A federal judge ruled Thursday that the probation agreement pushed by the Justice Department may have violated convicted felon Michael Cohen’s First Amendment rights and that the former lawyer for President Trump should be released from prison by Friday.
Cohen, 53, pleaded guilty to numerous counts of tax fraud, bank fraud, and campaign finance violations and was sentenced to three years in federal prison in December 2018. He was released on home arrest in May over concerns related to the coronavirus pandemic. In early July, Cohen was sent back to prison and later sued Attorney General William Barr, claiming there was an attempt to punish him for wanting to publish a book. The judge ruled the government’s actions to be improper.
“The purpose of transferring Mr. Cohen from furlough and home confinement to jail is retaliatory, and it’s retaliatory because of his desire to exercise his First Amendment rights,” Judge Alvin Kenneth Hellerstein of the Southern District of New York said on Thursday. “I cannot believe fairly that there was not a purpose to stop exercise of First Amendment rights.”
Pointing to the first clause in the probation agreement proposed by the government, which would have limited Cohen’s ability to make public pronouncements, the judge said that “I’ve never seen such a clause, in 21 years of being a judge.” The judge said Cohen is to be released from prison by 2 p.m. on Friday and sent back to home confinement.
The Justice Department claimed on Wednesday that it wasn’t trying to silence Cohen.
“Petitioner’s contention that he was not placed on home confinement on July 9, 2020, in retaliation for a book that he is planning to publish that is critical of the president of the United States is not supported by the evidence,” acting U.S. Attorney Audrey Strauss told the court. “The evidence instead shows that the petitioner, who had been released from prison on furlough, was remanded into custody on July 9, 2020, because he was antagonistic during a meeting with probation officers at which he was supposed to sign the agreement that would have allowed him to complete the remaining portion of his criminal sentence in home confinement.”
Cohen’s probation officer, Adam Pakula, said, “While I was aware that Cohen was a high-profile inmate, at the time I drafted the [Federal Location Monitoring] Agreement, I was not aware that Cohen was writing a book.”
Cohen’s lawyers and the American Civil Liberties Union argued this was an effort to keep Cohen quiet.
“In this case, the [Bureau of Prisons] remanded Mr. Cohen to FCI Otisville in retaliation for his questioning of the FLM Agreement, which would have precluded Mr. Cohen’s work on, and publication of, a book about President Donald J. Trump shortly before the upcoming presidential election,” Cohen’s lawyers told the court Wednesday. “Mr. Cohen has already suffered irreparable harm as a result of respondents’ conduct when the BOP punished him for questioning the imposition of the Prior Restraint Provision in the FLM Agreement. Respondents’ proposed solution — to transition Mr. Cohen from COVID-19 quarantine to the general population — only threatens to increase the irreparable harm that Mr. Cohen will suffer.”
