His defamation claim makes a mockery of the law.
Lisa Needham at Public Notice:
Late Friday, we were treated to a big story in The Atlantic about FBI Director Kash Patel’s unprofessional, self-destructive behavior, including allegations of alcohol abuse and absenteeism that would get anyone else fired.1
By Monday, we were treated to a big dumb lawsuit over it by Patel, because he has the impulse control of a toddler. So he’s ginned up a frantic legal filing accusing The Atlantic of actual malice and malicious malice and malice actualizing, or whatever is going on here.
Suffice to say that Patel seems to think he dropped a world of hurt on The Atlantic when all he really did was show that both he and his attorneys seem to have been struggling with hangovers during their first year of law school.
Frivolous lawsuits are a dime a dozen in Trumpworld, and there are so many times when it’s obvious that the person filing them should know better. In Patel’s case, as hapless a malicious doofus as the guy seems to be, he’s also actually a lawyer.
Not, like, a Lindsey Halligan lawyer. Patel actually practiced law for over a decade, first as a public defender in Miami and then as a line prosecutor at the Department of Justice, although his time at the latter seems to have engendered more resentment than experience. Or, as a former colleague put it to CNN after it was clear Patel would be President Trump’s pick for director, he’s “an opportunist who feels constantly aggrieved.”
Sounds about right.
Patel’s problem here starts with a little thing called actual malice, which, despite its name and how Patel’s attorneys mangle it, doesn’t actually refer to doing anything with malice or in a malicious fashion. Rather, it’s about the standard a public figure must meet to successfully prove defamation.
For plebes like us, defamation broadly requires a plaintiff to prove four things: (1) the defendant made a false statement of fact; (2) published or communicated to a third party; (3) with at least negligence on the part of the defendant; and (4) the plaintiff incurred damages or harm to their reputation.
For plaintiffs who are public figures or public officials like Patel, things are a bit different regarding that third element. There, precisely because a robust free press is critical to a flourishing democracy, the United States Supreme Court, in 1964’s New York Times v. Sullivan, held that a public figure plaintiff must prove that the false statement was made with knowledge it was false or with a reckless disregard for whether it was false. Imposing liability for merely negligent statements about public officials created a chilling effect, leading the press to self-censor.
Unsurprisingly, right-wing public officials hate NYT v. Sullivan, particularly Donald Trump, who has been calling for its demise for at least a decade.
[...]
Even if Patel were the World’s Greatest FBI Director as far as law enforcement results, and even if The Atlantic shamefully ignored his great stats, none of that has anything to do with whether the allegations in article about Patel’s drinking, absenteeism, and impulsivity are true. Nor does Patel’s whining that he only got an “arbitrary two-hour window” to respond to the story’s allegations before they went to press have anything to do with actual malice.
By the time The Atlantic reached out to Patel, the reporter who authored the piece (Sarah Fitzpatrick) had interviewed over two dozen people, including “current and former FBI officials, staff at law-enforcement and intelligence agencies, hospitality-industry workers, members of Congress, political operatives, lobbyists, and former advisers.” Reaching out to Patel was a journalistic courtesy, not an opportunity for him to demand time to respond.
The complaint also makes much of a “Pre-Publication Letter” that Patel’s attorneys say is chock-full of “substantive refutations” provided to The Atlantic yet shamefully ignored, therefore ipso facto actual malice. That argument might hang together a bit better if that Pre-Publication Letter were anywhere to be found, but it’s not part of Patel’s complaint or published anywhere else. Somehow, everyone is just supposed to take at face value that Patel’s attorneys wrote a detailed letter that proves, hands down, that The Atlantic knew they were printing lies, but we can’t see the letter because it lives in Canada and goes to a different school.
Next, Patel claims that the Atlantic not naming any sources shows that their reporting is just a crock of malicious lies. But whether or not someone was willing to put their name to something has nothing to do with whether what they said about Patel was true.
Finally, even Patel’s whining that The Atlantic was engaged in “advocacy against Director Patel” rather than journalism doesn’t have anything to do with defamation or showing actual malice. The test is whether The Atlantic printed something it knew, or should have known, to be false, not whether they feel appropriately fond of Kash Patel.
[...]
Patel would be luckiest if The Atlantic succeeds at getting this thing dismissed right away — no, really. Because if this case goes forward, he’s stuck with discovery.
Sure, Kash might be hyped to conduct his own discovery and unmask anyone still in the FBI who spoke ill of him, but The Atlantic’s reporting makes clear they talked to plenty of people who are out of his reach, such as hospitality workers. Patel’s attorneys can talk to some poor waiter who had the misfortune of dealing with a drunken Patel at the bar, but it’s not going to help much unless they can get them to say “I totally told reporters Patel was sober as a judge and the best employee ever.”
Additionally, discovery means, to put it in very precise legal terms, that The Atlantic’s legal team gets to crawl up Patel’s ass. For all of the complaint’s bluster about how the story’s allegations are so incredibly easily disproven by readily available public materials that they can be willfully ignored, it has to actually deliver on that. So, show us that Pre-Publication Letter! Show us those FBI calendars! Show us how The Atlantic was supposed to get its mitts on all this material about Patel from a relentlessly opaque and secretive administration.
FBI “Director” Kash Patel’s frivolous lawsuit against The Atlantic because of its accurate reporting about his absenteeism and drunkenness is just sour grapes.
Popular Information (Judd Legum): Kash wants cash: Inside the FBI Director’s $250 million defamation lawsuit
Civil Discourse (Joyce Vance): Kash’s Complaint
