Michael Cohen is headed to the Supreme Court in his long-waged war against former President Trump.
Cohen, Trump’s onetime fixer and loyal soldier who later turned on his boss and testified as the star witness in Trump’s criminal trial ending in a conviction, on Wednesday asked the Supreme Court to revive his claim seeking damages for retaliation during his prison sentence.
In an interview with The Hill, Cohen said his appeal is about deterrence, suggesting that the retaliation he faced is “exactly” what Trump means when vowing sweeping retribution in a potential second term — and that Cohen’s own experience was “merely a practice run.”
“Donald has opened up a Pandora’s box for future Trump 2.0s acting in the same autocratic manner,” Cohen said. “This writ of certiorari will be part of the process that would prevent any other U.S. citizen ever from being imprisoned because they refused to waive their First Amendment right or because they express criticism.”
The dispute stems from Cohen’s criminal case. The former president’s ex-personal attorney was serving a three-year sentence after pleading guilty in 2018 to federal campaign finance and other crimes. Cohen maintains he committed some of them at Trump’s direction.
When the COVID-19 pandemic hit, Cohen’s prison time was furloughed for health reasons that would be exacerbated by the virus. He was sent to home confinement.
But officials later ordered Cohen back to prison and placed in solitary confinement after he raised concerns over a release condition that asked him to waive his ability to criticize Trump, who was then president. A federal judge later released Cohen again, ruling he suffered unconstitutional retaliation over his desire to publish a damaging book about Trump and critique him on social media.
Now, Cohen is suing Trump, various officials involved and the federal government itself for damages for violating his constitutional rights. After lower courts said the claims couldn’t move forward, Cohen on Wednesday brought his appeal to the justices.
He faces steep odds. In a dozen cases over the past 44 years, the Supreme Court has declined lawsuits like Cohen’s, known as a Bivens claim.
“It's not something you just abandon,” Cohen said of his ongoing legal fight. “I want to make sure this never happens to anyone.”
Cohen attorney Jon-Michael Dougherty wrote in Wednesday’s petition that Trump and his subordinates conspired to “silence one of the President’s most vociferous and prominent public critics” by manipulating the federal prison system.
But in an interview, he maintained that the case goes beyond the former president and his onetime personal attorney.
“This is about the proper relationship between a free citizenry and a government of limited powers, constrained by the Constitution,” Dougherty said. “That is not about Donald Trump. It is not about Michael Cohen. It happens to involve those people.”
The lawsuit is just one battle in the war between Trump and Cohen, which has spanned social media attacks to testimony in the former president’s civil and criminal trials. Cohen once vowed he would take a bullet for his former boss but has since become one of his loudest critics after being exiled from Trump’s inner circle when federal law enforcement came knocking.
In 1971, the Supreme Court in Bivens v. Six Unknown Named Agents allowed a Brooklyn man to seek damages against federal narcotics agents for violating his Fourth Amendment protections against unreasonable searches and seizures. Even though no law authorized such a suit, the court ruled the man had an implied right to seek a remedy.
Over the next decade, the court expanded Bivens actions to employment-discrimination claims under the Fifth Amendment’s due process protections and Eighth Amendment cruel and unusual punishment claims alleging inadequate medical care in prison.
However, in a line of 12 cases since 1983, the court has changed tune and declined to extend the remedy to other alleged constitutional violations, insisting it's a role best left for Congress. In its most recent case, Justice Clarence Thomas’s majority opinion made clear Bivens claims aren’t valid in “in all but the most unusual circumstances.”
“If this case does not constitute the ‘the most unusual circumstance,’ then what case would?” Dougherty wrote to the justices.
