Judging Freedom - Brothers in Fake Attack on Smollett Can Sue Smollett’s Lawyer

Episode Date: March 22, 2022

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Hello there, everyone. Judge Andrew Napolitano here for Judging Freedom. Today is Monday, March 21st, 2022. It's about 1250 in the afternoon on the east coast of the United States. Late Friday evening, you know, the Jussie Smollett case just keeps giving and giving for those of us who monitor these things for a living. Late Friday evening, a federal judge in Chicago denied a motion made by Mr. Smollett's former lawyers to dismiss a defamation case against them brought by the two guys that Jussie hired to stage the fake attack on him. Well, let me unpack that. We all remember the history of this case.

Jussie Smollett, openly gay, lead character in Fox's Empire series, hired two friends of his to fake an anti-gay attack on him so that he could somehow gain favor with the public and with his bosses at Fox. It all unraveled. It turned out the whole thing was a fraud. The government let it go away if he surrendered his $10,000 bond. A new prosecutor was appointed. He decided to prosecute. Jussie hired groups of lawyers, hired, fired, hired, fired, finally stayed with a group of lawyers. He lost the trial. He was sentenced to 150 days in jail. He served two days in appellate court, let him out pending appeal. While all that is happening, the two bodybuilders who were friends of Jussie's that he hired to stage the fake attack filed a lawsuit against Mark Garagos.

Full disclosure, I know Mark because he's been on Fox many times and I interviewed him many times. Very fine trial lawyer. But during the course of the litigation, he accused these two guys who staged the fake attack, believing what his client told him. He accused them of lying under oath when they told a grand jury that it was a fake attack. He also accused them of wearing white face. So these were African-American bodybuilders who painted their faces white, according to this lawyer, and then staged the fake attack on Jesse. Now, accusing someone of committing a crime is what's called libel per se, meaning as a matter of law, it's libelous. So when Mark Garagos and his colleague allegedly said in public that these two fellows, friends of Jussie's who staged the fake attack, lied under oath when they told the

grand jury that it was a fake attack because Jussie's narrative was that it was not fake, he accused them of committing perjury. He also demeaned them by suggesting they would do the unthinkable and the hateful, like a white person wearing blackface. These were African Americans, or they weren't even Americans. These are Africans wearing whiteface. Both of these alleged allegations are defamatory. So Garagos and his colleague brought a motion to have the defamation case dismissed. And Friday afternoon, the judge ruled the case can go forward. Now, if this case is tried, it will be crazy because it will be the Jussie Smollett case all over again. Usually these cases are settled.

I don't know what their damages are. You know, defamation means that your reputation in the community in which you live or work has been lessened. And as a result, you've been harmed. You have sleepless nights. You have to visit a doctor. You can't live your life the way you had been, or you have lost income. So we'll see where it goes. I think the case should have been dismissed because lawyers make these statements all the time during the course of litigations. They say all kinds of terrible things about the people involved in their clients' cases. But this federal judge is letting it go forward. If it is a trial, it will be a doozy. Judge Napolitano for judging freedom.