Kash Patel, President-elect Donald Trump's pick to replace Christopher Wray as director of the FBI, has threatened to "come after the people in the media who lied about American citizens" and "helped Joe Biden rig presidential elections." What exactly does he mean by that? Given the position that Patel will hold if he is confirmed by the Senate, the answer could have serious implications not only for the anti-Trump journalists he has in mind but also for freedom of the press generally.
Patel, a former defense attorney and federal prosecutor who held national security positions during Trump's first term, made those remarks during a December 2023 interview with former Trump strategist Steve Bannon. He was responding to this question from Bannon:
Do you feel confident that you will be able to deliver the goods, that we can have serious prosecutions and accountability? And I want the Morning Joe producers that watch us and all the producers that watch us [to understand] this is not just rhetoric. We're absolutely dead serious. You cannot have a constitutional republic and allow what these deep-staters have done to the country. The deep state—the administrative state, the fourth branch of government, never mentioned in the Constitution—is going to be taken apart brick by brick. And the people that did these evil deeds will be held accountable and prosecuted—criminal prosecutions….Do you believe you can deliver the goods on this in a pretty short order, the first couple of months, so we can get rolling on prosecutions?
Absolutely, Patel said: "We will go out and find the conspirators—not just in government, but in the media. Yes, we're gonna come after the people in the media who lied about American citizens, who helped Joe Biden rig presidential elections. We're gonna come after you. Whether it's criminally or civilly, we'll figure that out. But yeah, we're putting all of you on notice. And Steve, this is why they hate us. This is why we're tyrannical. This is why we're dictators. Because we're actually gonna use the Constitution to prosecute them for crimes they said we have always been guilty of but never have."
What "crimes" did Patel have in mind? Lying about people might, depending upon the circumstances, amount to defamation, but it is not a crime, and any civil remedy for it would depend on lawsuits by the affected individuals, not the Justice Department. Rigging elections, if it involves the sort of fraud that Trump claims denied him his rightful victory in 2020, is a crime. But Trump never presented any evidence to substantiate his stolen-election fantasy, which in any case did not involve journalists who allegedly dumped phony ballots or manipulated vote counts.
Patel's comments earlier in the interview shed light on the sort of lying and rigging he imagines could justify civil or criminal sanctions. The "radical left-wing media" are "saying Donald Trump is going to dare to use the DOJ and FBI to act out acts of political vengeance," he said. "The only difference is the left knows they're the ones that broke the law. They're the ones that did Russiagate. They're the ones that wrote the 51 intel letter. They're the ones that lied to the American public over and over again to rig a presidential election."
According to Patel, then, news outlets "broke the law" by promoting unfounded allegations of nefarious connections between the 2016 Trump campaign and the Russian government. He think they also "broke the law" by falsely intimating that revelations from Hunter Biden's abandoned laptop were phony, as suggested by the 2020 letter from 51 former intelligence officials who averred that the story had "all the classic earmarks of a Russian information operation." In his 2023 book Government Gangsters, Patel says "the Biden campaign and the media were running a coordinated smear campaign trying to discredit the Hunter Biden accusations," which was "a monumental rig job."
As Patel sees it, such reporting was not just erroneous but deliberately deceitful. More likely, it was strongly influenced by an anti-Trump bias that led journalists to abandon their skepticism and embrace baseless claims that either hurt him or helped his opponent.
The latter explanation is closer to the one that Patel offers in Government Gangsters. "Gullible people in the media and beyond seemed to actually believe the lies they were peddling" about the Trump campaign's purported "collusion" with Russia, he writes. Discussing the "Trump Dossier" compiled by former British intelligence officer Christopher Steele, Patel says "anybody with half a brain who wasn't totally deranged by hatred of Trump could tell that the dossier was a total fiction," but "the mainstream media had already long ago jettisoned journalistic integrity in their mission to destroy Trump."
No matter how you explain these journalistic failures, none of this is a crime. With limited exceptions such as defamation, which requires "actual malice" when it involves public figures, the First Amendment protects the right of journalists to report the news as they see fit, even when their reporting is unbalanced, unfair, or inaccurate. Getting a story wrong is not a crime, and any attempt to treat it as such would be blatantly unconstitutional.
Patel further illuminates his beef with the "radical left-wing media" in Government Gangsters, where he complains that Washington Post columnist David Ignatius "reported that I could have been under investigation for improperly disclosing classified information." That article, Patel says, was "the definition of disinformation," relying on "two possible anonymous individuals who refused to give their names because they knew they were spouting lies." He notes that it "was written with carefully crafted verbiage," such that "a perceptive reader would see that Ignatius made no actual definitive fact claims but was really just spreading rumors in official sounding language."
That concession, a perceptive reader would see, is fatal to any claim that Ignatius defamed Patel, which at the very least would require a false statement of fact. Patel says he told Ignatius "the so-called investigation never began," but "he didn't write that" and instead "allowed the disinformation campaign he started to spread." He adds that "if such an investigation really did exist, it would be a clear example of the two-tiered justice system in America, because the Justice Department did absolutely NOTHING to prosecute the near daily leakers of classified information in the Trump administration—leakers that not only damaged the Trump presidency but harmed American national security."
When Patel talks about "people in the media who lied about American citizens," in other words, he is talking about journalists like Ignatius and victims like himself. And his reference to leakers, which seems odd in this case because he insists there was nothing to leak, is consistent with Trump's threats against journalists who rely on confidential government sources to write stories that make him look bad.
What should be done in such a situation? "You take the writer and/or the publisher of the paper," Trump explained at a 2022 rally in Texas, "and you say, 'Who is the leaker? National security.'" When that journalist refuses to divulge his source, Trump continued, he should be threatened with jail, and "when this person realizes he's going to be the bride of another prisoner very shortly, he will say, 'I'd very much like to tell you exactly who that leaker is!'"
As Patel tells it, anti-Trump journalists are acting in concert with the "Deep State" in a "corrupt cabal of entrenched interests," which makes them "conspirators" worthy of prosecution. "What exactly is this 'Deep State' that I speak of?" he writes in Government Gangsters. "Some of the characters in this book are elected leaders. Others are yellow journalists in the media who serve as peddlers of propaganda and disinformation at the behest of the ruling elites."
Patel elaborated on that theme during a speech at the Conservative Political Action Conference (CPAC) last February. "There is no deep state, there are no government gangsters, without some of their corrupt actors in the media who continue to print the lies about Donald Trump's success…and about our America First movement," he declared. "We [have to] collectively join forces to take on the most powerful enemy that the United States has ever seen. And no, it's not Washington, D.C. It's the mainstream media and these people out there in the fake news. That is our mission!"
If you thought that Trump's repeated threats to punish his political opponents once he was back in power were nothing but bluster, Patel is here to correct that misimpression. Patel scoffs at the fear that Trump is bent on "acts of political vengeance" even while promising that very thing. He thinks it is absurd to portray Trump as "tyrannical" yet insists that punishing people for exercising their First Amendment rights, a clear example of tyranny, would somehow amount to "us[ing] the Constitution to prosecute them for crimes."
Patel portrays himself as a crusader against the "two-tiered justice system" and what Republicans call the "weaponization of government." He promises that the Trump administration will clean house at the FBI and the DOJ, purging them of political perversion and dedicating them to fighting real crime. But at the same time, he says he and his colleagues will find some way—"whether it's criminally or civilly, we'll figure that out"—to "come after" journalists who "lied to the American public" and thereby "rig[ged] a presidential election."
It is not hard to see why Ronald Collins, editor of a First Amendment newsletter hosted by the Foundation for Individual Rights and Expression, calls Patel "a clear and present danger to freedom of the press." Collins quotes University of Minnesota law professor Jane Kirtley, who adds: "If Kash Patel becomes the director of the FBI, it will mark the apotheosis of the concerted attack on the independent media which has been brewing for more than 20 years. Vengeance and retribution will be the order of the day."
Assuming Patel gets as far as a confirmation hearing, senators are apt to ask him how he can reconcile his plans to target Trump's critics with his avowed respect for the Constitution and an FBI director's obligation to abide by the rule of law. At that point, he will have two choices: He can cite specific statutes that he thinks those journalists have violated and defend his reasoning, or he can portray his comments as nothing more than podcast bombast and CPAC silliness.
If Patel goes the latter route, senators should keep in mind Bannon's warning: "This is not just rhetoric. We're absolutely dead serious."
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