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.