A Judge Orders Michael Cohen Released From Prison, Saying the Feds Violated the First Amendment

The former Trump fixer will return to home confinement.

Michael Cohen arrives at his New York City apartment on May 21, 2020, after being furloughed from federal prison.John Minchillo/AP Photo

Fight disinformation: Sign up for the free Mother Jones Daily newsletter and follow the news that matters.

A federal judge on Thursday ordered Michael Cohen’s release from federal prison, ruling that the government violated the former Trump fixer’s right to free speech by revoking his home confinement after he hesitated to agree not to write a book.

“I find that the purpose of transferring Mr. Cohen from furlough and home confinement to jail is retaliatory, and it’s retaliatory because of his desire to exercise his First Amendment rights to publish a book,” Federal District Court Judge Alvin Hellerstein said in hearing held via teleconference Thursday.

Cohen—who is President Donald Trump’s former personal attorney—was sentenced to three years in prison in 2018, after pleading guilty to tax evasion, lying to Congress, and campaign finance fraud. Cohen said that at Trump’s behest, he had paid two woman who claimed to have had affairs with Trump to stay silent before the 2016 election.

Cohen was furloughed in May due to coronavirus concerns and was due to switch into a home confinement program that included more stringent conditions, such as wearing a location-monitoring device. He announced in multiple public statements in recent weeks that he is writing a book that will elaborate on his prior public statements harshly criticizing Trump. (“He is a racist,” Cohen said at a February 2019 House hearing. “He is a conman. He is a cheat.”)

At meeting on July 9, federal probation officers asked Cohen to sign an agreement that said he would avoid “engagement of any kind with the media, including print, tv, film, books or any other form of media/news” and would stay off “all social media platforms,” among other restrictions.

When Cohen and an attorney with him attempted to negotiate over the terms of the agreement, probation officers said they would check with their superiors. But instead, US Marshals arrived, shackled Cohen, and returned him to custody in Otisville Correctional Facility in upstate New York.

Joined by the American Civil Liberties Union, Cohen sued Attorney General William Barr and the federal Bureau of Prisons, arguing they had violated his First Amendment rights.

At Thursday’s hearing, Judge Hellerstein wasted little time before indicating that he shared that view, ripping into a federal prosecutors’ claim that the Bureau of Prisons was not required to negotiate with Cohen over the terms of his release at all, and homing in on the restrictions on Cohen’s media contact.

“I’ve never seen such a clause,” the judge said. “In 21 years of sentencing people and looking at the terms of release, I’ve never seen such a clause.”

The Bureau of Prisons had initially claimed that Cohen was jailed because he refused to agree to wear an ankle monitor, but it later dropped that claim. Prosecutors said Thursday that Cohen and his lawyer’s objections to the terms of the agreement were sufficient grounds to return him to prison.

But Hellerstein said it was not unusual or wrong to attempt to negotiate over the terms of home confinement. “They were never were given a chance to agree,” he said. “They never were told, ‘Well this is it, and if you don’t sign, you’re going back to jail.'”

Hellerstein ordered Cohen to be released by 2 pm Friday and ordered Cohen’s lawyers and federal prosecutors to negotiate a home confinement agreement that does not limit Cohen’s ability to publish his book or use social media. Hellerstein noted that even under home confinement, Cohen will remain, legally, a prisoner with restricted rights.

Cohen’s lawyers have argued that Barr and other senior Trump administration officials were responsible for trying to silence their client, though no direct evidence supporting this allegation has emerged. Federal prosecutors claim that the gag agreement presented to Cohen was crafted by Cohen’s probation officer, without consultation with senior officials in the Bureau of Prisons or Justice Department.

We've never been very good at being conservative.

And usually, that serves us well in doing the ambitious, hard-hitting journalism that you turn to Mother Jones for. But it also means we can't afford to come up short when it comes to scratching together the funds it takes to keep our team firing on all cylinders, and the truth is, we finished our budgeting cycle on June 30 about $100,000 short of our online goal.

This is no time to come up short. It's time to fight like hell, as our namesake would tell us to do, for a democracy where minority rule cannot impose an extreme agenda, where facts matter, and where accountability has a chance at the polls and in the press. If you value our reporting and you can right now, please help us dig out of the $100,000 hole we're starting our new budgeting cycle in with an always-needed and always-appreciated donation today.

payment methods

We've never been very good at being conservative.

And usually, that serves us well in doing the ambitious, hard-hitting journalism that you turn to Mother Jones for. But it also means we can't afford to come up short when it comes to scratching together the funds it takes to keep our team firing on all cylinders, and the truth is, we finished our budgeting cycle on June 30 about $100,000 short of our online goal.

This is no time to come up short. It's time to fight like hell, as our namesake would tell us to do, for a democracy where minority rule cannot impose an extreme agenda, where facts matter, and where accountability has a chance at the polls and in the press. If you value our reporting and you can right now, please help us dig out of the $100,000 hole we're starting our new budgeting cycle in with an always-needed and always-appreciated donation today.

payment methods

We Recommend

Latest

Sign up for our free newsletter

Subscribe to the Mother Jones Daily to have our top stories delivered directly to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate