Colorado’s second-highest court agreed on Thursday that a former executive of Denver-based Dominion Voting Systems may proceed with a defamation claim against Rudy Giuliani for his unproven accusations of election rigging in the 2020 presidential race.

The decision by a three-judge panel of the Court of Appeals mirrored a more comprehensive opinion issued in April, which permitted Eric Coomer’s defamation claims to proceed against a wider cast of defendants, including the presidential campaign of Donald Trump. Giuliani, a former New York City mayor and Trump surrogate, was excluded from the prior decision because he was in the middle of bankruptcy proceedings.

Coomer is the former director of product security and strategy for voting technology supplier Dominion. He has initiated several lawsuits based on a similar sequence of events: Conservative commentators and supporters of Trump repeated an inflammatory claim originally made about him by Colorado podcaster Joe Oltmann.

Days after the 2020 election, Oltmann claimed he had recently listened in on an “antifa” conference call — a reference to anti-fascist ideology. On the alleged call, an unnamed participant referenced “Eric … the Dominion guy.” Oltmann claimed “Eric” said, “Don’t worry about the election, Trump is not gonna win. I made f-ing sure of that.”

Based on information found online, Oltmann concluded Coomer was the one who allegedly made the comments of election rigging. Oltmann repeated his story publicly, even after the Cybersecurity & Infrastructure Security Agency found “no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised.”

For Giuliani’s part, he alluded to Oltmann’s unproven accusations at a Nov. 19 press conference, calling Coomer a “vicious, vicious man” who “specifically says that they’re gonna fix this election.” Giuliani added, “I know crimes. I can smell them. You don’t have to smell this one. I can prove it to you 18 different ways.”

Giuliani and the other defendants moved to dismiss Coomer’s claims under Colorado’s “anti-SLAPP” law, which stands for “strategic lawsuits against public participation.” The legislature enacted the law in 2019 to provide a mechanism to quickly dispose of litigation that implicates a person’s First Amendment rights — specifically, the rights to free speech and to petition the government. 

Giuliani alternatively argued his statements were protected under the “litigation privilege” afforded to lawyers in the course of bringing lawsuits.

Denver District Court Judge Marie Avery Moses declined to dismiss Coomer’s lawsuit, finding evidence that Giuliani spent “virtually no time” investigating the dubious accusations against Coomer prior to repeating them, nor did Giuliani ever bring any litigation implicating Coomer.

“There is evidence that Giuliani’s allegations against Coomer conformed to a preconceived storyline of fraud given his allegations of fraud after the election,” she wrote in May 2022. “Further, there is evidence that Giuliani had incentive to defame Coomer both in support of former president Trump and to maintain national attention.”

Giuliani appealed, arguing Moses misconstrued his statements and erred in her legal analysis. However, Giuliani’s portion of the appeal was paused during his bankruptcy proceedings, which were prompted by a jury’s $146 million judgment against him in another defamation case from the 2020 election.

Consequently, the other defendants, including the Trump campaign, moved forward in their appeal of Moses’ order. In April, the Court of Appeals largely sided against them and allowed Coomer’s defamation claims to proceed. In doing so, the appellate panel found Giuliani’s statements — as a representative of the Trump campaign — could be deemed defamatory at trial.

During oral arguments in October for Guiliani’s separate appeal, his attorney acknowledged the Court of Appeals’ April decision did not bode well for Giuliani.

“From a practical standpoint, I probably have a high bar here today because you all have already made a decision on this issue,” said Geoffrey N. Blue.

The same appellate panel that issued the April decision also sided against Giuliani for the same reasons: Coomer presented evidence that Giuliani disregarded the likely falsehood of Oltmann’s election-rigging story, and Giuliani’s statements were not made in furtherance of any litigation.

“We note that no lawsuit was ever filed by Giuliani or the Trump Campaign that included any allegations about Coomer,” wrote Judge Karl L. Schock in the Nov. 14 opinion.

As in its prior decision, the panel agreed Coomer had not provided sufficient evidence of a conspiracy to defame him, and it dismissed that portion of his lawsuit.

In addition to Coomer’s lawsuit and the $146 million defamation award, Giuliani has also been disbarred in New York and Washington, D.C. and has been criminally indicted in Arizona and Georgia for his efforts to undermine the 2020 election results on behalf of Trump.

The case is Coomer v. Giuliani.