ACLU Files First Amendment Challenge Against Michael Cohen’s Retaliatory Imprisonment

NEW YORK — The American Civil Liberties Union and law firm Perry Guha LLP today filed a habeas petition on behalf of Michael Cohen seeking his immediate release to home confinement. The petition argues that the federal government’s incarceration of Michael Cohen in retaliation for his plans to publish a book critical of the president prior to the November election violates the First Amendment.

“This case is about a brazen assault on the First Amendment and the rule of law. We trust that our Constitution will prevail and that free speech will continue to be protected, for our client and for all others by extension,” said Danya Perry, founding partner of Perry Guha.

In May 2020, the U.S. Bureau of Prisons released Cohen from prison and placed him on furlough due to underlying health conditions that placed him at higher risk of severe illness or even death from COVID-19. He was then supposed to transition to home confinement for the remainder of his sentence. On July 2, 2020, while on furlough, Cohen tweeted that he was putting finishing touches on what would be a tell-all book about his decade-long experience with Donald Trump.

Within days of the tweet, federal officers demanded that, as a condition of transitioning to home confinement, he sign an unusual agreement relinquishing his First Amendment right to speak to or through any media, including books and social media.

Cohen stated that the condition would obstruct him from working further on his book, and getting it closer to publication. But, because he feared for his health in prison, he did not refuse. Instead, he asked for clarification on what precisely the condition prohibited, and also asked if it would be possible to better tailor it to its stated “non-glamorization” purpose. Rather than clarify the terms, within two hours, federal officers cuffed Cohen and remanded him to prison, where he remains today in solitary confinement.

Cohen suffers from severe hypertension and a history of respiratory issues, which makes him highly vulnerable to severe illness or death due to COVID-19.

“The government cannot imprison Michael Cohen for writing a book about President Trump,” said Ben Wizner, director of the ACLU’s Speech, Privacy, and Technology Project. “The gag order that the government sought to impose on Mr. Cohen was an unconstitutional prior restraint, and his continued imprisonment is part of a dangerous pattern of retaliation against Trump critics.”

Staff at the federal facility where Cohen is currently detained have repeatedly stated to Cohen that the decision to remand him was made not at the facility level, but at higher levels.

President Trump’s private attorney previously attempted to block the publication of Cohen’s book, claiming Cohen was barred by a non-disclosure agreement that has yet to be furnished. Mr. Cohen maintains he never signed such an NDA.

The Trump administration has repeatedly attempted to block other critics of the president from publishing books. Most recently, the Department of Justice moved to block John Bolton’s book, an effort a federal judge temporarily denied on First Amendment grounds.

The ACLU has long challenged government attempts to silence speech protected under the First Amendment, including the Trump administration’s recent attempt to block the publication of John Bolton’s book.

In response to the COVID-19 pandemic, the ACLU and its state chapters have also been working across the country to secure the release of those most vulnerable to COVID-19 in prisons and jails. Due to this work, at least 37,000 people have been released from jails and prisons or were never brought into the criminal legal system in the first place.

Today’s petition and motion for a temporary restraining were filed in federal court for the southern district of New York.

The habeas petition is here: https://www.aclu.org/legal-document/cohen-v-barr-petition-writ-habeas-corpus.

The motion for a temporary restraining order is here: https://www.aclu.org/legal-document/cohen-v-barr-emergency-motion-temporary-restraining-order.