Michael Cohen, former attorney and fixer for President Donald Trump testifies before the House Oversight Committee on Feb. 27, 2019 in Washington, DC.
A federal judge dismissed a lawsuit Donald Trump’s former attorney Michael Cohen accusing the former president and former Department of Justice officials of sending him back to prison for writing his tell-all memoirs.
Despite finding that multiple Supreme Court rulings barred Cohen’s lawsuit, U.S. District Judge Lewis Liman, a Trump appointee, appeared to bemoan the sweeping nature of those precedents. The judge wrote that they could provide little remedy for “the use of executive power to lock up the President’s political enemies for speaking critically of him.”
Before issuing his decision, Liman noted that a colleague from the Southern District of New York found in Cohen’s favor in a different context.
In July 2020, U.S. District Judge Alvin Hellerstein order the Justice Department to release Cohen from prison, finding that the Trump administration revoked his pandemic-related release at the time because he planned to write an unflattering book about the then-president.
Toward the beginning of his 33-page opinion and order, Liman acknowledges that Cohen’s allegations against Trump, former attorney general Bill Barr and various officers from the Bureau of Prisons are serious — but foreclosed by Supreme Court precedent.
“Cohen’s complaint and the motions to dismiss now before this Court raise fundamental questions about the meaning and value of constitutional rights, the relationship between a citizen and the government, and the role of the federal courts in protecting those rights,” Liman wrote in the introduction of his opinion. “The ability to publicly criticize even our most prominent politicians and leaders without fear of retaliation is a hallmark of American democracy; political speech is core First Amendment speech.”
Cohen alleged violations of his First, Fourth, and Eight Amendment rights, under the Supreme Court’s precedent in Bivens, which allowed private causes of action against federal government officials for trampling on constitutional rights.
“As things currently stand, however, the Supreme Court’s precedents squarely and unequivocally foreclose the Bivens claims here,” Liman wrote.
Trump’s attorney Alina Habba celebrated the dismissal in a statement.
“The court saw through Cohen’s frivolous lawsuit, which was legally deficient and, more importantly, based upon inflammatory allegations that are simply not true,” Habba wrote. “President Donald J. Trump will continue to fight for the truth and against innumerable falsehoods being perpetrated by his enemies.”
The reaction of Trump’s counsel aside, Liman booted the lawsuit on the law, rather than on the facts. It remains undisputed that the first condition of Cohen’s Federal Location Monitoring Program Participant Agreement barred the ex-Trump fixer from various forms of expression.
That condition read in full:
No engagement of any kind with the media, including print, tv, film, books, or any other form of media/news. Prohibition from all social media platforms. No posting on social media and a requirement that you communicate with friends and family to exercise discretion in not posting on your behalf or posting information about you. The purpose is to avoid glamorizing or bringing publicity to your status as a sentenced inmate serving a custodial term in the community.
When Cohen questioned the condition with his attorney, U.S. Marshals shackled him and sent him to prison in July 2020. He was then transferred to a federal prison in Otisville, where he was placed in solitary confinement for 16 days.
Summarizing his complaint, Liman noted: “These conditions caused health problems for Cohen; his blood pressure was elevated, resulting in severe headaches, shortness of breath, and anxiety, which required immediate medical attention.”
After a federal judge ordered Cohen’s release from prison — deeming it to have been retaliatory — Cohen filed his civil rights lawsuit on Dec. 17, 2021.
But Liman ruled that multiple Supreme Court’s precedents doomed his case, including Egbert v. Boule, which held that Bivens claims do not extend to First Amendment retaliation.
“That holding squarely forecloses Cohen’s First Amendment retaliation claim here,” the ruling states. “And the Court’s broader Bivens jurisprudence forecloses his Fourth Amendment claim as well; there is no question that it is factually distinct from the Fourth Amendment claim implied in Bivens.”
As for Cohen’s Eighth Amendment claim regarding his solitary confinement, Liman found that the Supreme Court’s ruling in Carlson v. Green shut that door.
“Cohen’s Eighth Amendment claim centers on the conditions of his solitary confinement, which—although he claims ‘posed serious health risks’—did not result in him receiving inadequate medical care,” Liman wrote. “To the contrary, the complaint states that the conditions resulted in Cohen’s ‘blood pressure bec[oming] dangerously high resulting in severe headaches, shortness of breath, and anxiety requiring immediate medical attention,’ implying, if anything, that ‘immediate medical attention’ was provided to him.”
Judge Liman, however, appeared to signal regret about how those precedents mandated the failure of those claims.
“As such, Cohen’s Bivens claims must be dismissed,” Liman wrote. “Before doing so, however, this Court pauses to reiterate the profound violence this holding does to Cohen’s constitutional rights. Cohen’s complaint alleges an egregious violation of constitutional rights by the executive branch—nothing short of the use of executive power to lock up the President’s political enemies for speaking critically of him. The Supreme Court’s precedents ensure that there is at best a partial remedy for the abuse of power and violation of rights against the perpetrators of those wrongs.”
Setting aside another set of allegations, Liman held that the U.S. government immune from Cohen’s lawsuit.
In a lengthy statement, Cohen told Law&Crime that he knew that despite Judge Hellerstein’s “crystal clear” retaliation findings, “I knew that the government would do everything in its power to deny my case so as to protect the institution.”
“Granting this motion prevents me from obtaining documents that would expose what happens when you have a corrupt president who weaponizes the DOJ through a complicit attorney general,” he wrote.
“I disagree with Judge Liman’s decision and believe he is simply wrong on both the Bivens claim as well as the FTCA claims,” he continued. “At every turn I have been silenced and derailed in my efforts to expose the unethical and unconstitutional tactics used against me by the previous administration. Despite all this, I will not be deterred in continuing my journey of speaking truth to power.”
Update on Nov. 15, 2022 at 2:44 p.m.: This story now includes Cohen’s comment.
[Image via Chip Somodevilla/Getty Images]
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