Donald Trump hates being known as a loser, but the criminal case he has caused to be brought against James Comey is a loser that should not even go to trial

(Instagram)

Could former FBI director James Comey actually be convicted for taking a photograph of seashells that federal prosecutors claim constitutes a threat to President Donald Trump? Legal experts say the U.S. Justice Department's case against Comey faces at least two major hurdles: (1) The free-speech protections of the First Amendment; (2) Statutory requirements that likely will be difficult to prove.

That does not include the fact Trump has publicly called for the prosecution of Comey and other perceived political enemies, which could make the Comey case an unlawful vindictive or selective prosecution. 

To the layperson's ears, the notion that taking an image of seashells on a beach and posting it to social media could lead to criminal charges likely sounds . . . well, absurd, nuts, loony. It's all of those things, but with a president who has no distinguishable regard for the rule of law -- and a justice department he has filled with suck-ups who are loyal to him, but not necessarily the Constitution -- most anything can happen. At a hearing yesterday after Comey had self-surrendered, his attorneys said part of their strategy will be to seek dismissal of the case on vindictive-prosecution grounds, noting that Trump has made it clear he wants to see Comey punished.

It should be comforting to our mythical layperson that a prominent legal expert yesterday agreed with them that the case is a non-starter. From a report at CNN:

“This is not going anywhere. This is clearly not a punishable threat,” said Eugene Volokh, a senior fellow at the Hoover Institution at Stanford University who specializes in First Amendment law.

With all of that in mind, let's examine issues that likely will take center stage when the Comey trial begins. Fox News reports under the headline "Legal experts warn Comey '86 47' indictment faces First Amendment hurdles." Fox adds this subheading: "Charges under 18 U.S.C., Sec. 871 require proof of intent, and Comey's public explanation could complicate matters for prosecutors." Morgan Phillips writes: 

Legal questions are emerging over whether charges against former FBI Director James Comey could withstand a First Amendment challenge as he is indicted for a social media post allegedly tied to threats against President Donald Trump.

Comey faces charges under 18 U.S.C. § 871, which criminalizes threats against the president, and 18 U.S.C. § 875(c), which covers interstate communications containing threats to harm others. 

George Washington University law professor Jonathan Turley told Fox News Digital just before the indictment was released that, if the case is based solely on the widely circulated image posted by Comey, it could face steep constitutional hurdles.

 "If Comey is charged for the shell picture, it would face a monumental challenge under the First Amendment," Turley said. "In my view, the image itself is clearly protected speech. Absent some other unknown facts or elements, it would be unlikely to survive a threshold constitutional challenge."

The pertinent statutory language could provide more hurdles for prosecutors, Phillips writes:

Both statutes require prosecutors to prove not only that a statement constituted a "true threat," but that it was made knowingly and with intent, standards that legal analysts say could prove difficult to meet based on publicly available information. 

The indictment was filed Tuesday in the Eastern District of North Carolina, where Comey allegedly posted the image of seashells forming the numbers "86 47" during a beach walk. 

Others pushed back on the idea that the case raises significant First Amendment concerns, arguing that threats against a sitting president fall squarely outside protected speech.

"The third assassination attempt against President Trump on Saturday made this crystal clear: The Justice Department must prosecute those who threaten to assassinate the president," said Mike Davis, founder of the Article III Project. 

"No one has a First Amendment right to do this. No one is above the law, especially not a former director of the FBI who should know better. A jury of James Comey’s peers will decide his fate."

Mike Davis seems to be overlooking several important points:

(1) It's questionable whether the incident on Saturday at the White House Correspondents Dinner was an assassination attempt. Evidence indicates shots were fired in the vicinity of the Washington Hilton ballroom, but it is not clear who fired them. There seems to be no evidence so far that suspect Cole Tomas Allen fired a shot in Trump's direction. Even if one considers it an assassination attempt, how does that correlate to Comey's vacation activities on a North Carolina beach almost one year earlier?

(2) How did Comey's photo of shells on a beach constitute a threat to assassinate the president? Davis didn't, and probably couldn't, say. 

(3) Davis says, "No one has a First Amendment right to do THIS." To do what? Comey has no right to photograph shells on a beach and post the images to social media. Does Davis expect to be taken seriously?

Like a lot of folks on the political right, Davis seems to be assuming facts that aren't present. As Eugene Volokh says, "This is clearly not a punishable threat." I'll take his word for it.

Documents filed in the case indicate prosecutors will encourage jurors to find intent by essentially reading Comey's mind. That, of  course, cannot be done, and it certainly can't prove Comey's guilt "beyond a reasonable doubt." From the Fox News report:

Prosecutors allege that the post would be interpreted by a "reasonable recipient familiar with the circumstances" as a serious expression of intent to harm the president, signaling they intend to rely heavily on context surrounding the message rather than explicit language alone.

The U.S. attorney for the Eastern District of North Carolina, W. Ellis Boyle, will oversee the case. Boyle was appointed in 2025 and sworn in by his father, a longtime federal judge in the district, after being selected for the role by then-Attorney General Pam Bondi.

The indictment marks the second time Comey has been charged during the second Trump administration. 

In 2025, he was indicted on charges of making false statements to Congress and obstructing a congressional proceeding tied to his testimony in the FBI’s Russia probe. That case was later dismissed after a federal judge ruled the prosecutor in the case had been unlawfully appointed.

Comey, who served as FBI director from 2013 to 2017, has long been a polarizing figure in U.S. politics, drawing criticism from both parties over his handling of the Clinton email investigation and the FBI’s probe into Russian interference in the 2016 election and potential links between Trump’s campaign and Moscow. 

He was fired by Trump in 2017 amid escalating tensions tied in part to the Russia investigation.

The current charges stem from a social media post in which Comey shared an image of seashells arranged to form the numbers "86 47," which some critics interpreted as a coded threat against Trump. The post drew swift backlash and prompted an investigation.

That last paragraph points to all kinds of potential problems for the prosecution. The interpretations of "some critics" might matter in news coverage, but they are not likely to fly in a court of law.  Prosecutors might think they can build a case around a "coded threat," but how can they prove that Comey knew of such a code? How can they prove that Comey "knowingly" and "with intent" issued a "true threat"? That seems like an almost impossible, task.

Donald Trump might achieve his goal of forcing Comey into court. But it's hard to see how that possibly can result in a guilty verdict. In fact, it might not even result in a trial.

Donald Trump's warped DOJ, with butt-kisser Todd Blanche in control, turns a beach photo into a second indictment of former FBI director James Comey

(Peoples Gazette, Facebook)

The Trump administration first indicted former FBI director James Comey last year on charges so preposterous and brazenly retaliatory that one legal expert said it signaled the "almost wholesale  collapse" of the U.S Department of Justice (DOJ). With Trump sycophant Todd Blanche serving as acting attorney general, the department now has indicted Comey a second time, on charges so flimsy they make the first go-around seem almost judicious. What does all of this mean for the rule of law in what used to be the world's foremost democracy?

The answer is grim, with criminal charges now based on a deranged president's whims, with constitutional principles taking a distant back seat. Consider this headline and subheading, which combine to tell the story of how far the Unites States has fallen, almost to banana republic status, in the age of Trump: "Comey's second indictment shows the lengths Blanche will go to please Trump; The latest indictment of the former FBI director is ridiculous, but it's part of an unsubtle pattern for the acting attorney general" 

The Justice Department historically has been independent of the White House, even though the attorney general is nominated by the president and serves on his cabinet. But in theory, the president is to have no say in the DOJ's charging and non-charging decisions. But Blanche appears so desperate for an appointment to the full-time AG role that he will do virtually anything Trump wants. That essentially makes Trump both president and prosecutor -- even though as a non-lawyer. he has no qualifications to act in the latter role. Also, it makes those who have incurred Trump's wrath, as Comey did by overseeing the FBI investigation of Russian interference in the 2016 election, vulnerable to baseless criminal charges as a form of payback.

As Steve Benen, of MS NOW reports, that's not how our system is supposed to work:

When Donald Trump’s Justice Department first indicted former FBI Director James Comey last year, it was a devastating moment for American law enforcement. MS NOW’s Ken Dilanian reported that within the DOJ, many insiders believed it was “among the worst abuses” in the history of the institution. Describing the circumstances as “shocking,” Dilanian added, “It’s hard to overstate how a big a moment this is.”

Indeed, among the most striking things about the Comey indictment was it had barely a pretense of propriety. A failing, desperate and unpopular president wanted a critic to be charged, without regard for merit; he publicly demanded the indictment; and he found officials who were willing to feed his appetite for revenge. It was a tragic lesson that Americans now live in a country where the president’s political opponents are prosecuted at his command.

Alan Rozenshtein, a former DOJ official who now teaches at the University of Minnesota Law School, told The New York Times, “What we are seeing is the almost wholesale collapse of the Justice Department as an organization based on the rule of law.”

The first case ultimately collapsed, but not before a federal judge blasted prosecutors for what he described as an “indict first, investigate later” attitude in the criminal case against Comey. Around the same time, a bipartisan group of former federal prosecutors and judges wrote in a court filing that the case was an “assault” on the justice system.

A reasonable person might expect that Team Trump would learn its lesson and decide to investigate first and indict later -- and to indict based on probable cause, as the Fourth Amendment demands, and not simply on the president's enemies list.  But this is an administration led by Donald Trump, who tends to view laws as inconveniences to be ignored, skirted, or broken. Benen writes:

Trump’s DOJ should have been chastened by the condemnations and by the case’s failure. In practice, the shamelessly weaponized department decided to give it another try. MS NOW reported:

The Trump Justice Department has charged former FBI Director James Comey again, following the dismissal of his first indictment due to the illegal appointment of the prosecutor who secured it.

The new indictment involves allegations that Comey made threats against President Donald Trump in a May 2025 social media posting of a picture of shells on the beach that spelled out “8647,” a source familiar with the matter told MS NOW.

I can appreciate why this might seem like an unfortunate attempt at humor, but it’s apparently quite real. While plenty of political figures from both parties have used “86” over the years as a shorthand for rejecting foes, the president and his team argued in apparent seriousness last spring that the former FBI director had used Instagram to call for violence against Trump by way of a seashell-related code.

Could James Comey actually go to prison because of the way sea shells were positioned in a vacation photograph, one that wound up on social media? Some legal experts already have said the case against Comey might not even make it to trial (more on that in an upcoming post), but with Congress and federal courts willing to be pliable on Trump's behalf, many Americans have learned not to put anything past the White House. After all, when the photo in question was published, few could have imagined it would be interpreted as a threat against Trump and lead to legal woes for Comey, Benen writes:

Nearly a full year after the photo first came to light , it’s led to a head-spinning criminal indictment.

Under the circumstances, it’s likely the Trump appointees at the DOJ were looking for a way to charge Comey during former Attorney General Pam Bondi’s tenure, but acting Attorney General Todd Blanche was in a position to either green light the indictment or to quash it. The former Trump defense lawyer apparently chose the former.

It was hardly the first such step. Amid speculation that Blanche wants Trump to nominate him as Bondi’s permanent successor, the Republican lawyer’s campaign has not exactly been subtle.

Over the course of a few weeks, the Blanche-led DOJ has prosecuted a progressive group the president hates, intensified a politically motivated purge, advocated firing squads as a method of federal execution while slamming Joe Biden in gratuitous ways, intervened in support of Trump’s ballroom crusade and indicted a former aide to Dr. Anthony Fauci (a leading figure on the White House’s enemies list) before indicting Comey (another leading figure on the White House’s enemies list.)

At an official event this week, the acting attorney general offered such sycophantic praise for the president he seemed to be auditioning to star in a Trump campaign ad.

Bondi was frightfully bad at her job -- mainly because she was willing to do most anything the president wanted. But for unknown reasons, Trump ousted Bondi on April 2, creating a high-profile job opening. A number of political observers have stated that Bondi might have fallen out of favor because she was slow bringing cases against Trump's enemies. Todd Blanche seems determined not to make that mistake. Benen writes:

No one should want to be an attorney general nominee this badly (under Trump, it’s not even an especially good job anyway), but Blanche’s actions are about as subtle as a sledgehammer.

Time will tell whether the acting attorney general’s efforts pay dividends, though Blanche recently told reporters, “If President Trump chooses to keep me as acting [attorney general], that’s an honor. If he chooses to nominate me, that’s an honor. If he chooses to nominate somebody else and I go back to being the [deputy attorney general], that’s an honor. If he chooses to nominate somebody else and asks me to go do something else, I will say, ‘Thank you very much. I love you, sir.’”

Those words probably strike normal ears as downright weird. But they might be exactly what Trump wants to hear.

Cole Tomas Allen, the most unlikely alleged assassin in U.S. history, is charged with attempting to kill Donald Trump -- but Allen might have earned one big win

Cole Tomas Allen (NBC News)

Cole Tomas Allen might be the most unlikely alleged assassin in U.S. history. The 31-year-old resident of Torrance, California, has a bachelor's degree in mechanical engineering from the prestigious California Institute of Technology (Caltech), plus a master's in computer science from Cal State Dominguez Hills. Friends and students he has tutored describe him as being a "borderline genius." A former volleyball teammate said he was "super stable," adding "he didn't have to study. It just came to him. He was really, really smart."  A former pastor described him as "polite, engaged," adding "I don't think anybody had a negative thing to say about him." A computer science professor who had Allen as a student said he paid attention in class and was "soft spoken, very polite, a good fellow."

So how did Allen come to be the suspect in Saturday night's shooting at the White House Correspondents Dinner (WHCD)? Details pointing to possible answers began to unfold yesterday at an arraignment in a Washington, D.C. courthouse. Allen was charged with three federal crimes and is set for a detention hearing on Thursday morning, followed by a preliminary hearing on Monday. From a CNBC report about yesterday's proceedings:

Cole Tomas Allen, the man arrested after allegedly charging a security checkpoint for the White House Correspondents’ Dinner, was criminally charged Monday with trying to assassinate President Donald Trump, who was in attendance at that event Saturday.

Allen, 31, is also charged with transportation of a firearm or ammunition in interstate commerce, and discharge of a firearm during a crime of violence, a prosecutor said at his arraignment in U.S. District Court in Washington, D.C.

“He attempted to assassinate the president of the United States, Donald J. Trump ... an enumerated crime of terrorism,” the prosecutor said as she asked Magistrate Judge Matthew Sharbaugh to order Allen detained without bond.

At the heart of yesterday's proceeding was a seven-page affidavit from an FBI special agent whose name was redacted. The purpose of the document was to establish probable cause that Allen had committed the acts alleged. The primary acts include that . . . 

(1) After President Trump announced he would attend the correspondents dinner, which was set for April 25, Allen made reservations at the Washington Hilton for April 24-26;

(2) On or about April 21, Allen traveled by train from his home near Los Angeles, CA, to Chicago, IL. Allen arrived in Chicago on April 23 and boarded a train for Washington, D.C., the next day;

(3) Allen checked into his D.C. hotel room at about 3 p.m. on April 25, with the dinner starting at 8 that evening;

(4) At about 8:40, Allen ran through a security checkpoint leading to the dinner location. He was carrying a long gun as he ran through the magnetometer. Moments later, security personnel heard a loud gunshot. A Secret Service officer, wearing a ballistic vest was shot in the chest;

(5) The officer drew his service weapon and fired at Allen, who fell but was not shot. He subsequently was arrested;

(6) At the time of his arrest, Allen had a 12-gauge pump-action shotgun and a .38 caliber pistol on his person;

(7) Investigators traced Allen's firearms purchases to dealers in California.

The affidavit includes part of a .txt file titled "Apology and Explanation," which has been called Allen's "manifesto." Here are some of the key statements cited from the document:

(1) I apologize to everyone who was abused and/or murdered before this, to all those who suffered before I was able to attempt this, to all who may still suffer after, regardless of my success or failure. I don't expect forgiveness, but if I could have seen any other way to get this close, I would have taken it. Again, my sincere apologies. 

(2) On to why I did any of this: I am a citizen of the United States of America. What my representatives [in government] do reflects on me. And I am no longer willing to permit a pedophile, rapist, and traitor to coat my hands with his crimes. (Well, to be completely honest, I was no longer willing a long time ago, but this is the first real opportunity I've had to do something about it.);

(3) In order to minimize casualties, I will also be using buckshot rather than slugs (less penetration through walls) I would still go through most everyone here [in the ballroom] to get to the targets if it were absolutely necessary (on the basis that most people *chose* to attend a speech by a pedophile, rapist, and traitor, and are thus complicit) but I really hope it doesn't come to that.  

The anonymous affiant/FBI special agent closes the document with the following:

ALLEN signed his email “Cole ‘coldForce’ ‘Friendly Federal Assassin’ Allen.” I know from my investigation that ALLEN used the moniker “cold force” in multiple online accounts associated with him. 

Perhaps the most important news from the arraignment was that Allen asked to have a public defender, and U.S. Magistrate Matthew Sharbaugh agreed that Allen is eligible for court-appointed counsel. Why does this matter so much? In another Trump assassination case, Ryan Wesley Routh did not have counsel and represented himself, with a very poor result. Routh was convicted and sentenced to life imprisonment -- even though the case against him was filled with gaping holes. 

In upcoming posts, we will examine the Routh case, along with case law that likely will govern the Allen case. We hope you will stay with us. 

Patel's lawsuit against The Atlantic claims allegations of heavy drinking are "easily refuted," but then doesn't do it -- leaving an argument that mostly meanders

Kash Patel's lawsuit over a magazine article that portrays him as a heavy drinker who has been known to pass out on the job might never leave a mark on the world of law. But it already has left a mark on the world of journalism by inspiring a headline for the ages, one that sits atop a story that includes enough snark and wise cracks to earn an engagement at one of Howard Stern's Sirius XM studios. 

The headline and story are the handiwork of writers and editors at the Above the Law (ATL) legal website, which started as a gossipy blog that specialized in "inside baseball" reporting on courts, law firms, and the like. That earned it the No. 1 ranking in a survey of the "Top 50 independent law blogs in North America," conducted by Cision, a Chicago-based media-relations software and research company. (For the record, Legal Schnauzer was No. 37 on the survey, and best I could tell, we were the only truly independent blog to make the list -- with no connections to a law firm, university, publishing company, or interest group.)

Above the Law now takes a slightly more mature approach to legal reporting than it did in its infancy -- and it has graduated from a "blog" to a "Legal Web Site." It also has become part of Breaking Media, which describes itself as "a network of websites, e-newsletters, events, podcasts, and social media channels for influential, affluent business communities." ATL might be a bit more corporate and frumpy than it was in the old days, but the editorial staff, which includes several lawyers, remains quick with a quip. Its coverage of Kash Patel -- the Trump FBI director with an alleged drinky poo problem and a penchant for filing defamation lawsuits at a rapid-fire clip, is proof of that.

Consider ATL's April 20 piece under the headline "Kash Patel's $250 million defamation lawsuit looks better with beer goggles; The complaint asks the question: Could FBI agents do their job if the director was drunk? Not sure Patel is going to like the answer." The headline about "beer goggles" is enough to elicit guffaws, and the story itself contains no shortage of classic ATL snark. Joe Patrice writes:

The complaint is finally here, and it’s more or less exactly as loony as we expected. FBI Director Kashyap Patel has filed a $250 million defamation lawsuit against The Atlantic and reporter Sarah Fitzpatrick over the April 17 article alleging excessive drinking and erratic behavior. The 19-page complaint, filed by Patel’s lawyer and Big Lie aficionado Jesse Binnall, strikes a perfect balance between responding to the allegations of the article with “nuh uh” and lengthy accounts of how successful the FBI’s individual agents have been while Patel’s been busy doing the important work of slamming brews with the U.S. Olympic hockey team.

The complaint veers off the rails early, opening the “Factual Background” with what Scott McFarlane of Meidas Touch described as a LinkedIn post. Patel devotes 11 lettered bullet points to the “historic law enforcement results” achieved while he’s technically had an office in the Hoover building. The capture of 8 of the FBI’s Most Wanted (twice as many as under Sleepy Joe Biden, he notes!), big decreases in homicide rates (what does this have to do with the FBI?), seizure of fentanyl that would’ve otherwise killed “189 million people” or about half the population of the United States (wha?).

Patrice speculates about the real driver of the FBI director's lawsuit spree, possibly an effort to save his own professional skin. The analysis also addresses Patel's curious spin on the "actual malice" standard where the defamation plaintiff is a public official/figure. Patrice writes:

Could veteran FBI agents have pulled any of this off if the director was buying drinks at the Poodle Room? Well, yeah, probably. But what this factual account lacks in value to his defamation claim, it makes up for as a cheap resume refresher for Donald Trump in case the boss might be considering dropping Patel.

Actual malice? Well, The Atlantic previously reported that Patel was on the chopping block. The complaint spins this as “an editorial predisposition to cast his tenure as failing.” You miss 100 percent of the shots you don’t take.

Numerous Atlantic pieces over the past two years have characterized Director Patel as unqualified, dangerous, corrupt, or mentally unstable. 

Apropos of nothing in particular, we would remind readers that truth is a defense to defamation. Seriously though, opinion is protected speech and is not an element of actual malice. Whatever The Atlantic thinks about Patel’s qualifications, that’s not particularly relevant to establishing that the publication went forward with reckless disregard for the truth.

Patrice examines the Patel complaint and finds that it does not deliver on its promises. That is a sure sign of a complaint that is just begging to be dismissed, particularly in the pothole-filled world of defamation law: 

The complaint keeps declaring the allegations are “easily refuted” or his contrary claim “easily verified” and then just… doesn’t do it. Look, a complaint doesn’t have to — nor should it really — lay out a detailed factual record, but it should at least endeavor to put the defense on guard that explicit factual support is forthcoming. Also, as a practice point, adverbs in legal filings set off red flags. If it can be so easily refuted, then write “this is refuted by [insert support here].” Whenever a formal filing includes a specific adverb, my spidey-sense tells me it’s going to turn out to be the exact opposite.

To a lesser extent, the same goes for adjectives:

Even after stealth-editing their headline over the weekend, in a feable attempt to reduce the appearance of partisan animus, Defendants have doubled down… 

Patrice quickly takes note of sloppiness present in the Patel document, which indicates that despite his braggadocio in the press, he is not all that serious about this case:

“Feable”?!? A $250 million lawsuit and no one is running spell check? Adjectival editorializing is inappropriate. Misspelling it is unforgivable. For the record, The Atlantic changed “Kash Patel’s Erratic Behavior Could Cost Him His Job” to “The FBI Director Is MIA,” which does not seem like a “stealth edit” as much as A/B testing to maximize internet traffic.

The Article’s assertions and implications that Director Patel’s alleged alcohol consumption negatively impacted law-enforcement investigations (including the Charlie Kirk murder investigation), violated DOJ ethics rules against habitual intoxicant use, rendered him vulnerable to foreign adversary coercion, and constituted a threat to public safety and national security—including in the context of a domestic terrorist attack—are false. Prior to publication, the FBI expressly informed Defendants that these claims were “100% false,” and that under Director Patel’s leadership, the FBI has just delivered its most successful year in decades, with a historic drop in violent crime, a 20% drop in the national murder rate, a 31% increase in fentanyl seizures, and the successful disruption of multiple terror plots.

Patel's claim is not devoid of merit, Patrice concludes, but the complaint fails to present language in a tight, ordered way that might actually achieve the difficult task of winning a defamation case. In short, the claim is not a total loser, but the complaint does a poor job of stating the claim. That might be because Patel was in a hurry to file the complaint, but his lawyer should have advised him to slow down:

I guess he’s never heard the phrase putting the fun in functional alcoholism. This is a recurring format: “The article says X… we say that’s false… because the rank-and-file FBI agents continue to do their jobs.” There’s a lot of hubris in the idea that the director has to be sober as a judge for the Dallas field office to close its cases. Saying Patel is bad at his job is opinion. The claim that he’s bad because of drinking is potentially actionable. To that end, it doesn’t support a defamation claim to say, “but I’m good at my job,” the only claim that’s relevant is “I’m not a drunk.” The final sentence of this paragraph is a non sequitur.

The Article’s assertions that Director Patel is “often away or unreachable,” causing delays that made agents “lose their shit,” and that he has “unexplained absences” and “spotty attendance at the office,” are false. Director Patel is at FBI headquarters nearly every single day, and when he is not at headquarters, he is visiting field offices—which he has done more frequently than any of his predecessors, a fact independently verifiable through his public social media account that Defendants were specifically directed to review.

Which field office is in the Olympics locker room? Also, presumably the FBI keeps better records of the director’s location than relying on what he posts on Twitter. A serious defamation complaint — one not rushed out on Monday morning to keep ahead of the news cycle — might include detailed claims of his whereabouts throughout his tenure, with an implied promise that this itinerary comes from official FBI records that will back up all these dates in discovery. This complaint is loosey-goosey by any standard, and notably underwhelming coming from a government official whose daily activity is tracked.

Furthermore, Director Patel has taken significantly fewer personal days than either of his two immediate predecessors. In calendar year 2025, Director Patel took approximately 17 personal days—fewer than Director Wray averaged in any single year of his 7.5-year tenure, during which Wray accumulated roughly 242 personal days (including approximately 37 in 2024 alone, 31 in 2023, and 33 in 2022). Director Comey likewise took approximately 130 personal days over his 4-year tenure, including roughly 63 in 2014 and 42 in 2015, when he routinely traveled home to New York every weekend or every other weekend. Put simply, Director Patel’s personal-day usage in 2025 is less than half of Wray’s yearly average and a small fraction of Comey’s peak years. 

Is this supposed to be effective argument? The alleged defamatory article states that Patel's heavy drinking left him impaired on the job and interfered with FBI operations. Are personal days in any way relevant to those issues?  I don't see how, yet Patel wastes time and space trying to connect the two. That leads to other irrelevant connections that fill the complaint with pure nonsense. Raising the issue of personal days takes the complaint to places Patel probably does not want to go, Patrice notes:

If this is true, then is he counting the private jet trips to golf in Scotland, going to concerts with his girlfriend, and the aforementioned Olympics trip as official business? Because, like, that would be worse. He understands that would be worse, right?

“Director Patel has not targeted political or personal adversaries,” the complaint says, even though Acting Attorney General Todd Blanche is on record bragging that the FBI has been purged of anyone who worked on the Trump investigations. Before dropping the complaint, Patel even went on Bartiromo to pledge that he’s about to start making arrests over the repeatedly debunked claim that the 2020 election was rigged against Trump because he was “never going to let this go.” From a lawyer perspective, it’s suboptimal to have a defamation client saying he’s about to use his power to pursue a conspiracy theory he’s never letting go of — and written children’s books about — right before filing a complaint alleging that he’s never targeted political or personal adversaries.

The tone of Patel's complaint is a classic example of what might be called "change the subject lawyering." Patrice provides examples, and some of them are downright laughable:

In addition to FBI OPA’s pre-publication denial, Defendants received on-the-record statements from senior administration officials that contradicted the Article’s core premise.

White House Press Secretary Karoline Leavitt told Defendants that under President Trump and Director Patel, “crime across the country has plummeted to the lowest level in more than 100 years and many high profile criminals have been put behind bars,” and that “Director Patel remains a critical player on the Administration’s law and order team.”

Acting Attorney General Todd Blanche told Defendants that “Patel has accomplished more in 14 months than the previous administration did in four years” and that “[a]nonymously sourced hit pieces do not constitute journalism.”

Do the Leavitt and Blanche statements include words to the effect that "Director Patel never has been impaired on the job due to drinking"? They clearly do not, and thus fail to address the main point of The Atlantic's article. As such, they are useless to the plaintiff's argument.

Patrice points out other ways the Leavitt and Blanche statements fall flat:

“A critical player on the Administration’s law and order team.” Damn, that’s cold. That’s the reference you get from a former boss who really doesn’t think you should hire a guy. If these are the statements Patel sent the magazine to talk them out of publishing, it’s no wonder they smashed the publish button. The answer to “is the director drinking too much at Ned’s?” is not “he’s still a critical player on our law and order team.”

That’s not to say there aren’t a few colorable allegations in this complaint. The truncated opportunity to respond at least hints at setting Patel up for failure. Reporting based on documents is one thing, but when it’s just a series of witness accounts, the subject of the story probably needs more time.

Especially if the publication has it in their heads that he’s “often away or unreachable.”

Still, Patel didn’t really help his case here:

They included only a generic, truncated denial attributed to Director Patel (“Print it, all false, I’ll see you in court – bring your checkbook”).

Bro. Threatening litigation is not displaying the level of good faith effort to corroborate your denials that the court will want to see down the road. This is the moment where you write, “these allegations are false, if you can afford me until Monday morning, I can compile ample documentation to refute each point in turn.”

As is, the complaint seems tailored to generate a lot of attention through sticker shock. But as a serious legal argument, it’s… “feable.” 

(Complaint available at this link…)

As Kash Patel's latest defamation gambit sits, a federal judge tosses another out of court in Texas -- showing why defamation claims can be a real bee-atch to win

We wrote yesterday about FBI Director Kash Patel and his $250-million lawsuit against The Atlantic for an article containing allegations that his heavy drinking had caused problems on the job. Patel filed his lawsuit on Monday (April 20), just three days after the story was published. That suggests Patel and his lawyer had barely had time to read it -- and perhaps had not given their complaint much thought before filing. It might also suggest Patel took considerable umbrage with -- and maybe was even yugely pissed off about -- The Atlantic's journalism. 

Now, we receive news indicating that taking umbrage with an article -- even being yugely pissed about it -- does not mean you are going to win a defamation lawsuit. That's a lesson Patel should have learned  before filing a lawsuit that was pending when he filed a complaint in The Atlantic matter. You might be thinking, "Are you telling us Patel already had one lawsuit on the books when he filed suit against The Atlantic?" Yep, that's what we're saying. And in a case of fortuitous timing, we found out yesterday -- less than 24 hours after our first post -- that a federal judge in Texas had dismissed Patel's defamation lawsuit in that jurisdiction. That means Patel has an 0-1 record in recent court cases, and unless he manages to pull a judge who is corrupt or incompetent, we look for him to be 0-2 when The Atlantic case is decided. It probably will also be dismissed, likely on grounds similar to those cited in the Texas case. 

We should note that readers of the Legal Schnauzer blog were not caught off guard by the Texas matter. That's because we mentioned it in yesterday's post. Here is the relevant passage: 

This is the second lawsuit that Patel has filed in connection with media reports about allegations of his drinking and partying.

Last year, he sued Frank Figliuzzi, an MSNBC analyst and former FBI agent, over a claim suggesting Patel was spending more time in nightclubs than the FBI's headquarters. That case, filed in the U.S. District Court for the Southern District of Texas, is still pending.

It's not pending anymore -- and we expect The Atlantic case will have a similar outcome once a competent, non-corrupt judge in the District of Columbia (where Patel filed it in a hurried state) has found time to read the complaint. Why do we say that? Defamation cases can be tricky boogers, filled with potential potholes just waiting for someone to step in them. What makes them hard to win -- to the point that lawyers often advise clients not to pursue them? A query to AI Overview provides excellent insight into why defamation cases can be a bee-atch to win -- and many good lawyers try to avoid them. Here are key points from AI:

Yes, lawyers frequently advise clients against filing defamation lawsuits. While defamation causes real damage, these cases are difficult to win, expensive to pursue, and risky to reputations. Attorneys often suggest alternatives because litigation can worsen a bad situation rather than resolve it.

Key reasons for caution include:

• The Streisand Effect: Filing a lawsuit can draw massive public attention to the very statements the client wants hidden, exacerbating damage to their reputation.
• High Burden of Proof: The plaintiff must prove the statement was false, caused actual damage, and, for public figures, was made with "actual malice" (knowledge of falsity or reckless disregard for the truth).
• Significant Costs & Low Returns: Litigation is expensive, and statistics indicate fewer than 10% of victims receive monetary compensation for their harm.
• "Truth" and "Opinion" Defenses: Truth is an absolute defense, and statements labeled as "opinion" or "hyperbole" are often protected speech.
• Anti-SLAPP Laws: Many jurisdictions have laws that allow for rapid dismissal of lawsuits aimed at intimidating or silencing speech, potentially leaving the plaintiff responsible for the defendant's legal fees.
• Anti-SLAPP Laws: Many jurisdictions have laws that allow for rapid dismissal of lawsuits aimed at intimidating or silencing speech, potentially leaving the plaintiff responsible for the defendant's legal fees.
• Difficult to Collect: If the defendant has limited assets, winning a judgment may not result in actual payment, and these claims are rarely covered by insurance.

Lawyers often prefer to use cease-and-desist letters to negotiate a private settlement and retraction, which is usually faster, cheaper, and less disruptive than a lawsuit. 

What issues of fact and law were central to dismissal of Patel's case in Texas? CNBC has answers under the headline "Judge dismisses Kash Patel's defamation lawsuit over claim he frequented 'nightclubs," where Dan Mangan writes:

A Houston federal court judge on Tuesday dismissed a lawsuit by FBI Director Kash Patel alleging that former FBI official Frank Figliuzzi defamed him by saying Patel last year had “been visible at nightclubs far more than he has been on the seventh floor of” the bureau’s headquarters in Washington, D.C.

“The Court finds that Figliuzzi’s statement is rhetorical hyperbole that cannot constitute defamation,” U.S. District Court Judge George Hanks Jr. wrote in his decision. “Accordingly, Dir. Patel has failed to state a claim against Figliuzzi, and his lawsuit must be dismissed.”

The dismissal came a day after Patel filed an unrelated $250 million defamation lawsuit in D.C. federal court against The Atlantic magazine over a new article that alleged he has abused alcohol.

While ruling on the key question of defamation in Figliuzzi’s favor, the judge denied his request that he be awarded court costs and attorneys’ fees under Texas’ anti-SLAPP law. SLAPP is an acronym for Strategic Litigation Against Public Participation.

Figliuzzi’s lawyer, Marc Fuller, in a statement to CNBC, said, “This is a victory for press freedom and the First Amendment.”

“Director Patel’s claim against Frank was baseless, and we are pleased that the court dismissed it,” Fuller said.

Patel’s lawyers did not immediately respond to a request for comment.

Patel, of course, can seek recourse from the Fifth Circuit Court of Appeals, which might be the worst federal court in the country -- even worse than the horrifically awful 11th Circuit in Atlanta, which covers Alabama, Georgia, and Florida. (How bad is it? See here, here, and here.)  We have more from CNBC on  the comment that prompted Patel to file a defamation lawsuit in Texas:

Figliuzzi, former assistant director for counterintelligence at the FBI, made his crack about Patel on May 2, 2025, on the MS NOW show “Morning Joe.”

“Yeah, well, reportedly, he’s been visible at nightclubs far more than he has been on the seventh floor of the Hoover building,” said Figliuzzi.

Patel sued him in June, accusing Figliuzzi of “fabricating a specific lie” about the FBI director because of Figliuzzi’s “clear animus” toward him.

How are we supposed to know Figliuzzi had "clear animus" toward Patel? We don't because the case never got to that point; the judge dismissed it on hyperbole grounds -- one of those defamation potholes I mentioned earlier.

A note of caution: There is no way Patel can prevail on the facts and law in the Texas case. But there is no telling how the Fifth Circuit will rule on an appeal involving Donald Trump's FBI director. Here is how the Balls and Strikes website describes the Fifth Circuit:

The Fifth Circuit Court of Appeals has historically been among the nation’s most conservative federal appeals courts. This is particularly true where abortion is concerned: Well before President Donald Trump’s nominating spree stacked the court with fringe right-wingers, it was instrumental in enabling the efforts of Texas, Louisiana, and Mississippi lawmakers to undermine reproductive rights. Today, 12 of the court’s 17 members are Republican appointees, and 6 of those 12 were nominated by Trump. With numbers like these, oral arguments have become genuinely unhinged of late, as evidenced by the latest go-round over Texas’ six-week abortion ban earlier this month. 

A quick refresher: In December, the U.S. Supreme Court allowed abortion providers to move forward with a small portion of their federal challenge to SB8, the state’s latest dystopian bid to legislate Roe v. Wade out of existence. Although SB8 remains in effect, the Court allowed abortion providers to sue a limited number of state medical licensing officials involved in the SB8 enforcement process. The state, unsatisfied with this outcome, quickly asked the Fifth Circuit to decide whether the Texas state Supreme Court should review the case before any federal litigation can continue. 

For a state court to perhaps second-guess the U.S. Supreme Court like this is so rare that the lawyer for the state of Texas admitted to the Fifth Circuit that she couldn’t think of another time it had happened. But for Texas lawmakers, this is less about substance than it is about running out the clock: If the state were to succeed in diverting this case from federal court, the abortion providers’ lawsuit—and, thus, access to abortion care for millions of Texans—would stall a little longer. As expected, the Fifth Circuit didn’t take long after oral argument to side with Texas, punting the case back to the state supreme court on January 17.

Bottom line: Kash Patel's Texas case is a loser, but the Fifth Circuit could turn it into a winner -- at least temporarily. And if that happens, it will be a clear sign that appellants with ties to Donald Trump receive special treatment in federal courts -- and that could be a huge story, indicating our constitutional framework is on the verge of collapse -- with only John Roberts' U.S. Supreme Court to save it. That hardly is a comforting thought, but we will be on the lookout for a Patel appeal in the Texas case -- and we invite you to stay with us.