Welp, as has been widely reported, a post on X-itter that Kash Patel (as director of the FBI) put up yesterday. . . has been deleted. See at right.
In the United States, accusing someone of a felony falsely (in this case, of obstruction of justice -- by a well-respected sitting judge) is called libel per se. So, if Kash Patel is unable to win a conviction -- on his wild eyed claims about the Milwaukee judge. . . this post from his personal account arguably leaves him personally liable for libel per se. Damages are presumed.
And you may well imagine that libeling a well respected judge in Milwaukee by claiming she committed felonies – specifically the felony of obstruction of justice – could well run into the millions of dollars of damages.
It was willfully reckless, it was hasty (at best!), and it was attention-seeking. All of which are unbecoming in an FBI director. But as you can see hundreds of us have screenshots of what he said/wrote -- and he won't be able to walk away from it.
The people who cleave to Trump are almost to a person, universally. . . evil. And Kash may have just stepped in a Rudy Giuliani sized mudhole.
नमस्ते
7 comments:
I think it would have been helpful if you had mentioned that as a public official with decision making powers that in addition the allegations must be made with actual malice and what that means. Although I believe you were alluding to this when you said the allegations were willfully reckless. However, based on reporting in the NYTimes I not sure they were.
Thanks so much for this.
Both of them are public figures, true.
Technically, though, the FBI Director (Kash Patel) should never engage in politics or grandstanding… his public statements should be flawlessly factual. And that’s before we talk about false arrest liability.
Apparently several ppl in the courtroom (possibly her staff, and thus maybe too favorablly shaded as witnesses) have it that the ICE agents let the purported detainee walk out of court and even rode the elevator down with the purported detainee; and watched him walk out the door. WTH?!
Thus there is this zero factual basis for arresting a judge — due to an ICE screw up. ICE knows how to place a hold. That it did not do. It got embarrassed and apparently lashed out.
Now, as to Kash’s personal tweet, speaking as a law-enforcement officer — he had a very substantial duty to make sure the things he wrote on X were verifiable.
In fact, this is why most law-enforcement officers won’t comment on ongoing investigations. Kash had NO DUTY to send a tweet or to try and garner publicity from it. He is not supposed to be “political”.
The fact that he deleted them strongly suggests that he knows his agents will tell the truth… That ICE screwed up.
But in the meantime, he executed a false arrest warrant on an honorable sitting county judge in Milwaukee.
There, abuse of process not just libel lies.
Just as the election judges in Georgia were public figures, Rudy Giuliani’s lies about them in the 2020 elections on radio and screens… led to a $148 million verdict against him for libel.
Arguably, Kash’s offenses here are worse because he is supposed to be a law-enforcement officer not a political hack.
But as ever we shall see.
Actual malice is inferred by the courts when “reckless disregard for the truth or falsity” of a statement… is seen.
And Kash’s tweet was clearly reckless. All of that said, she’s probably going to be the bigger person and just ignore it letting the truth be the embarrassment that Kash has to live with.
Cheers!
Thanks for the reply.
Take a look at the NYTimes article "Wisconsin Judge Arrest: What we know," published a few hours ago.
It says a court deputy overheard the Judge say "Wait, come with me," and then ushered them through a door leading to a "non-public" area. Although it doesn't say if they entered or made it to the non-public area. Or if this would have avoided the Feds who were outside the courtroom. Plus, there's other reports that the Feds saw him, road the elevator down with him, and then arrested him after a chase outside. However, I not sure that would matter. In any case this Times report is why I say I'm not sure that she didn't try to obstruct the arrest, and whether there was defamation.
Thanks — I had read the NYT. And as I said, in my first post on this topic… (scroll down to Thurs)…Court cases are decided on evidence. Not headlines.
If the federal government can produce a witness who will swear under oath and subject themselves to cross examination, that they personally heard the judge say what is claimed… Then Kash Patel has some evidence that may prevent his losing $100 million or more.
But it seems equally clear that there will be evidence from other witnesses subjected to cross-examination under oath, that will either say that the claimed conversation didn’t happen… Or that the judge left the bench and maybe the bailiff slipped up, and the purported detainee walked out the front door of the court.
In any event, it is beyond dispute that the ICE agents weren’t being very careful, if they got on the elevator with this guy and had to chase him outside. That’s just bad police work on their part.
And finally, I would remark that alleging a charge of felony obstruction of justice against a respected sitting judge in her courtroom is going to require a very high burden of proof, well beyond what the FBI would need to charge me or you with felony obstruction.
That is where I hang my hat.
She would never knowingly put herself at risk of an obstruction charge. She knows exactly where the bright lines are and where the gray areas are, and as I said, in my first post, many judges in Chicago do this more often than not with the understanding that they have the right to police their own courtroom. Federal agents don’t have the right to arrest anyone inside a county courtroom.
That’s why they are supposed to place holds with the bailiff.
It seems clear these Ice agents didn’t do that.
But as ever we will see. And I do appreciate the spirited dialogue, but the applicable Supreme Court law — in many other decisions as well — breaks decidedly in the favor of the judge. That’s my take based on 40 years of legal practice.
I did see late tonight that at least one county judge who sits in a circuit that also handles tribal matters has said she will close all her court rooms until the Supreme Court of Wisconsin issues clear guidance that judges are allowed to make decisions in their court that will not subject them to felony charges of obstruction by rogue federal agents who might be sitting in the gallery. It happens that this judge is also Native American. And so I suspect the Illinois Supreme Court is going to say that federal officers are no longer welcome inside the courtroom and if they have any business, they can wait in the hall.
Not exactly the outcome that Mr. Patel was hoping for.
Namaste!
Typo: the final “Illinois” should read “Wisconsin”. Weird Apple dictation jumble up! Hah — not typing whilst I have the flu..
Thank you so much for the cogent discussion. I have not been following closely. But did recognize that the facts would likely need to come out in court and that there's always the issue of he said she said. Plus I have my own experience with multiple government witnesses lying for which I have clear proof based on documents written by the gov't's witnesses.
Quite so, Anon. — thank you, and as you know… I know what you say (from your lived experience) is true — based on our historical off-line (live) conversations.
This one will be interesting to watch! Cheers!
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