Left: Michael Cohen (AP Photo/Bebeto Matthews, File); Right: former President Donald Trump (AP Photo/Alex Brandon, File)
Former lawyer Michael Cohen, 57, asked the U.S. Supreme Court to revive a failed lawsuit against his former boss, Donald Trump, 78.
The ex-president’s onetime fixer and current bête noire alleges that in 2020, Trump, then-U. S. Attorney General Bill Barr and various Justice Department officials retaliated against him for penning a tell-all book about his time in Trumpworld and had him thrown in jail.
The lawsuit has been serially dismissed at every stage in the federal system, however, but not without controversy and handwringing.
Now, in a long-promised Wednesday petition for writ of certiorari, Cohen’s attorneys have appealed to the highest court in the land.
“Petitioner Michael Cohen, a well-known critic of Respondent Trump, was scheduled to be released from prison to home confinement,” the petition reads. “But before releasing him, the Respondents demanded that he waive his First Amendment right to criticize Respondent Trump. When Cohen, who was writing a book critical of Trump, did not agree immediately to waive his right to free speech, he was summarily sent back to prison and thrown into solitary confinement.”
What makes Cohen’s case particularly controversial is that, in another context, one federal court has already agreed with the facts alleged.
In July 2020, U.S. District Judge Alvin Hellerstein ordered the DOJ to release Cohen from prison, finding that the Trump administration had revoked his pandemic-related release because of Cohen’s highly-publicized plans to write his anti-Trump memoir. The book, Cohen promised, would include “graphic and unflattering” depictions of the then-president’s behavior behind closed doors, including allegations of antisemitism and anti-Black racism.
Ruling on a writ for habeas corpus in Cohen’s favor, Hellerstein expressed shock and dismay at prosecutors who tried to argue that the actions in the case were anything other than “retaliatory,” later committing that opinion to the court order that sent Cohen home.
Cohen, in turn, filed a civil lawsuit alleging myriad violations of multiple constitutional rights committed by Trump, Barr, and the DOJ.
But facts and law often become the twain that never meet — especially when running into Supreme Court precedent on immunity.
In November 2022, while bemoaning the deprivations of rights that actually happened to Cohen, U.S. District Judge Lewis Liman said he had no choice but to dismiss the civil rights lawsuit.
“As things currently stand, however, the Supreme Court’s precedents squarely and unequivocally foreclose the Bivens claims here,” Liman wrote — referring to a kind of lawsuit that allows citizens to sue federal government officials over constitutional violations.
In April 2023, Cohen appealed the dismissal. In January, a panel on the U.S. Court of Appeals for the Second Circuit affirmed the dismissal.
The court overseen by Chief Justice John Roberts has taken a rifle and a shovel to Bivens claims — rendering the doctrine all but overruled.
Cohen, in his petition, takes note of Bivens’ increasingly fraught standing on the court while insisting the facts of his case are so bizarre as to require the application of the disfavored precedent.
“While this Court has narrowed the availability of a new Bivens claim, it has nonetheless declined to overrule Bivens,” the petition reads. “Thus, Bivens remains good law. And the Court has made clear that it is still willing to find a new Bivens claim in the ‘most unusual circumstances.’ This is that case.”
Trump recently received a broad and bespoke form of post-presidential immunity by a 6-3 majority of the nation’s high court for criminal cases. That wide-ranging grant is, in part, based on a long-acknowledged (and even more sweeping) presidential immunity that applies in civil cases.
The Roberts Court is unlikely to pare back its own recent rulings — neither those intended to limit lawsuits against bad actors in government nor those intended to increase executive power. Far more likely, should the justices even decide to hear and consider Cohen’s plea, is that the present case invites a formal end to Bivens altogether.
Cohen, now a popular podcaster, says fundamental principles and the potential internment of public liberties demand the effort.
The filing begins with a historical allusion:
In 1760, British parliamentarian John Wilkes published an item in his newspaper, The North Briton, criticizing King George III for a recent speech concerning his handling of the French-American War in the colonies. Incensed, the King locked Wilkes away for the crime of “seditious libel.” Over the ensuing 30 years, the colonies declared their independence from the King, won the subsequent war, and founded a new form of government with a constitution that protected people who criticized the government from being thrown in prison without good cause. Since then, the courts have zealously protected Americans who criticized their government from being arbitrarily imprisoned for exercising their right to free speech.
“The questions presented in this petition are of paramount importance,” the filing goes on. “The possibility that the federal government has the power to retaliate against critics with imprisonment, without any consequence for or check against the officials engaged in such retaliation, is a chilling prospect. This Court should not turn its eyes away from this profound breach of the contract between a government of limited powers and a free citizenry.”
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