Pointing to retaliation, judge returns Cohen to home confinement

After reviewing the details of Cohen's re-incarceration, a judge asked this morning, "How can I take any other inference but that it was retaliatory?"
Image: Michael Cohen
Michael Cohen waits to be sworn in to testify at a House Committee on Oversight and Reform hearing on Capitol Hill, on Feb. 27, 2019.Jonathan Ernst / Reuters file

Michael Cohen, Donald Trump's former personal attorney and fixer, was released from prison in May on a medical furlough, which was not altogether unusual given the coronavirus crisis. As regular readers know, however, he was locked up anew two weeks ago.

As of this morning, Cohen is headed back to home confinement -- and it's worth paying close attention to the rationale stated by the judge who's releasing him from prison.

A federal judge on Thursday ordered the release of Michael Cohen to home confinement, agreeing with his lawyers that he was wrongly sent back to prison after making public statements critical of President Donald Trump. Cohen should be released by Friday at 2 pm, the judge said.

I can appreciate why some may not immediately have any interest in whether Cohen is confined at home or in a cell, but as we recently discussed there's a larger political story here.

Let's briefly recap. As the New York Times recently reported, Cohen arrived at a New York courthouse on July 9 -- two weeks ago today -- expecting to "complete routine paperwork related to his home confinement." What he encountered instead was probation officers asking him to sign a document that would prevent him from publishing a book or speaking to the media during the remainder of his sentence.

Cohen balked, insisting that the request was a violation of his free speech rights under the First Amendment. About 90 minutes later, federal marshals, after conferring with higher-ups, put Cohen back in handcuffs.

By all accounts, this is not normal for released prisoners, and it raised some unsettling questions. Was federal law enforcement punishing Cohen because he'd worked on a book critical of the president? Was the White House responsible for orchestrating Cohen's re-imprisonment? Was Team Trump pulling levers to silence the president's former fixer ahead of the election?

It was against this backdrop that U.S. District Court Judge Alvin Hellerstein said in court this morning, in reference to the efforts to silence Cohen during his confinement, "I've never seen such a clause in 21 years of being a judge and sentencing people. How can I take any other inference but that it was retaliatory?"

Looking ahead, there will apparently be some limits on Cohen's media reach while at home -- as was articulated in court, he will not be able to invite 20 journalists to his apartment for a press conference -- and there will be some additional negotiations over the next week between the government and Cohen's attorneys.

That said, there's no reason to believe these restrictions will block publication of his book.

For Cohen's highest-profile former client, that's not great news. Since his arrest, Cohen has reportedly written, “Disloyal: The True Story of Michael Cohen, Former Personal Attorney to President Donald J. Trump," which will feature the attorney's "firsthand experiences and observations based on my decade-long employment and relationship with Mr. Trump and his family, both before and after he was elected.”

As part of a court filing this week, Cohen added, “In particular, my book will provide graphic and unflattering details about the President’s behavior behind closed doors.” The memoir will also describe "the President’s pointedly anti-Semitic remarks and virulently racist remarks against such Black leaders as President Barack Obama and Nelson Mandela, neither of whom he viewed as real leaders or as worthy of respect by virtue of their race."

In the meantime, there are lingering questions in need of answers related to the scope of Team Trump's legal abuses, and the White House's willingness to manipulate federal law enforcement -- repeatedly -- to reward the president's allies and punish the president's perceived enemies. The sooner we know why Cohen was singled out this way, the better.