Kash Patel's own lawsuit could force him to cough up 'internal DOJ and FBI' docs in discovery about any 'absences and unreachability'

Months have gone by since the director of the FBI slapped the Atlantic with a $250 million defamation lawsuit, in which Kash Patel rejected as “pure fantasy” various allegations of “excessive drinking” and instances of being “unreachable behind locked doors.” Now the magazine has fired back with a motion to dismiss and a discovery demand that aims to put those denials to the “test.”

A memorandum from the Atlantic on Monday asked Senior U.S. District Judge Emmet Sullivan to toss the complaint with “prejudice” — so the case can’t be brought ever again.

Patel’s lawsuit is as “equally meritless” as four other defamation suits he’s filed without success, against the New York Times, CNN, Politico, and MSNBC analyst Frank Figliuzzi, the Atlantic’s attorneys with the firm Davis Wright Tremaine LLP argued in defense of staff writer Sarah Fitzpatrick.

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“This is Director Patel’s fifth defamation lawsuit against the media in recent years, and the second one he has filed since being sworn in as FBI Director. None of those prior lawsuits were successful, and this one is equally meritless. But merit is not the point. By filing these suits, Director Patel sends an ominous message to the press: publishing reporting that he does not like comes at a high cost,” the memo said, calling Patel a “powerful public official who is and should be the subject of public discussion—positive and negative.”

One prominent legal expert told Law&Crime at the outset that Patel’s suit faces “daunting” odds of success because he has to show the defendants “knew or suspected that what it said about him was false.” Rather than looking for a way to settle, the Atlantic is defending its work and declining to give Patel “a veritable veto power over their reporting.”

Though looking to halt discovery until Sullivan rules on the motion to dismiss, the Atlantic makes an exception for discovery of “purported internal DOJ and FBI information” that the director’s complaint “repeatedly relies on […] to attempt to refute the Article’s reporting[.]”

“[A]s the records are already within DOJ and FBI’s possession, there is no prejudice to Director Patel in letting the Touhy requests proceed,” a separate memo said, describing the procedure for document demands of a government agency when it isn’t a party to a case; Patel has sued in his individual capacity. “[I]f DOJ, FBI, and Director Patel resist producing these records, that may require early dismissal of this action.”

In a statement to Law&Crime, the Atlantic’s Editor-in-Chief Jeffrey Goldberg reaffirmed that the lawsuit is “politically motivated retaliation” and a “meritless” action that “should be dismissed as a matter of law.”

“We are simultaneously asking the court to permit us to begin seeking factual discovery from the FBI and the Department of Justice – including documents and depositions of key individuals – that is appropriate given the allegations in this matter,” Goldberg explained. “If Director Patel did not want to face this process, he should not have filed this suit.”

That discovery could entail details about his travel, any “membership or attendance at private clubs, social spaces, and recreational facilities,” “retaliatory firings,” and witnesses “likely to have information related to Director Patel’s alcohol consumption, absences and unreachability, retaliatory firings, concerns about his job security, and focus on image,” court documents indicated.

Patel attorney Jesse Binnall did not respond to Law&Crime’s request for comment.

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