Ex-Trump fixer Michael Cohen faces long odds in reviving claim against former boss

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.

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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.

The decision was widely condemned by lawyers on the left and right who support holding government officials accountable.

Cohen’s Supreme Court filing “actually does do a very good job of illustrating how blatantly federal officials can get away with violating the Constitution when Bivens has been reduced to nothing, or maybe something very close to nothing,” said Patrick Jaicomo, a lawyer with the libertarian-leaning Institute for Justice.

As NBC News reported last year, the 2022 Egbert ruling has been cited hundreds of times by lower court judges when throwing out Bivens claims in cases raising all manner of constitutional claims, whether it be excessive force allegations against federal law enforcement or medical indifference claims against officers in federal prisons.

Cohen’s own case was no exception.

A federal judge in New York and the 2nd Circuit U.S. Court of Appeals both cited the Egbert ruling in throwing out Cohen’s claims.

Cohen also faces an unlikely alliance opposing his request: Joe Biden and Donald Trump. The current president’s Justice Department has filed a brief agreeing with the former president that the Supreme Court should not get involved.

Solicitor General Elizabeth Prelogar, on behalf of the Biden administration, pointed out among other things that Cohen had effectively got what he wanted when the judge ordered him to be released from prison.

In Trump’s brief, his lawyer Alina Habba wrote that lower courts “faithfully applied” Supreme Court precedent in ruling against Cohen.

Even in the unlikely event that Cohen’s case was allowed to move forward, Habba, who did not respond to a request seeking further comment, wrote that Trump would claim immunity from suit, based on a 1978 Supreme Court ruling that protects presidents facing civil claims for actions taken in office.

The court relied in part on the reasoning of that ruling when it found in July that Trump had some immunity in the criminal case brought against him over his efforts to overturn the 2020 election results.

With the chances of victory appearing slight, Cohen painted the case in stark terms, comparing his experience to that of critics of Russian President Vladimir Putin who have been imprisoned for expressing their opposition to the government.

“The only difference between what Vladimir Putin had done to those individuals and what Donald Trump and Bill Barr had done to me is that I didn’t die there,” he said.