The Supreme Court ruling granting Donald Trump broad criminal immunity stemmed from the federal election interference case, but it could wind up helping the Republican presidential nominee in all of his criminal cases. And Trump lawyer Alina Habba seems to think it may help her client in the civil realm, too, as she cited it in his bid to avoid liability in a pending Supreme Court appeal brought by Trump’s former fixer, Michael Cohen.
Cohen wants civil damages for alleged government retaliation during the Trump administration. The case stems from when he was serving federal time for Trump-related crimes and started writing a book that would be unfavorable to the then-president. Cohen was released after the Covid-19 pandemic broke out, but he tells 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 with a federal judge finding 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.”
In addition to Trump, Cohen sought damages against former Attorney General Bill Barr and other Trump-era officials.
In opposing Supreme Court review of Cohen’s appeal, Habba filed a brief on behalf of Trump on Friday citing the immunity ruling in Trump v. United States several times, including a quote from the decision written by Chief Justice John Roberts that said immunity is required “to safeguard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution.”
Of course, both Cohen’s civil appeal and the Jan. 6 criminal case that led to the immunity ruling show that more caution was warranted during Trump’s time in office.
But when it comes to Cohen’s pending appeal, the justices don’t even have to consider the immunity issue if they want to side with Trump. As I noted when Cohen filed his petition in July, the main legal problem Cohen faces is that, despite the seriousness of the claim he’s pressing, the Supreme Court’s longstanding treatment of similar civil appeals has all but foreclosed relief for people like Cohen, no matter how well-deserving they may be. Reinforcing the difficulty Cohen’s petition faces is the brief filed Friday alongside Trump’s, by the Justice Department on behalf of the government, Barr and other officials opposing Cohen’s appeal, emphasizing how tough the Supreme Court has made it for claims like his to succeed. Cohen can file a final reply brief before the justices consider whether to review his appeal. It takes four justices to agree to do so. Subscribe to the Deadline: Legal Newsletter for updates and expert analysis on the top legal stories. The newsletter will return to its regular weekly schedule when the Supreme Court’s next term kicks off in October.
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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