Rudy Giuliani Claims He’s Shooting Blank Documents

Ruby Freeman and her daughter Shaye Moss have, as Beryl Howell invited them to do, moved to compel Rudy Giuliani to comply with discovery in their defamation lawsuit. The two 2020 Georgia election workers sued for the damage caused by the lynch mob Rudy summoned by falsely claiming they were attempting to steal votes after he saw a video showing Moss passing her mother a ginger mint.

The motion and all its exhibits are here.

What seems to be happening is that Rudy, having had his phones seized in 2021 and successfully avoided — thus far — charges for his Ukraine influence-peddling, is deliberately slow-walking discovery here to avoid identifying any devices or records that prosecutors can use in that investigation, the Georgia investigation, or Jack Smith’s January 6 one, all while sustaining a story that is already starting to fall apart.

As described in the motion to compel, Rudy’s non-compliance has included:

  • Refusing to turn over any phone or financial records
  • Refusing to explain what accounts and devices he has included in his searches
  • Failing to search for texts and messaging apps from the phones seized in 2021
  • Providing discovery based on much earlier requests from the January 6 Committee and Dominion’s lawsuit against him, rather than the requests from Freeman’s lawyers
  • Providing documents on Hunter Biden along with one Pentagon City Costco receipt
  • Others — like Bernie Kerik and Christina Bobb — similarly refusing to comply
  • Claiming, then disclaiming, reliance on “unknown GOP operatives” for the false claims made about Freeman
  • Refusing to describe how he became aware of the surveillance footage on which he based his false claims about Freeman and Moss

As a reminder, back on April 21, 2021, DOJ obtained a warrant for around 18 of Rudy’s phones in conjunction with the investigation into Rudy’s Ukrainian influence peddling that Bill Barr had successfully obstructed. By September of that year, DOJ had convinced Judge Paul Oetken to have Special Master Barbara Jones to review all the contents on his phones, not just that pertaining to the Ukraine warrants. Since then, I’ve been arguing that DOJ could — and at this point, almost certainly has — obtained that content for use in the January 6 investigation.

Dominion sued Rudy back in 2021. The January 6 Committee subpoenaed Rudy in January 2022 and interviewed him in May 2022. Those are the discovery requests on which Rudy is attempting to rely in this suit, rather than doing searches specific to the requests made by Freeman’s lawyers.

But after May 2022, Rudy’s exposure in Georgia went up. In addition to Freeman’s lawyers filing their amended complaint on May 10, 2022, Fani Willis convened her grand jury on May 2, 2022, subpoenaed Rudy to testify in June 2022, and he testified in August. It is virtually certain that Rudy gave answers to Willis — at the very least, about what he knew of Trump’s call to Brad Raffensperger on January 2 — that subsequent testimony has since disputed and on which topic he has since amended his interrogatory response.

The materials in this motion reveal that Rudy’s lawyer in this matter (Joe Sibley — who represented Christina Bobb in a J6C deposition that conflicts with Rudy’s answers here, though Robert Costello was present for Rudy’s March deposition) at first promised thousands of documents to Freeman’s lawyers, while claiming that most documents would be unavailable because of the Special Master process tied to the Ukraine investigation. Last July 12, Rudy provided 1,269 documents he had also turned over to Dominion’s much earlier request, which Freeman’s lawyers describe as, “his first and only substantial document production to date.”

Then, on August 3, Robert Costello made a showy announcement that SDNY had ended the Special Master process, which is not the same thing as getting a letter that he’s not a subject of that investigation anymore. Shortly thereafter, Freeman’s attorneys pointed out that the excuse Rudy had been using to limit his discovery in this case was no longer operative. He had the phones that — he claimed — included all his communications from the period during which he had started the conspiracy theories about Freeman.

After that showy announcement from Costello on August 3, things changed dramatically. In September, Sibley told Freeman’s lawyers there were 18,000 documents relevant to discovery in the materials seized from his phone. A month later, he said there were 400. In October, Rudy turned over 177 of those documents, 51 of which were blank. Since then, Sibley seems to have provided answer after answer that amounted to throwing up his hands when describing the state of Rudy’s discovery.

Rudy is quite literally attempting to claim he can only shoot blank documents in hopes of getting through this discovery process.

In his March 2023 deposition, Rudy claimed that the physical phones returned by SDNY — which he says only happened in August — were “wiped out.” What actually seems to have happened is that he hasn’t figured out how to access the content saved to the cloud by discovery vendor TrustPoint, and may not have tried to access the phones themselves, which I believe Costello had publicly claimed to have been returned earlier last year.

But far and away the best way to understand his answers are that, first of all, he and Bobb gave materially inconsistent answers while being represented by Sibley, most notably on the topic of whether they participated in the Brad Raffensperger call, which Bobb said they did and Rudy originally claimed — and presumably claimed to Fani Willis’ grand jury — that they had not.

Just as importantly, Rudy may be aware of both messaging apps and phone accounts that he’s not certain prosecutors in SDNY, Georgia, or DC have identified, so he’s refusing to be forthcoming about all the devices and phone accounts he used. There are probably communications from his phones that Costello successfully claimed were privileged during the SDNY Special Master process, which would be obviously crime-fraud excepted in any proceeding before someone who knows the January 6 investigation well. Prosecutors in both SDNY and DC will be able to tell after a quick review of exhibits included with this motion to compel whether Rudy’s claims about the status of the phone content from TrustPoint are accurate.

And therein lies the risk of the game that Rudy is playing.

This would be an obviously bullshit response before any judge, including Carl Nichols (who is presiding over the much more leisurely Dominion suit against Rudy).

But by luck of the draw, he’s attempting this stunt before Beryl Howell, who even on good days does not suffer fools at all, much less gladly, and who until just a month ago was the Chief Judge presiding over all the grand jury proceedings in DC, including the January 6 investigation. She’s one of just two or three judges who knows whether DOJ asked for and obtained a warrant to get the stuff from Rudy’s phones in SDNY. If they did (and I’d bet a very good deal of money they did), she would have seen an affidavit explaining in what form DC USAO understood that phone content to be, and if they did, she has likely overseen discussions about any further attorney-client protections DOJ had to adhere to. If DC USAO obtained warrants for other cloud content, she might also know about any accounts that Rudy is not disclosing to Freeman, including those whose email and phone accounts Rudy consistently used as a proxy. She likely has a sense of how many phone accounts DOJ has identified for Rudy, none of the call records of which would be subject to attorney-client protection. She may know of other aliases that Rudy used in his assault on the election.

Rudy is pulling this contemptuous stunt in front of the one judge who may know the extent to which he’s bullshitting.

Which may be why, at a few points in Freeman’s Motion to Compel, her attorneys note that they’re only asking for modest relief, basically just leverage to get Rudy to actually answer the questions, as well as attorney fees for their time he has wasted.

But Judge Howell? Well, if she wants to use her discretion to provide expanded relief, Freeman’s lawyers say, they’d be open to that too.

The relief Plaintiffs seek in this Motion is narrow, while recognizing that the Court in its discretion may enter additional forms of relief, including sanctions. Plaintiffs reserve all rights relating to seeking expanded forms of relief in the future.

At this point, there are at least two criminal investigations into Rudy and two civil suits — January 6, Georgia, Dominion, and this suit. Even before reviewing his J6C transcript, it’s easy to identify plenty of ways his evolving answers here, amended in part because of inconsistent testimony given before the J6C, conflict with what he must have answered before the Georgia grand jury, which could start issuing indictments any day.

Juggling all that legal exposure would be difficult for a sober, organized man with little real legal exposure.

For Rudy, though, this insane approach may be, at best, a futile attempt to limit the damage this civil case can do to his criminal exposure.

70 replies
  1. earlofhuntingdon says:

    I love your double entendres. Here, it seems entirely appropriate, regardless of what aspect of Rudy’s life or business one might have in mind.

    • jecojeco says:

      Rudy needs a TLC shirt tuck to take his mind off his legal woes.

      Rudy will have to sell a lot pillows and slippers and have some more UFO specials to pay his lawyers for 4 cases,

    • PieIsDamnGood says:

      That was my reaction too! I have 2, my phone and an old one in a drawer in case it breaks. Is it common for lawyers or journalists to have double digit phones?

      Maybe he misplaced them while drinking and picked up a multi pack from Mint…

      • emptywheel says:

        I think a number are actually things like iPads.

        If someone searched my house they’d find more than 2 phones. I have two active phones, one for US and one for Europe. But in other times I’ve had burners.

        But Rudy is notorious for cycling through phones.

        • Sloth Sloman says:

          The feds didn’t actually have to seize the devices from Rudy, they just stopped at New York Magazine’s lost and found to pick them up.

        • RipNoLonger says:

          Just think of all the butt-dial possibilities! I wonder how many total unknowns got a VM from “America’s Mayor”. Just happened, totally by accident, that several went through to congressmen and others during January 6. Perfect defense.

      • P J Evans says:

        He did seem to forget them a lot in cabs and restaurants.
        (I have one working and two retired that I need to recycle. Those are 3G.)

  2. interrobang says:

    Judge Beryl Howell knows a thing or two that she has picked up in other venues and other cases: how can she bring that into this particular case if it is not presented to her? I am wondering how a judge’s discretion to use that kind of information differs from a jury’s strict direction to only use the information presented to it, and how the law distinguishes between jurist and jury.

    • RipNoLonger says:

      That scene came to my mind also. Of course he was still trying to find “it” and the blue pill hadn’t kicked in yet. Must be a bummer having the girl’s father show up just then….

  3. says:

    “Oh what a tangled web we weave,
    When first we practice to deceive.”

    – Lord Marmian (Sir Walter Scott)
    and convicted double murderer, disbarred S.C. attorney, Alex Murdaugh

  4. boatgeek says:

    Another NAL procedural question. Can a judge make decisions based on information they know separately from the evidence presented in the case before them? Juries definitely can’t, but judges might have different rules. In other words, is it kosher for Howell to say something like “I know there’s a data bank from J6 that you have access to and haven’t released any data from. The plaintiffs and the general public don’t know about it but I do. Now I wield my big red hammer of justice.”

    • earlofhuntingdon says:

      Judges can take “judicial notice” of facts not presented inside the courtroom, but that’s generally limited to well-known events, not information contained in filings from other cases.

    • I Never Lie and am Always Right says:

      Judges are supposed to base their ruling on the evidence in the “record,” presented by the parties to the specific case in which the are issuing their ruling. The judge can take judicial notice of certain facts, but there are specific rules which govern taking judicial notice.

      If, as the result of handling a separate case, a judge has access to secret “grand jury information” which has not been made public due to grand jury secrecy rules, the judge should not be issuing a ruling that reveals secret grand jury information. Nor should they be issuing a ruling based on secret grand jury information in the absence of proper disclosure of that information.

      As an aside, one of most intellectually dishonest things done by the activist reactionaries who now sit on the Supreme Court is to render a decision by ignoring or mischaracterizing evidence that is “in the record.”

      • Rugger_9 says:

        All it would take is for a party to ask for judicial notice in a brief. As long as the situation is relevant (as repeated attempts to obstruct would be here) Judge Howell can refer to it. Rudy has an opportunity to challenge the relevance.

        • bmaz says:

          That is really not quite right. Parties can ask for whatever they have hubris to assert, that very much does not mean a court has to account for it like evidence.

        • earlofhuntingdon says:

          As bmaz says, that’s not quite right. New York’s civil practice law and rules largely mirror the federal rules of civil procedure, regarding admission as evidence of a fact about which a court takes judicial notice.

          Briefly, for a court to take judicial notice of a fact, it must not be subject to reasonable dispute because it is generally known within the court’s territorial jurisdiction, and can be verified from sources whose accuracy cannot reasonably be questioned.

          But, “A judge may not take judicial notice of a fact based
          solely upon the judge’s own personal knowledge.”

          That would cover, say, the height of the Empire State Building. But facts taken from non-public filings in another court proceeding, even with the same court, would not fit that definition.

    • emptywheel says:

      They can’t. Or shouldn’t but sometimes do.

      I think in this case Howell would just use it to judge the seriousness of Rudy’s claims to have met terms of discovery. At this point, he’s so far away, it’s not an issue.

      • Desidero says:

        Is there any difference in restrictions in pre-trial evidentiary & other rules, vs those once the trial has started?

  5. Savage Librarian says:

    Trump: I could stand in the middle of Fifth Avenue and shoot somebody, okay, and I wouldn’t lose any voters, okay?

    Rudy: I could take the stand and meddle with the Fifth, haven’t you?! And shoot some blank annals, okay, and I wouldn’t lose any floaters, okay?

  6. Rugger_9 says:

    One wonders what the end game will be for Rudy if this gambit falls apart on a more fundamental level (post-jail or not). He won’t have his law license, his (undeserved) reputation as ‘America’s Mayor’ will be shot full of holes, and if the RWNM keeps paying out settlements there won’t be enough cash to spare for Rudy. The fact that he’s nuts will help him in the MAGA-verse but I see that pond getting smaller over time as more of them go to jail.

    • Bobster33 says:

      Sir Rudy Giuliani is going to dress up in a knights costume and be a greeter at the Las Vegas casino the Excalibur. It will be all he has left.

    • Critter7 says:

      Rudy’s new career is podcast and radio host, where he can be counted on to amplify whatever are the Republican talking points of the day.

      He has plenty of practice as he was on the air all the time, it seemed, during election attack period of 2020-2021. With all the media he was doing, I can’t figure out the “head of the Trump campaign legal team” as he called himself in the interrogatory that Marcy referenced, had much time for lawyering.

  7. e.a. foster says:

    It is unlikely Guiliani will be working in Vegas at a casino. He is 78 years old. He maybe dragging his feet on things because of his age. If he dies, he can avoid the whole thing.

  8. John Paul Jones says:

    Rudy’s counsel asserts several times that when he got his devices back they had been “wiped.” Is that actually a thing?

    Since the data contents are or were Rudy’s property, is the FBI allowed to wipe his devices before handing them back? My understanding was that they would make copies, and work from those, and that the actual devices would remain as they were when seized. So is he lying? Or did something else happen to make it hard for Rudy to access? (For example, creating new passwords as part of the process of extraction, hence Rudy doesn’t know, or hasn’t asked, what those passwords would be.)

    • John Paul Jones says:

      Reading postings up-thread, I wondered about two things: is Rudy sick, hence, delaying until death renders the suit moot (if it does); and how is he with phone passwords?

      Wikipedia can be a pal. It tells us Rudy was successfully treated for prostate cancer some years back, and it has the following to say on Rudy and phone passwords:

      “The president-elect named Giuliani his informal cybersecurity adviser on January 12, 2017. … In the weeks following his appointment, Giuliani was forced to consult an Apple Store Genius Bar when he ‘was locked out of his iPhone because he had forgotten the passcode and entered the wrong one at least 10 times,’ belying his putative expertise in the field.”

      My original question stands: is the FBI wiping devices seized as evidence actually a thing?

      • P J Evans says:

        I don’t think the FBI would intentionally wipe devices, but if they weren’t/couldn’t be returned to the owners, they might be wiped for recycling.

  9. harpie says:

    I’m following Brandi and Parloff’s tweets of the PEZZOLA cross examination in the PB trial and I JUST want to know WHICH CITIES WERE “BURNED TO THE GROUND” in 2020?????

    1:49 PM Brandi:

    Again, Pezzola from the witness stand says he is standing against this fake trial and corrupt charges.

    • harpie says:

      2:01 PM Brandi:

      Kenerson reads next msg: Next time will be different… if every American patriot had been armed, things would turn out much worse for you. you want to delcare war on American people, you can have it –
      Objection. Overruled.
      p: if you say so

      Pattis says he doesn’t want Pezzola to take the government’s word for a thing in this case.

      Wow. We are trying a new strategy here.

      Kenerson: You also upvoted posts from Tarrio?
      Pezzola: “At this point, if i didn’t have a case, i would probably bring up things like this too.”
      Kenerson just nods.

      Kenerson brings up photo of Pezzola on ground appearing to wrestle riot shield away from officer.
      Kenerson: So this is fake evidence to you?
      Pezzola: I say you interpret it fakely… This is a phony trial because of the way you’re trying to push it off

    • harpie says:

      Well, following CLOSING ARGUMENTS in the PROUD BOYS trial on Twitter today will probably be nearly impossible. I’m bummed. :-(

  10. harpie says:

    From yesterday:
    6:27 PM · Apr 20, 2023

    Prosecutors don’t contest that Joe Biggs was unarmed on Jan. 6, but Samsel told authorities Biggs had flashed a gun at him and goaded him to attack police.

    Today, Pezzola said he corroborated Samsel’s story, hoping it would alleviate harsh jail conditions

    We still don’t know what Samsel said to Biggs on Jan. 6 or if any of his story is legitimate.

    But we now know Pezzola and Samsel were neighbors in the DC jail, and Pezzola says Samsel told him what he told the FBI. Pezzola lied and said he witnessed it. [above link]

    • harpie says:
      9:32 AM · Apr 20, 2023

      HAPPENING NOW: Judge Kelly rules that he is not bound by the concurring opinion in the US v. Fischer case that called for a stricter definition of “corrupt intent” when it comes to obstruction charges.

      This is the first ruling on this issue after fractured appeals court ruling.

      Deep in the weeds here: Kelly rules the Marks rule doesn’t apply here — but even if it did, he views Judge Pan’s majority ruling as the “narrower” opinion that would be binding if the Marks rule applied.

      Shorter answer: Proud Boys’ motions to dismiss obstruction counts *denied.”

      Kelly says appeals court ruling in Fischer did not change the status quo on definition of “corrupt” intent in obstruction charges. Presumably, other disrict court judge will take this issue on soon and it seems inevitable that this will go en banc or be decided by Robertson panel

      Roger Parloff and Brandi relay this discussion early in their THREADs for the day, [links above], as well.

  11. harpie says:

    The beginning of today’s THREADs:
    5:19 AM · Apr 21, 2023

    Welcome to Day 59 of the Proud Boys seditious conspiracy trial. The defense has rested. Today, prosecutors could begin closing arguments. Live coverage starts at 9am ET. I am here for @emptywheel. As always, I must ask… won’t you join me?
    8:11 AM · Apr 21, 2023

    It’s Apr 21 and Day 60 (by my count) of the Proud Boys trial. I’ll be live-tweeting here and on @Lawfareblog [link]. As of last night, plan was for the govt to put in a stipulation & then rest; judge to instruct the jury; & then start closing arguments. /1

    Defendant Dominic Pezzola became a different man on cross-examination yesterday: an insolent, belligerent, hot-tempered, know-it-all who viscerally hates “radical socialists,” i.e., many of the people who sit on the jury and nearly all who are reporting it./2

    That said, it’s still not at all clear that Pezzola committed seditious conspiracy. … /3

    Interesting that Parloff says that…I had been thinking PEZZOLA was treated [by PB leadership] more like a useful and photogenic “tool”.

  12. harpie says:

    Parloff [with a noticeable through story from yesterday]:

    When AUSA Kenerson showed him [PEZZOLA] a reference [in his own notebook] to being “willing to stand first on the line to protect who I love & what we stand for,” Pezzola replied “Correct but that’s along the lines of standing up against this corrupt trial with these fake charges.” [link][screenshot] /5

    Pezzola then repeated the “corrupt trial” & “phoney trial” accusation several times. AUSA Kenerson began incorporating the “this corrupt trial” phrase into his questions to Pezzola, which drew objections, but Judge Kelly overruled, letting Pezzola stew in his own venom. /6

      • harpie says:

        Right? It got pretty bad, yesterday.
        I couldn’t keep from saying WTF?!? out loud to no one in particular.
        [Except for my WTF “burning cities to the ground” comment, above that you responded to.]

    • harpie says:

      From Kyle Cheney’s THREAD:
      1:51 PM · Apr 20, 2023

      UPDATE: After luch, Pezzola has clearly adopted a more hostile tone with the prosecution, repeatedly pushing back on AUSA Kenerson’s questions by calling this a “corrupt trial” with “fake charges.”

      It doesn’t seem Kenerson minds the jury seeing the ceombativeness.

      AUSA Kenerson going over Pezzola’s social media posts in December 2020, including sharing posts by other Proud Boys like Enrique Tarrio and Joe Biggs. Pezzola snipes at him again, “At this point, if I didn’t have a case, I would probably bring up things like this too.” [THREAD]

      This is ALL in Brandi’s THREAD, too. [I just have to find it…]

      • Ginevra diBenci says:

        Pezzola thus becomes just the most recent criminal defendant to demonstrate that it’s almost never a good idea to testify in your own defense, even/especially if you “have a case.”

    • harpie says:

      Discussion of timing of closing arguments…may not be today, Kelly will see how it goes.

      9:26 AM Brandi:

      On co-conspirator issue.
      Kelly: Defendant (Zachary) Rehl joined by Tarrio reraised objection to stmts I conditionally admitted as co-conspirator statements. They move to strike all of the stmts admitted under this rule [] and contend govt hasn’t proven conspiracy for Rehl, party moves for mistrial..

      In this district, its common to admit co-conspirator stmts at any pt in trial; I allowed objections throughout trial… considering Rehl’s motion [] I do find govt has proven charged conspiracy by a preponderance of evidence and that each defendant joined the conspiracy at following dates
      (Dec 13 Tarrio Biggs;
      Rehl, Donohoe, Stewart, Wolkind on Dec 20;
      Bertino on Dec 23; and
      Pezzola on Jan. 2, 2021)

    • harpie says:

      1] Kelly denies motion to strike FBI Special Agent Nicole Miller’s testimony.
      2] Kelly denies motion to strike the govt exhibits admitted during Rehl’s cross examination (alleged pepper spray incident).
      3] Other evidentiary issue: govm’t must change a visual and it goes to jur with instruction.

      • harpie says:

        re: 3^]
        9:51 AM · Apr 21, 2023

        Kelly thinks its an accurate transcript and says he thinks the picture of Rehl’s face should be removed from the exhibit below. For an exhibit going back with jury, the transcript is sufficient. [screenshot]

        Carmen Hernandez (For Rehl): Thank you for that partial ruling. I want more.

        She says the timestamp is inaccurate… and govt is trying to imply that “Storm the Capitol” coincides exactly with when breach happens…

        Kelly: I’ve ruled on your request
        Hernandez: Your honor, you have to look at these videos….

        9:51 AM Parloff:

        Hernandez: 2d, … one of my objections is that you’re keeping that transcript up for whole video–
        Judge: AUSA Kenerson already offered [to make it disappear after the words are finished being said ]
        AUSA Kenerson gestures a thumb’s up (i.e., he’ll do it). /52

        Hernandez still arguing about the 12:53-12:55pm timestamp when she says it was uttered at 12:54pm. [sic]
        Judge: i’ve ruled. I’ve ruled.
        Hernandez still arguing. /53

        • harpie says:

          ^^^ That last bit was posted at 9:55 AM

          9:57 AM

          She’s still arguing

          I’ve already overruled you on this. don’t know how many times i have to overrule you. you’re record is clear. /55

        • Ginevra diBenci says:

          Was the jury seated for this?

          As always, thank you, harpie, for supplying non-Twitter folks like me with a window into the trial!

    • bmaz says:


      Going back to my earlier response to you, do these idiots not understand this is the jury that will determine their guilt or innocence, and the judge that will sentence them afterwards?

      • harpie says:

        I think they really do not, or don’t care…know they’ve lost already?
        Maybe they are working on their arguments for their appeals?
        Or maybe they think if they hold out long enough, they may get a pardon from a certain, different president?

        They seem to be all, lawyers and defendants alike,
        deep, DEEP in their own “reality”.

        • Rayne says:

          All those cities being three in Minnesota which went blue anyhow, and about which the right-wing could give a flying squirrel’s fart.

          These cities are used like Glenn Greenwald used the African People’s Socialist Party members the DOJ charged — inconvenient except when used to bolster their bullshit, like supporting police brutality.

      • harpie says:

        Thank you, Rayne. <3
        I'll read through the THREADs now, and hope to come back with some comments later today…will see.

        • bmaz says:

          Join Rayne. Also, just finished watching the Sixers close out the Nets, and it was painful not having Eureka here, to talk about Tyrese Maxey. She was the first one to identify how great Maxey was. Philly is less without her here cheering for it.

    • harpie says:

      Well, I am pleased to find out that I have NOT missed closing arguments [YET]!
      Jury instructions are quite interesting….

Comments are closed.