FBI Director Kash Patel's lawsuit against The Atlantic is not going to get very far, attorneys Shant Karnikian and Brian Kabateck agreed on the latest episode of their "Civil Action" show on Meidas Touch's Legal AF Network.
The reason is simple, they observed: Patel would have to prove something that will be almost impossible to prove.
"I'll see you in court," said Karnikian. "Those are the famous last words of many people in the Trump administration right before they lose the lawsuit that they bring. Joining those ranks is going to be Kash Patel. He has now filed what he calls a $250 million defamation lawsuit against The Atlantic for reporting on some problems he's been allegedly having lately. And this isn't just media drama. Kash Patel is going to have to deal with a major constitutional law problem."
The Atlantic's reporting alleged a lot of damaging info about the FBI director, including excessive drinking, unexplained absences, and a constant state of paranoia and meltdowns over the prospect he could be fired from the administration. Patel denies all of these allegations — but that won't be enough, Karnikian and Kabateck said.
"If you've watched this before, you know that the case that governs here is New York Times v. Sullivan," said Karnikian. "Kash Patel is a public official. He's a public figure because he's the FBI director. And that's determined objectively, by the way. It's not up to Kash Patel to say he's a private citizen or not. So, since he's a public figure, the standard that applies is that the Atlantic acted with actual malice. They need to prove that. Kash Patel needs to prove that they acted with actual malice."
"Now, what does that mean?" said Karnikian. "It doesn't mean that the things that The Atlantic published were just false. You know, that they happened to turn out to be false. Kash Patel needs to prove that The Atlantic knew it was false, but still published it nonetheless, or acted with reckless disregard for the truth. Not just got it wrong, that they knew it was false or acted so recklessly, published something that could not possibly be true."
"That's a very, very, very high standard," Karnikian added. "Doesn't matter how much it damaged you. Doesn't matter how false it turned out to be. They need to show that the Atlantic knew it was false. I think that's an uphill battle."