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.