Kash Patel’s Response

The Atlantic wants the Judge to dismiss Patel’s defamation case; Patel argues it’s too soon for that.

Kash Patel filed a defamation case against The Atlantic and reporter Sarah Fitzpatrick over a story that characterized him as an incompetent drunk who is jeopardizing national security. In July, The Atlantic responded with a motion to dismiss the complaint for failure to state a claim. Earlier this week, Patel filed his response. He argues that the court cannot decide, at this stage, that Patel cannot prove his case to a jury. This argument is less about the substance of the matter—whether The Atlantic got it right—and more about where the case is procedurally and what the Judge is being asked to do right now.

The Court is looking at what’s called a 12(b)(6) motion, a request by the defendant to dismiss the case because, as a matter of law, the plaintiff has failed to state a claim on which relief can be granted. As Patel’s lawyers point out, “[W]hen ruling on a defendant’s motion to dismiss [pursuant to Rule 12(b)(6)], a judge must accept as true all of the factual allegations contained in the complaint.” So the court assumes what’s in Patel’s complaint is true, for now, and if so, whether he would be entitled to relief from a court. That’s a pretty low bar for a plaintiff to clear; it’s just an early baseline that distinguishes cases where the plaintiff’s claims, even if true, wouldn’t entitle him to any legal relief, from cases where there is a factual dispute and discovery should proceed to determine what the facts actually are. There’s another motion at a later stage in the case, called a summary judgment motion, where the parties present the evidence they’ve developed and each side may argue that the evidence is so clear that there is no dispute for a jury to decide, and the judge should go ahead and rule on the case without need for a trial.

That’s not where we are right now, though. Patel’s core argument is that he has alleged enough facts that a jury could decide that when The Atlantic published its story, it seriously doubted the truthfulness of its sources, but it went ahead and published the story anyway. That’s a practical definition of “actual malice,” the mens rea (state of mind) that the defendant had when it published allegedly defamatory statements, in order for a plaintiff to win. Patel is saying, not only were parts of the story false, but also that The Atlantic knew or recklessly disregarded the fact that they were false. And so, Patel argues, the court can’t dismiss the case right now, because if he can prove all of that (and the judge has to assume he can for purposes of this motion), he could win the case.

How Patel’s lawyers start their response: “Defendants published a hit piece. They knew it was false when they published it. They were repeatedly told it was false by multiple official sources with firsthand knowledge. Yet, they published it anyway. Defendants cannot now retreat behind the First Amendment and ask this Court to believe that their conduct constituted legitimate journalism. It did not. The press has no ‘special immunity’ from the application of general laws,” nor does it have a “special privilege to invade the rights and liberties of others ... First Amendment values are not at all served by circulating false statements of fact about public officials.”

They finished their brief with a more modest tone: “While defamation law has evolved over time, ‘the basic theory of libel has not changed.’ … ‘[W]ords defamatory of another are still placed in the same class with the use of explosives or the keeping of dangerous animals.’ … As Chief Justice Warren observed, ‘[f]reedom of the press under the First Amendment does not include absolute license to destroy lives or careers.’ … For the foregoing reasons … Defendants’ lies are not protected, and Plaintiff, Kashyap Patel, respectfully requests that this Court deny Defendant’s motion in its entirety.”

Patel, who is a serial plaintiff in defamation proceedings much like his boss Donald Trump, has experience losing in this posture. When he sued former FBI agent Frank Figgliuzzi over comments he made on Morning Joe, Frank moved to dismiss, arguing successfully that his comments were hyperbole and the public understood them as such, so Patel could not, as a matter of law, establish specific lies that amounted to defamation. But this case is positioned differently, and Patel may well survive a motion to dismiss here.

In its motion to dismiss, The Atlantic wrote, “This is Director Patel’s fifth defamation lawsuit against the media in recent years, and the second one he has filed since being sworn in as FBI Director. None of those prior lawsuits were successful, and this one is equally meritless. But merit is not the point. By filing these suits, Director Patel sends an ominous message to the press: publishing reporting that he does not like comes at a high cost.” The Atlantic told the court that Patel is a “powerful public official who is and should be the subject of public discussion—positive and negative,” and asked the court to dismiss his complaint with prejudice.

The Atlantic's Editor-in-Chief Jeffrey Goldberg previously said in a statement that the lawsuit is "politically motivated retaliation" and a "meritless" action that "should be dismissed as a matter of law."

The case is in front of a judge who is familiar to Civil Discourse readers, District Judge Emmet Sullivan, who is also handling Katie Phang’s lawsuit against Todd Blanche. The Atlantic will have the opportunity to reply to Patel’s brief, and then it will be up to Judge Sullivan to decide whether the case should move forward, or not. If the motion to dismiss is granted, the case will be over. If not, we move on to discovery, including depositions. The Atlantic has already asked for official documents and communications from the FBI and DOJ, since Patel's lawsuit relies on them to refute The Atlantic’s reporting. They will then seek depositions on key issues. Anyone who saw the video of Patel drinking in an Olympic locker room knows that’s unlike to be pretty for Patel. Either way the Judge rules, Patel loses here. And he has no one to blame but himself. He could have let it go and become yesterday’s news. Instead, he chose to sue.

One of the things we do at Civil Discourse is stay with the stories that matter. We assessed Patel’s lawsuit when he filed it. We looked at The Atlantic’s motion to dismiss. Now we’re reading Patel’s response. When Judge Sullivan rules, we’ll make sense of that too. We follow through instead of following the news cycle. If that approach works for you, you can subscribe for free so you don’t miss what happens next. And if you’re already a free subscriber and want to support this work, paid subscriptions are what make it possible for me to keep doing it—and to keep Civil Discourse available to everyone.

We’re in this together,

Joyce