Courts & Litigation Democracy & Elections

The Lawfare Podcast: Michael Gottlieb on that Giant Judgment Against Rudy Giuliani

Benjamin Wittes, Michael J. Gottlieb, Jen Patja
Tuesday, January 9, 2024, 8:00 AM
How was defamation law used to fight disinformation and the "Big Lie?"

Published by The Lawfare Institute
in Cooperation With

Michael J. Gottlieb is a litigation partner at the Willkie law firm. He is a long-time national security lawyer, served in Barack Obama's White House Counsel's office, and used to be the civilian lead on a task force that built rule of law institutions in Afghanistan.

Late last year, he won a $148 million dollar judgment against Rudy Giuliani on behalf of election workers Shaye Moss and Ruby Freeman. He joined Lawfare Editor-in-Chief Benjamin Wittes to talk about the case, how he and the advocacy group Protect Democracy teamed up to use defamation law to fight disinformation and the Big Lie, what the use of defamation in this way can and cannot be expected to do, and how he went from building rule of law institutions in Afghanistan to representing people who have had their lives turned upside down by a toxic media ecosystem. 


Click the button below to view a transcript of this podcast. Please note that the transcript was auto-generated and may contain errors.




Michael Gottlieb: Anyone who heard some of the threats that they had to live with and have continued to have to live with for more than three years now, anybody who listened to any of that material that we played in court or read about any of it, I think knows it's going to take time to repair what they've been through.

But we hope that what happened in December is a really good first step down that path. 

Benjamin Wittes: I'm Benjamin Wittes and this is the Lawfare Podcast. January 9th, 2024. Michael J. Gottlieb is a litigation partner at the Willkie Law Firm. He is a longtime national security lawyer. He served in Barack Obama's White House Counsel's Office and he used to be the civilian lead on a task force that built rule of law institutions in Afghanistan.

He's had a bit of a career change recently. Late last year, he won a 148 million dollar judgment against Rudy Giuliani on behalf of election workers Shaye Moss and Ruby Freeman. He joined me in the Virtual Jungle studio to talk about the case, how he and the advocacy group Protect Democracy teamed up to use defamation law to fight disinformation and the big lie, what the use of defamation in this way can and cannot be expected to do, and how he went from building rule of law institutions in Afghanistan to representing people who have had their lives turned upside down by a toxic media ecosystem. It's the Lawfare Podcast, January 9th. Michael Gottlieb on that giant judgment against Rudy Giuliani.

So I want to start with the question of how you came to be involved. Everybody's starting with the judgment, which is admittedly dramatic, but how did you end up getting involved in the idea of suing Rudy Giuliani on behalf of Ruby Freeman and Shaye Moss? 

Michael Gottlieb: So this case was when we brought in partnership with our friends over at Protect Democracy, and a project that they established not long before we brought this case called Law for Truth.

Uh, that project was uh, one that we had been discussing with people like Ian Bassin and others at Protect Democracy for some time. And it was a project that, um, really came out of our, in part, anyway, out of our experience in representing Seth Rich's family in some similar litigation a few years ago, where Seth Rich had been accused of, uh, being responsible for the stealing and, and, and, you know, theft of documents from the DNC and providing them to WikiLeaks. 

Benjamin Wittes: And reminder to listeners, Seth Rich was the DNC staffer who was, uh, murdered, uh, in a crime in D. C. unrelated to any political, uh, matters, uh, and became the subject of an enormous volume of conspiracy theorizing.

Michael Gottlieb: Exactly. So we had, uh, represented his family and, and actually I had represented James Alefantis and Comet Ping Pong before that, during when they were being attacked as, uh, running a child sex trafficking scheme out of the basement that does not exist. So, uh, so I had been doing work similar to this for a while and Protect Democracy, I think, you know, thankfully decided to stand up this project, Law for Truth, to take cases like this.

And they, uh, got in touch with, uh, a lawyer who was representing Ruby Freeman and Shaye Moss down in Atlanta uh, interested in bringing some litigation. And so, uh, we just before Christmas of 2021 got together and put a complaint together and sued a number of individuals, not just Rudy Giuliani, but sued some others in the lawsuit that, that wound up being just against Rudy Giuliani in the case that we took to trial in December.

Benjamin Wittes: Right. So, let me pause a minute, first of all, for a disclosure, which is that, uh, Protect Democracy, in its other iterations and projects, does a lot of work, or has done a lot of work with Lawfare, including representing us in any number of matters, and, uh, we have had exactly zero involvement in this matter.

Uh, and as the council who represented Ruby Freeman and Shaye Moss, Mike can actually verify that, that we have zero involvement in this matter. 

Michael Gottlieb: I can verify that, and you and I have not talked about this matter previously. 

Benjamin Wittes: Right, although we are old friends and I actually want to explore an aspect of your past in relation to this case, which is because it interestingly tracks, uh, some Lawfare background in this space, which is, uh, you're an old national security law hand and, uh, I think I first got to know you when you were the Deputy--you were the civilian lead on a project of the U. S. military in Afghanistan building rule of law institutions around Afghanistan under General Martins. You know, somehow you've drifted into this space of representing election workers who've been defamed by the Trump campaign or, or its operatives. And somehow that seems to me related conceptually to the way Lawfare, which used to do things exclusively, like, writing about people who were building rule of law institutions in Afghanistan, uh, now we spend a lot of time thinking about Trump litigation, and so there's some relationship between your professional trajectory and the stuff that we do here, and I'm just interested in sort of your personal story about it, uh, how did you go from being a national security lawyer in, in, in the sort of hardcore sense of the word to being a, uh, uh, democracy protection through libel litigation lawyer.

Michael Gottlieb: It's so interesting, Ben. I think you're, you might be the only person that, that can draw, draw that connection, at least in my career. 

Benjamin Wittes: Well, it could, be because it closely tracks the kinda, the development of my own career. And I'm curious whether your answer to the question is similar to the one that I would give if it were asked to me.

Michael Gottlieb: So I have to say that I arrived at it accidentally, in the sense that I was, you know, I was interested in sort of law of democracy and political law in law school. And I worked in, you know, the intersection of politics and law in the White House Counsel's Office and, and I, and I was interested in corruption.

And when I was an AUSA--which I was for a very short time--I was thinking that I would go into public integrity or, you know, sort of corruption related work at that time. And when I did, um, I did some litigation, uh, around the 2016 election. And in that litigation work, I started to notice, sort of, very firshand, the kind of disinformation campaigns that were targeting, uh, polling locations, uh, you know, threats around polling locations and, uh, threats, uh, that would disrupt, uh, just the ordinary functioning of democracy.

And I sort of saw how ordinary people were being thrown into the mix of that, and my sort of distaste for bullies, and my concerns about democracy just sort of converged. And I then, very shortly after that work, started noticing the stuff about Seth Rich, uh, and Pizzagate, which all sort of came out at the same time.

Uh, and, you know, it's following the 2016 election. So I had had this sort of training in anti-corruption and rule of law development work in Afghanistan. I also had the detention side of it, which I don't draw upon much anymore, but, but at least the, you know, anti-corruption and rule of law development work.

I mean, there was a lot of dealing with conspiracy theories, dealing with disinformation, dealing with faith and confidence in institutions. Dealing with, you know, the, the trying to ascertain objective fact and fluid situations. And so I think a lot of the same things I was concerned about when we were working in 435 in Afghanistan applied in a, in a different way, definitely.

Uh, but in a way that hit home, uh, much, that really hit home when you're talking about, you know, a local pizza restaurant on Connecticut Avenue or a kid from Nebraska. Seth Rich was a, uh, you know, a Jewish kid from Nebraska--I'm from Kansas--um, that moved to D. C. to work in politics and, you know, then, uh, we all know what happened to him.

But, but when I started to see the effect of this had, had on Comet, on Seth Rich, um, that just struck me in a way--it was more meaningful to me personally than some of the sort of abstract national security concepts that I've been working on previously. And I thought here is a place where I can use my legal training and can use the law to actually help defend some of these people who are being made victims of bullies in a way that's harming our democratic system. So I, I, I was attracted to these cases from the outset for that reason.

Benjamin Wittes: Super interesting, and actually not the answer I was expecting, um--

Michael Gottlieb: What were you expecting? 

Benjamin Wittes: I was expecting you to say, because we all project our own experiences onto others, and since our experience, our, our trajectory is sort of similar here, I was expecting the rationale for it to be similar. I was expecting you to say, hey look, I was over in Afghanistan trying to build up rule of law institutions to prevent the Taliban and al-Qaeda from having a a, a meaningful longterm base there for purposes of, you know, attacking America. And, uh, they've never been able to pull off anything like what, you know, in terms of damage to American society and democracy, they've never been able to pull off anything like what we are now experiencing at the hands of a domestic political actors.

And so the same set of concerns that caused me to go into thinking about the law of dealing with foreign threats now has me, uh, thinking about democracy protection and for very much the same reason. And that's my, you know, that's, that's my answer. So I assumed that would be your answer. Your answer is actually, uh, much more, uh, grounded in, uh, the experience of real people and, and it's, it's much more interestingly client-driven, whether the client is my neighborhood pizza place, which I go to regularly, uh, and doesn't have a basement, I've looked, uh, or whether it's, you know, Seth Rich's family, or in this case, uh, Ruby Freeman and Shaye Moss. 

Michael Gottlieb: I could, I could tell you very briefly that, you know, that the Justice for whom I clerked, who, um, I believe to have been the greatest Justice, uh, John Paul Stevens, really believed in the human, the human aspect of the law and the, and the individual people touched by cases and, and, uh, um, ingrained that in us, in our training.

So the way I view the laws is, is similar in thinking about how, you know, in, in cases that we read and, and study, um, the individuals that are touched by them. So that, that's, that's always, uh, at least for some time now, been how I, how I think about the law and my placement. 

Benjamin Wittes: So let's talk about the people touched by the law.

Um, I think there is a reason why the names Ruby Freeman and Shaye Moss, even among people who are not especially obsessed with January 6th and accountability and sort of the post, uh, election period. Those names are are not ethereal. They're, they're, they're real people to, to a lot of people. And I think that has everything to do with their testimony at the January 6th committee.

So, let me start with, for those for whom the names do not immediately evoke, uh, the image of the January 6th hearings, who are they and, uh, how are they doing right now? 

Michael Gottlieb: Yeah, so, you know, Ruby Freeman is Shaye Moss's mother. They are lifelong residents of Georgia--Atlanta, Georgia area. They both spent time, you know, working as civil servants.

Um, uh, Shaye Moss essentially spent her entire career after leaving college, working in Fulton County elections, starting in the mailroom, um, and then working in absentee ballot processing. And then her mom volunteered to help, uh, sort of, uh, work in a part time position during the 2020 election, which of course, was in the midst of COVID.

Uh, so you had this unprecedented amount of voting by mail and absentee voting and the election offices all across the country. But, you know, in Fulton County as well, we're just crushed, uh, with the volume of, uh, mail-in ballots and absentee ballots. So they are the heroes that make our democracy work, right?

They are civil servants, uh, usually, and for most of our history working out of the limelight for very little pay. And, uh, so, so that's, that's who Shay, uh, Moss and, and Ruby Freeman are. They, you know, got into this whole story, uh, because of some, a series of lies that were told. About the two of them chiefly, uh, but also other people who were working at State Farm Arena in Fulton County on election night, uh, when, uh, essentially a videotape--there were cameras running, uh, constantly in, at State Farm Arena where ballots were being processed.

And when a videotape of that sort of selected portions of it were released during a legislative hearing uh, in Georgia, where, uh, the Trump legal team led by Rudy Giuliani were protesting the results of the election. That's sort of what started the disinformation and, um, the social media platforms that Trump had at the time, and, uh, Rudy Giuliani had access to through, through the Trump campaign, through the president himself, through others, sort of rocketed those lies about, um, Ruby Freeman and Shaye Moss to hundreds of millions of, of people. 

Benjamin Wittes: So I want to, I want to ask, you know, there were a lot of people and I was one of, who watched those hearings who reacted with a really intense sense that race was playing an overwhelming role in the attacks on them.

That is, the way Rudy Giuliani talked about them, the way they were talked about on Fox News. You know, he kept using the word, if memory serves, the word "hustler" to describe them. There was an implication that when one of them, I forget which, passed a, uh, a ginger mint to the other, that this was being passed like a vial of cocaine.

And the implication was that it was a USB, or the statement was that it was a USB drive with votes on it. Does what happened to them happen if they had worked in a suburban county, uh, and been white? Or was, or was this, in your estimation this was basically a bunch of white people singled out a urban black jurisdiction with a bunch of black election workers who hadn't done anything wrong, but there was a, there was a cultural resonance, uh, among the constituents of the speakers that these were people you could lay something on.

Michael Gottlieb: So that's certainly what our clients testified to at trial under oath. Um, so, you know, one of the things that Ms. Moss testified about was the thing that she had the hardest time wrapping her head around was. the assumption that everyone who was there working in State Farm Arena was a Democrat, right? It was just the, the assumption that, of course, all of these black people in this location in Atlanta, uh, were Democrats who wanted Joe Biden to win and wanted Donald Trump to lose.

And so of course they would be involved in trying to steal the election. It's an interesting question, whether, I mean, hypothetically or counterfactually, if you think about if this had been a exact same video polling location in a sort of exurban, uh, mostly white part of Georgia, you know, would you have had even remotely the same kind of reaction to the, these video clips, which really, when you watch them and you listen to Georgia state election officials explanations of them, you understand there's really nothing irregular or unusual about what you see on these tapes.

It's only if, if they're sort of, you know, put up on a screen by people who don't understand what is happening, uh, and then, uh, lies are told about what's happening on the tape that you think anything wrong is happening in them. I don't know the answer to that question. You know, I think there, there are, I think there are complex historical narratives layered in there. There's a distrust, of course, by many Republicans and especially Rudy Giuliani personally has a distrust of the way that urban cities count votes. I mean, he had, uh, I was refreshed on this as we prepared for trial, but, you know, he has long complained that he lost his first mayoral election in New York, uh, as a result of, um, the Dinkins team essentially, uh, you know, rigging the vote count in mostly black neighborhoods and, uh, in parts of New York. So, uh, there's a long history there for him that is, part of it may be influenced by race. Part of it may be influenced by this conflation of Democrats in urban areas as inherent cheaters in elections.

Uh, but certainly the references to, you know, passing around vials of cocaine and casing the joint and crooks and criminals, and there's a lot of language in there that I think many people view as coded or veiled references that, that, that do imply pretty gross racial stereotypes.

Benjamin Wittes: I want to say that I think you're being generous, um, in your-- which, you know, like, I, I, I think the Giuliani comments about them, which I had not focused on at the time they were made, because, honestly, there was so much noise that, that, that it really wasn't until the January 6th hearings where, you know, they were played, they were explained--they explained what was actually going on, just how shocking those statements were in their, in their reckless disregard for the truth, um, not that that's the relevant standard about private parties, but even if these were you know, public figures, which they weren't at the time.

Uh, it's just a, a shockingly horrible way to talk about people without evidence. And I think the, one of the reasons their story has been so compelling for a lot of people, including Liz Cheney and is that, you know, they were not people like Brad Raffensperger who ran for office and sort of--not that he asked for what happened to him, but when you run for office, you put yourself in the line of fire and you do it knowingly.

These were just election workers and there's something, there's something about treating just election workers like they are hustlers who are casing the joint and passing around vials of coke that is particularly ugly. 

Michael Gottlieb: I mean, I couldn't agree more with what you just said. One of the things that's so difficult for me to accept about all of this is how easily each little micro step of the lie is to disprove.

Right. And how little work it would have taken for any serious person who was interested in finding out what really happened to do that. Right. So step one of the lie--I'll just give you one example rather than going into it in detail. But, you know, step one of the lie was that Ruby Freeman and Shaye Moss made up a, fabricated a story about a water main break and, and used that to kick out all of the Republican, uh, and, and other, um, poll observers who were there at the time. So they make up a story about a water main break and they kick a bunch of people out. So every aspect of that is wrong. Like they, they, they never made up a story about a water main break. There, there actually was a water leak earlier in the day, but that had nothing to do with what happened that night on election night.

Um, and the observers were not kicked out. They left. And if anyone would have bothered to ask the Republican election observers, who were there--who we found and we deposed in the case--if anybody would have bothered to ask them the question, were you kicked out of State Farm Arena on election night?

They would have said, "no, we weren't kicked out. We left." And, and the story, you know, there's 15 other steps after that. And each one is the same. When you dig into any one of the steps, it's very, very easy to find an eyewitness or a record or a clip in the videotape at a precise time that shows you why what they're saying is wrong.

And it was remarkable that they lied about this--that Giuliani and his whole team lied about this at the time, is mind-boggling that they continue to lie about it today. Notwithstanding that all of this evidence has been put out into the public record. 

Benjamin Wittes: Yeah, so let's, let's talk about that. For those who, uh, may be aware of the magnitude of the judgment, but who didn't follow the minutia of the case, just give us a little overview of the case as it progressed.

You, you filed a, a, a libel suit against Giuliani and a bunch of others, and the case against Giuliani alone went to trial in December. Uh, how did it get severed from the rest of the case, uh, and end up in trial in, in December? 

Michael Gottlieb: Yeah. So, um, uh, try to do this as briefly as possible because it's a lot of procedure, but there were two lawsuits that were initially filed.

One was against the Gateway Pundit and its founder in Missouri, and that case continues to this day. Our case was filed here in D. C., and that was against Rudy Giuliani, One America News, and then a number of individuals associated with One America News. The One America News part of the case settled out, and that left Giuliani alone in the D. C. case. He litigated the case for a while, actively. He filed a motion to dismiss, he showed up, he did the things that people who are going to litigate a case do. And then at some point during discovery, he sort of decided he was done participating. He wasn't interested in following the Court's orders. And by the Court's orders, what I mean is we had to go and get orders requiring him to produce documents to us because he was refusing to produce documents to us.

So we had to go into court and file these long motions, spend a ton of time, um, then get orders saying, yes, in fact, you need to produce these documents to them. We had to do that with a bunch of third parties too, like Bernie Kerik and Jenna Ellis and others. Once those orders came out, Giuliani essentially decided, rather than actually going back and doing all that stuff, I'm just going to stipulate to liability.

In other words, I'm going to agree that I'm not going to contest that I am liable for defamation, for intentional infliction of emotional distress and conspiracy. I'm going to let the Court enter judgment against me for those things, and I'll just, you know, we'll have a hearing or a trial on, on damages.

So that's how we got where we were. The Court entered that judgment. We went to a trial on damages. And then the irony of all that is that after the trial didn't, on damages, didn't go the way that he wanted it to go, he then went out in public and started saying how unfair it was that the Court had entered judgment on liability and not allowed him to present his case, which is, you know, ironic since he stipulated the liability and that was his strategy to get out of having to produce documents.

Benjamin Wittes: So the magnitude of the judgment. It was 149 million dollars and it was entered remarkably quickly, which means that the, the jury, I, you know--I don't want to make up their deliberations--but it means there was not a dispute among them that took time to resolve that this was really, really, really bad on his part, and malicious.

Michael Gottlieb: Well, one piece of that, one piece of that's not quite right. So, the trial was essentially three days long. And the jury did take some time to deliberate. We finished the case on, we finished the case on a Thursday, in the morning, I think, or around around lunchtime, uh, and then the jury didn't come back with the verdict until the end of the day on Friday.

So they did, they did spend some time talking about it and thinking about it. 

Benjamin Wittes: So it's like a day and a half, 

Michael Gottlieb: I think. Yeah, I think they were--I think it was probably about 1 sort of full working day that they were, that they were deliberating. 

Benjamin Wittes: I guess that, that counts as fast by my book, but um, if you consider dollars, dollars awarded per minute of deliberation, it's, it's a, it's a--

Michael Gottlieb: --I just mean, I just mean in comparison, if you think about how long the trial lasted, the jury was-- 

Benjamin Wittes: I see. Yeah, no. Fair point. So, I guess a lot of listeners are saying, yeah, but how much, given that he's bankrupt, they're never going to see any of this money. First of all, does he have assets that are attachable for this purpose? Uh, especially considering that he's in bankruptcy. And secondly, uh, what is the value of a judgment like this if you can't collect on it in substantial part?

Michael Gottlieb: Can I start with the second question first? 

Benjamin Wittes: Please. 

Michael Gottlieb: That's what matters. So, um, this case is not a case that we brought to make Ruby Freeman and Shaye Moss rich. Yes, we very much want them to be compensated. They want to be compensated. But they never thought that, you know, one lawsuit against Rudy Giuliani was all they were going to have to do to be fairly compensated for what happened to them, and they have other litigation ongoing.

I think the significance of the verdict, and the size of the verdict, is not tied to how, what percentage of it they will collect. The significance of the verdict is tied to the message that it will send to others out there that have platforms like Rudy Giuliani had and like, um, his co conspirator, former president Trump had, and the message that it sends to them is that when you have a platform that reaches 88 million, 100 million people and you tell just obvious lies and falsehoods about civil servants, uh, people who are out just doing their jobs, uh, because it's convenient for you to do it because you think you're going to get away with it. You could get hit with a pretty steep judgment for doing that.

And there are people willing to take up that fight. So to me, the significance of the size of the judgment starts with that. It starts with the message that it sends and that that is reflected in the jury's--not just in the jury's, you know, evaluation of what the reputational damages were worth, right? So there was 16, 17 million dollars each in reputational damages alone, uh, which reflects that the reputational worth of these civil servants is not tied to their income bracket or whether they were, you know, had some multi-million dollar deal that they lost, but rather the harm that was done to them.

So to me, that's where it starts. Now to answer the, you know, the question about bankruptcy, this isn't the first time that someone has tried to get out of a judgment like this through bankruptcy. Alex Jones has been trying to do this with the Sandy Hook families, uh for some time and some of my colleagues at Willkie Farr have been working with the, uh, in that bankruptcy proceeding to help, uh, collect and recover for the Sandy Hook families.

So there is a playbook and precedent, uh, for us to follow in pursuing, uh, Giuliani's assets. He does have assets, you know, he doesn't have 148 million dollars in assets, but he does have assets. And, um, you know, our view is that this type of a, uh, debt is not dischargeable in bankruptcy, meaning it's not the kind of debt that can be kind of wiped clean by the bankruptcy process because it involves intentional or willful conduct and, you know, really, really, essentially really, really bad acts of the kind that you can't just wipe off the slate by declaring it bankruptcy. 

Benjamin Wittes: It's not just regular debt. 

Michael Gottlieb: Right. It's, uh, it's what, it's what my bankruptcy colleagues would refer to as non-dischargeable. So it, you can't just wipe it off the slate, um, by filing for bankruptcy. So we do feel confident that, you know, it'll take a long time and it will be a lot of work, but we do feel confident that they will recover, you know, meaningful amounts of money out of this judgment.

And then, like I said, they continue to have other litigation pending, and if people out there want to keep defaming them, you know, I got time, Ben. 

Benjamin Wittes: Yeah, so let's, let's talk about that, and I want to ask a series of questions about the former President in relation to these guys. The first is, has Donald Trump ever said anything about Ruby Freeman and Shaye Moss?

Michael Gottlieb: He's said a lot about Ruby Freeman and Shaye Moss. Uh, especially Ruby Freeman, uh, the most famous, uh, statement of which was an issue in our case. It was his, uh, call to Brad Raffensperger on January 2nd of 2021, where he, uh, that leaked famous sort of hour-plus call that was widely reported on and he mentioned Ruby Freeman's name 18 times in that call. So he has. 

Benjamin Wittes: So he was President at the time, which means he has a claim of immunity that is, if applicable, absolute. But while you were litigating this case, the DC Circuit rather conveniently handed down an interpretation of Nixon v. Fitzgerald, the immunity case that says, hey, if you're acting in your capacity as a candidate, not if you're acting in your capacity as President, you don't benefit from Nixon v. Fitzgerald immunity. Uh, and one of the examples that they, uh, use in this case is a, uh, a series of issues, uh, that I mean, the specifics of the case are about the speech on January 6th, but there's a very clear line that the court in an ideologically divided panel, by the way, draws between conduct in your capacity as President and conduct in your capacity as seeking the office of President.

And so my, my second question is, is Trump vulnerable to a lawsuit similar to the Giuliani lawsuit in light of the DC Circuit's opinion in Blassingame in a way that was not true in 2021 when you brought that litigation. 

Michael Gottlieb: Yeah. Um, I mean, obviously the law has, has developed since we first filed this litigation.

The former President has also said things about Ruby Freeman and Shaye Moss since leaving office. 

Benjamin Wittes: That was going to be my next question. 

Michael Gottlieb: So I mean, without getting into, you know, what decisions, um, our clients might make about, you know, who to sue in the future, which is obviously their decision, uh, to make. I don't, I don't know what decisions they would make, and if I did, and if I did, and if I did-- 

Benjamin Wittes: I'm not, I'm not asking you for information you don't know the answer to and would be privileged if you did.

Michael Gottlieb: There you go. 

So, um, without saying that, I can certainly say the same kinds of claims and theories brought against Rudy Giuliani successfully in this case could be brought against Donald Trump, could be brought against others. And I think, you know, one would hope that the message that would be sent by this case would make people think twice before they repeat those statements again, but, uh, one never knows.

And I saw, I saw today that, um, our clients were mentioned in a speech that, uh, President Biden gave. And if history is any indication, that means there will be people out criticizing things he said in that speech. And, uh, I, I hope, uh, whether it's the former President or others in his orbit, that they are wise enough to not, uh, start defaming or character-assassinating our clients again, but, but if they do, we will be watching and, uh, ready to take action if, uh, if it's appropriate to do so. 

Benjamin Wittes: So there is another outfit that you have been--that so far have not filed anything against. While you did sue One America News Network, you did not sue Fox News.

And in the years of that this litigation has been pending, of course, Fox News had settled a lawsuit by Dominion Voting Systems for nearly a billion dollars or three quarters of a billion dollars. Dominion Voting Systems is a very sympathetic plaintiff. It is nowhere near as sympathetic plaintiff as your clients.

And so I'm interested in the question of why Fox got a pass at the time and whether I should, without asking you about your plans, whether I should think of that as a, as a tactical decision or whether, uh, they are differently situated in a meaningful sense with respect to the conduct of, uh, defamation against your clients than One America and other actors.

Michael Gottlieb: So, uh, it's a good question. I think the easiest answer to it is that they weren't involved. In, um, the kind of defamation that Rudy Giuliani and, uh, One American News and the Gateway Pundit were. And I very strongly believe in the First Amendment principles that stand behind things like the opinion doctrine and the media shield and reporter's privilege.

Um, I do not think that the right answer to disinformation is to sue any news organization that runs a story that repeats a potentially defamatory comment that somebody else may have made. I think it matters if people are reporting or commenting on issues that are in the public interest. And, you know, there's a long body of case law around things like the opinion doctrine that I think are really important, uh, to having a free press and having vital exchange of, you know, issues that, that allow us to have a democracy, uh, the democracy that we have. So when we thought about bringing cases, we had those principles in mind. And we weren't just going to go out and sue anyone that sort of might have, um, you know, played, for example, uh, you know--a ton of news organizations published Trump's call with Brad Raffensperger, right? Like, uh, uh, many news organizations put that up on their website or played that on the evening news or whatever defaming Ruby Freeman. But suing an organization or a publisher, uh, for putting that online or putting that in the news broadcast has, you know-- while that might result in a potentially huge damages number, that's, that's doesn't seem to me or the people I work with anyway, to, to be a good thing to do, uh, for democracy, uh, nor does it seem to be really fair, uh, from the, you know, standpoint of who is responsible for really disseminating this material and spreading it widely around. So, you know, those are some of the principles we were thinking about, Ben, and-- 

Benjamin Wittes: Yeah, so that's, that's really interesting.

So what, what you're saying is that, you know, Fox News may have had some, some commentators who said all kinds of, expressed all kinds of, opinions and they may have aired the information, uh, that Giuliani was making these allegations or played the tape that Trump was, uh,--in which Trump made the allegations that he made, but they weren't promulgating the allegations themselves the way Gateway Pundit and One America News were doing.

Is that, is that a decent summary? 

Michael Gottlieb: I think Giuliani wasn't even appearing on Fox News by the time, you know, by mid December of 2020. I don't even, you know, when sort of the relevant defamatory statements in our case began. I don't even think that, I think by that time he had been--

Benjamin Wittes: They were too squishy for-- . 

Michael Gottlieb: I think he had been banned from Fox News or his appearances have been discontinued by that point in time.

So I don't actually think they were repeating the false allegations, the specific false allegations about Ruby Freeman and Shaye Moss by December of 2020. I think they were clearly saying things about fraud in Georgia and things about Dominion and, you know, lots of things that Fox News was saying, but, uh, to my knowledge anyway, I don't think we know of fox News reports that, uh, we're making these kinds of false allegations about Ruby Freeman and Shaye Moss. Uh, you know, certainly, certainly that the, the call, um, that, uh, the Trump-Raffensperger call appeared all over the internet, as I said. And that's where the sort of thinking about the First Amendment values come in.

Benjamin Wittes: Right. So, you, you just drew an incredibly important gradation, both from, a legal targeting point of view. What kind of news outfits can you, would you go after and under what circumstances, but also from a, you know, a disinformation control perspective, right? Like there's a limit to the strategy that you're pursuing.

And, uh, the limit is it can deal, it can disincentivize OAN against the most extreme things that it's gonna do. But, you know, unless you're Dominion Voting Systems, it's not gonna be the mechanism by which you restrain Fox News from publishing all kinds of stuff. And so my question is when you and the Protect Democracy people--and I do want to stress that we have no involvement in this project at Protect Democracy--when you guys strategize about what you can do with this strategy of using libel law, offensive libel law, as a means of protecting against the intentional flood of disinformation.

What, what are the things that you think that strategy can accomplish, and what are the things that you think we're going to have to use other tools to address? 

Michael Gottlieb: It's a great question, Ben. There is, this is not a panacea. It is a limited tool. It is a limited tool, and this connects back to the conversation that we had earlier about how I got into this.

It's a tool that protects individuals. It is a tool that can be really effective at protecting individuals from bullies, basically. What it can't do is it can't stop the spread of disinformation in political discourse or policy debate. It's not designed to do that. The Constitution doesn't allow it to do that.

We're not trying to bring these cases to achieve that objective because it's just not, that's just not possible. So you can go back to Pizzagate, Seth Rich, um, The Big Lie, for each of those the role that defamation or libel plays is protecting individuals who are sort of scapegoated and brought in and just, you know, railroaded because it's convenient to make these sort of powerless people part of a narrative that is more compelling for television and more compelling for social media.

And so in that sense, there's power in it, right? It says, no, we're not going to let you do that. We're not going to let you, you know, discourage people from volunteering as civil servants. We're not going to allow you to have more power to your story by giving it this compelling narrative about this individual in the story. You're going to have to make your arguments about policy and you're going to have to make your arguments about things like the vote count and election results rather than, you know, scapegoating these shadowy figures who are trying to rig and steal everything. But it can't, it can't do everything and it, it's not intended to.

And, you know, I think it would be foolish to try, uh, to use the, the judiciary or the legal system to do that. 

Benjamin Wittes: Yeah, so let me go back and tick off a couple of, uh, things that I think this can't address and see if you agree with me. So if instead of naming Ruby Freeman and Shaye Moss, you had simply talked, to go back to our earlier discussion of the racial overtones of this, about how people in general were casing the joint and trading USB drives as though they were breath mints, or USB drives as though they were vials of cocaine, and stealing votes, but you didn't name anybody and there was no video in which, uh, you showed individuals and their faces--this is not a useful tool, right? It doesn't matter how racist you are, if you're not--if there's no individual who is defamed, you're not going to get very far with this. 

Michael Gottlieb: Right, I mean, both for defamation and for intentional infliction of emotional distress, these are individual, these are torts or wrongs committed against individuals, so.

Uh, that's right. I mean, there, there is a, there is a, this doctrine of defamation by implication, so it, it wouldn't be, I think, a defense if you had a video, just to say, well, I'm not saying who did it, but the general people in this video were criminals. 

Benjamin Wittes: Right. You could not have the video. If you say there's a shadowy, uh, cabal of Jews who's behind, behind all this.

That's not defamatory, right? There's--Jews are too diffuse a category, right? 

Michael Gottlieb: It is not, and it's the kind of statement, for better or worse, that has traditionally been protected by the opinion doctrine. 

Benjamin Wittes: Right. It's not until you name a Jew and make a factually false statement that this is going to be a useful tool.

I could go on and on and on. But I just want, I, I mention it only to amplify your point that this is not a panacea and there's a lot of--oh, and by the way, if you, if you merely make claims of disinfo, highly disinformational claims about inanimate objects, like "the vaccine will cause autism," um, you can't defame a vaccine.

Michael Gottlieb: That, that is right. Although, you know, query whether false statements about a company's product might, uh, might well lead to a trade libel lawsuit, but, uh, but yes, you can't, you can't, you can't defame a vaccine and as we, uh, learned in the Seth Rich case, you also can't defame a dead person. Uh, so when you're dealing with somebody who's deceased, you need to have a more creative legal strategy.

Uh, in that case, the claims relating to the statements about Seth Rich were about intentional infliction of emotional distress of his family, uh, and defamation of his surviving brother. 

Benjamin Wittes: So, just to wrap up, I, you know, I think a lot of people who watched the January 6th hearings and heard really the most heart wrenching testimony of the entire hearings was from the two of them.

How are they doing? Uh, you know, they, they went through an unbelievable hell. How have they emerged on the other end? 

Michael Gottlieb: Uh, you know, their lives have been shattered by this. They've, you know, they've lost their communities and names and identities and jobs, and they've had to sort of start over, but I do think that they are starting to make their way back, not to the same place they were before, but to a different place that can be a good one.

Uh, and I think that the, the trial was really important in terms of, um, vindicating their, their stories and their truths, um, and giving them the opportunity, uh, to tell those. It matters that they took the stand under oath, right? It matters they subjected themselves to cross examination and discovery and did all of that and went and, and, uh, were vindicated by a jury and an accord.

So I think that they are very happy with how this wound up and I think it has helped, but they, they got a long way to go. They still have, uh, they've still got litigation and then beyond the litigation, um, anyone who heard some of the threats that they had to live with and have continued to have to live with for more than three years now.

Anybody who listened to any of that material that we played in court or read about any of it I think knows it's going to take time to repair what they've been through. But we hope that what happened in December is a really good first step down that path. 

Benjamin Wittes: Well, my Twitter feed is been, uh, destroyed by Elon Musk and I've been kicked off of Twitter, but I will just say that, uh, at the time of the January 6th committee hearings, uh, when I saw you sitting in back of them, uh, I tweeted a screenshot of, of that with a note to the effect of--I don't have the exact words because my Twitter account no longer exists.

With a note to the effect that this is, uh, what a lawyer should do. And, uh, I want to leave it there with the note that this is what lawyers should do. And so, uh, you're a great American and, uh, thank you for this work and for joining us today. 

Michael Gottlieb: I really appreciate that, Ben. Thanks. Thanks for the conversation and thanks for having me.

Benjamin Wittes: The Lawfare Podcast is produced in cooperation with the Brookings Institution. Our audio engineer this episode was me. So don't blame any audio flaws you hear on the good folks at Goat Rodeo. Hey! Everybody, you need to do your part to promote the Lawfare Podcast. We don't have a giant publicity arm. We don't have, you know, Hill & Knowlton or anything representing us.

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Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.
Michael J. Gottlieb is a partner in the Litigation Department at the Willkie law firm and is an advisor for the advocacy organization Protect Democracy. He served as Associate White House Counsel for President Obama from 2009-2010, and 2011-2013, and the Deputy Director of Combined Joint Interagency Task Force 435 in Kabul, Afghanistan, from 2010-2011.
Jen Patja is the editor and producer of The Lawfare Podcast and Rational Security. She currently serves as the Co-Executive Director of Virginia Civics, a nonprofit organization that empowers the next generation of leaders in Virginia by promoting constitutional literacy, critical thinking, and civic engagement. She is the former Deputy Director of the Robert H. Smith Center for the Constitution at James Madison's Montpelier and has been a freelance editor for over 20 years.

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