The Department of Justice did not custom write a condition prohibiting Michael Cohen from engaging with the media, but instead relied on a form that has been used in other high-profile cases, federal prosecutors said in a court filing Wednesday that objected to his release from prison.
Prosecutors rejected Cohen’s claim that he was taken back into custody earlier this month in retaliation for a book he intends to release in September that Cohen said would reveal President Donald Trump’s “pointedly anti-Semitic remarks and virulently racist remarks against such Black leaders as President Barack Obama and Nelson Mandela.”
Cohen was sent back to prison, prosecutors said, after he became “antagonistic” during a meeting with probation officials, tried to dictate the terms of his release, and objected to nearly all of the conditions, including electronic surveillance and a restriction on doing his own grocery shopping. Prosecutors added that the decision of where to transfer inmates lies with the Bureau of Prisons and is not subject to review by a judge.
The government filing was in response to a lawsuit Cohen filed on Monday suing Attorney General William Barr, the director of the Bureau of Prisons, and the warden at the Otisville prison where he is being held, seeking his immediate release.
A hearing has been scheduled for Thursday morning. Cohen’s attorney had no immediate comment Wednesday.
Cohen has alleged he was taken into custody after he raised objections to a provision of his home confinement that would have prohibited him from engaging with the media, including books. He alleged it violated his First Amendment rights and was retaliation for the book.
Prosecutors say Cohen’s claim is “not supported by the evidence” and he should not be released from prison. Cohen may, however, continue to work on his manuscript from the Otisville prison, according to the filing.
“[T]he home confinement agreement was not devised by anyone at BOP or in the executive branch—let alone a high-level official with any motive to prevent the release of Petitioner’s book,” prosecutors wrote in the filing. “Rather, the evidence shows that the agreement was drafted by a probation officer who had no knowledge that Petitioner was writing a book, based on a recent sample he obtained from a colleague” in another district that was used for high-profile inmates. Probation officers are employees of the court, not the Justice Department.
The language included in Cohen’s release form prohibiting his engagement with the media matches the language in the sample form provided by the probation officer in another district, but for two minor grammatical changes, according to CNN’s review of the documents.
The probation officer, Adam Pakula, said in a declaration filed with the court that he had not previously supervised any defendants under a Federal Location Monitoring Program and relied on the sample emailed from a colleague in another district.
“The email stated, in substance, that the officer had received several requests for supervision of high-profile inmates under the FLM Program; that he had developed terms and conditions to include in an FLM agreement for such cases; and that these terms had been approved by his supervisors and the BOP,” Pakula wrote in the filing.
Pakula said he had no knowledge that Cohen was writing a book when he presented him with the conditions for release during a meeting on July 9, according to the filing.
During the meeting, “Cohen was combative. Cohen and his attorney attempted to negotiate the language of nearly every provision of the agreement, and Cohen stated on at least one occasion that he would not sign the agreement,” Pakula wrote in the filing.
Cohen stated he was writing a book “no matter what happens” and told the probation official to “say hello to ‘Mr. Barr,’” according to Pakula’s filing.
In addition to the condition barring Cohen from engaging with the media, prosecutors said Cohen also objected to a condition that would require BOP to pre-approve any employment. Cohen was “asking various hypothetical questions about jobs he could hold, such as whether he could appear as a political correspondent on television or radio,” prosecutors said.
They said Cohen also objected to terms that would prohibit him from contacting inmates in prison and require that family members buy him groceries. During the meeting, prosecutors said, Cohen’s attorney objected to Cohen wearing an electronic monitoring ankle bracelet saying they were for violent criminals.
Pakula said he and a supervisor contacted a prison official who, after consulting with supervisors, informed them Cohen would be remanded.
Jon Gustin, the BOP official in Washington who made the call to remand Cohen, said in a declaration filed with the court, “In my view, Cohen’s behavior and, in particular, his refusal to sign the conditions of home confinement was unacceptable and undermined his suitability for placement on home confinement,” Gustin said.
Gustin noted that although Cohen sought transfer to home confinement because of the coronavirus pandemic, he was “reportedly seen dining out at Manhattan restaurants on more than one occasion, including on or about July 2, 2020.”
A photographer from the New York Post captured Cohen dining at a restaurant near his apartment with his wife and another couple. Cohen addressed that in his filing, saying he was contacted by a prison administrator and was told officials in Washington were “upset” with the story. Cohen says he was told he was not in violation of his release.