“Actual malice standard is now what some would call a legal lay up,” tweeted FBI Director Kash Patel. He vows to sue The Atlantic over a story published Friday which describes him as habitually drunk and wholly lacking in judgment.
“I’ll see you in court—bring your checkbook,” he warned the magazine.
Patel then went on Fox to promise Maria Bartiromo that he intends to file tomorrow — or today as you’re reading this — and a million lawyers and journalists simultaneously kicked their feet in gleeful anticipation.
Please, oh, please give us something to laugh about in this cursed news cycle of death!
Patel’s co-pilot on this doomed outing is former Stop the Steal lawyer Jesse Binnall, whose eponymous firm represents various MAGA also-rans, including Mike Flynn, Hunter Biden’s former business partner Tony Bobulinski, and Patel’s girlfriend Alexis Wilkins, who is definitely not an Israeli agent.
In 2024, Binnall sued CNN over reports that former North Carolina lieutenant governor Mark Robinson had posted lewd comments to various porn discussion forums under the handle “minisoldr.” Binnall stumbled out of the gate by violating the state’s ban on including an ad damnum (damages) clause in the complaint, a rule which exists to stop litigants from holding press conferences on the courthouse steps announcing that they’re suing for $50 million — exactly what Binnall and Robinson did. The case was quietly dropped four months later.
It will be hard to top that legal tour de force, but Binnall is giving it the old college try. He began by tweeting out the pre-publication cease-and-desist letter he sent demanding that The Atlantic kill the piece. As the Daily Beast pointed out, the letter included multiple allegations that didn’t make it into the final version of the story, including a claim that Patel shut down the FBI gift shop so that he could browse alone. This strongly suggests that The Atlantic’s Sarah Fitzpatrick was actually doing her damnedest to verify every single claim. It’s also the kind of thing most lawyers place behind redaction bars, but, hey, you do you, Jessie B!
Patel reportedly complained the items on offer were not “intimidating enough,” which must have stung coming from the marketing maven behind the clothing company Based Apparel and K$H wine.
As for the veracity of the story, it’s hardly news that Patel likes a tipple. He was famously photographed on a “work” trip to the Winter Olympics pounding beers with the victorious men’s hockey team. Veteran reporter Sarah Fitzpatrick cites dozens of sources who say that Patel has been drunk in public at DC club Ned’s and the Poodle Room in Las Vegas; that meetings had to be rescheduled early in his tenure because he was too hungover to function; and that members of his security detail have had difficulty rousing him because he was seemingly intoxicated.
Binnall insists that this cannot possibly be true because “Director Patel has likewise made The Atlantic expressly aware that these allegations are false.” He also cites “the FBI’s documented operational successes under Director Patel” including “the capture of the #8 fugitive on the FBI’s Top Ten Most Wanted list within just three months.” (Notably, he doesn’t mention the arrest of Charlie Kirk’s murderer, which Patel apparently bungled.)
A “reasonable and responsible pre-publication investigation, including a simple request to the FBI for relevant documentary evidence” would have disproven many of the piece’s claims, Binnall insists. This is somewhat belied by his own client tweeting the FBI’s blanket denial with zero offers of “documentary evidence” in response to Fitzpatrick’s pre-publication request for comment.
To be fair, Binnall (and his client) may be ever so slightly confused about the legal standard to prove defamation of a public figure. They seem to think that references to general antipathy paired with conclusory allegations that the reports behaved recklessly are good enough to demonstrate actual malice.
We haven’t yet seen whatever Binnall’s magicking up for Patel, but in the Robinson case, he claimed that “Defendant CNN acted with actual malice and reckless disregard for the truth, as demonstrated by Defendant’s antipathy, ill-will, and desire to inflict harm on Lt. Gov. Robinson, CNN’s actual knowledge of the dubious nature and timing of the allegations, its use of unverifiable data to corroborate its reporting, its reckless failure to investigate, and its knowledge of exculpatory information and alternative explanations that it deliberately omitted from the CNN Article.”
When Binnall sued the Lincoln Project’s Rick Wilson on behalf of Mike Flynn, he was similarly hand-wave-y about the pleading standard — with predictable results.
“Here, the onus was on Flynn to prove by clear and convincing evidence that Wilson entertained ‘serious doubts’ about the accuracy of the articles stating that at least some believers in the QAnon conspiracy think that Flynn is Q. But Flynn did not submit an affidavit or other record evidence demonstrating Wilson’s ‘actual malice,” the Florida appeals court wrote, adding that “If Flynn is not Q (or one of the Qs), then it presumably would not have been hard for him to have filed an affidavit with the trial court to that effect.”
So much for that whole “lay up” thing.
The Atlantic’s lawyers are unlikely to be as careless.
“The Atlantic is nothing but diligent and we have amazing lawyers and amazing editors and I stand by every word,” Fitzpatrick told MSNOW’s Jen Psaki on Sunday, noting that neither the White House nor the Justice Department has denied her reporting.
The Atlantic’s lawyers are also aware that Binnall is suing MSNOW commentator Frank Figliuzzi in Texas for saying that Patel had “been visible at nightclubs far more than he has been on the seventh floor of the Hoover building.” And they’re aware that Nevada, where Patel lives, has a robust anti-SLAPP statute which applies in federal court under Ninth Circuit precedent — unlike the federal court in DC, where the magazine is domiciled.
Whether Binnall knows this is an open question. Mike Flynn wound up paying Rick Wilson’s legal fees after Binnall steered him into the wood chipper in Florida.
But projections about this turkey of a lawsuit before it’s even filed may be giving Patel and Binnall too much credit. Even if this thing had a prayer in hell of succeeding, Patel would light himself on fire rather than sit for a videotaped deposition about his drinking habits. The purpose of this exercise is to prove to the White House that he’s sticking it to the libs and hopefully to save his job. That’s why he’s telling Bartiromo that he’s just about to round up the perps who stole the 2020 election.
Pay no attention to that funky condensation on your screen, that’s just the Director’s flop sweat. Patel might buy himself a few more days by promising that he’s just about to lock up Trump’s enemies, but sooner or later — and probably sooner — he’ll be back to hawking MAGA gear to the rubes. Which is a good thing, because that dude has got a lot of legal bills to pay.
Liz Dye produces the Law and Chaos Substack and podcast. You can subscribe by clicking the logo:
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