The Second Circuit Court of Appeals dealt a significant blow to Michael Cohen on Tuesday, denying his bid to revive claims that former President Donald Trump misused his presidential powers to re-incarcerate the former attorney in a retaliatory move aimed at stopping him from promoting his tell-all book. Following a prior ruling by the district court, the decision effectively puts an end to Cohen’s lawsuit seeking damages against Trump and other officials involved in his re-imprisonment.
The appellate court’s decision centered on Cohen’s efforts to secure damages under the Bivens doctrine, a legal precedent established in 1971 that allows for damages against federal officials who violate constitutional rights. Cohen’s lawsuit, filed in 2021, alleged that his return to prison was a direct attempt by Trump and others to silence him amid the release of his book, which promised damaging revelations about Trump’s conduct both before and during his presidency.
However, the three-judge panel of the Second Circuit determined that Cohen’s claims did not fall within the established scope of Bivens. The court said that Cohen’s case presented a “new context” with different categories of defendants, including a former President and federal probation officers, making it unsuitable for an extension of the doctrine. According to the court’s ruling, Bivens remedies have been sparingly expanded since their inception, with only two recognized extensions in the last 50 years. Cohen’s allegations of First Amendment retaliation, Fourth Amendment violations, and Eighth Amendment cruel and unusual punishment claims were deemed insufficient to justify a new application of Bivens.
Cohen, once Trump’s personal lawyer and self-described “fixer,” had been serving a three-year sentence for campaign finance violations, tax fraud, and lying to Congress. In May 2020, he was transferred to home confinement amid the COVID-19 pandemic, having completed one-third of his sentence at Federal Correctional Institution Otisville. The transfer was part of a larger effort by the Bureau of Prisons to reduce prison populations during the pandemic, particularly for non-violent offenders.
While under home confinement, Cohen continued to work on his book and made public statements about its release. But in July 2020, Cohen was summoned to a federal probation office where he was presented with a new agreement that prohibited media engagements, including book promotion and social media usage. Cohen refused to sign the agreement, arguing that it violated his First Amendment rights. Shortly afterward, federal marshals remanded him back to prison, where he was placed in solitary confinement for 16 days. The swift re-incarceration, Cohen claimed, was intended to suppress the publication of his book.
Cohen responded by filing an emergency petition for habeas corpus, which resulted in a court-ordered release back to home confinement. The district judge who ordered his release described the government’s actions as “retaliatory” and based on Cohen’s desire to exercise his First Amendment rights. Despite this victory, Cohen pursued a separate civil lawsuit for damages, targeting Trump, former Attorney General William Barr, and several federal officials, alleging constitutional violations related to his re-incarceration.
On Monday, the Supreme Court declined to review Cohen’s case, leaving the Second Circuit’s decision as the final word. Cohen’s claims for damages were foreclosed by the availability of other judicial remedies, including his successful habeas corpus petition. The appellate court stressed that the existing remedies, even if not providing full compensation, were sufficient to address the constitutional violations alleged by Cohen. The decision is likely to discourage future attempts to expand the doctrine to include new contexts, especially in politically charged cases involving former presidents.
