Gilbert LLP Statement Regarding United States Supreme Court Petition Seeking the Writ of Certiorari in Cohen v. Trump, et al.

July 22, 2024

On Wednesday, July 10, 2024, Gilbert LLP filed a petition seeking grant of the writ of certiorari with the United States Supreme Court on behalf of Michael Cohen in his Bivens suit against Donald J. Trump and other federal officials.  Cohen challenges his 2020 incarceration after being approved for release to home confinement.  Judge Alvin Hellerstein of the District Court for the Southern District of New York called Cohen’s incarceration “retaliatory in response to Cohen desiring to exercise his First Amendment rights . . . .”  Judge Lewis Liman of the District Court for the Southern District of New York found that his own dismissal of Cohen’s suit did “profound violence” to Cohen’s civil liberties.  The Second Circuit Court of Appeals at oral argument was deeply troubled by the prospect that the refusal to entertain Cohen’s suit would fail to deter future executive branch officials from locking away their critics.

The Supreme Court now has before it a case that squarely asks the question:  Will the courts recognize a deterrent remedy when Presidents imprison their critics for refusing to be silent?  Gilbert is hopeful at least four justices of the Supreme Court will agree to review the disturbing facts of this case and then apply its own precedents that recognize a narrow path to a new Bivens claim in “the most unusual circumstances” to deter such gross misconduct by federal officials.  This question is of vital importance to every American.  Freedom of speech and freedom from unreasonable seizures are bedrock rights in our constitutional system that demand the protection of the courts.  Kings and dictators use the prisons to quell dissent.  American presidents and their subordinates cannot be allowed to do the same without consequence.