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…)
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