Washington — The Supreme Court on Monday rejected a bid by Michael Cohen to sue former President Donald Trump for allegedly retaliating against him by sending Cohen back to prison from home confinement over a tell-all book that criticized Trump.
The court’s decision to turn away Cohen’s appeal leaves intact a lower court ruling that tossed out the lawsuit based on a 2022 Supreme Court decision that limited citizens’ ability to seek monetary damages from federal officials over constitutional violations.
Cohen served as one of Trump’s closest legal advisers and was known as his longtime “fixer” before becoming one of the former president’s loudest opponents in 2018, when he pleaded guilty to multiple felonies and implicated Trump in a “hush money” scheme intended to conceal damaging information before the 2016 election.
Cohen was sentenced to 36 months in prison and began serving that sentence in May 2019 at a federal correctional facility in New York.
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But when the COVID-19 pandemic hit, Cohen was released on furlough to home confinement, during which he posted to social media about a forthcoming book about his experiences working with Trump. But his release was short-lived — during a meeting with probation officers in July 2020, Cohen said he was asked to sign a form that prohibited him from engaging with the media or posting to social media and, when he refused to agree to the provision, was ordered back to prison.
Cohen alleged that upon his return to the correctional institution in Otisville, New York, he was placed in solitary confinement for 16 days.
After challenging his detainment, a federal district judge ordered Cohen to be released to home confinement, finding that he was transferred back to custody in retaliation for his desire “to exercise his First Amendment rights to publish a book critical of the president and to discuss the book on social media.” Cohen served the remainder of his sentence at home.
In December 2021, Cohen filed a civil rights lawsuit against Trump, former Attorney General Bill Barr and federal prison officials that sought damages for violations of his First, Fourth and Eighth Amendment rights. Cohen asserted what’s known as a Bivens claim, named after a 1971 Supreme Court decision in which the court held that federal officers can be sued for damages for certain constitutional violations.
In 2022, the Supreme Court declined to extend Bivens after finding it did not allow federal officials to be held accountable in court for Fourth Amendment excessive-force claims and a First Amendment retaliation claim.
A federal district judge sided with the government in its effort to dismiss Cohen’s case, concluding that the Supreme Court’s 2022 decision foreclosed his claims. That decision was upheld by the U.S. Court of Appeals for the 2nd Circuit.
Cohen asked the Supreme Court to review the lower court’s ruling, arguing that his case “represents the principle that presidents and their subordinates can lock away critics of the executive without consequence.”
“The possibility that the federal government has the power to retaliate against critics with imprisonment, without any consequence for or check against the officials engaged in such retaliation, is a chilling prospect,” his lawyers wrote in a filing. “This court should not turn its eyes away from this profound breach of the contract between a government of limited powers and a free citizenry.”
The legal battle involving Cohen is rare in that it brings together President Biden’s administration and Trump, who both urged the Supreme Court to reject his appeal.
Solicitor General Elizabeth Prelogar, who argues on behalf of the government, told the Supreme Court in a filing that the case involves whether an inmate will be placed in prison or home confinement, and Congress is better equipped than the courts to determine whether officials can be sued for damages as a result of those placement decisions.
Alina Habba, a lawyer for Trump, agreed that Congress is more suited to create the type of remedy that Cohen is seeking. But she also argued that the former president is absolutely immune from civil liability arising from acts performed in his official capacity, as the Supreme Court recognized in a 1982 decision.
Cohen’s claim “cannot be allowed to proceed,” Habba wrote in a filing. “Among other things, it would upend the constitutional separation-of-powers, curtail the president’s ability to effectively perform his duties, and destroy the very concept of presidential immunity.”
