And … file a countersuit? We gave Dominion their say in my earlier post, so fair is fair. Rudy Giuliani issued a typically combative response to the defamation lawsuit filed in federal court by Dominion, threatening to use the action to “fully and completely” investigate the voting-system company.

Consider this a more florid version of the “yay discovery” response that Giuliani’s supporters have expressed, with a side of bravado:

Rudy Giuliani slammed Dominion Voting Systems on Monday in response to the company’s announcement that it was suing him for defamation.

“Dominion’s defamation lawsuit for $1.3 billion will allow me to investigate their history, finances, and practices fully and completely,” Giuliani said in a statement to media. “The amount being asked for is, quite obviously, intended to frighten people of faint heart. It is another act of intimidation by the hate-filled left-wing to wipe out and censor the exercise of free speech, as well as the ability of lawyers to defend their clients vigorously.”

“As such, we will investigate a countersuit against them for violating these constitutional rights,” he added.

Er … suuuuuure. It’s difficult to grasp the constitutional issue that Giuliani tries to advance here, since he and his allies have freely published their allegations about Dominion for weeks — everywhere but in court, as Dominion points out in their lawsuit. Giuliani has gone on television with these allegations, made these claims in legislative hearings, and held press conferences to amplify them. Giuliani even made the same allegations at the January 6 rally on the Mall after Dominion explicitly warned him that a defamation case was in the works.

Reason’s Jacob Sollum points out some interesting timing around that as well:

During the “Save America” rally that preceded the January 6 riot at the U.S. Capitol, Giuliani told thousands of Trump supporters that he was about to blow the lid off Dominion’s alleged role in delivering Georgia to Biden. “Over the next 10 days,” he said, “we get to see the machines that are crooked, the ballots that are fraudulent. And if we’re wrong, we will be made fools of. But if we’re right, a lot of them will go to jail.” Giuliani claimed he had “conclusive proof” that “crooked Dominion machines” had switched Trump votes to Biden votes. “So let’s have trial by combat,” he said. “I’m willing to stake my reputation. The president is willing to stake his reputation on the fact that we’re going to find criminality there.”

The very next day, Trump’s attorneys dropped four lawsuits challenging Georgia’s election results, claiming they had reached “an out of court settlement agreement,” which was news to the state’s lawyers. What happened to Giuliani’s “conclusive proof”? The same thing that happened every time he and the rest of Trump’s legal team went to court, where they never alleged anything like the elaborate scheme that Giuliani and Powell repeatedly described in tweets, press conferences, interviews, and podcast monologues.

Indeed. At any rate, Giuliani and his allies haven’t been “censored,” not even by their own good sense, and censorship relates to prior restraint by government anyway. One would think an attorney would grasp the difference. Besides, defamation suits result not from censorship but from the lack thereof. The First Amendment largely prevents prior restraint of speech, but it doesn’t indemnify people against the later consequences of that speech, especially if it’s defamatory and malicious in nature.

Perhaps the reference to constitutional rights is more aimed at Giuliani’s role as as Donald Trump’s attorney. The problem with that argument is that Giuliani didn’t make these arguments in court, where that speech might have been more protected. Instead, Giuliani made them everywhere else but court while not even hinting at them in actual legal action. Regardless of who he represents, Giuliani’s responsible for any defamatory content in those cases. Being part of a PR campaign doesn’t let you off the defamation hook. This lawsuit isn’t a violation of constitutional rights — it’s what comes when irresponsible people don’t exercise self-restraint, a quality that Giuliani apparently lacks utterly these days.

As for the idea of “yay discovery,” it makes for an amusing briar-patch PR spin but little else. If Giuliani wants to issue a public statement that he lacked evidence for these allegations when he made them, Dominion will undoubtedly be pleased to note that. It remains a fact that Giuliani could have named Dominion in his electoral-challenge lawsuits and started the discovery process on his own if he actually had any real evidence in support of his allegations. He didn’t and so he couldn’t sustain those allegations in court, which is why Giuliani studiously avoided raising those questions in his court challenges in the first place. He can claim to be delighted all he wants now, but that’s nothing more than a pose.

Others think the case will be dismissed over a lack of damages to Dominion, but that’s tough to swallow. For one thing, the company and its officers have had to spend more money on security for their facilities and personnel, which they argue is directly tied to the defamation promoted by Giuliani, Sidney Powell, Lin Wood, and so on. Their reputational damage would likely cost them business in the near and medium term too, especially if they don’t fight to correct the record. Plus, let us not forget that courts can and do levy punitive damages in defamation cases, with the intent to make sure that the costs for defamers outstrip actual damages pour encourager les autres.

Given the encouragement that Giuliani et al have given the mobs with his theories on Dominion, one might expect courts to be especially punitive. And if Giuliani’s track record over the last couple of months indicates anything, it’s that he’ll bail out on this again before Dominion has a chance to force discovery service on him rather than the other way around.