A federal appeals court on Tuesday denied Michael Cohen’s attempt to revive his lawsuit against former President Trump in which he claimed he was jailed in retaliation for writing a tell-all book.
The 2nd U.S. Circuit Court of Appeals in Manhattan said in an order that it would not revive the lawsuit. A lower-court judge had tossed out the lawsuit, ruling that the law did not seem to provide a damages remedy for most claims that someone was jailed in retaliation for their criticisms of a president.
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The court of appeals on Tuesday ruled that Cohen already obtained relief by getting a judge to order his release from imprisonment to home confinement weeks after he was imprisoned, when the government claimed he violated severe restrictions on his public communications.
The court said the law did not provide an outlet for more relief than that.
Cohen served more than a year of his three-year sentence in federal prison after pleading guilty in 2018 to tax evasion, campaign finance charges and making a false statement to Congress.
Cohen, however, told Fox News Digital he will bring the challenge to the Supreme Court.
“The outcome is wrong if democracy is to prevail,” Cohen told Fox News Digital. “A writ of habeas corpus cannot be the only consequence to stop a rogue president from weaponizing the Department of Justice from locking up his/her critics in prison because they refuse to waive their first amendment right.”
He added: “We will be filing a writ of certiorari to the Supreme Court.”
In a statement Tuesday, Cohen’s attorney Jon-Michael Doherty of Gilbert LLP said they plan to take the fight to “the highest court in the land.”
“While we are of course disappointed in the Second Circuit’s ruling, our consistent expectation has been that this novel issue involving the appropriate remedy against a rogue President who seeks to use the prisons to silence his personal critics would need to be addressed by the United States Supreme Court,” he said. “In America, an adequate remedy against this sort of abuse of power must deter future misconduct by federal officials.”
He added: “We look forward to taking the fight for Americans’ right to speak freely about their government without fear of imprisonment to the highest court in the land.”
Cohen filed the initial lawsuit in 2020.
Meanwhile, Trump attorney Alina Habba told Fox News Digital that they are “very pleased with today’s ruling.”
“Mr. Cohen’s lawsuit was doomed from its inception,” Habba told Fox News Digital. “We will continue to fight against any frivolous suits aimed at our client.”
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Cohen had been released on furlough on May 21, 2020, to serve out the remainder of his three-year sentence — but allegedly failed to take necessary steps to finalize that transfer. In a statement, the Bureau of Prisons charged that instead of complying with the terms of the U.S. Probation Office’s Federal Location Monitoring (FLM) program, Cohen was obstinate.
At the time, the Bureau of Prisons said: “Any assertion that the decision to remand Michael Cohen to prison was a retaliatory action is patently false.”
The Bureau of Prisons also said that during the process of transitioning to home confinement, Cohen “refused to agree to the terms of the program, specifically electronic monitoring.”
The agency said he was “argumentative” and “was attempting to dictate the conditions of his monitoring, including conditions relating to self-employment, access to media, use of social media and other accountability measures.” Cohen also allegedly “refused to acknowledge and sign the conditions of his transfer of home confinement and was remanded into custody.”
“While it is not uncommon for BOP to place certain restrictions on inmates’ contact with the media, Mr. Cohen’s refusal to agree to those conditions here played no role whatsoever in the decision to remand him to secure custody nor did his intent to publish a book,” the bureau said at the time.
In July 2020, U.S. District Judge for the Southern District of New York Alvin Hellerstein said the move to put Cohen back in prison was “retaliatory” and claimed it was related to his forthcoming tell-all book. Hellerstein noted that probation officers had demanded Cohen agree to avoid engagement with the media, then cuffed him when he didn’t agree.
“I’ve never seen such a clause in 21 years of being a judge and sentencing people. How can I take any other inference but that it was retaliatory?” Hellerstein said at the time.
The Justice Department, at the time, led by then-Attorney General Bill Barr, denied the move was retaliatory, as did the Bureau of Prisons.
The Associated Press contributed to this report.
