WASHINGTON – Michael Cohen is an unlikely civil rights fighter.
Humiliated and expelled The lawyer enjoys an infamy reputation due to his long association with Donald Trump.
That relationship ended in a spectacular fall. He served three years in prison on multiple charges. He pleaded guilty to complicity in the work he did for Trump.
While Cohen, now a moderate critic of Trump, is aligning himself with civil rights advocates to try to turn the tide of the Supreme Court's hostility toward complaints against federal officials for constitutional violations.
Cohen is making a last-ditch effort to revive a case that Trump sent him back to prison — ending a regime of house arrest — in retaliation for writing a book. His appeal, now pending in court, urged the judges to go the other way.
The justices are scheduled to deliberate whether to hear his case in their regular private session on October 18.
In an interview via Zoom, Cohen laid out his case for both the broader legal issue — stopping officials from taking unconstitutional actions — and the more specific goal of clipping Trump's wings, including the possibility of a second term as a Republican. The nominee won the November elections.
“Understanding and knowing Donald Trump, based on his own words, unless there is a significant prevention factor, he is not going to stop,” Cohen said. “This isn’t just about arresting people.”
He mentioned that Trump had previously suggested that Mark Milley, who served as chairman of the Joint Chiefs of Staff under Trump, should be sentenced to death for treason.
“If there’s no deterrent for someone who doesn’t have a moral compass, what do you do? A king? A king? A dictator? A Führer?” said Cohen.
Cohen was held in solitary confinement for 16 days after refusing to sign a form barring him from speaking to the press or posting on social media. He was released after a federal judge ruled that the government would retaliate against him for his willingness to exercise his free speech rights by writing the book and speaking about it.
Cohen then filed a civil rights lawsuit against Trump, former Attorney General William Barr and other officials seeking damages for violations of his right to unreasonable searches and seizures under the Fourth Amendment of the Constitution.
The Supreme Court accepts only a small number of appeals, and even Cohen's lawyer, John-Michael Dougherty, admits that his client has “an uphill battle.”
That's because courts in recent years have made it increasingly difficult to bring civil rights claims against federal employees under a 1971 precedent called Bivens v. Federal Law. Six Unknown Agents of the Federal Bureau of Narcotics.
More recently, in a 2022 case called Egbert v. Bowle, the court effectively presented a “Bivens claim” on life support in a ruling that dismissed a claim against a Border Patrol agent.
The decision was widely condemned by lawyers on the left and right who support holding public officials accountable.
Cohen's Supreme Court case “really does a good job of illustrating how federal authorities can get away with blatantly violating the Constitution while Bivens is off the job, or perhaps nowhere near anything,” said Patrick Zicomo, an attorney with Libertarians for Justice. Incline Institute.
According to NBC News last year's report, the 2022 Egbert ruling was cited hundreds of times by lower court judges in rejecting Bivens' claims in cases that raised all sorts of constitutional claims, whether allegations of excessive force against federal officials. or medical malpractice claims against officers in federal prisons.
Cohen himself was no exception.
A federal judge in New York and the 2nd U.S. Circuit Court of Appeals cited Egbert's ruling in rejecting Cohen's claims.
Cohen faces an unlikely alliance opposing his request: Joe Biden and Donald Trump. On the President's Current Department of Justice A Brief Filing I agree with the former president that the Supreme Court should not be involved.
Attorney General Elizabeth Preloger, on behalf of the Biden administration, noted, among other things, that Cohen effectively got what he wanted when the judge ordered his release from prison.
In Trump's presentation, his lawyer, Alina Habba, wrote that the trial court “faithfully applied” Supreme Court precedent in ruling against Cohen.
Even in the unlikely event that Cohen's case is allowed to proceed, Habba, who did not respond to requests for additional comment, wrote that Trump would claim immunity from prosecution, based on a 1978 Supreme Court ruling that protects presidents facing civil lawsuits. . Action taken in office.
The court based its reasoning in part on that decision when it saw Trump in July Some had immunity in the criminal case brought against him for attempting to overturn the results of the 2020 election.
With victory looking slim, Cohen painted the case in stark terms, comparing his experience to that of critics of Russian President Vladimir Putin, who was jailed for expressing opposition to the government.
“The only difference between what Vladimir Putin did to these people and what Donald Trump and Bill Barr did to me is that I didn’t die there,” he said.
