Cohen Seeks Damages At 2nd Circ. For Retaliatory Jail Time

April 25, 2023

Law360

Former Donald Trump lawyer Michael Cohen on Monday asked the Second Circuit to revive his lawsuit alleging he was thrown in prison as revenge for his plan to publish a book critical of his former boss, saying he is owed damages for the former president’s attempt to silence him.

A Manhattan federal judge erred in finding that damages were unavailable for Cohen’s claims focused on his federal reincarceration and stay in solitary confinement, the former Trump fixer says in a 30-page brief. He argues that he has stated a claim for damages for violations of his Fourth and Eighth Amendment rights under U.S. Supreme Court precedents.

And even if the appellate court finds that his claims don’t square up to the high court’s holdings, not providing a remedy in this case would “uniquely and fundamentally upend the rule of law and basic premises of constitutional rights,” Cohen said.

“The courts must craft a remedy for an act as repugnant to the nation’s character as using the police power to silence, imprison and abuse the president’s critics,” he adds. “A nation of laws must recognize real consequences and accountability for such egregious conduct — it must recognize a right to recover damages against wrongdoers.”

Cohen, who was Trump’s personal lawyer and self-described “fixer” for more than a decade, was sentenced in 2018 for a slew of crimes, including tax evasion and paying off women who claimed they had affairs with Trump. He was subsequently released from prison in April 2020 to slow the spread of COVID-19 and was forced to return to prison in July 2020 in a stint that U.S. District Judge Alvin K. Hellerstein deemed to be retaliatory.

“How can I take any other inference other than it was retaliatory?” Judge Hellerstein asked when he released Cohen after two weeks, adding, “You toe the line about giving up your First Amendment rights, or we’ll send you to jail.”

Cohen’s book, “Disloyal: A Memoir,” was published in September 2020.

Cohen sued Trump, the federal government, former U.S. Attorney General William Barr and others in December 2021, saying they placed his life in danger by sending him back to prison at the height of the COVID-19 pandemic — before any vaccine was available — to stop him from publishing, according to the complaint.

At a status conference last April, U.S. District Judge Lewis J. Liman, without expressing a view on whether the case would survive dismissal bids, said, “The allegations are pretty horrific.”

The defendants’ motions to dismiss began rolling in shortly after, and in November 2022, Judge Liman voiced regret about the “profound violence” being done to Cohen in the dismissal of his constitutional claims but said Supreme Court precedents “squarely and unequivocally” foreclose them.

Cohen’s suit asserted First, Fourth and Eighth Amendment violations under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , in which a plaintiff typically seeks damages for government actions for which there is no other remedy available.

But Judge Liman, who was nominated by Trump for the federal bench in 2018, said he was bound under recent Bivens jurisprudence to conclude that many of Cohen’s claims were “factually distinct” from precedent cases. The judge also noted that Cohen had successfully availed himself of an alternative form of relief in a successful habeas petition that led to his re-release.

Cohen filed his notice of appeal to the Second Circuit in January.

In his brief Monday, Cohen says the guarantees of the Fourth Amendment — the right to be free from unreasonable seizure — and the Eighth Amendment — the right to be free from cruel and unusual punishment — are “worthless unless there is a mechanism for redressing their violations.”

In Bivens, the Supreme Court recognized an implied damages remedy under the Fourth Amendment, according to the brief, while holding similarly in other cases with respect to the Fifth Amendment’s due process clause and the Eighth Amendment’s cruel and unusual punishments clause.

“Bivens remains good law,” Cohen says. “To be sure, the Supreme Court has declined to extend Bivens and, indeed, has said it should be limited to ‘the most unusual circumstances.’ But what could be more ‘unusual’ than the present circumstances?”

“A prisoner who is about to be released to home confinement publicizes his intention to write a book critical of the president,” he continues. “The president and his subordinates circumvent the usual release procedures … abruptly condition his release upon his waiver of his fundamental right to free speech, revoke the approved release when the critic questions this condition, and ultimately throw the critic into solitary confinement.”

“These circumstances would not be unusual in fascist or authoritarian regimes,” he says. “Surely, they are unusual here.”

The district court erred in failing to recognize that Cohen’s claims involve unusual circumstances that are best addressed in the courtroom, and not Congress, to craft a damages remedy, according to the brief.

Representatives for the parties did not immediately respond to requests for comment late Monday.

Cohen is represented by Jon-Michael Dougherty, Kami E. Quinn and Sarah Sraders of Gilbert LLP and E. Danya Perry of Perry Guha LLP.

The federal government is represented by Alyssa O’Gallagher, Allison Rovner and Benjamin H. Torrance of the U.S. Attorney’s Office for the Southern District of New York.

Trump is represented by Alina Habba and Michael T. Madaio of Habba Madaio & Associates LLP.

The case is Michael D. Cohen v. U.S. et al., case number 23-00035, in the U.S. Court of Appeals for the Second Circuit.

–Additional reporting by Andrew Strickler and Pete Brush. Editing by Kristen Becker.

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