Michael Cohen has filed his final brief in his bid to get the Supreme Court to review his civil damages claim against Donald Trump and other Trump administration officials for retaliating against him. The high court filing represents the last word for the justices to consider in the litigation before deciding whether to take up Cohen’s long-shot appeal.
The former Trump fixer’s case stems from when he served time for Trump-related crimes and started writing a book that would be unfavorable to the then-president. Cohen was released during the Covid pandemic but he told the justices that when he didn’t immediately agree to waive his free speech rights, he was sent back to prison and thrown in solitary confinement. He was released again after a federal judge found that the government action “was retaliatory in response to Cohen desiring to exercise his First Amendment rights to publish a book critical of the President and to discuss the book on social media.”
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Given the shocking factual backdrop, you might wonder why Cohen’s suit would be a long shot in this situation. That’s because of the law surrounding the type of relief Cohen seeks, which is a so-called Bivens claim, named for a 1971 Supreme Court case that allowed for a claim of damages against federal officials for alleged Fourth Amendment violations.
The problem for Cohen is that the justices have all but abandoned Bivens claims. Justice Clarence Thomas noted in a 2022 decision that “[o]ver the past 42 years, however, we have declined 11 times to imply a similar cause of action for other alleged constitutional violations,” writing that the court will deny claims “in all but the most unusual circumstances.”
Cohen insists in his reply brief, filed Monday, that his case “features the most unusual circumstances.” He notes that a federal judge found that the government returned him to prison in retaliation for exercise of his First Amendment rights, and he further notes that the other side in the litigation doesn’t claim “that imprisoning critics for speaking is not the sort of misconduct that needs to be deterred.”
That other side consists of not only the former president — whose opposition brief cites the recent immunity ruling as further reason to reject Cohen’s bid — but also the federal government itself, which filed a separate brief on its own behalf and on behalf of former Attorney General William Barr and other officials, similarly urging the justices to reject Cohen. If the justices do reject the appeal, Cohen argues in his latest brief, that will mean “that the courts will not deter an Executive determined to incarcerate their critics. That statement would threaten the freedoms this country was founded to protect and upon which so many areas of American life depend.” It takes four justices to agree to review an appeal, so we’ll see what sort of statement the court makes in this case. The Deadline: Legal Newsletter returns Oct. 4. Subscribe for expert analysis on the top legal stories of the week, including updates from the new Supreme Court term and developments in Donald Trump’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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