Editor’s Note: Jennifer Rodgers is a former federal prosecutor, the former executive director of the Center for the Advancement of Public Integrity at Columbia Law School, and a CNN legal analyst. The views expressed in this commentary are her own. Read more opinion on CNN.
Michael Cohen, President Donald Trump’s former personal attorney, sued the Department of Justice on Monday, alleging that his return to prison on July 9 after being released due to the Covid-19 pandemic constituted unlawful retaliation for his plan to publish a book about Trump.
Trump has tried to stop the publication of unflattering books about him before, including in his very recent and unsuccessful attempts to silence his former national security advisor John Bolton and Mary Trump, the President’s niece. But the attempted suppression of Cohen’s book is different from prior efforts because it uses (and abuses) DOJ’s hammer of incarceration. Bolton and Mary Trump have been sued in civil court, by the Trump Administration and President Trump’s brother Robert, respectively, and those suits are pending. If the authors are found to be in violation of valid non-disclosure agreements, they could lose their book profits.
But Cohen lost his freedom, at least until a federal judge intervened, because the department remanded him for refusing to give up his right to speak.
After a hearing on Thursday, US District Court Judge Alvin Hellerstein agreed with Cohen’s position, ruling that the government’s “purpose of transferring Mr. Cohen from furlough and home confinement to jail is retaliatory…” because of his desire to exercise his First Amendment rights to publish a book and discuss anything about the book or anything else he wants on social media.” Judge Hellerstein ordered that Cohen be released from prison.
The Bureau of Prisons (which is part of the Justice Department) called the judges’ assertions “patently false” in a statement on Thursday.
Of course, this isn’t the first time that a convicted felon and former member of President Trump’s inner circle received special attention from Attorney General William Barr’s Department of Justice. We have seen how friends of the President like longtime political confidante Roger Stone and Michael Flynn, Trump’s first national security adviser — both of whom, not coincidentally, stayed quiet and refused to cooperate with authorities despite possessing information that could have potentially incriminated Trump — were rewarded by having their cases undermined by Barr, in unprecedented and egregious fashion.
Cohen, though, got an entirely different kind of special attention. He is serving a three-year sentence for a variety of crimes, including campaign finance fraud for his role in covering up Trump’s relationship with a porn star by paying her hush money in the weeks leading up to the 2016 election. As part of his guilty plea to the court, Cohen indicated that Trump himself was involved in the hush money scheme. Trump has denied the relationship but admitted to authorizing the payment.
While serving his sentence for those crimes, Cohen began writing his Trump tell-all book, disclosing on Twitter on July 2 that the book is expected in late September.
One week later, when Cohen met with government officials to sign the home confinement paperwork, the conditions included a very unusual clause prohibiting Cohen from having any communications at all with the media, or to use social media. Cohen balked at signing, and he was arrested and sent back to prison.
As numerous constitutional scholars have confirmed, the media provision was patently illegal as a prior restraint on speech protected by the First Amendment, and never should have been included in the agreement Cohen was asked to sign.
All of this raises serious questions about what the DOJ did here, and these questions have not been adequately answered by the official denials issued thus far.
First, how did the prior restraint provision get into Cohen’s home confinement agreement in the first place? Who drafted it? Who approved the agreement?
Second, who within DOJ knew about the insertion of the prior restraint provision into Cohen’s agreement prior to Cohen’s filing of his lawsuit about it?
Finally, once the provision came to light and Cohen filed his civil suit based on it, why did prosecutors try to defend the provision? Were they acting on directives from Washington DC in doing so? Was Barr or anyone else at DOJ outside of lawyers from the Southern District of New York, where the lawsuit was filed, involved in crafting the government’s litigation position in the civil lawsuit?
The involvement of the DOJ in seemingly attempting to stop publication of a book unflattering to the President cries out for investigation by Michael Horowitz, the inspector general of DOJ, and House members should add this topic to their long list of things to ask William Barr about when he appears for testimony next week. It is a different level of abuse than he has previously been accused of engaging in, with respect to criminal defendants close to Trump, but it is no less damaging to the already strained fabric of the department’s integrity.