MANHATTAN (CN) — The Second Circuit on Tuesday dashed Michael Cohen’s hopes of reviving his claim that Donald Trump used his presidential powers to jail the ex-attorney to stop him from promoting his tell-all book.
Trump’s fixer-turned-critic was transferred to home confinement in May 2020, after serving one-third of his three-year sentence, because of Covid-19 concerns.
Cohen pleaded guilty to campaign finance violations, tax evasion and lying to Congress.
While in prison, he began drafting a book detailing his experiences with Trump over the past decade, including episodes in which Trump made antisemitic and racist comments.
But as he was getting processed for home confinement Cohen was hit with a gag order that prevented him from speaking to the media or posting on social media. After he asked to revise the release agreement that included the gag order, Cohen was sent back to prison.
Cohen’s claim for damages centered on the U.S. Supreme Court case Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, which awarded damages after agents of the federal bureau forced their way into Bivens’ home without a warrant and arrested him on narcotics charges.
The Supreme Court has applied Bivens only twice, in cases with the “most unusual circumstances.” Though Cohen's attorney Jon-Michael Dougherty argued this case is “that most unusual circumstance,” the Second Circuit disagreed, and on Tuesday affirmed a federal court’s decision to dismiss the case.
The panel of judges pointed to other forms of judicial relief Cohen has received: After he was remanded to prison, Cohen filed a petition for a writ of habeas corpus. Within days was issued an injunction — with a federal judge finding the federal government had indeed retaliated against Cohen — and was released from prison into home confinement.
“Under the circumstances presented here, a successful petition for habeas relief is sufficient to foreclose Cohen’s Bivens claim,” the panel of judges said in their opinion.
The judges also said they were hesitant to grant Cohen’s claim for damages because he introduced “new categories of defendants” that were not contemplated in Bivens, including a former president, former attorney general, a warden and officers and agents of the U.S. Bureau of Prisons and the U.S. Probation and Pretrial Services.
Dougherty told Courthouse News he plans to fight the ruling.
"We are concerned that the question of deterrence and an adequate remedy in the face of a president using his power to silence his critics was not considered in the Second Circuit's ruling," Dougherty said. "We will appeal to the Supreme Court and we look forward to continuing a fight for the right of every American to speak freely about the government without fear of imprisonment."
Meanwhile Trump attorney Alina Habba said her team was "very pleased" with the circuit court outccome.
“We will continue to fight against any frivolous suits aimed at our client,” she said in a statement.
The panel included U.S. Circuit Judge Barrington D. Parker Jr., a George w. Bush appointee, and U.S. Circuit Judges Myrna Perez and Sarah A.L. Merriam, both Biden appointees.
Follow @NikaSchoonover
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
Additional Reads
-
Newsom’s ‘May revise’ trims budget to $288 billion May 10, 2024 -
