Kash Patel's Terrible, Horrible, No Good, Very Bad Week

0:11Hey, welcome back to another edition of Thinking Like a Lawyer. I'm Joe Patrice from Above the Law. I am joined by other people from Above the Law. Great title, Other People. Yes. Today, the role of other people will be played by Catherine Rubino. Yeah, there you go. And? No, I'm the person. I'm not other people. I was waiting for my role to be introduced. Well, that is Christopher Williams. We're all here at Above the Law. Yeah, and we meet every week to discuss the big stories from the week that was in legal. But first, we have a little bit of small talk with the Superman fanfare there. So how are things going, everybody?

0:52I mean, I did some spring cleaning, which is, you know, really scintillating topic of conversation. but it was in fact what I did and I rearranged my furniture, which always seems like it's going to be easier. It's like, Oh, just move this there and that there and Bob's your uncle. And then you like start pushing stuff and you're like, this is going to take a minute. Yes. Furniture. That's nice. So the ballroom thing. Oh yeah. Yeah. Yeah. There is that. Not so small. The talking there, but okay. A little medium talk. I had an immediate thought and I'm like, I'm not seeing it elsewhere. I don't know if I'm crazy, but it looks like the guy who got arrested looks to be like he's been stopped by police for traffic reasons, for no reason.

1:43How is he alive? They kill Black folks for a lot less. So there are people that are kind of conspiratorial. It's like, oh, this was a husband. My thing is, how is he still breathing? of all the conspiracy theories that does seem like one that should be getting a little bit more play like then a dude got choked out for apparently having a fake 20 in a cigarette like he shot over fire and they found him the only thing is he wasn't wearing a shirt come on and supposedly gunfire was supposedly exchanged and i guess a bunch of secret service agents missed him multiple times and yet still brought him down?

2:21I don't know. I mean, I know there's a thing with, like, Secret Service and prioritizing whiteness, but you should not have stormtroopers as your main shooters. Yeah, right. Like, it is. Nothing? He didn't get hit once? Yeah, yeah, right? Seems weird. But, again, we are not. Not to accuse the administration of having a fake shooting, but at least the other one had ketchup involved. Yeah, we're not indulging in in the conspiracy theory stuff, but it is. Look, and then the immediate and then the immediate. Oh, this is why we need a ballroom. Nobody got hurt. Well, and that's and that's the story.

2:57That's Catherine's story, not for this week's episode necessarily. But that is Catherine's story that you can read now as you're listening to this detailing that within what some a few hours of the shooting. The DOJ was already jumping on demanding that the case to block the construction of the ballroom be dropped, which, as I put on social media, you're never beating the false flag allegations like that. You got it. You got to realize that it's just going to feed the conspiracy theories if your immediate response to it is. Let's see if we can get a litigation advantage here. and I hate to be like the Petridge Farm remembers guy but back in my day people actually died in false flags you know now we can't even things used to be paid in blood you know wow wow wow so yeah no so that has been an interesting wrinkle in our historic wrinkle in history I suppose which all these weekends have been it has been unprecedented time for the last three, five years.

4:03I would just like a precedent. Can we have a precedent in week? I mean, the Supreme Court doesn't care about precedent anymore. Oh, but I'm changed. Oh, yeah. Yeah. Hey, listen. For a legal show, that's gold. Oh, okay. For everything else, that is fools. That is really horrible for everything else. But for this show, that's gold.

4:26All right, everybody. We should get started. We have a big story this week that actually was multiple articles of the week because it just it was going and going and going and going. Cash Patel, who as of you talking about his drinking tap. Oh, as of this recording, is the director of the FBI, though there is every reason to believe he may not be by the time it hits your ears. Cash Patel was the subject. Did you hear what AOC said about that? Oh, asked about like, who should Donald Trump fire next? She was like, are there any other women? Because that appears to be the only kind of people he's willing to fire.

5:06Yes, we did also lose the Department of the Secretary of Labor. So The Atlantic published a article with several insider accounts detailing Cash Patel's work habits, alleging that he spends a lot of his time drinking, that he's often unresponsive and not around. He denies all of these allegations and immediately replied that he was going to sue them for all of this and made good on that pledge pretty quickly with a$250 million defamation complaint. Not quite sure why this would be worth$250 million, nor is anyone particularly sure how this would be a defamation claim given that there's really nothing in there to suggest.

5:55I mean, put aside actual malice, which they do not have any good argument for. There's not really anything in there that seems like a defamatory claim that they can make out. I mean, the reporter does not. I mean, if the reporter believes the sources they have, then that would be sufficient. Done and dusted, as they say, in the real technical parlance. So breaking down this complaint, though, we did a full breakdown of what was going on in the complaint. And the actual malice claim is not really played out. It seems as though Jesse Benal, who's a big figure in the big lie conspiracy, voter conspiracy circles, is representing Patel.

6:40He seems to think that actual malice means the reporters are mean to you, which is not what that standard means. There's actually a bunch of case law about that. Yeah. Like what it means is actually pretty well defined. I will say, I mean, he's a lawyer, so it's no excuse for him not to know. But for regular folks, for regular folks, it is one of those situations where it is an unfortunate name that we chose to give this standard. Because it sounds like you were mean. Yeah. You knew you were being mean. That's what it sounds like. Well, I'm not speaking as a regular folk, but I would imagine regular folk who have the literacy level to know the word malice.

7:20Like, right. Malice is a very heavy word. Like, it is much it is much meaner than mean. So, like, even even on that level, I don't even buy that. Like, malice is like at the level of like sinful, like bloodlusty. Yeah. So it's unfortunate. This might have a different appreciation for words than the average American. Yeah, this is this is a point is it's an unfortunate term. All it really means is that the reporter, because this is a public figure, the reporter has to know or be reckless in not knowing that the facts in the article are fake. If the reporter believes the insiders who are giving these accounts, if they subjectively believe it, even if the insiders are lying, if the reporter subjectively believes it, that would not cross the actual malice threshold.

8:13Patel has another lawsuit going against someone who had. Well, we're going to get that. It tends to be passed. Yeah. So that was actually where we were going with that. Has this other lawsuit against someone over similar statements and tries to bootstrap that into this complaint by claiming that the Atlantic knew this other lawsuit was out there, which means they knew that this was going to that these claims were probably false. that lawsuit got dismissed this week because, you know, there's no actual malice here. Well, yeah. And in that case in particular, I think the statement was that Patel had been more visible at nightclubs far more than he'd been seen on the seventh floor of the Hoover building.

8:55And the judge was like, that was obviously a joke. Yeah. Like no, no, no person was like, oh, I've thought that he meant I've clocked him. And I can tell you the times it was clearly like Like a quippy little thing said on Morning Joe, no one took this for a statement of pure fact. Did Patel hire Drake's legal team? No, but he did. As we said, he did have one of the key figures in pushing voter conspiracy theory cases as his legal team, who is not seem to be. You know, that was an unfortunate, unfortunate timing on getting that case tossed as soon as he makes this one. There's also some, you know, just a side story.

9:40This is not the most important story about it. But there's some reason to believe that AI might have drafted parts of this complaint. There's some errors in it. Turns of phrases that turns of phrases. He's a big fan of. Yeah. One of my favorite one of my favorite reasons to believe that A.I. wrote it, not him, was that a reporter recanted facts from the pleading. And he was like, you're lying. Yeah, that was the story that I wrote about it. Yeah. He Cash Patel was giving a press conference about his Southern Poverty Law Center litigation. And there were some questions not about that case, although we will talk about that in a minute, but about his case against the Atlantic and several of the allegations.

10:23that, you know, one of them was that the allegations that the Atlantic made was that he had been locked out of his computer and thought that he meant he was fired and he freaked out was what the Atlantic said. And in the complaint, it was like he was a standard mistyped, you know, lockout, but it was quickly resolved. No problem. And so they asked about like, well, when you were locked out of your computer and he was like, I was never locked out of my computer. How dare you? Anybody who believes that's an idiot. So, yeah, query whether or not he read the complaint. Not great when you're publicly announcing that you that the allegations in the complaint on in your own lawsuit you don't believe are true.

11:05Courts really love when the complaint is alleging things that the plaintiff thinks is false. Yeah, I mean, the fact that the that the reporter in real time was able to say the complaint says the opposite of what you're saying right now. Yeah, it doesn't look great. Look, there's no real chance of just giving a legal assessment. There's a 0 % chance of this case resolving in his favor that I can see. It's filed in D.C. makes sense because the only other logical opportunity place for him to file it would be Nevada. Nevada has a fairly harsh anti-slap law that would then lead to him being on the hook when this case inevitably gets dismissed.

11:49By doing this in D.C., he avoids that at least. Yeah, and I mean I think that this is something that people have said and above the law has published this as well. But that I think the main purpose of this lawsuit is to prove to Donald Trump that Castro is a fighter, that he's going to stick it to them. And much very similarly to how lots of Trump's lawsuits we know are big losers, but he does it anyway to say like, and I'm going to fight this. It's kind of the bravado of the Trumpian two era. I actually thought interesting, not that people have talked a lot about it, not particularly legal, I suppose.

12:25But the two bars that he allegedly spends all of his time in, one in Vegas and one in D.C., are both private clubs, members only clubs. I guess that's the only way that you could pull something off like this if you were a public figure and didn't want folks to know about it. But, you know, it's interesting. They're spendy, too. I think the one in Vegas is a$20 ,000 membership. Well, somebody. Which in Las Vegas these days, I think that's the price of two cocktails. Okay. Oh, there's a discount now? But, yeah, no. So I just thought that was interesting, the private club thing. I mean, that doesn't surprise me particularly.

13:06I think that you're right that in the era of smartphones, if you are going to regularly go out and you're a public figure, you probably have to spend that money. Yeah. All right. Well, let's take a break here. We're going to keep talking about Cash Patel, but take a shift in gear when we come back.

13:31You like legal podcasts because you're curious and want to be the best attorney you can be. I'm Dave Scriven-Young, host of Litigation Radio, produced by ABA's litigation section with Legal Talk Network. Search in your favorite podcast player for Litigation Radio to join me and my guests as we examine hot topics in litigation and topics that will help you to develop your litigation skills and build your practice. I hope you'll check out Litigation Radio and join the ABA litigation section for access to all of the resources, relationships, and referrals you need to thrive as a litigator.

14:05All right. So not related related. Cash Patel was in the news for other reasons this week, which is that along with the acting attorney general, I guess, Todd Blanche, it's unclear whether or not that's actually his job or not, because Pam Bondi hasn't technically left yet. I don't really know what's going on, but he's calling himself the acting AG. So let's just go with it. Todd Blanche and Patel dragged themselves out to a press conference to announce that they were bringing criminal charges against the Southern Poverty Law Center. Did this feel like something that was hurriedly put slapped together so that Kash Patel could potentially change the headlines?

14:48Absolutely. And you can tell that it's it it really felt like it was slapped together when you started reading the complaint itself and realized that there were a series of mistakes up to and including not making any claims about in the indictment has no claims about one whole element of one of a charge of four of the charges. Yeah, I mean, listen, I want to talk about this first because it's funny, but I don't want to also ignore how horrifying this lawsuit is for the state of our democracy, right? So put a pin in, you know, end times. But on the, they forgot an entire element of the charge because what a clown show.

15:30Like a 1L doesn't do that. Or if they do, they don't stay a 1L very long. Wait, wasn't there a recent thing where like they made the hiring requirements more lax? Yeah, there you go. So there you go. Maybe it wasn't one of them. You lower your standards. Cash Patel, law school graduate of some school in New York that he refuses to put on his actual official government biography. He does the - It was probably School of Hard Knocks Law. But Cash Patel is kind of the flip side of the coin of the people who say, well, I went to law school in Cambridge. That is a joke I have made. Yeah. that is literally the joke really okay yeah uh i wrote a story great minds i guess okay or you read it a year ago when i wrote it um probably not uh that was yeah that was an early uh trump administration uh law school trump administration legal story that i wrote because cash fatale's official uh biography just says went to law school back in new york not saying you know It makes you think that, oh, was it Columbia?

16:37Maybe it was Cornell. You know, where did he go to law school? And it's like, no, think further down the rankings. Yeah. He went to Pace, to be clear. Not that it's a fine law school, but, you know. Yeah. So, absolutely. So, the indictment, rather than charging the Southern Poverty Law Center with bank fraud, like one would normally do in the allegations that they're talking about, They instead make it a claim under a bank secrecy statute, which is all well and good. We'll talk about this case and the substance of it and why they think that is the crime in a second. But this bank secrecy statute includes as an element, the crime has to be an attempt to influence the bank to do something.

17:25You have to be lying to the bank for the purpose of making the bank do something, which they don't even make an argument why the Southern Poverty Law Center was trying to get the bank to do anything or anything that the bank supposedly did over it, which is not great for that. You need to have at least some element there. Now, they do plead all the elements of some other stuff, not necessarily convincingly. They're making a series of wire fraud claims. They argue that donors were defrauded. And now we can get into the substance of this argument. The argument is basically that the Southern Poverty Law Center, who tracks and keeps dossiers on hate groups and also helps take down hate groups.

18:12Also known as very fine people, as the president has previously said. Right, as the administration calls it. Well, that's actually more relevant than just kind of a quip. Sure. So they do this work. Part of how they do this work is that they pay informants embedded within these organizations to hand over information. The SPLC actually has made the point that when they get this information, of course, it goes into their dossiers and their work. But they also, when they have direct knowledge through their informants of upcoming criminal activity, they turn that over to law enforcement, including the FBI.

18:50So this is work that they've done. They run these payments through shell organizations so that these folks aren't getting checks that say Southern Poverty Law Center on them, which probably would go bad if they're trying to stay undercover. I just imagine if somebody got the check, they'd be like, what do you mean? I'm not in poverty. so the uh so these hate groups uh are that that's how this you know they they've got embeds uh one of which was the unite the right the charlottesville march that uh trump famously said there were very fine people on both sides it is interesting that in the despite it historically being very fine people on both sides in this uh indictment the doj is and the administration is taking the stance that it was really horrible and everybody on that side was awful.

19:42And their argument is that by the SPLC paying some people involved in it as informants, that was really proof that the whole rally itself was masterminded by the SPLC. They argue that the Southern Poverty Law Center's job is fomenting hate groups that they pay and run in order to create the motive for people to give them money. They are claiming in their wire fraud argument that donors are defrauded over this. Most donors would say we gave them that money. I knew we were expecting them to be. This checks out. To be trying to take down these organizations. This is a dumb case, obviously. But it's also one that I think has a couple of ramifications that are worth talking about.

20:34One, when you bring this case, you are signaling to all the hate groups out there that it is time for them to engage in a mole hunt, which is not great. And that is who you are. That is going to put the SPLC's informants in jeopardy. It is also going to chill any future informant who is going to say, I can't go down this road because I could be outed by the federal government later. But a third element that I didn't really put in my story but I put on social media that I think is underappreciated is it also says that the – it's also confirmation that the Department of Justice, despite their talk about how they're against hate groups and the SPLCs behind them, they don't care about these hate groups.

21:20And it's proof by bringing this case because it's not like this mole hunt that's going to now take place inside all these organizations is going to just look for the people working for the civil rights groups. It is going to also try to uncover people who are theoretically working for the FBI, which is – There aren't any spoilers. Well, and that's really what it is. By bringing this, the DOJ is signaling either A, they are comfortable burning their own informants, or B, they don't have any because they've stopped investigating these groups. Ding, ding, ding, ding, ding. Yeah, because there's no way that this case doesn't lead to undermining law enforcement efforts unless – I mean, and so it means you either didn't think that through or you don't care.

22:09Sure. Yeah. I think that's actually the more interesting angle. Why this dumb case is actually very smart. Because the thing, I was interested in how this is being handled discursively. So like how people on the, like talking heads on the left are talking about it. I'm talking heads on the right are talking about it. I've seen like some of the talking heads on the left who aren't legally savvy. They're like, oh, this might be a big thing, blah, blah, blah. Because they don't know that like there are elements that haven't been met. so like even from the left there's like cautiousness about this maybe being a real thing and that like kind of target is the legitimacy of the poverty center but on the right this is great fodder for like a darvo tactic where it's like we're not the racist they're the real racist and my thought with that is a hundred like i think one of the allegations like about a million dollars or so was dedicated to like paying out informants what have you that is not a lot of money in the scheme of things um it's not and like there's no way that like all those people who were like marching on charlottesville they were doing it for uh southern law poverty center like like they'd be in poverty if that's where all their money was coming um but yeah um one of the people that i one of the places i worked i watched us this channel called newsmax and uh what's her name uh her name was uh harmeet dylan was on there oh yeah and she was like um we don't have referring to like the the right-wing protesters um saying that we don't have organic this is verbatim we don't have organic disruption this is the best country on earth people love to be here what is there to be upset about um so like the idea that the the real reason that the one there's the backdrop of maybe the clan isn't all that bad they're good people too but also to the degree that they are bad it's because the southern poverty law center is paying people to pretend to be bad actors.

24:06It's great cover. It's great cover. It's great plausible deniability. It's like, yes, you might have seen, you know, somebody burning a cross, but who's to say that lighter fluid wasn't paid for by the Southern Poverty Law Center, you know? You know, it's goofy, but - So Dylan, of course, runs the Civil Rights Division at this juncture. That would be the folks who would bring, you know, more civil claims against hate groups for work they do. It would probably, you know, but but would probably theoretically be looped into criminal investigations, even though they would technically be a separate a separate endeavor.

24:42But, yeah, it would suggest that they don't they're not involved in this at all, which I think we all knew. We all kind of knew. But yeah. Yeah. I think that's the right way to say it. We all kind of knew. But now we know. I will say this whole thing feels like a plot point from the boys. I'm watching season five right now and this is like not to give any spoilers but when they turn on the starlighters this is what it feels like alright well let's take a break and we'll be back in a moment alright well it is as I always like to say it's 2026 so we're not going to be able to escape a conversation about AI in legal because it kind of dominates everything this last week is where we learned that S &C Sullivan and Cromwell Sullivan and Cromwell found itself in the middle of an AI hallucination problem of its own this is what I love about this particular story is that sometimes I think that maybe maybe readers of Above the Law have the ability to kind of look their nose down on these AI hallucination stories like silly little small practice people small town they don't understand the way the big nope big law does it the exact same way also with hallucinations yeah Not also the first big law firm to get in trouble for this, but certainly I think one of the most prestigious ones that this has happened to.

26:04Well, and that's also a thing, and to take off of your looking down their noses, even to the extent that large firms have been tagged with this before, it's been the large firms that are at the top of the AMLA 100 because they have a lot of revenue. A lot of smaller offices. But it's happening in regional places, whatever. The like elitism of S &C in New York. Yep. New York, New York, big law attorneys are doing the exact same thing. Right. So this it was revealed in this instance. I think it was Boyce Schiller found it who was on the other side and flagged. Hey, looks like you've got some issues here.

26:50where S &C sent a letter to the court saying, hey, we self-reporting that they had been alerted to the fact that these issues existed. And then they provide an appendix of, after going back through all their work, an appendix of where there had been mistakes, and it was lengthy. And some of them were mistakes that were not necessarily the worst things in the world. errors in like the exact way the quotes were and things put in weird places, but mistakes and mistakes that you theoretically would catch. And as I pointed out, like this is an issue that with AI that I keep coming back to. It is a valuable tool, but it is not a replacement for the time-honored legal workflow of somebody has to sit down and read these things and verify them you know and yeah that's that's the time the hours that get billed of somebody sitting there going through each one and printing out the case and making sure everything's in there and yeah and it sucks but that has to be done and there are products i i would be remiss not to mention i've written about them before there are things you know i wrote about uh brief catch recently but they're but they're not necessarily alone but that's like a a notable notable product i recently wrote about that have now ai driven products that can read the brief and flag mistakes it can find the mistakes kind of for you uh and that's valuable too uh and that is a great starting point that narrows down this inquiry but at the end of the day there's no replacement especially at this level hour well there is a replacement for the bill of power, but there's no replacement for, this is what you're paying SNC for.

28:44And it will still be cheaper to utilize AI for a lot of these tasks and then waste, you know, and then devote this time on the back end. You can't, you can't view the fact that AI can speed things up as a reason why every aspect of the workflow needs to be automated. And it's this drive to automate every step that gets people in trouble, I think, and that it's going to be the new challenge because that is going to be what dumbs people down. It's going to be the idea that we move from, hey, it can accelerate this part of the workflow, but then human comes in to, well, it can do everything, and maybe a human just looks over it real quick.

29:29And that isn't the way this works. Like there has to be human intervention, logical points at break points. And it needs to be constantly there because mistakes can compound upon themselves and get lost in that process that you need to let the people read the stuff. it's only it's only a matter of time before somebody creates an llm that catches ai mistakes and then they name it somebody so then they can say well somebody looked at it

30:02yeah yeah and i think you need those sorts of products to make this product this you know to reduce mistakes that that is a great first filter it's going to catch potentially all but you know worst case 90 % of those mistakes. And that means that when the human goes through it, it's going to be an easier task, but they still have to do it. Can you just imagine, listen, the vibes at a big law firm are bad at best. Could you imagine what it was like over the weekend? Because it was inevitably a weekend when they were making this appendix of every mistake that they made in this brief. Yeah. It would have been awful to not even be on the case, but just like happen to be in the office as this is going down.

30:49Yeah, that's a bad vibe leak. Yeah. Anyway, so point is everyone should be concerned. Everyone should be careful. That is not a reason not to bring AI into your workflow because it is going to be essential to get things done. But it is a cautionary tale about how you need to pay attention. And I think that's, that is everything we got, I think. Yeah. All right. So thanks everybody for listening. You should be subscribed to the show so you get new episodes when they come out. You should be listening to the Jibo, Catherine's other show. I'm also a guest on the Legal Tech Week Journalist Roundtable on Fridays.

31:31And we, there are also shows on the Legal Talk Network that you should be listening to. We, you know, read above the law. So you read these and other stories before we talk about them here. You follow on social media, bubblah.com on Blue Sky. I'm at Joe Patrice. She's at Catherine One. Chris at Rights for Rent. We all also have a limited presence at Twitter, I suppose, although I'm Joseph Patrice over there. And that's everything. Bye. Peace.