Former President Donald Trump is riding a winning streak at the Supreme Court. Michael Cohen, his fixer-turned-nemesis, is looking to break it.
Cohen on Wednesday asked the court to let him sue the former president over claims that he violated his constitutional rights, an issue that stems from Cohen’s stint in prison during the height of the pandemic.
Cohen had been released for health reasons in 2020, but the Trump administration brought him back to prison after he announced plans to write a scathing book about Trump. Ultimately, a federal judge ordered his release and rebuked the Trump administration for its “retaliatory” action.
Cohen then sued Trump and other federal officials, a case that has gained significance after the former president’s pledges to seek retribution and prosecute political enemies. Lower courts dismissed the lawsuit early on in the case, setting up Wednesday’s request that the Supreme Court take it up and send it back for a trial.
“As it stands, this case represents the principle that presidents and their subordinates can lock away critics of the executive without consequence,” Cohen’s lawyer, Jon-Michael Dougherty, wrote in the filing to the Supreme Court. “That cannot be the law in the country the Founders created.”
It is just the latest case involving Trump to land at the Supreme Court’s doorstep, renewing scrutiny of the court’s favorable treatment of the former president.
The court last week granted Trump broad immunity from criminal prosecution for official actions taken in the White House, a remarkable decision that led some legal scholars to say that the court had effectively bestowed on him a kinglike status. The justices also recently cast doubt on some of the criminal charges Trump is facing in Washington, and they allowed him to seek another White House term despite a constitutional provision barring insurrectionists from holding office.
Legal experts said that, no matter how the court handled Cohen’s petition, the American people might view the court’s actions with suspicion in light of the recent rulings.
“After the Supreme Court’s abominable presidential immunity decision granting Donald Trump essentially absolute immunity from criminal prosecution for the gravest possible crimes against the United States, the public will be justifiably skeptical of the Court’s disposition of any case involving the former president — as it should be,” said J. Michael Luttig, a prominent conservative former U.S. Court of Appeals judge who has been critical of Trump.
With the court’s recent track record, Cohen faces long odds with the justices. A court stacked with justices appointed by Republican presidents — three by Trump personally — might not show much sympathy for his effort.
For decades, the court has been reluctant to allow lawsuits against individual federal officials. It allows such cases only in limited circumstances, and ruled decades ago that presidents were immune from lawsuits arising from any official actions they took while in office.
Cohen argues that his case fits into a narrow universe of permissible cases, noting the unprecedented nature of a president seeking to imprison a personal enemy.
“No President should ever be permitted to weaponize the Department of Justice,” Cohen said in a statement. “It’s un-American and a case ripe for the SCOTUS.”
Steven Cheung, Trump’s communications director, issued a broadside against Cohen in response, calling him “a disbarred former attorney who has repeatedly lied on record to every branch of the federal government.” Cheung added that Cohen “admitted in testimony to stealing $60,000 from President Trump” and said that his “sole source of income is based entirely on lying about President Trump in unhinged public screeds.”
This is hardly Cohen’s first legal faceoff with Trump, who is once again the presumptive Republican presidential nominee. They have sued each other several times in recent years over a variety of disputes, including legal fees the former president owed Cohen.
Their falling-out — after a decade of Cohen’s serving as a pit bull for Trump — occurred in 2018 amid law enforcement scrutiny of both men. Cohen ultimately pleaded guilty for his role in paying hush money to porn actor Stormy Daniels, who agreed to keep quiet about a sexual encounter she said she had with Trump. The payoff, Cohen admitted, amounted to an illegal donation to Trump’s 2016 presidential campaign.
Cohen said he had acted at Trump’s direction, and recently testified about the hush-money deal at Trump’s criminal trial in Manhattan, helping secure the former president’s felony conviction for falsifying business records to hide the payment. Trump is now seeking to set aside the verdict, citing the recent Supreme Court immunity ruling.
In Cohen’s case, a federal judge in 2018 sentenced him to three years in prison, but he was released on furlough after a year as the pandemic raged in May 2020. He was expected to serve the remainder of his sentence in home confinement.
The fact that he was writing a tell-all book became public that spring, and that July, when he met with probation officers to finalize his home confinement paperwork, he encountered a problem. The officers asked Cohen, a prolific critic of Trump, to sign an agreement prohibiting him from posting on “all social media platforms.” The paperwork also banned Cohen from publishing a book during the rest of his sentence.
When Cohen balked, he was sent back to prison. He spent more than two weeks in solitary confinement until a federal judge in Manhattan, Alvin K. Hellerstein, ordered him released, concluding that “it’s retaliatory because of his desire to exercise his First Amendment rights to publish a book.”
Seizing on the judge’s ruling, Cohen sued Trump, his attorney general William P. Barr, the director of the Federal Bureau of Prisons and other officials.
The Supreme Court allows such actions, known as Bivens claims, only under narrow constitutional conditions, though it has also cracked open the door to cases filed in “the most unusual circumstances.”
In the filing to the Supreme Court, Cohen’s lawyer argued that Trump and the other officials had violated his Fourth Amendment rights — and that this case qualified as highly unusual.
“Cohen alleges,” the filing noted, “that a former president and his subordinates conspired to use the federal prison system to silence one of the president’s most vociferous and prominent public critics.” The filing added: “More ‘unusual circumstances’ in need of a deterrent” would be “difficult to imagine.”