Kash Patel’s Lawsuit Against “The Atlantic” Is a Giant Self-Own

FBI Director Kash Patel has filed a $250 million defamation lawsuit against The Atlantic after the magazine published an article about his tumultuous and embarrassing tenure as America’s top cop. The article reports that Patel has “alarmed colleagues with episodes of excessive drinking and unexplained absences,” and it really just gets better from there. I believe every word of it—partially because it confirms my biases, partially because it’s so well sourced (writer Sarah Fitzpatrick spoke to more than two dozen people), and partially because the Trump administration is full of incompetent people who’ve found stunning new ways to express that incompetence.

What’s particularly neat is how the defamation lawsuit itself confirms one of the central claims of the article. Fitzpatrick writes that people who work with Patel are concerned by Patel’s impulsive behavior, and his lawsuit is nothing if not impulsive. It should get thrown out on its ear. And even though there are some Republicans on the Supreme Court eager to follow Trump’s directive to “open up libel laws,” this lawsuit is not going to be that vehicle. It’s way too stupid.

First of all, Patel is a public figure. Undeniably so. As such, he has to meet a higher standard than a private person to prevail in a defamation suit. He has to show that The Atlantic’s story is false, and that The Atlantic showed “actual malice” when publishing the article. “Actual malice” is a bit of legal jargon that generally means that a publication either knew the story was untrue or should have known but published it anyway.

Speaking to over two dozen people is a great way for a reporter to avoid a finding of malice. That’s especially true in this case, where the story is really about what Patel’s colleagues are worried about. The Atlantic didn’t claim that Patel drinks too much; it published an article saying that his colleagues think he drinks too much, and it’s got numerous people backing up that claim. I don’t think there’s any way Patel can prove malice on the part of The Atlantic.

And the malice standard should be the easiest standard for Patel to meet because the other one—actual falsehood—would involve the FBI director getting a breathalyzer installed on his phone (something the Democrats in Congress seem willing to do for him, by the way). Just check out this line from his complaint about whether he “drinks to excess” at private clubs: “Director Patel does not drink to excess at these establishments or anywhere else, and this has not, and has never been, a source of concern across the government.”

Buddy… it’d be one thing if you were claiming you don’t drink. You could prove that. But what you’re saying is that you don’t drink “to excess,” and I don’t think that’s a thing you can prove, hoss. I also don’t drink to excess, according to me. My colleagues might have a different view. You’d have to ask them.

I almost wish this case wouldn’t be dismissed, because then The Atlantic would be entitled to discovery. I might have to start freelancing for TMZ if we got access to information about how much Kash Patel really drinks.

Alas, it won’t get that far. This impulsive defamation suit will be thrown out. Soon. In the meantime, if you haven’t read the Atlantic story… enjoy the Streisand effect.

The Bad and the Ugly

• The Supreme Court has agreed to take yet another case that will allow it to greenlight bigotry in the guise of religious freedom. The case involves a Catholic school that is suing over its exclusion from receiving funding from Colorado’s universal pre-K program. The school is excluded because it allegedly discriminates against LGBTQ+ families. The 10th Circuit dismissed the lawsuit, but the Supreme Court agreed to hear it on appeal. There’s only one reason for the religious wing-nut supermajority to do that, and that reason is to give its blessing to the school’s bigotry.
• Jan Crawford, CBS News’s excellent Supreme Court reporter, has written a piece saying that Justice Samuel Alito has no plans to retire this June. Even though I think Alito will indeed retire, I really hope Crawford and her sources are right. I want Alito to be on the court when Republicans lose control of the Senate. It’s the only way to avoid another 30 years of somebody just like Alito—or worse.
• The other big Supreme Court news this week involved a leak of documents to The New York Times that show how the shadow docket took on its current sketchy form. The takeaway? It seems Chief Justice John Roberts really didn’t like Barack Obama’s political agenda and changed the way the court operates to stop it.
• Virginia voters approved a mid-decade redistricting plan that should give Democrats control of 10 of the 11 congressional seats in the state. You asked for this, Republicans. This is what you wanted, Texas. This is what you set in motion, Supreme Court.
• The Department of Homeland Security has requested funding to help it develop “smart glasses” so that ICE agents can conduct biometric surveillance of people while out in the field. Last week, I told you that a number of civil rights organizations are trying to stop Meta from producing smart glasses because of the dangers they pose to women by handing a powerful new surveillance tool to stalkers, abusers, and creeps. ICE probably saw that and said, “Wait, this will help us harass women? And also immigrants? You have to get us some of those!”

Inspired Takes

• The Nation’s Jeet Heer follows up on The Atlantic’s story about Kash Patel with a point that has fully lodged itself in my brain: Thank God this man is apparently so drunk and addled that he can’t effectively do his job. Folks, I thought Patel was the most dangerous appointment Trump made when he pulled together his cabinet for his second term. Patel is a vindictive guy with a literal enemies list who has the keys to the FBI. But if he’s spending so much time in the champagne room that he can barely show up for work, that’s a win. I hope Trump never fires him.
• Brazil’s Supreme Court is wild, y’all. I could give you my most radical ideas about court reform, and Brazil would be like, “Elie, hold my cerveja.” Zach Shemtob continues his excellent SCOTUSblog series on other supreme courts.
• Here’s a little bit of Black history I never knew about: In 1781, an enslaved woman named Elizabeth Freeman heard the words of the new Massachusetts Constitution and decided to demand her freedom. A year later, she became the first enslaved woman to have her independence recognized by an American court. It’s a fascinating tale, told by Errin Haines at The 19th.

Worst Argument of the Week

The 11th Circuit shot down (zing!) Florida man Maxon Alsenat, who tried to claim a constitutional right to own a device that turns his gun into a machine gun.

Alsenat was convicted of selling machine gun conversion devices (MCDs) to undercover agents in June of 2023. Alsenat’s lawyer argued, no joke, that machine guns are constitutional because old people who are too crumbly and frightened to aim need to be able to… indiscriminately spray an area with bullets in hopes of hitting something. Here’s the relevant quote from Courthouse News: “‘Now, I imagine that most folks hear machine gun and clutch their pearls,’ Ta’Ronce Stowes told a three-judge panel. ‘But let me be clear: What we’re talking about here is a machine gun conversion device, or MCD. An MCD is typically no bigger than the tip of your thumb. MCDs make small arms more useful for elderly householders and others who are too frightened to draw a careful bead on an intruder.’”

This argument is patently ridiculous. Like, what are we even doing here? How are we living in a Quentin Tarantino movie?

The 11th Circuit rejected this argument (thank Zeus), but it’s worth noting the reasoning of the chief judge of the circuit, William Pryor, a Republican who was once on the short list for a Trump Supreme Court appointment. Pryor argued that the reason there is no Second Amendment right to a machine gun is that machine guns were not in “common use for lawful purposes” at the founding of the country. He then went on to detail the rise of the machine gun after World War I, the Tommy-gun era, sealing his argument for why machine guns should not be protected by the Second Amendment.

Pryor is right. The problem is that everything he said about machine guns could also be said about AR-15s or any modern handgun. A revolutionary-era rifled musket has no legitimate analogue to anything on the market today. It is insane to compare a weapon that had to be loaded one ball at a time to anything available to the next guy who wants to shoot up an elementary school.

I find it hypocritical and intellectually dishonest that Republican judges are able to see that machine guns, tanks, and tactical nuclear weapons are beyond the scope of the Second Amendment but pretend that assault rifles and hand-cannons are just like what the founders owned. Their machine gun rulings prove that they know better; they just don’t care enough about dead schoolchildren to carry their logic to its inescapable conclusion, which is that the Second Amendment is no bar to reasonable gun regulation.

What I Wrote

• My feature piece about the rising use of artificial intelligence in courtrooms—including, in some cases to replace human judges—is finally available online. I’m really proud of it, so give it a read when you can.
• I also wrote about all the leaks that have oozed out of the Supreme Court in recent weeks and argued that the justices should be speaking to us directly more often—and the press should hound these people if necessary, demanding answers.

In News Unrelated to the Current Chaos

The Onion has a new plan to take over Infowars. The satirical news site tried to purchase the conspiracy website in bankruptcy proceedings two years ago, following the implosion of Infowars founder, Alex Jones. While a bankruptcy court blocked the sale, The Onion has now come back with another idea: Pending the approval of a Texas judge, The Onion will license the site from its court-appointed temporary manager.

That’s it. That’s the blurb. I just wanted you all to know that Tim Keck, founder of The Onion (better known as “Tim Onion”), is just about to gain control of one of the jewels of the white-wing misinformation sphere. Enjoy.

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