Michael Cohen asked the Supreme Court last month to take up his appeal against Donald Trump and others, seeking civil damages for alleged government retaliation during the former president’s administration. Cohen picked up support this week from a group of constitutional scholars and former federal officials, who urged the justices to review the case. 

The appeal from Trump’s former lawyer and fixer “raises questions that go to the heart of ordered liberty and the rule of law,” they wrote in their amicus brief.

That’s true.

But the challenge for Cohen is that the type of claim he’s pressing is one that the Supreme Court has all but abandoned. In a 1971 case called Bivens, the high court allowed a damages claim against federal officials for alleged Fourth Amendment violations. But the court has taken a stingy view since then, routinely rejecting so-called Bivens claims. In a 2022 decision, Justice Clarence Thomas’ majority opinion cited Bivens while noting: “Over the past 42 years, however, we have declined 11 times to imply a similar cause of action for other alleged constitutional violations.” Thomas wrote that the court will deny claims “in all but the most unusual circumstances.”

Mindful of that high bar, the scholars and former officials do well to stress the extreme events underlying Cohen’s petition. “The extraordinary facts alleged here illustrate the essential necessity of deterrence to the rule of law,” they wrote: 

Petitioner’s complaint alleges that, after serving time in prison, he was furloughed and scheduled to be released to home confinement pursuant to a federal policy related to COVID-19. But then, at a processing meeting with prison officials, petitioner was asked to sign a non-disclosure agreement that would have prevented him from writing about then-President Donald Trump. When he and his lawyers asked questions rather than simply sign the agreement, prison officials took him back into custody, returned him to prison, and placed him in solitary confinement. He was released from prison again only weeks later after a federal court granted his habeas petition.

“The stakes could not be higher,” they went on, arguing that ruling against Cohen “sends a clear signal to federal actors that critics of the government can be punished without repercussion for exercising their constitutional rights.”

In addition to Trump, Cohen sought damages against former Attorney General Bill Barr and other Trump-era officials. Trump lawyer Alina Habba, who’s been sanctioned for frivolous Trump-related litigation, has called Cohen’s case frivolous. Habba’s response to Cohen’s petition is due Sept. 13, days before the GOP presidential nominee is set to be sentenced Sept. 18 in his New York criminal case (though his lawyers are attempting to delay that sentencing). After the response is filed, Cohen can file a reply brief. It takes four justices to grant review.

So, will they take the case? The state of the law stacks the odds against Cohen — and that’s without accounting for whatever additional political considerations might factor into the court’s calculus. But the case highlights the dangers of officials retaliating against critics without a legal remedy to check that behavior. It’s an issue that goes beyond Trump and Cohen, but it’s especially difficult to ignore in the shadow of a potential revenge-packed second Trump term. 

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