"We are here to vindicate every American’s right to speak freely about their government without fear of imprisonment," Cohen's lawyer Jon-Michael Dougherty said in a statement. "We are here because Donald Trump, with the help of his Attorney General and officials at the Bureau of Prisons, attempted to use the prisons to silence Michael Cohen. They failed, only because the courts stopped the abuse."
An ongoing concern is developing as Trump continues his 2024 election campaign while promising "revenge." In his pledge to punish his foes and use the federal government to go after the media, Cohen's case argues that no president should have the power to use the Justice Department and the prison system to strike out against their critics.
The Washington Post reported in November that "in private, Trump has told advisers and friends... that he wants the Justice Department to investigate onetime officials and allies who have become critical of his time in office, including his former chief of staff, John F. Kelly, and former attorney general William P. Barr, as well as his ex-attorney Ty Cobb and former Joint Chiefs of Staff chairman Gen. Mark A. Milley, according to people who have talked to him, who, like others, spoke on the condition of anonymity to describe private conversations." They also cite FBI and DOJ officials that Trump purportedly wants to target.
Cohen has argued that this targeting of foes is illegal and has no business in an American democracy. His case could potentially provide a safeguard ensuring that the courts will shut down such behavior by the executive branch were Trump to try it again in a new administration.
In his statement, Cohen's lawyer pointed to the U.S. District Court for the Southern District of New York, which agreed that Cohen's rights were violated and that the conduct was retaliation from the Trump government.
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"A different judge of the same court reluctantly dismissed my client’s suit to hold the President and his accomplices accountable, noting the dismissal did 'profound violence' to my client’s rights," Dougherty continued. "We are grateful to the Second Circuit Court of Appeals for considering what the District Court urged—that the character of this nation, that the intent of its founders require there be a remedy against a rogue President and his subordinates who would resort to the prisons to silence critics. I thank Mr. Cohen for entrusting me and my colleagues with his cause, to ensure all Americans can say what they want about their government without fear of retribution and to ensure that rogue Presidents know that they are Presidents, and not kings."
Those speaking before the Court were Cohen's lawyers, the Justice Department, and Trump's lawyer Alina Habba. The arguments took less than 30 minutes, ten minutes for each side. But it was significantly less, possibly because Habba's presentation was so short.
While the Justice Department prosecutors experienced tough questions from the appeals panel, it was Habba who caused one judge to simply hold his head in his hands.
"What would deter a president from engaging in behavior like this if we don't use Bivens?" asked one of the female judges, indistinguishable on audio.
"That's not a part of this," said Habba, citing Nixon v. Fitzgerald, a case in which a civilian analyst with the United States Air Force was fired after testifying before a congressional committee that there were inefficiencies and cost overruns.
"So, you're basically conceding there's no deterrence available? There's nothing to deter?" the judge cut in.
Habba claimed she thinks the "deterrence" was that Cohen was able to be released in spite of Trump's actions when he sought an injunction from a judge.
"What is deterring behavior like this again?" the judge asked.
Habba claimed that the ruling by the judge in Cohen's case is what deters it in the future. She said that the biggest prevention is "separation of powers."
"Ok, so," the judge cut in again, "the allegation, and again, we are at this point where we need to take the allegations, was that someone pulled strings to retaliate against someone related to a personal vendetta. How does that fall within a president's official capacity as an office holder?"
"Well, first of all, before I'm willing to answer that your honor, I have to say that the complaint does not have facts that President Trump did it. It's an allegation based on Mr. Cohen's interpretation of what happened when he was trying to get out on release," claimed Habba. She said that in the Nixon case, there was an actual recording that caught Nixon in the act.
"In this case, he has absolutely no facts," said Habba. "It's a Michael Cohen assumption."
Cohen has worked with at least three members of Congress trying to get such evidence. Until recently, the government claimed there was no evidence. As his persistence continued requesting documents, they revealed that there were now too many documents, over 450,000, which addressed Cohen's queries about his case and the retaliation.
"So, you're saying it's too conclusory for us to credit?" the judge stepped in again.
"Absolutely," Habba agreed.
The judge then asked Habba if she was familiar with Blassingame v. Trump.
"Not off the top of my head, your honor," said Habba.
The case in question was decided last week and found that Trump doesn't have absolute immunity in civil cases. It's the case of the Capitol police who were injured on Jan. 6. They have argued Trump is responsible for actions he took as a candidate and not in his official capacity as president, which was agreed to by the appeals court.
Habba, who has worked as Trump's lawyer for more than a year, said she wasn't aware of the case.
Habba said that if the decision isn't from the Supreme Court then it takes a second seat to Bivens.
The judge interrupted and explained that Bivens is an official act case and the one she questioned Habba about was about presidential immunity.
Habba said that in Cohen's filing the case says that the individuals he is targeting acted in their official capacity. Cohen is arguing that Trump used his power of the presidency to target and silence as a perceived foe.
"He admits that the president is working within his job as the president of the United States and his complaint fails under absolute immunity," said Habba. "So, frankly it fails on two levels."
Habba continued to speak using her prepared remarks. She talked for a little less than a minute before the judge stepped in.
"I think, I thank you for your time if my colleagues don't have any questions," the judge said.
You can listen to the audio under Cohen v. United States 23-35.
