Left: Michael Cohen leaves state offices after meeting with Manhattan prosecutors in 2023 (AP Photo/Bebeto Matthews, File). Right: Donald Trump steps off his plane as he arrives at Hartsfield-Jackson Atlanta International Airport in August 2023 (AP Photo/Alex Brandon, File).
After losing out in appellate court and months ago urging the U.S. Supreme Court to revive his lawsuit, Donald Trump’s ex-fixer Michael Cohen is once again asking the justices to take up his petition and allow him to sue the former president for the alleged “retaliatory imprisonment” and the weeks-long solitary confinement stint Cohen was subjected to in 2020.
Cohen’s latest filing on the high court’s docket came Monday, as a reply to Trump’s opposition. Earlier in September, Trump attorney Alina Habba told the justices Cohen’s claims that Trump and former U.S. Attorney General Bill Barr thew Cohen back in jail to penalize him for exercising his First Amendment right to write the tell-all memoir “Disloyal” were “entirely devoid of merit” and, in any event, were unwarranted under Bivens. What’s more, Habba said, Cohen’s suit should fail as “absolutely barred by the doctrine of Presidential immunity.”
As Law&Crime has reported, Cohen’s suit failed at the district court level after U.S. District Judge Lewis Liman determined that Supreme Court precedent “squarely and unequivocally foreclose[d] the Bivens claims” in Cohen’s civil rights lawsuit — even as the judge lamented the “profound violence this holding does to Cohen’s constitutional rights.” Next, a three-judge panel on the U.S. Court of Appeals for the Second Circuit declined to extend Bivens to “this new context,” leaving the Supreme Court as Cohen’s last hope for a revival of the “novel issue.”
In July, Cohen filed his petition for writ of certiorari, asserting that if SCOTUS did not take up the case of “paramount importance,” then that would cement the “chilling prospect” of there being little to no recourse when the government “retaliate[s] against critics with imprisonment” as a reality.
The latest reply from Cohen argued much the same, framing the threat to “freedoms” in dire terms:
All that is left is what has been apparent to every court that has examined this case: the Court is presented with an unprecedented scenario, in which the Executive’s power over the Department of Justice and the prisons was abused to silence a President’s critic. If no Bivens remedy is available here, as United States District Judge Lewis Liman recognized, there is no deterrent at law that critics. That cannot be the law of the United States of America.
The Court should defend the liberties granted to this country’s citizens from encroachment by the country’s political branches. If this Court accepts the petition, it states clearly that it will, at minimum, ensure that the questions presented are given close and careful attention, as befits such an unprecedented case. If this Court declines the petition, it states clearly that the courts will not deter an Executive determined to incarcerate their critics. That statement would threaten the freedoms this country was founded to protect and upon which so many areas of American life depend. This Court should grant the Petitioner’s request for the writ of certiorari.
Cohen attorney Jon-Michael Dougherty concluded by asking the justices to grapple with the Bivens argument before “any analysis concerning presidential immunity.”
Read the Cohen reply here.
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