Does the President of the United States have the power to send you to prison?
Michael Cohen says that’s the test of the petition filed Wednesday in the Supreme Court.
“The Constitution is the foundation of our democratic republic and makes America a beacon in the world,” Cohen said.
“When a president weaponizes the Department of Justice, that’s how dictatorships are created.”
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Former President Trump’s former personal lawyer, Michael Cohen, walks in New York City. (Jana Paskova/Getty Images)
Cohen, a controversial longtime lawyer and fixer for former President Trump, is asking the court to hear his claim that he was sent back to prison, handcuffed and placed in solitary confinement in July 2020 on the orders of President Trump and Justice Department officials in retaliation for writing his first tell-all book, “Revenge: How Donald Trump Weaponized the US Department of Justice Against His Critics.”
“The president is not a king,” the petition states. “This case illustrates the principle that a president and his minions can incarcerate critics of the administration with impunity. Such laws have no place in a nation that our Founding Fathers supposedly created after casting off the yoke of monarchy.”
In 2020, U.S. District Judge Alvin K. Hellerstein ruled that the Trump administration violated Cohen’s First Amendment rights by sending him back to prison after he was released on house arrest.
“The purpose of transferring Mr. Cohen from furlough and house arrest to prison is retaliation,” the judge said during a hearing on Cohen’s reincarceration.
“This is retaliation for his desire to publish a book and exercise his First Amendment right to discuss whatever he wants about it, on social media or with others.”
A Bureau of Prisons spokesman denied allegations that Cohen had been retaliated against, calling the allegations “demonstrably false.”
But Cohen’s lawyers say the case goes far beyond affecting their client and has implications on the legal protections of all Americans against constitutional violations by the executive branch.
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Michael Cohen was under oath before testifying. (Bill Clark/CQ Roll Call)
“This case raises important and unprecedented questions about what remedies this country provides to citizens who are incarcerated for criticizing government officials. No one, especially a president, can use the prison system to silence their critics,” said Cohen’s lawyer, John Michael Dougherty.
“As things stand, authorities can lock up critics with impunity. This is not how America should be. This is not how America should be. The rights of Americans are clearly and presently at risk. If speaking out can mean going to prison, most Americans will choose to remain silent.”
The two courts dismissed Cohen’s initial lawsuit, narrowly interpreting a Supreme Court decision known as “Bivens,” which gives citizens a limited legal right to sue federal officials who violate their constitutional rights.
The Second Circuit ruled that the law does not appear to provide for damages, and that Cohen’s eventual release from prison to house arrest was his legal remedy. But Cohen’s petition points out that the court has not ruled on the remedies and methods needed to prevent such violations in the future, and asks the Supreme Court to decide that point.
“This case involves Michael Cohen and Donald Trump, but it’s not about Michael Cohen and Donald Trump. This case isn’t about politics, it’s about freedom,” Dougherty told Fox News.
But Alina Habba, a lawyer for Trump who won the previous two lawsuits, said Cohen will not accomplish much in this one.
“Michael Cohen’s lawsuit against the president was doomed to fail from the start. Aside from the fact that his claims are without merit, the Supreme Court has already ruled in 2022 that Bivens’ lawsuit in this situation is not viable,” Haba told Fox News.
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Former President Trump speaks at a rally in Racine, Wisconsin. (Scott Olson/Getty Images)
During the current election campaign, former President Trump suggested he could prosecute his political opponents and set up “televised military tribunals.”,“He then names the various officials and prosecutors who have brought cases against him, saying they ‘should be put in jail.'”
“I would be perfectly within my rights to go after them,” the former president told Fox News last month, but added that he would not actually do so.
Cohen alleges that Trump will indeed seek revenge, despite previous denials by Trump and his government.
“Please be careful… Donald will do it again and again if he gets the chance!”
Cohen’s petition reflects that prediction.
“The former president and his subordinates conspired to use the federal prison system to silence one of the president’s most vocal and prominent critics, revoking his approved release from prison to house arrest when that critic would not agree to waive his speech rights,” the report said.
“The possibility that the federal government could have the power to retaliate with prison time against critics, yet impose no penalties on officials involved in the retaliatory actions or deter them, is a frightening prospect. This Court should not turn a blind eye to this flagrant violation of the contract between a limited-power government and a free people.”
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Michael Cohen heads to Manhattan Criminal Court in New York City. (Timothy A. Clary/AFP via Getty Images)
Dougherty said the petition is in the hands of Justice Sonia Sotomayor. For Cohen’s petition to be heard en banc, four of the nine justices must agree to hear it during the court’s next term in the fall.
Haba believes the court is likely to dismiss Cohen’s lawsuit, and if it does, it will likely find that the Supreme Court’s recent decision granting immunity to the president for “official duties” applies to Cohen’s case.
“In the unlikely event that the Supreme Court accepts Cohen’s claim, and even in the even more unlikely scenario that it finds any merit in Bivens’ claims, the principles of presidential immunity will mean that Cohen’s complaint will be dismissed. I look forward to a decisive victory if this case moves forward,” she told Fox News.
In response to the petition, Trump spokesman Steven Chang said, “Michael Cohen is a disgruntled, disgraced man and a total loser.”
“Nothing Mr. Cohen says can be trusted. Now that his 15 minutes of fame is over, he is more desperate than ever.”
Cohen was the star witness at Trump’s recent trial in Manhattan that found him guilty of 34 felony counts.
“No president should ever be allowed to weaponize the Department of Justice, through a willing and complicit Attorney General, to unconstitutionally send to prison (solitary confinement) citizens who refuse to waive their First Amendment rights,” Cohen said. “This is a case for the Supreme Court.”
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Dougherty said the Supreme Court has an obligation to accept the case because the constitutional arguments it presents are unique and compelling.
“The Supreme Court has said that lawsuits like the one Cohen filed can only be brought in the ‘most extraordinary circumstances.’ What could be more extraordinary than a claim, backed by a federal judge’s ruling, that a president and his subordinates locked up critics who refused to be silenced? This is certainly that case.”
