After spending the past several weeks on New York’s tony Upper East Side, Michael Cohen has found himself back in federal prison after a dispute with the government over what his lawyers say were restrictions in paperwork designed to prevent him from finishing a book about the president.
The form in question, a two-page document titled “Federal Location Monitoring Program Participant Agreement,” had called for Cohen to abstain from communicating with members of the media — a provision that he had balked at given the pending release of his tell-all book, and one which his legal team has claimed is unusual.
Defense attorneys and legal experts that CNN spoke with Friday said that the form appeared to be tailored to Cohen, the flamboyant former fixer to President Donald Trump, whose affinity for the press is well known. Some called it unfair.
“I’ve never seen anything like that in my years of practice where a condition was put on a person like that,” said Lance Lazzaro, whose client, rapper Tekashi 6ix9ine, drew more than 2 million people to a livestream on Instagram in May – a record for the app – weeks after he was released early under a similar arrangement from federal prison into home confinement amid the pandemic.
A spokesman for the Administrative Office of the US Courts, the judiciary agency that oversees the federal probation system, declined to comment on the specifics of Cohen’s case, but added that no standard probation forms include language related to media contacts.
A spokesman for the Bureau of Prisons told CNN that Cohen was taken into custody after he “declined to agree to the terms required for the program and home confinement placement.”
In May, as coronavirus continued to spread throughout the federal corrections system, Cohen walked out of New York’s Otisville prison on furlough status, partway through his three-year sentence on convictions of tax evasion, lying to Congress and campaign finance violations for facilitating hush money payments to two women who alleged affairs with Trump, which the President has denied.
By all accounts, Cohen had returned to a mostly quiet life with his family before Thursday, when he arrived just before 11 a.m. to the lower Manhattan courthouse to negotiate the terms of his transition to home confinement with two probation officers.
There, alongside his lawyer, he was presented with the form. While most of the language in the document was unremarkable and standard — don’t talk to convicted felons, have your family do the food shopping — the first item was troubling for Cohen and his attorney, Jeffrey Levine. The clause banned Cohen from posting on social media and prohibited him from engaging with the media — specifically listing “books.”
“The purpose is to avoid glamorizing or bringing publicity to your status as a sentenced inmate serving a custodial term in the community,” reads the document, which was obtained by CNN.
Levine said that defense lawyers made their “objections known to the probation officers” regarding the line but had not refused to sign anything when US Marshals arrived and started to shackle Cohen.
“I’ll sign exactly what you want me to sign so that I don’t have to go to jail,” Cohen told the Marshals, according to another one of his lawyers, Lanny Davis, but the Marshals said it was out of their hands.
Cohen’s dishy book is said to be in its final stages of edits ahead of a September release.
Levine said Cohen was crestfallen.
“It was in his eyes,” he said. “He was so shaken. The rug had been pulled out from underneath him. This is not what we came here to do today.”
Earlier this month, a photographer from the New York Post captured Cohen dining at a restaurant near his apartment. When asked if that incident was related to his detention Thursday, Levine told reporters outside the courthouse, “I would leave that to your viewers.”
Elie Honig, a former Manhattan prosecutor who now does white collar criminal defense work at the law firm Lowenstein Sandler and serves as a CNN legal analyst, said the probation office appeared to be overstepping its role.
“At a minimum, this is overstep by the probation department. Probation’s job is to protect the community, protect the probationer, and ensure the probationer doesn’t flee. But it’s far beyond the role of probation to limit speech in the name of policing whether its subjects are ‘glamorized’ in the public eye,” he said.
The legal experts said that supervised release conditions can be tailored to an inmate, usually to fit the crime that they were convicted of.
Since March, the Justice Department and the Bureau of Prisons have released thousands of nonviolent and vulnerable inmates early as a result of the pandemic. Across federal and state prisons, scores of inmates have tested positive for the virus – many of whom showed no symptoms when they were infected.
Some inmates have been released under different legal mechanisms, which could factor into how they are supervised by the probation office after their release.
Cohen was released under a Bureau of Prisons program after meeting certain criteria spelled out by the agency regarding the amount of time he’d served and his vulnerability to the virus. Other inmates have had their sentences reduced by federal judges.
The federal probation office falls under the judiciary branch. The Bureau of Prisons, which sits under the Justice Department, said that the monitoring form belonged to the probation office.
Lawyers for multiple other inmates released early from the federal prison system amid the pandemic said paperwork for their clients’ home confinement had not included the media provision.
“Generally when people are released early for whatever reason, they have the same restrictions in home confinement that they would have had at the bureau of prison facility,” said H. Dean Steward, the lawyer who represented celebrity attorney Michael Avenatti. “It sounds like this would even be beyond that.”
Avenatti, another media gadfly, received a temporary release from a federal jail earlier this year because he was considered at-risk for contracting Covid-19, stemming from a bout of pneumonia last year.
While there were no restrictions to speaking with the media as a condition for Avenatti’s release, he was barred from using the internet outside of talking with his lawyers, confining him to a flip phone for communication.
Last month, prosecutors claimed in a court filing that Avenatti may have violated the terms of his temporary release from jail by accessing a computer connected to the internet, but he denied the allegation. A judge later modified the terms of his release to allow him to use and possess a computer that was disconnected from the internet.