Michael Cohen and Donald Trump (Photos via Getty Images)
Former President Donald Trump's ex-fixer Michael Cohen urged a federal appeals court on Monday to revive his lawsuit describing his stint in solitary confinement as political payback for writing a book that embarrassed his old boss.
"In a nation of laws and a society premised on notions of individual liberty, this type of violation is so fundamentally undemocratic that there must be a cause of action in the courts to remedy and deter it," his attorney E. Danya Perry wrote in a 30-page legal brief.
Nearly three years ago, a federal judge ordered Cohen's release from prison during the coronavirus pandemic, finding that the Trump administration remanded him in "retaliation" for writing his tell-all book. Cohen sued the U.S. government, Trump, and several of his administration's officials the next year, seeking civil damages for being left "for weeks to a filthy, broiling cell."
In November 2022, U.S. District Judge Lewis Liman — a Trump appointee — dismissed Cohen's lawsuit, but he appeared to lament that outcome in his ruling.
"Cohen's complaint and the motions to dismiss now before this Court raise fundamental questions about the meaning and value of constitutional rights, the relationship between a citizen and the government, and the role of the federal courts in protecting those rights," Liman wrote in the introduction of his opinion. "The ability to publicly criticize even our most prominent politicians and leaders without fear of retaliation is a hallmark of American democracy; political speech is core First Amendment speech."
Ultimately, Liman found that Supreme Court precedents did not allow for civil lawsuits premised on the allegations Cohen described. Cohen alleged violations of his First, Fourth, and Eight Amendment rights, under the Supreme Court's precedent in Bivens, which allowed private causes of action against federal government officials for trampling on constitutional rights.
Until Congress extended Bivens' rights to include presidential retribution, the judge found, Cohen did not have a viable case.
"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," Liman wrote. "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."
Quoting that passage of Liman's ruling, Cohen's legal team argues that Trump's "egregiously unconstitutional and antidemocratic conduct" cries out for punishment.
"The Court must not turn a blind eye to the type of misconduct Mr. Cohen alleges here because it is insufficiently analogous to earlier cases involving misconduct by line law enforcement officers, or because there is a metaphysical chance that some Congress some time in what is likely a distant future will provide a suitable remedy," the brief argues. "To do so would render a nullity the concepts of a people endowed with certain inalienable rights, of an executive with limited powers, and of a judiciary empowered to check and deter the abuses of a rogue executive."
Cohen's legal team emphasized that their client was released from behind bars because a different federal judge was alarmed by what happened.
"Here, the head of the executive branch wielded his immense power to have one of his critics silenced, thrown back into prison, and kept in conditions dangerous to his health," the brief states. "Only an act of the judiciary stopped the abuse. The Constitution grants the federal courts jurisdiction over cases arising under the Constitution."
They urged the appellate court not to "close its eyes to the lawlessness the District Courts have recognized."
"Instead, the Court should recognize that, where such a grievous injury is done to a citizen's rights and to the nation's rule of law, there must be a remedy," they added.
Trump's attorney didn't immediately respond to an email requesting comment.
Read the brief here.