Judge Frees Michael Cohen, Saying Remand to Prison Was Retaliatory

Michael Cohen arrives at his Manhattan apartment on May 21 to serve the remainder of his sentence at home. Cohen has been serving a federal prison sentence at FCI Otisville in New York after pleading guilty to numerous charges, including campaign finance fraud and lying to Congress. (AP Photo/John Minchillo)

MANHATTAN (CN) — Calling the government’s retaliation unprecedented in his 21-year career, a federal judge ruled Thursday that Michael Cohen was unfairly sent back to prison for writing a book during home confinement.

“I make the finding that the purpose of transferring Mr. Cohen from furlough and home confinement to jail is retaliatory, and it’s retaliatory because of his desire to exercise his First Amendment rights to publish a book and to discuss anything about the book or anything else he wants on social media and with others,” U.S. District Judge Alvin Hellerstein said during a teleconference Thursday morning.

Cohen secured an emergency temporary restraining order and a preliminary injunction, ordering the government to immediately release him and be allowed to resume his home confinement.

“How can I take any other inference other than it was retaliatory?” Hellerstein mused, summarizing the terms of the government’s home-confinement agreement as telling Cohen: “You toe the line about giving up your First Amendment rights or we’ll send you to jail.”

“I’ve never seen such a clause in 21 years of being a judge,” the Clinton appointee added.

“In 21 years of being a judge, and sentencing people, and looking at the terms and conditions of supervised release, I have never seen such a clause.” 

Turning to the government for prececdent, Judge Hellerstein asked Assistant U.S. Attorney Alison Rovner: “Have you, Ms. Rovner, ever seen such a clause?”

Ducking the question, Rovner replied: “I have never seen a federal location monitoring agreement, your honor.”

That is the name of the type of agreement that probation officers forced Cohen to sign in return for his conditional release from a federal prison in Otisville, New York, to protect the 53-year-old from exposure to the novel coronavirus. Hellerstein ordered Cohen to be released back to home confinement by 2 p.m. Friday, after one more day at the Otisville correctional facility to undergo a coronavirus test.

Calling the order “a victory for the First Amendment,” Cohen’s attorney Danya Perry commended Hellerstein’s ruling. “This principle transcends politics and we are gratified that the rule of law prevails,” she said in a statement Thursday.

Pressed by Judge Hellerstein on what should be the “contours” of Cohen’s home confinement, Perry argued that Cohen should be allowed to speak his mind to his more than 430,000 followers on Twitter, social media or any other forum.

“He obviously has something to say of great public interest,” the attorney added.

“Just like any prisoner, he can’t incite riot,” Perry conceded. “He had some restraints on him while he was in Otisville, and we think those would remain appropriate.”

Cohen, who was initially released to home confinement in May, claimed Monday in a habeas corpus lawsuit that his transfer back to prison was punishment for writing — and intending to publish — “a tell-all book about his experience with Mr. Trump”.

“Michael Cohen is currently imprisoned in solitary confinement because he is drafting a book manuscript that is critical of the president of the United States — and because he recently made public that he intends to publish this book shortly before the upcoming election,” his attorneys wrote in the emergency motion Monday.

Attorney General William Barr and other justice officials are named as defendants.

Before taking on Cohen as a client, Perry — the co-founder of the firm Perry Guha — sat at the prosecution side of table as former senior trial counsel and deputy chief of the criminal division at the Southern District of New York.

Represented by Danya Perry, co-founder of Perry Guha and former senior trial counsel and deputy chief of the criminal division at the Southern District of New York, Cohen says his memoir will not only be critical of the president but also contain detailed depictions of Trump’s behavior behind closed doors, replete with anecdotes of Trump spewing anti-Semitic and racist remarks against prominent leaders, such as Barack Obama and Nelson Mandela.

Hardly anyone’s idea of a First Amendment icon, Cohen’s transformation from a fixer who helped Trump buy the silence of two purported mistresses to a client of the American Civil Liberties Union began with his decision to cooperate with prosecutors some two years ago.

Previously a trusted Trump lieutenant who bullied a journalist reporting on marital rape allegations against his former boss, Cohen accused the president of crimes in court, in print and before Congress. The disgraced attorney’s guilty pleas for tax crimes, lying to Congress and violating campaign-finance law led his sentencing judge to send him to prison for three years for a “veritable smorgasbord of fraudulent conduct.” 

Then, the coronavirus pandemic came along, and Cohen first won his release by arguing that  home confinement is critical for him given his medical history of severe hypertension.

Weeks into his release, however, the government tried to make Cohen sign a gag order preventing him from speaking through any media format, including books, social media or press interviews.

The Bureau of Prisons concedes that Cohen was sent back to prison for his attorneys attempting to negotiate that rule, characterizing his behavior as “combative.”

Judge Hellerstein, who wrangled with the government close to a decade over destroying CIA interrogation videos in the aftermath of the terror attacks, kept up his reputation for tough questioning of officials.

“Why couldn’t something like that be a subject of negotiation with an attorney?” he asked. “What’s an attorney for if he is not going to negotiate an agreement with his client?”

Cohen insists he never actually objected to these restrictions but instead asked for clarification on some of the finer points on what he could or could not do. Cohen alleges that rather than offer clarity, he was instead cuffed and remanded back to prison where he is currently in solitary confinement.

Anticipating his book’s release in late September, Cohen claims in his suit that these restrictions were put in place to silence him during an election year. He also alleges that this is not the first time that he was pressured to be quiet regarding his book.

Lawyers Defending American Democracy, a group calling for Barr’s resignation as attorney general, filed an amicus brief in the case on Tuesday.

Represented by attorney Christine Chung, the group says Cohen’s case is about extortion. “BOP is unconstitutionally attempting to use an inmate’s fear of contracting the coronavirus to extract a commitment not to write an unflattering book about the President of the United States,” the group said in its scathing letter.

Likening Trump’s alleged silencing of Cohen’s memoir to a “scenario that a reasonable observer would more associate with Alexandre Dumas père’s ‘Man in the Iron Mask’ than with actions of the United States Government in the 21st century,” the group of lawyers and law professors urged the court grant Cohen’s petition for a writ of habeas corpus and the emergency motion for release.

“Who, until this case, could have imagined that federal officials would barter a prisoner’s clear right under the First Amendment for either his liberty, his protection from a raging pandemic, or both — where the consequence is a clear political benefit for the Chief Executive?” the amicus brief asks.

The government denied Cohen’s claims in a Wednesday opposition where Assistant U.S. Attorney Allison Rovner asserted that the decision to remand Cohen back to prison was instigated by the probation officers who observed his behavior at the July 9 meeting. Rovner also said that the probation officer knew Cohen was a high-profile inmate but was unaware that he was writing a book — an assertion the judge doubted.

Judge Hellerstein also noted that attorneys are expected to try to get the best outcome for their clients.

“That doesn’t necessarily mean that the person won’t sign,” the judge said. “It means that the attorney is trying to get the best deal possible for his client. And Mr. Cohen was never given a chance to say, ‘if this is it, I will sign’.”

In a written ruling this afternoon, Hellerstein gave the attorneys another week to negotiate the terms of Cohen’s release.

“The condition shall be consistent with the First Amendment and legitimate penological limitations on conduct to which the parties mutually agree or the court subsequently orders,” Hellerstein wrote, adding that he would reserve jurisdiction to resolve any disputes about the revised order.

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