Kash Patel’s Strategic, Frivolous Lawsuit Against The Atlantic

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0:44Hey, Fabio. Hi, Tyler. Thanks so much for being here. Thanks for having me. So in addition to having the most important job at the magazine as the New Yorker's general counsel, you write every now and then. And most recently, you wrote a piece about Kash Patel's lawsuit against the Atlantic. I'm curious, what was it about this case that stood out to you and made you want to write about it? I think it is in part because of the explosion of lawsuits generally by this administration against the press. And this was just a sort of hallmark example of a, what I think of as an unfounded lawsuit, facially unfounded lawsuit.

1:23And I thought it was worth writing about that issue, but also why, you know, there are legitimate concerns that people have about anonymous sources. And so I thought that distinction was important to address. That's Fabio Bertone, the general counsel for The New Yorker, who recently wrote a piece about the FBI director Kash Patel's lawsuit against The Atlantic. After The Atlantic published a report about Patel alleging excessive drinking on the job, he sued the magazine for$250 million, claiming defamation. It's not the first such case from within Donald Trump's orbit, as Trump himself has filed similar suits against outlets like The Wall Street Journal and The New York Times.

2:05But according to many legal experts, these cases reflect a weak grasp of defamation law, and perhaps more notably, an effort to curb the press's ability to report on the Trump administration. I wanted to talk with Fabio about the particulars of Patel's lawsuit, how it fits into Trump's own litigious approach to the media and anyone else he considers a personal or political enemy, and whether the press can withstand the potential chilling effects of cases like these ones. This is The Political Scene. I'm Tyler Foggett, and I'm a senior editor at The New Yorker. So just to rewind, why exactly is Kash Patel suing The Atlantic for$250 million?

2:44So The Atlantic published a terrific piece by Sarah Fitzpatrick, a 2 ,000-word piece. She claimed to have interviewed dozens of sources within the administration, within the Department of Justice, and current and former FBI officials, even hospitality workers, who told her stories of Kash Patel's drinking. And according to her sources, they were very alarmed by the extent of his drinking and that he had been visibly drunk at a club in D.C. and a nightclub in Las Vegas, where he spends time, that he had been difficult to wake up in the mornings for meetings because of drinking the night before.

3:26And so they went to Kash Patel for comment, as a responsible journalist would. And he said, I think it was, print it, it's all false. I'll sue you, bring your checkbook. I think the piece was published on a Friday, and that Monday he filed this$250 million lawsuit for defamation. And that was sued as a private citizen, right? So this is distinct from like the DOJ or the U.S. government filing a lawsuit on behalf of the FBI. Correct. He has private lawyers handling this. He's presumably either paying them or they are working on contingency fee, but they're not government lawyers working on this.

4:06I mean, we've seen a lot of unflattering reporting on other current or former members of the Trump administration. I mean, The New Yorker has even done some of this reporting. I'm thinking of people like Pete Hegseth and Kristi Noem. And many of those stories have had at least a few anecdotes that have been based on anonymous sources. And to my knowledge, none of those other people have sued the publications behind these stories. So what is it about this Atlantic piece or about Patel himself that you think got us to this situation? Well, I think that's the question. I mean, you know, for most of my professional career representing media organizations, public officials don't sue for defamation.

4:47I mean, they do sometimes, but it's been historically relatively rare because there is, as required by the Constitution according to the Supreme Court, a very high bar for them to meet. They have to show that not only that the press got it wrong, but they knew they were essentially lying when they published the piece or they thought that it was probably false. So these cases used to be pretty rare. I think there – and that's another reason why I think it's important to write about these cases is there's a shift in sort of the sense of the public perception of these lawsuits. And it seems as though, including within this administration, there's an idea that you hit back.

5:31It's sort of the Trumpian. If someone, you know, comes at you, you hit back harder. So despite the fact that not everybody sues over this, I think, you know, in certain situations, there is this sort of Trumpian kind of reflex, I'll sue you. And then, you know, people do. I think Kash Patel in this case, his lawyers probably know there's a very high bar to meet. But there's a certain, you know, value both in publicity terms and sort of PR terms, but also to Trump, you know, demonstrating to Trump how aggressive he is in filing a suit and then putting a ridiculously large number,$250 million on it.

6:14And that's just a made up number. That's not, you know, you don't win$250 million automatically because that's what you claim in your lawsuit. So it seems like the legitimacy of Patel's case hinges on this idea of actual malice. And is that the concept that you were referring to, which is basically like, one, this is wrong, and then two, you knew that this was wrong, but you published it anyway? Like, are those two things together what kind of equals actual malice? Yeah, the media lawyer joke is actual malice is not actual, and it's not malice. So it's an unfortunate term that the Supreme Court used in New York Times v.

6:52Sullivan, the sort of case that established this. But what it means basically is it's not malice in the sense that you dislike someone. You know, that has nothing to do with it. Your personal – a reporter's personal feelings for the subject of a story is not the malice that the Supreme Court was talking about. What the malice standard means is that the publication knew that it was publishing something false and published it anyway, which generally doesn't happen, or that they knew it was probably false. It's called reckless disregard for truth or falsity. They had serious doubts about something.

7:28They thought, oh, this is probably not true, but let's publish it anyway. And so a plaintiff, a government official, or that ruling was extended to public figures, but a plaintiff in that who's a government official has to establish that the journalistic outlet, the person who said the statement, met the actual malice standard, that they knew what they were publishing was false prior to publication or really doubted it in order to prevail ultimately. but even to get past a motion to dismiss. So there have been recent cases that have dismissed these defamation suits for not meeting the actual malice standard.

8:10I guess I'm wondering how, if you're Patel or anyone in this situation, how you actually go about proving actual malice. Like, it's one thing if during the discovery process you're somehow able to find emails between editors and reporters where they're like basically saying, oh, this definitely seems like it's not true, but let's go ahead anyway because we really want this scoop. But assuming that those kinds of messages don't exist, I guess if you're just like looking at a story and you have four people, maybe they're anonymous saying one thing and then one person saying the opposite, is there a world in which that one person who said the opposite is supposedly more credible than the four people alleging the other thing?

8:53And so you shouldn't move ahead with the story because you should listen to that fifth person who said it wasn't true? Or is it kind of like a numbers game at that point where you have this many people saying this and this many people saying the other thing? And as long as you include all of those viewpoints, you're probably good to go? Like, I guess it just seems hard to me, like, looking at a story where you have people who are alleging different things, and some of them are actually, like, contradicting one another how you would actually go about saying that there was actual malice here. Yeah, so there are no bright line rules here.

9:27There's no, you know, strict number of sources one has to have. But certainly a court will take a look at the, you know, number of sources, the variety. And look, you know, it's intentionally a very high standard. The court said that in order for democracy to function, there has to be a vigorous press and it has to be able to publish critical pieces, both critical in terms of importance but also in terms of criticizing public officials. And they have to be unafraid to do so, right? So does that mean that there's a very high bar for plaintiffs to me that can to them feel unfair? Sure. But the Supreme Court held and it's been established law that that's important to the functioning of democracy.

10:14We wouldn't have a lot of stories that we do that point to real misconduct in government officials without this standard. You know, but courts will certainly look at the quality and number of the sources, right? Are they, you know, people with a reason to know the truth or falsity of what you're alleging? Is it someone on the street just speculating versus someone with inside knowledge that's giving you information? And, you know, what else did the organization do to verify that? So, you know, at a place like The New Yorker, we do things like figure out whether these people are who they say they are.

10:56The sources are who they say they are, right? We talk to people that they may have told at the time, sort of what's colloquially known as, you know, prompt outcry witnesses. Someone who heard about it at the time so that we know that this is not being made up now for the benefit of our article. It's something that they saw and witnessed and told others about at the time. So there are ways to sort of verify that. Now, of course, if a source comes back to you with conclusive proof that what you're about to publish is false or what you are preparing is false, I was getting my appendix out at the time.

11:35You said I was robbing the bank. Here are my medical records. And on this date, I was under the knife. and the newspaper publishes anyway, that might be, you know, actual malice. And that's essentially what happened with Fox and the Dominion lawsuit, right? So it wasn't simply that Fox got stuff wrong about Dominion voting machines. Dominion had submitted to them time and time again evidence that what Fox was saying on air was false. And so, you know, that was a case where there was a lawsuit and it didn't go to trial. It settled on the eve of trial. But the evidence that had come out during discovery showed that various people at Fox did have doubts about the truth of this and that they had been provided information by the plaintiff, demonstrating fairly conclusively that what people were saying on air was false.

12:32And so that was a legitimate defamation suit. And again, the standard is very high, intentionally so. But it's not, you know, for plaintiffs that have been wronged, it's not insurmountable. Just going back to Patel's lawsuit, you mentioned that the fact that so many of the sources in the Atlantic piece were anonymous actually poses some complications for the magazine as they face this litigation. What's the problem with anonymous sources? So, I mean, you know, again, the Atlantic said that they had dozens of sources. So it's reasonable to believe that they trusted those sources, right? When you're hearing something similar from multiple independent sources and you're diligently tracking down leads, then you can have a reasonable belief in the truth of what they're saying, even if they say, I'll tell you this, but you can't use my name.

13:25And so the problem comes for what you were describing before. When you get to discovery, if there is discovery, right, if they don't get this case knocked out in a motion to dismiss, in discovery, one, you know, there's a risk of burning those sources, right? Those names get revealed in the course of discovery, which journalists worry about a lot. If you promise someone that you will keep their identity confidential, you really want to do everything you can to protect that promise. And so that's one concern. These folks will be revealed in discovery. The other concern, and this has happened in a few cases, where a court has said to the defendant, to the journalistic outlet, look, for this case to move forward, you've got to reveal your sources.

14:14You've got to tell me who you spoke to so that we can, you know, get their deposition and find out what they knew and how they knew it and the rest of it. And if you refuse to reveal those sources, I'm going to either rule that you had no source or impose other sanctions. And that can be really difficult for a journalistic outlet, right? If a judge rules that you have no source, then you're sort of, you know, in the mix of an actual malice standard that essentially as a legal matter, the court is saying you're running the risk of a finding that you didn't have any valid source for this. I mean, that sounds like a nightmare.

14:51Do publications run into that all the time? I mean, not even just thinking about like, you know, members of the Trump administration suing the press, but I would assume that it's pretty common for a publication to be sued for defamation and then to not want to give up their anonymous sources because anonymous, you know, protecting sources is such a big part of what we do. Yeah, I mean, and that's why a story that relies 100 % on anonymous sources is a delicate story. And, you know, here you have a story that was so critically important for the nation. I mean, you know, the context here is not just a scandal piece about an administration official.

15:29This is someone who is the head of the FBI at a moment where the country is at war with a foreign power, Iran, that has sophisticated hacking abilities and sponsors international terrorism. So one would think that this kind of security context would put the fact that the director of the FBI may be incapacitated, you know, front and center and is something that everybody would be concerned about. So there are certainly instances where you have to rely on anonymous sources because everybody's afraid to go on the record and use their name. They're afraid of retribution from their bosses. And so that's understandable in a case of this.

16:15Now, if it was celebrity gossip or something else, maybe you'd make a different calculus in doing that. Let's take a quick break, and then when we come back, I want to get into some of Trump's lawsuits against members of the press. This is The Political Scene from The New Yorker.

16:57That's what I come to The New Yorker for. I'm David Remnick, and each week, my colleagues and I try to make sense of what's happening in this chaotic world. And I hope you'll join us for The New Yorker Radio Hour.

17:16So I want to talk about some instances of Trump himself taking legal action against media outlets, starting with a lawsuit which was against The Wall Street Journal for their reporting on the Epstein birthday book, which, to recap, was a 200-plus page scrapbook that Glenn Maxwell created for Jeffrey Epstein's 50th birthday, which allegedly contains a contribution from Donald Trump. So what was the claim in that suit, and how did that all play out? So in that piece, the Wall Street Journal described a page in the birthday book that was allegedly written by Trump. It had a poem and a drawing, sort of a poem, I guess, and a drawing of a nude woman and Donald Trump's signature in the place of pubic hair.

18:02And the Wall Street Journal included the line that was part of this text that Trump allegedly had written that said, may every day be another wonderful secret. And so it was unclear from the piece, my recollection, I think I have this right, it was unclear from the piece whether the Wall Street Journal had an actual copy of the document or whether they had just seen it. But they described it in their piece. They went to Trump for comment. Trump said it's false, fake news, and if you publish this, I'll sue you. He apparently called Rupert Murdoch, owner of the Wall Street Journal, to get him to kill the piece.

18:46Rupert Murdoch, to his credit, did not. The piece was published, and Trump immediately sued over it, saying it was fake, that he doesn't draw pictures like that, and this is all made up. Subsequent to that, people on the internet came up with examples of Trump drawing with his typical Sharpie, drawings that look similar to this. But then Congress subpoenaed the estate of Jeffrey Epstein. The estate of Jeffrey Epstein exists in their lawsuits against the estate for Jeffrey Epstein's conduct. But they have this corpus of documents from Jeffrey Epstein. One of them being this birthday book that was at issue here.

19:33So Congress subpoenaed the birthday book from the estate. The estate produced it. Congress published it publicly. And lo and behold, there was the drawing that the Wall Street Journal had described. Now, you know, it's still, is it possible that someone forged a note from Donald Trump and inserted it in the birthday book back whenever the birthday book was? I guess theoretically, you know, is this copy of the birthday book, the alleged Trump drawing from the birthday book, the precise one that the Wall Street Journal had seen prior to their publication? We don't know, but it's accurately described.

20:14So the reasonable inference is that the Wall Street Journal got it right, right? There was this letter in the birthday book, Trump denies having written it, fine, that denials included in the piece. but it exists. It's a real thing in the world. And it was produced by Congress. And so that production by Congress happened after the lawsuit had been filed. But nevertheless, one would hope that a judge would take what's called judicial notice of a document like that and say, look, this is not a serious lawsuit. There's no way legally that Trump can establish actual malice. Clearly, the Wall Street Journal had seen something that is equivalent to this exact document that is part of the estate that is real, whether or not it was actually authored by Trump or somebody for some reason forged it at the time of this birthday.

21:12And so there's no way that Trump could show actual malice and win a defamation suit against the Wall Street Journal. And so I'm throwing out the case. The court made that finding that Trump hadn't established actual malice but refused to take into account that subsequent publication. So then gave Trump a chance to refile. And now Trump is asking for discovery, what we talked about before. So, you know, depositions of various people who were involved in preparing the article, documents exchanged, hoping to find, you know, something that suggests that the Wall Street Journal, you know, had real doubts about this prior to publication.

21:56And this is why it's a problem, right? The expense of a lawsuit is enormous. And so, you know, once you get into discovery, once you get into depositions and producing documents, it is very expensive for a media company to defend a lawsuit like that. And plaintiffs know this, and that's part of why they do it sometimes. That's why they threaten. That's why they do it because the expense of it to a media outlet at a time when, you know, many media outlets are not exactly flush with cash. So for a company like the Wall Street Journal to go through discovery is a big pain. And it's not just the financial cost.

22:38It's also the distraction of having writers and editors, you know, out to law firms to prepare for depositions and then give their depositions and go through their documents and all these things. It's just a big distraction from what they do. There have also been a bunch of other lawsuits that Trump has filed or threatened against media companies that aren't necessarily defamation suits. But, you know, I'm thinking about Trump filing a$15 billion lawsuit against The Times, accusing it of being a virtual mouthpiece for the Democratic Party. And I think the lawsuit included Penguin Random House as well.

23:10And that lawsuit ended up getting dismissed later that month. And then Trump refiled it in October. Like, is that something that would have more legs? No, I mean, you know, these are all of a piece. So I tried to – yesterday I sat down and tried to off the top of my head come up with a list of ongoing sort of media and defamation and defamation-adjacent claims both that Trump had filed and the administration had done. And off the top of my head, I came up with a dozen. And then over the course of the last 24 hours, I keep thinking, oh, yeah, there's that other one too. Oh, yeah, there's another one.

23:48Oh, I forgot about that one. So there are a bunch of cases. Trump himself, I think, has seven. I might have miscounted, but I think there's seven cases that are either defamation or very close to defamation. He has a case against Ann Seltzer, who was the pollster. Oh, I forgot about that one. Yeah, exactly. Yeah, I forgot about that one. We all did. And that was just for a poll in Iowa that showed that he wasn't going to do as well as everyone thought, right? Well, it showed that he wasn't going to do as well, and then he ended up winning. And so he sued her and the newspaper under a theory of consumer fraud or something, I think.

24:29Some kind of fraud that she, you know, deceived purchasers of the newspaper by publishing these false statistics. So it wasn't a straight defamation claim, but a consumer fraud claim. And again, there, what are his damages? He won the election. So how was he injured in any way? And the same thing with the CBS suit, the Trump lawsuit against CBS for their changes in editing their interview with Kamala Harris. You know, he alleged there was also a similar sort of consumer fraud claim that viewers of CBS were tricked somehow by this change in the answer that was given by Kamala in the 60 Minutes interview versus the version that was cut for, I think, a morning program.

25:21Substantially saying the same thing, but, you know, in slightly different formats. and which news outlets do all the time, not to score political points, but a different format. You want to have a shorter answer or something like that. And so he sued there again, even having won the election, he sued under some consumer fraud theory. So there are those. There are the straight defamation lawsuits against the New York Times that you mentioned, against the Wall Street Journal, against the Pulitzer board. And I think there are a couple of others that I'm missing. And then, you know, he's sick, the FCC on outlets and threatened their licenses for things that he doesn't like or Melania doesn't like.

26:10And so there are sort of various categories of them. And then there are the criminal sort of attacks on members of the press. Don Lemon and Georgia Fort were arrested for covering a protest in Minneapolis. Hannah Natatsen, the Washington Post reporter who won a Pulitzer yesterday, her house was raided and devices were taken by the FBI. And the New York Times had a story a couple of weeks ago about a reporter of theirs who had written a critical piece about Kash Patel's girlfriend having received secret FBI protection. and the FBI apparently launched a preliminary investigation or tried to launch a preliminary investigation to this reporter for stalking.

26:57So there are various sort of buckets of cases against the media. Some are Trump defamation suits. Some are sort of administration pressure on media outlets. Some are criminal investigations. And they all, you know, it's sort of the Steve Bannon theory of politics which, as he put it, is flood the zone with shit. It's just so much stuff that it's virtually impossible to keep track of. And it's just threat over threat. And I think that those threats are the point, right? And so I don't know what, you know, Cash Mattel might be, you know, personally upset and feel this is unfair. But I think it also feeds into an idea that you just got to go at the press really aggressively and shut this reporting down and make sure that they think twice about doing this again.

27:48Yeah, I mean, it seems like for the most part it's fear tactics and it's kind of like the lawsuit itself and like the inconvenience and expenses that come with it is the punishment rather than any damages that would actually be won. But I'm curious how many of these ongoing lawsuits actually seem like they might be ruled in Trump's favor. I think in a just world they would all be dismissed. Again, there's so many of them, I don't know the precise details of each of them, but the ones I'm aware of seem pretty frivolous to me. You know, there is this push to overturn that standard that I talked about, the actual malice standard in the Supreme Court and get the Supreme Court to either overturn New York Times for Sullivan or roll it back.