Throwing Kashyap Against the Wall

Following a damning exposé, Kash Patel is suing The Atlantic for defamation. That’s a spectacularly bad idea.

On Friday evening, just hours after The Atlantic published one of the most devastating investigative portraits of a sitting law enforcement official in recent memory, FBI Director Kashyap “Kash” Patel did what his boss always does: He went on X and threatened to sue everybody in sight. “See you and your entire entourage of false reporting in court… actual malice standard is now what some would call a legal lay up.”

It’s not an easy lay up, but this threat echoed his earlier response when the magazine contacted him for comment. “Print it, all false, I’ll see you in court — bring your checkbook,” he told the magazine in his official pre-publication comment.

This morning, Patel followed through on that threat, suing The Atlantic and reporter Sarah Fitzpatrick for defamation and demanding $250 million in damages.

Today, let’s walk through exactly why this is a case study in how not to respond to a damaging story.

From blackout to freak-out

Sarah Fitzpatrick is an award-winning staff writer for The Atlantic. The piece, titled “The FBI Director Is MIA,” drew on interviews with more than two dozen current and former FBI officials, congressional staff, hospitality workers, political operatives and lobbyists. The portrait they collectively painted of Patel is damning.

The Atlantic reported that Patel has a pattern of “conspicuous inebriation” and that “he is known to drink to the point of obvious intoxication,” which it said often took place at Ned’s, a private club in Washington, D.C., “in the presence of White House and other administration staff” as well as at the Poodle Room in Las Vegas.

Early in Patel’s tenure, meetings and briefings reportedly had to be rescheduled for later in the day because of his alcohol-fueled nights, per six current and former officials. On multiple occasions, according to information provided to Justice Department and White House officials, his own security detail had difficulty waking him because he appeared intoxicated.

In one particularly striking incident, a request for “breaching equipment” — the kind used by SWAT teams — was allegedly made because Patel was unreachable behind locked doors.

Then came the reported “freak-out.” On April 10, just over a week ago, Patel allegedly tried to log into an FBI computer. But sources told Fitzpatrick that Patel couldn’t get in due to a routine technical glitch. He immediately concluded, and even began alerting aides, that Trump had fired him. No less than nine sources were familiar with the incident, and two called it a “freak-out.”

Some described Patel’s tenure as “a management failure” and his personal behavior as “a national-security vulnerability.”

One official said, “That’s what keeps me up at night”—specifically, how Patel would handle a domestic terrorist attack. Senior administration officials, Fitzpatrick reported, are already discussing his potential successors. “We’re all just waiting for the word,” an FBI official told Fitzpatrick this week.

So say we all.

Everybody already knows, Kash

Patel’s core legal argument, as his attorney Jesse Binnall laid out in a pre-publication letter, is that the drinking allegations are not just false but fabricated. Binnall contends they rely on anonymous sources who “could not possibly possess firsthand knowledge” of events that, according to Binnall, simply never happened. Patel’s communications adviser, Erica Knight, was blunter: the alleged intoxication incidents occurred “exactly ZERO times.”

So, this kind of thing never happens?

As an initial matter, Patel would have to persuade a judge or jury that The Atlantic’s 26-plus sources—current agents, former officials, DOJ staff, White House staff, and hospitality workers who served him drinks at a private club—independently fabricated the same story. That’s pretty hard to imagine.

Moreover, Patel’s blanket denial runs counter to his public image, where conspicuous, exuberant drinking is part of his brand. Only two months ago, after the U.S. men’s hockey team won its first Olympic gold medal in 46 years, viral footage showed the FBI director chugging beer from a bottle, jumping up and down, spraying it across the locker room, and singing along to Toby Keith’s “Courtesy of the Red, White and Blue.” A player then draped a gold medal around his neck.

In fairness, this wasn’t part of The Atlantic’s reporting. But it does make “exactly ZERO times” a hard phrase to say with a straight face.

It also raises real questions about his priorities. The Olympics beer celebration happened while the FBI was tracking an outbreak of cartel violence in Mexico, the Secret Service had just shot an armed man at Mar-a-Lago, and agents were searching for Nancy Guthrie, the 84-year-old mother of Today co-anchor Savannah Guthrie, who had been abducted from her home three weeks earlier.

Eight former DOJ and FBI officials were so alarmed by the footage that they sent it directly to reporters. The FBI then spent days insisting—through spokesman Ben Williamson, the same man now calling The Atlantic’s reporting “completely false”—that Patel was in Milan strictly for law enforcement meetings and that it was “unfair” to link the trip as having anything to do with hockey.

Patel’s public response to the backlash was telling: “For the very concerned media—yes, I love America and was extremely humbled when my friends, the newly minted Gold Medal winners on Team USA, invited me into the locker room to celebrate this historic moment with the boys.”

(Yes, the director of the Federal Bureau of Investigation took a government jet—reportedly costing more than $100,000—to go hang with “the boys.”)

Nor was the Olympics episode a one-off. Lawmakers had previously investigated Patel for using the FBI’s Gulfstream for a “date night” to see his country singer girlfriend perform and for assigning an FBI SWAT team for her personal security. The pattern is consistent: Patel treats the instruments of federal law enforcement as personal amenities, has his spokesman deny it, then tweets a defiant statement. Now, like the man he most admires, he is suing.

The answer Donned on him

Patel did not invent this playbook; he is followign it. Donald Trump has spent decades using defamation threats and lawsuits as weapons of political warfare, not necessarily to win in court, but to punish, deter and force adversaries to spend time and money defending themselves.

The most recent instructive example: Trump sued the Wall Street Journal for $10 billion over its reporting that he had sent a sexually suggestive birthday letter to Jeffrey Epstein. The suit named not just the Journal but Rupert Murdoch, the paper’s parent company News Corp, its CEO, and the two reporters who wrote the story. A Florida federal judge dismissed it last Monday, writing that the complaint came “nowhere close” to the actual malice standard — “Quite the opposite,” in the judge’s words. Trump has until April 27 to refile.

That dismissal extends a long pattern. A judge threw out Trump’s defamation suit against CNN in 2023. His suit against the New York Times over a Pulitzer Prize-winning financial investigation also got tossed. His most recent Times suit was dismissed for being unnecessarily long and overladen with political rhetoric.

But the two men do not stand in the same Florsheim shoes. Trump is a real estate mogul turned president who files suits backed by an army of lawyers and the capacity to absorb big losses. Patel is a former podcaster turned sitting FBI director suing a magazine over how he performs his official duties. The political theater is the same; the resources and institutional considerations are not.

There is also a pointed irony in Patel borrowing the Trump playbook here. The president’s own WSJ lawsuit was dismissed in part because the complaint itself showed that the Journal had first asked Trump for comment and attempted to investigate. That very effort at fairness, the judge found, negated any finding of actual malice.

Here, too, The Atlantic gave Patel’s team advance notice and a chance to respond before publication. Patel responded, “Print it, all false, I’ll see you in court.” That back-and-forth documents The Atlantic’s good-faith effort. It does not demonstrate its malice.

Don’t climb every legal mountain

Defamation suits brought against the press by public officials are notoriously hard to win. In the 1964 case of New York Times v. Sullivan, the Supreme Court established the “actual malice” standard for public figures suing the press. To prevail, an official must prove the publication knew the statements were false, or acted with reckless disregard for their truth or falsity. Under Sullivan, it’s not enough for Patel to show the story was wrong. The Atlantic must have published statements it knew were false or acted with reckless disregard for their truth.

That’s a tough burden, and Patel’s conduct since publication has only made things harder for him. He went on Fox to call The Atlantic “fake news mafia.” He tweeted combative screeds. His spokesman declared the reporting “completely false at a nearly 100 percent clip.” None of that is the careful, disciplined posture of a plaintiff building a viable “actual malice” case. It’s all political posturing and manufactured outrage. A plaintiff who announces his lawsuit on Sunday morning cable and files it the next day is playing to his base and to his boss, not building a legal record.

Patel’s attorney Binnall argues that the anonymous sourcing itself proves recklessness and that sources are inherently unreliable if they “could not possibly possess firsthand knowledge” of events that Patel claims never happened. But under Sullivan and its progeny, a publisher’s good-faith reliance on multiple credible sources, combined with a documented effort to seek the subject’s comment before publication, cuts strongly against a finding of recklessness.

A categorical denial from the subject does not, by itself, create a duty to kill the story. The Atlantic’s 26-plus sources, named venues and months of corroborating reporting from CBS News, CNN, the New York Times and the New York Sun create a record that makes a recklessness finding difficult to sustain.

He’s sued before, so he should know better

This is not Patel’s first encounter with the actual malice standard. He once sued CNN over coverage connecting him to Trump’s Ukraine pressure campaign. The courts dismissed it on the ground that he failed to adequately plead actual malice by specific individuals at CNN. Generalized institutional ill will toward Patel, the court found, was insufficient.

Of course, every defamation case turns on its own facts. The CNN dismissal shows, however, that Patel has already litigated this standard against a major media outlet and lost. He knows what he’s up against but is proceeding anyway.

Patel’s choice of attorney is curious. Binnall, who sent the pre-publication letter to The Atlantic and is leading the lawsuit, was also the lawyer hired by former North Carolina Lieutenant Governor Mark Robinson for his defamation suit against CNN. In that case, the network reported that Robinson had posted messages on a pornography website calling himself a “black Nazi,” expressing support for slavery, and describing Martin Luther King Jr. as “worse than a maggot.” Robinson denied the allegations and initially sought $50 million in damages. But he dropped the suit entirely in January 2025 and announced his withdrawal from politics. Binnall’s most prominent prior defamation case against a major news organization ended not with a verdict but a whimper.

Perhaps Patel’s eagerness to sue derives from when he once “prevailed” in a defamation case. There, he sued a blogger named Jim Stewartson who called Patel a “Kremlin asset” and claimed he had planned January 6. But that case resulted in a default judgment against a defendant who may never have been properly served. The judge awarded $250,000 but pointedly noted that there was “almost no concrete evidence of harm or damages suffered” and that, after all those alleged defamatory statements, Patel was still confirmed by the United States Senate as FBI director.

That “successful” case is hardly a template for this one. But it may be why Patel thinks he can roll the defamation dice.

But as I’ll explain below, it’s a very bad idea.

Discovery: the trap within the trap

Defamation lawsuits are two-way streets. The most favorable outcome for Patel would be an early dismissal on the pleadings, which sophisticated media defendants routinely seek. That would at least spare him the discovery process, even if it results in public confirmation that his complaint has no merit. Early dismissal is what happened to Trump’s WSJ suit. It’s what happened to Patel’s CNN suit. It’s not a win, just a faster loss.

Woe be to Patel should the case somehow survive a motion to dismiss and proceeds to discovery, where his exposure would compound. At that point, The Atlantic’s lawyers can subpoena Patel’s schedules, security detail logs, travel records and internal FBI communications. Patel himself would have to testify under oath. Reporters’ privilege protections are real, and The Atlantic’s anonymous sources would not be automatically unmasked. But documents reflecting his whereabouts, his availability during the incidents described, and his overall sobriety would be fair game. The news cycle would stretch for months.

His own lawyer made things worse

I have to point out one thing as an aside. In an unusual move, Patel’s attorney Binnall published his pre-publication letter to The Atlantic on Twitter, apparently to show that the magazine had been “on notice” that the claims were false before the piece was published. As discussed above, that’s largely irrelevant legally,

What is rather funny is that the pre-publication denial letter goes point by point through the allegations, labeling them defamatory—including allegations that The Atlantic had not yet published. Those included claims that sources described Patel as a “threat to public safety,” and that he had his security detail shut down the FBI Agents Store so he could shop alone. By denying allegations the public didn’t even know about, Binnall put them into circulation himself.

Whoops.

Fitzpatrick and The Atlantic respond

Reporter Fitzpatrick has not flinched. Appearing on MS NOW with Jen Psaki, she defended every word of the piece and explained why the sourcing, though anonymous, was credible at the highest level:

“These are not the types of people who are willing to speak out outside of the FBI, especially right now, because Kash Patel is going after people with polygraphs in a way that has never happened at the Bureau. So for it to be this level of alarm, this is people genuinely concerned that America is in danger as a result of this conduct.”

She also noted something significant: Neither the White House nor the Justice Department disputed anything when given the chance to respond prior to publication. Karoline Leavitt’s statement that Patel “remains a critical player” is institutional boilerplate, not a factual denial. Todd Blanche’s dismissal of “anonymously sourced hit pieces” as not constituting real journalism is his opinion, not a factual rebuttal.

Editor-in-chief Jeffrey Goldberg, who knows something about hostile official pressure after the Signal chat scandal that exposed the Houthi strike plan, was brief and unequivocal: “We stand by our reporting on Kash Patel.”

Patel to the metal

Even before The Atlantic piece, Patel’s tenure had accumulated a damning history. In late February, just days before Trump launched Operation Epic Fury against Iran, Patel fired a dozen agents and staff from CI-12, the FBI’s Washington Field Office counterintelligence unit specializing in Iranian threats. He didn’t fire the agents for poor performance but in spiteful retaliation. The agents, it turns out, had previously worked on the investigation into Trump’s retention of classified documents at Mar-a-Lago and had subpoenaed Patel’s own phone records as part of that probe.

One source called the firings “devastating to the FBI’s Iran program,” adding: “You can’t replicate that with new agents. These sources will go away.” House Democrats wrote to Patel demanding answers: “So while there is never a good time to undermine the FBI’s efforts to protect against foreign spy operations, the timing of your firing of counterespionage agents could not have been worse.”

Patel claims he’s going to court for vindication. Maybe he feels he has to go down swinging. But the question isn’t whether he can win a defamation suit. He cannot. The question is why he is dumb enough to try.

Perhaps a bit more liquid courage is all he needs.