Michael Cohen asked the Supreme Court to wade into his fight with former President Donald Trump after a federal appeals court rejected his latest attempt to seek compensation for being jailed in what another judge called an act of retribution.
In a filing he will make with the court on Wednesday, Cohen asked for a review of a Court of Appeals for the Second Circuit decision that denied his request to hold Trump, former Attorney General Bill Barr and other Justice Department officials accountable for throwing him back in jail because he refused to agree not to write a book that was going to be critical of Trump.
“This is a case of first impression," Cohen said of his filing. "No president should ever be permitted to weaponize the Department of Justice through a willing and complicit attorney general to have a citizen unconstitutionally remanded to prison (solitary confinement) because they refused to waive their First Amendment right. It’s a case ripe for the SCOTUS.”
Cohen is asking the Supreme Court to apply the Bivens precedent which would allow some suits against federal officials. Bivens claims are virtually impossible to obtain after recent Supreme Court decisions gutted the prior ruling, an NBC News investigation found.
Cohen’s filing argues that his case should qualify as a Bivens claim because of “a finding by a federal judge who found that the president’s most public critic was incarcerated for retaliation for attempting to speak and write about the president.” Justice Sonia Sotomayor granted an extension to Cohen of the filing deadline from June to July 10th.
Judge Alvin Hellerstein of the Southern District of New York found that Cohen was incarcerated in retaliation for attempting to speak and publish his book. He ordered Cohen released and ordered the government never to jail him again.
A district judge ruled against Cohen's initial attempt to sue Trump and the other officials, determining that Supreme Court precedent does not allow him to pursue damages and the Second Circuit Court of Appeals agreed, ruling that his ultimate release was sufficient to meet his claims. District Judge Lewis Liman, in denying Cohen's claim, did concede that his rights were violated but said Supreme Court precedent barred him from letting the case move forward.
“The case represents the principle that presidents and their subordinates can lock away critics of the executive without consequence," Cohen said in an appearance on MSNBC's "Deadline: White House." "That cannot be the law in the country the Founders created when they threw off the yoke of the monarch who imprisoned Wilkes.”
Cohen served as a star witness in Trump's New York hush money trial, during which a jury found the former president guilty of 34 counts of business document falsification related to hush money payments to a porn actress ahead of the 2016 election.
Cohen has painted a frightening picture of what he expects would happen in a second Trump presidential term. “He is capable of absolutely anything and everything, don’t discount what he is telling you, he will have unlimited power," Cohen said in the interview on MSNBC. "You allow your mind to wander into the farthest level of dystopia, and then you finally get a small glimpse into how far he will push this.”
Jon Michael Dougherty, Cohen’s attorney, says Trump and other presidents must be held accountable. “This is one of the most un-American acts of executive abuse imaginable. The reason we need this kind of remedy is to ensure every officer at every level of the government is deterred from ordering the arrest and incarceration of critics for refusing to be silent.”
Alina Habba, Trump’s attorney, has called the lawsuit frivolous. “We are very pleased with today’s ruling,” she said when the complaint was initially dismissed. “Mr. Cohen’s lawsuit was doomed from its inception. We will continue to fight against any frivolous suits aimed at our client.”
