the only thing “tried” was the plaintiffs’ claims about their suffering due to the wrongdoing that Howell mandated had taken place.

In thirty years of practicing law, I never saw a judge apply that sanction, no matter how egregious a party’s conduct was. Judges (rightly) will do anything to avoid having a party to a case lose the chance to have due process determine who should prevail.

But here’s something even worse. It turns out that Giuliani couldn’t comply with significant parts (or all?) of the discovery request because the material demanded wasn’t in his care, custody, or control (those are legal terms of art). And why wasn’t it in his care, custody, or control? Because the FBI confiscated much of it.

The fact that Giuliani never had his case actually tried also means that all the recent headlines about Giuliani refusing to testify in his trial (see here and here, for example) are misleading. They imply that Giuliani refused to testify in his own defense on the substantive charges. In fact, he was already barred from doing so. All that he could do would be to sit in court and listen to the plaintiffs explain why they were entitled to almost $150,000,000 in damages.

Giuliani also said that he was having a hard time paying his attorneys, which affected his ability to respond to discovery, and that possibility leads to a different issue. There is a possibility that his attorneys messed up. I am not saying that they did. It’s just something that can happen.

The point about attorneys messing up is an important one because attorneys matter tremendously. The average person cannot navigate through the judicial system without help. It’s simply too complicated. Moreover, as my Criminal Law professor said, when students asked him why someone who is even obviously guilty deserves an attorney, no one should have to face the awesome power of the government without a friend at his side.

Shakespeare understood how important lawyers are. People love quoting the line from Henry VI, Part 2, in which he wrote “The first thing we do, let’s kill all the lawyers.” However, the line was spoken by one of Shakespeare’s villains, who viewed lawyers as a bulwark of law and order, something he wished to destroy.

Bad lawyers are a plague. Good lawyers are the first line of defense in a stable, sane, functional society. And that brings me to a less visible side of the lawfare Democrats and other leftists are waging against conservatives, and that’s the war on lawyers.

In Georgia, the Fulton County D.A., Fani Willis, indicted Trump’s attorneys for daring to make legal arguments that there was election fraud. One of them, John Eastman, was also subject to FBI, DOJ, and congressional investigations, criminally referred to the DOJ, became the subject of a California State Bar investigation, and lost his job. In Arizona, Kari Lake’s attorneys face “discipline” for supporting her election challenges.

Lawyers are trained to make the most aggressive arguments possible to support their clients’ cases. If their arguments are bad, they lose. However, if their arguments are colorable—if there is a coherent legal argument that can be made on the facts—that should be where it ends.

But as Shakespeare’s villain understood, when you want to overthrow the government, “First thing we do, let’s kill all the lawyers.” And in modern America, killing lawyers means subjecting them to professional, economic, and even criminal sanctions.

Democrats have effectively weaponized January 6, and this kind of lawfare will not stop unless it is turned against them. Conservatives don’t like to sue and prosecute. They should start learning how.