Donald Trump's former lawyer Michael Cohen filed an appeal with the Second Circuit Court of Appeals on Monday asking for reconsideration of his suit against agencies in the federal government. He alleges that he was put in solitary confinement as retaliation over his public comments about the former president.
During the pandemic, nonviolent offenders who had morbidities were allowed to apply for release to home confinement. Cohen claims he qualified for it and moved forward with the application. It was accepted, and he was set to be released. He was then called back by a company called GEO Group, a third-party contractor for the Bureau of Prisons, to outfit Cohen with an ankle monitor.
That's when Adam Pakula, a probation officer with the United States Probation and Pretrial Services (“PTS”), told Cohen that he was taking over the release. Cohen was called down to the office under the guise that he must "sign paperwork," but the contract forced Cohen to swear he wouldn't speak to the media or write a book about Trump.
[Signatory agrees that there will be] [n]o engagement of any kind with the media, including print, tv, film, books, or any other form of media/news. Prohibition from all social media platforms. No posting on social media and a requirement that you communicate with friends and family to exercise discretion in not posting on your behalf or posting an information about you. The purpose is to avoid glamorizing or bringing publicity to your status as a sentenced inmate serving a custodial term in the community.
According to the lawsuit, this isn't in the language for any other agreement for release issued by the Bureau of Prisons. The two-page Federal Location Monitoring Program Participant Agreement (FLM) also "contained grammatical and typographical errors," the suit adds. "And had no legend identifying its federal form designation. It was clear to Mr. Cohen and his counsel that Defendants were hastily attempting to unlawfully restrict his right to free speech."
Pakula and Enid Febus, a supervisory probation officer, swore that it was a standard form.
"Over the objections of Mr. Cohen’s counsel, the U.S. Marshals shackled and handcuffed Mr. Cohen," the court filing states. "As the Marshals prepared to take Mr. Cohen away, Mr. Cohen’s attorney told Mr. Pakula and Ms. Febus that the meeting was not finished; that he and Mr. Cohen were waiting to learn what, if anything, could be adjusted in the FLM; that the claim in the remand order was not true; and that Mr. Cohen was willing to sign the FLM 'as-is.'"
Cohen said that he was willing to sign it, but because of their questions about his public communications, Pakula and Febus responded that the situation was "out of [their] hands" and the FLM was taken off the table.
When Cohen refused to sign, he was thrown back into solitary confinement. He spent a total of 51 days in solitary while in FCI Otisville. Rule 45 1 in the United Nations says that solitary confinement should be the last resort and only in "exceptional cases" and for as short a time as possible. They consider it "cruel, inhuman or degrading treatment or punishment" to have someone in "prolonged solitary confinement."
In Cohen's case, the cell had poor ventilation, and in the July heat temperatures exceeded 100 degrees. It increased Cohen's blood pressure to dangerously high levels, the lawsuit claims. Cohen was also not allowed to continue work on his book, as he had been previously. It wasn't until judicial intervention that Cohen was eventually released. He's now a key witness in several other trials against Trump.
U.S. District Judge Alvin Hellerstein ruled the “purpose in transferring Cohen from release on furlough and home confinement back to custody was retaliatory in response to Cohen desiring to exercise his First Amendment rights to publish a book critical of the President and to discuss the book on social media.”
Cohen was then released 16 days after the FLM incident and spent the entire time in solitary confinement.
"This appeal raises a fundamental question: May the President and other United States officials conspire with impunity to silence one of the President’s critics by revoking without cause his approved release from prison to home confinement and instead throw him into solitary confinement, or should monetary damages be available in the face of such egregiously unconstitutional and antidemocratic conduct?" the court filing begins.
Judge Lewis J. Liman clarified in Cohen's initial lawsuit that dismissing the case could lead to “profound violence” to Cohen's constitutional rights.
Cohen’s complaint alleges an egregious violation of constitutional rights by the executive branch—nothing short of the use of executive power to lock up the President’s political enemies for speaking critically of him. The Supreme Court’s precedents ensure that there is at best a partial remedy for the abuse of power and violation of rights against the perpetrators of those wrongs. And those precedents rest on a mistaken proposition—that the Court’s reluctance to imply a damages remedy for statutorily created rights where Congress did not explicitly intend for there to be such a remedy necessarily must extend to a reluctance to find such a remedy for constitutionally guaranteed rights.
... [A] proper inquiry . . . would look to whether the framers—in the language they used, the structure of the government they established, the limitations they intended to place on executive power, and the authority they gave to the federal courts—intended for there to be such a remedy. ...
...There are powerful reasons to believe that, in many circumstances, the answer to that question will be yes, . . . if one’s rights are violated by executive officials, the courts provide a legal remedy for that violation.
Judge Liman dismissed the case.
Cohen's lawyers are now arguing that months before facing re-election, Donald Trump "attempted to silence one of his most vocal critics by throwing him into prison and holding him in deplorable conditions, taxing his mental and physical health. Despite these flagrant violations of Mr. Cohen’s constitutional rights, the District Court dismissed his claims for relief pursuant to Bivens." As such, the case argues that the appeals court must reverse the ruling.
There are a lot of legal factors like who is at fault and where damages would come from, but the case ultimately argues that regardless of all of those factors, at its heart, is the case that someone was specifically targeted by the president of the United States, who weaponized the judicial system to silence his enemies once that enemy began speaking out.
"To be sure, the Supreme Court has declined to extend Bivens and, indeed, has said that it should be limited to 'the most unusual circumstances,'” the filing says. "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. The President and his subordinates circumvent the usual release procedures, lure the President’s critic to the federal courthouse, 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."
After a GoFundMe campaign to raise money for legal expenses, Cohen began to fight back against Trump's lawsuit against him for $500 million.
Read the full case below or at the link here.
