Ex-Trump fixer Michael Cohen faces long odds in reviving claim against former boss
Oct. 14, 2024, 2:00 PM GMT+5
The Supreme Court will consider whether to take up Cohen’s appeal over his claim that Trump and other officials retaliated against him by putting him in solitary confinement.
WASHINGTON — Michael Cohen is an unlikely civil rights warrior.
The disgraced and disbarred lawyer enjoys fame of the notorious variety because of his longtime association with Donald Trump.
That relationship ended in a spectacular falling out. He ended up serving a three-year sentence on various charges he pleaded guilty to relating to the work he had carried out for Trump.
Where Cohen, now a voluble Trump critic, aligns with civil rights advocates is on trying to turn the tide on the Supreme Court’s hostility to claims against federal officials for constitutional violations.
Cohen is making a last-ditch effort to revive a lawsuit alleging that Trump sent him back to prison — ending a home confinement arrangement — in retaliation for writing a tell-all book. His appeal, now pending at the court, urges the justices to reverse course.
The justices are scheduled to discuss whether to hear his case at their regular private meeting on Oct. 18.
In an interview via Zoom, Cohen couched his case both in terms of the broader legal issue — seeking to deter officials from taking unconstitutional actions — and the more specific aim of clipping Trump’s wings, with the possibility of a second term in office if the Republican nominee wins November’s election.
“Understanding and knowing Donald Trump, based upon his own words, if there isn’t a significant deterrent factor, he will not stop,” Cohen said. “It won’t stop with just locking people up.”
He noted Trump had previously suggested that Mark Milley, who served as chairman of the Joint Chiefs of Staff under Trump, should be executed for treason.
“If there is no deterrent factor to somebody who lacks a moral compass, what do you end up with? A monarch? A king? A dictator? A führer?” Cohen said.
Cohen was held in solitary confinement for 16 days after refusing to sign a form that would have prevented him from speaking to the press or posting on social media. He was released when a federal judge ruled that the government had retaliated against him for his wish 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, among other things, a violation of his right to be free from unreasonable search and seizure under the Constitution’s Fourth Amendment.
The Supreme Court only takes up a tiny number of appeals, and even Cohen’s lawyer, Jon-Michael Dougherty, conceded his client has “an uphill battle.”
That is because the court in recent years has made it increasingly hard to bring civil rights claims against federal officials under a 1971 precedent called Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics.
Most recently, in a 2022 case called Egbert v. Boule, the court effectively put “Bivens claims” on life support in a ruling that tossed out claims against a Border Patrol agent.