© 2024 Allbritton Journalism Institute

Michael Cohen Is Taking His Fight Against Trump to the Supreme Court

Can Trump be liable for allegedly jailing Cohen as a suspected act of revenge during his presidency?

Michael Cohen, former attorney to President Donald Trump, leaves his apartment building before beginning his prison term.
Michael Cohen, former attorney to President Donald Trump, took the fall for his ex-boss, and served time in federal prison. Kevin Hagen/AP

Michael Cohen wants the Supreme Court to address a pivotal question that touches on Donald Trump’s promise to seek “retribution” against his enemies: Can Trump be held liable for allegedly jailing Cohen as a suspected act of revenge during his presidency?

On Wednesday, Cohen is asking the high court to review a case that asks whether average American citizens can hold an American president accountable for leveraging federal law enforcement as a weapon against political adversaries.

Although Cohen’s own advisers consider it a long-shot request given the current makeup of the conservative-leaning court, the court case comes at a pivotal time, just a week after it granted Trump broad immunity for all kinds of potentially criminal behavior and redefined the kind of unchecked power afforded a U.S. president.

The case at issue touches on a matter of growing concern, given Trump’s vowed to seek retaliation on prosecutors who’ve come after him, and continues to maintain a close association with national conservatives, like adviser Kash Patel — a right-wing lawyer and former national security official — who have called on using the legal system against any in opposition to their movement.

“We’re going to come after you, whether it’s criminally or civilly. We’ll figure that out. But yeah, we’re putting you all on notice,” Patel said during a podcast interview with the currently jailed far-right media personality Steve Bannon.

Cohen, a one-time Trump lawyer who took the fall for his former boss, served time in federal prison and has since become a permanent thorn in Trump’s side — most recently as a key witness during the recent New York criminal trial that resulted in Trump’s felony conviction.

But Cohen’s public relations victories against his former boss have been countered by his inability to hold Trump accountable for the nightmare he experienced in 2020 when federal agents tried to pressure him into signing a prison release form that would keep him from writing his anti-Trump memoir and threw him back into solitary confinement when he resisted. U.S. District Judge Alvin K. Hellerstein called the action “retaliatory” and quickly ordered Cohen’s release.

Cohen later sued Trump, then-Attorney General Bill Barr and prison officials. But the lawsuit has gone nowhere. At the trial court level in November 2022, U.S. District Judge Lewis J. Liman wrote that Cohen’s court filings “raise fundamental questions about the meaning and value of constitutional rights, the relationship between a citizen and the government, and the role of the federal courts in protecting those rights.” The judge also warned that “the ability to publicly criticize even our most prominent politicians and leaders without fear of retaliation is a hallmark of American democracy; political speech is core First Amendment speech.” However, Liman ultimately dismissed the lawsuit on legal technicalities while citing the exact nature of the legal issues Cohen was claiming.

The 2nd Circuit Court of Appeals didn’t help Cohen either, acknowledging in January that a simple prison release “may not have made Cohen whole” but still concluding that there’s nothing in the law that specifically gives a person a “viable claim for damages” for this kind of unique scandal. Lawsuits known as Bivens cases typically target federal officers who violate a person’s civil rights — and appellate judges didn’t think the existing legal framework could be leveraged against a former American president accused of employing federal agents in that regard. The appellate court refused to reconsider the case, with all judges present.

In May, Supreme Court Justice Sonia Sotomayor, who oversees that district, gave Cohen extra time to file a petition before the high court by July 10 — four years to the very week when he was sent back to the un-air-conditioned solitary confinement cells at FCI Otisville in rural, upstate New York during a scorching summer.

The nation’s high court publicly reports that, on average, it only accepts 2% of the roughly 7,000 cases it’s asked to review every year. However, the court aims to take on cases that could have national significance.

Jose Pagliery is a reporter at NOTUS.