Michael Cohen asks the Supreme Court to allow him to arrest Trump
Left: Michael Cohen (AP Photo/Bebeto Matthews, File); Right: former President Donald Trump (AP Photo/Alex Brandon, File)
Former lawyer Michael Cohen, 57, has asked the US Supreme Court to reopen a failed lawsuit against his former boss Donald Trump, 78.
The ex-president’s former fixer and current enemy alleges that Trump, then-US Attorney General Bill Barr and various Justice Department officials retaliated against him in 2020 for writing an exposé about his time in Trump’s world and had him thrown in prison.
However, the lawsuit was dismissed at all stages of the federal system, but not without controversy and hand-wringing.
Now Cohen’s lawyers have filed an appeal with the country’s highest court on Wednesday with a long-promised petition for leave to appeal.
“Plaintiff Michael Cohen, a well-known critic of Defendant Trump, was scheduled to be released from prison to house arrest,” the petition states. “But before he was released, Defendants demanded that he waive his First Amendment free speech right to criticize Defendant Trump. When Cohen, who wrote a book critical of Trump, did not immediately agree to waive his free speech right, he was summarily sent back to prison and placed in solitary confinement.”
What makes the Cohen case particularly explosive is the fact that a federal court had already confirmed the alleged facts in another context.
In July 2020, U.S. District Judge Alvin Hellerstein ordered the Justice Department to release Cohen from prison, ruling that the Trump administration had revoked his pandemic-related release because of Cohen’s high-profile plans to write his anti-Trump memoir. The book, Cohen promised, would contain “graphic and unflattering” depictions of the then-president’s behavior behind closed doors, including allegations of anti-Semitism and racism against black people.
In his ruling on a habeas corpus petition in Cohen’s favor, Hellerstein expressed horror and dismay that prosecutors attempted to argue that the actions in the case were anything but “retaliatory.” He later adopted that opinion in the court’s order that led to Cohen’s dismissal.
Cohen, in turn, filed a civil lawsuit accusing Trump, Barr and the Justice Department of countless violations of numerous constitutional rights.
But facts and law often never meet – especially when it comes to the Supreme Court’s immunity precedent.
In November 2022, U.S. District Judge Lewis Liman lamented the effective deprivation of Cohen’s rights and said he had no choice but to dismiss the civil rights lawsuit.
“As matters currently stand, however, Supreme Court precedents clearly and unambiguously bar Bivens’ claims,” Liman wrote, referring to a type of lawsuit that allows citizens to sue federal officials for violating the Constitution.
In April 2023, Cohen appealed the dismissal. In January, a panel of the U.S. Court of Appeals for the Second Circuit affirmed the dismissal.
The court, led by Chief Justice John Roberts, attacked Bivens’s claims with a gun and a shovel – and in doing so effectively overturned the doctrine.
In his petition, Cohen acknowledges Bivens’ increasingly strained position before the court, but insists that the facts of his case are so bizarre that the application of the disapproved precedent is necessary.
“Although this Court has limited the possibility of a new Bivens claim, it has nevertheless refused to strike down Bivens,” the petition states. “Therefore, Bivens remains the prevailing law. And the Court has made clear that it remains willing to allow a new Bivens claim under the ‘most unusual circumstances.’ This is one such case.”
Trump recently received a broad and tailored form of post-presidency immunity from a 6-3 majority of the nation’s Supreme Court in criminal cases. This expansive grant is based in part on a long-recognized (and even broader) presidential immunity that applies in civil cases.
It is unlikely that the Roberts court will reverse its own recent rulings—neither those aimed at limiting lawsuits against government malfeasance nor those aimed at increasing executive power. Far more likely, should the justices even decide to hear and consider Cohen’s motion, the case at hand will mark a formal end for Bivens.
Cohen, now a popular podcaster, says fundamental principles and the potential curtailment of public liberties require the effort.
The file begins with a historical allusion:
In 1760, British parliamentarian John Wilkes published an article in his newspaper The North Briton criticizing King George III for a speech he made about his handling of the French-American War in the colonies. The enraged king had Wilkes imprisoned for “seditious insult.” Over the next 30 years, the colonies declared their independence from the king, won the ensuing war, and established 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 vigorously protected Americans who criticized their government from being arbitrarily imprisoned simply for exercising their right to free speech.
“The issues raised in this petition are of the utmost importance,” the filing continues. “The possibility that the federal government has the power to punish critics with prison sentences without consequences or oversight for the officials involved in such retaliation is a frightening prospect. This Court should not avert its eyes from this grave breach of contract between a government with limited powers and a free citizenry.”
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