The legal battle over a doctored campaign ad in Utah’s U.S. Senate race likely won’t be resolved before Election Day.
Independent candidate Evan McMullin won’t have to sit for a deposition in his lawsuit against Club for Growth Action in the coming days, a Utah judge ruled during a pretrial hearing on Thursday.
One of McMullin’s attorneys said in court Thursday that a rushed deposition would only lead to Club for Growth using it to “score more political points.”
McMullin’s attorneys believe Club for Growth wants McMullin to explain under oath why he sued the political action committee, adding the statements would likely be used by the PAC in ads against the Senate candidate in the final days of the Nov. 8 midterm election.
Club for Growth — which has run attack ads against McMullin and is supporting his opponent, incumbent GOP Sen. Mike Lee — had pushed for McMullin to be deposed prior to Election Day.
McMullin sued Club for Growth and several Utah television stations on Oct. 4 over a doctored ad that distorted his prior statements. The ad in question featured an edited clip of McMullin appearing on CNN and seeming to call Republicans “racists” and “bigots.” But those comments were edited out of context.
The doctored ad was from an appearance McMullin made on CNN following the deadly white nationalist “Unite the Right” rally in Charlottesville, Virginia in 2017. One woman was killed during the rally when a car driven by a Nazi sympathizer drove through a crowd.
McMullin actually said, “Not all Republicans, of course, are racist. I was raised by Republicans who are not at all, and who welcome Americans of all backgrounds, and are not at all like this — but there is an element of the Republican base that is racist.”
Three days after the lawsuit was filed, Club for Growth responded to the lawsuit and filed a motion seeking to speed up the case. Club for Growth said in an Oct. 7 filing that they were worried McMullin would “slow-walk discovery and try to thwart his deposition.”
Court filings show that Club for Growth’s attorneys wanted to depose McMullin on the morning of Oct. 17 — the same day McMullin was set to face off with Lee in their only debate during the election cycle.
Club for Growth also filed a motion on Oct. 7 to split the lawsuit into separate cases — one case dealing with the allegations against them and another case dealing with local TV stations.
On Oct. 13, attorneys for McMullin argued the lawsuit should not be split until lawyers for Utah TV stations had responded to the allegations made in the lawsuit.
McMullin’s attorneys also argued the turnaround time for a deposition was too soon, and that McMullin was preparing to debate Lee on the day Club for Growth wanted to force him to appear in court. The attorneys noted the desired date of the deposition, “smacks of gamesmanship and an effort to use the legal process for political advantage.”
Brent Hatch, an attorney representing Club for Growth, argued Thursday that McMullin is trying to reap the political benefit of suing over a campaign ad, but avoiding following through with subsequent litigation.
McMullin’s attorneys also argued in court Thursday that he can’t be deposed until TV stations respond to the lawsuit, however, if Club for Growth deposed McMullin before the TV stations could respond, McMullin would have to be deposed twice, which would violate Utah’s Rules of Civil Procedure.
Third District Judge Randall Skanchy ultimately granted McMullin’s efforts to stall the deposition until the TV stations respond to the suit. Skanchy also rejected Club for Growth’s effort to split the cases into two, though he said the motion could be revisited at a later date.
A subsequent court date was not set as of Thursday.
Club for Growth is one of the largest spenders in the U.S. Senate race, as the group has already spent over $4 million as of early November.
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