The Supreme Court has refused to take up Michael Cohen’s appeal seeking civil damages for alleged government retaliation during Donald Trump’s administration.
The high court’s denial, which comes as Trump has vowed a revenge-filled second term, is unsurprising for reasons having nothing to do with Cohen and the former president. That’s because the court has long restricted the sort of claim that Cohen sought to bring.
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.”
Cohen argued that his case met those circumstances, but not enough justices agreed. It takes four justices to grant review. The court denied the petition without comment from any of the justices.
The high court was unmoved, despite Cohen’s claim stemming from what a federal judge found was clear government retaliation. The dispute is related to when Cohen served time for Trump-related crimes and started writing a book that would be unfavorable to the then-president. He was released during the Covid pandemic, but when he didn’t immediately agree to waive his free speech rights, he was sent back to prison. He was released after a federal judge said that the government’s action had been “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.”
In separate opposition motions, both Trump and the federal government (representing former Attorney General Bill Barr and others) urged the justices to deny review. Cohen was supported by constitutional scholars and former federal officials, who wrote to the justices that:
The stakes could not be higher. The decision below [denying Cohen relief] sends a clear signal to federal actors that critics of the government can be punished without repercussion for exercising their constitutional rights.
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