Michael Cohen is trying to take Donald Trump to the Supreme Court in a new round of litigation.
The former fixer is petitioning the justices in a bid to get damages for being sent back to federal prison in July 2020, then told he could only get out by signing a gagging order—at a time when he was writing a tell-all book about his time as the then-president’s bagman.
The unusual move means the court could hear oral arguments on the case if at least four justices are in favor, requiring Cohen to win over at least one of the conservatives, assuming he can convince liberals Justices Sonya Sotomayor, Elena Kagan and Ketanji Brown Jackson.
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His move comes after he warned in The Daily Beast Sunday that his experience of being returned to custody with an attempt to gag him foreshadowed how Trump would act if re-elected in November, thanks to the Supreme Court ruling that presidents enjoy immunity for their “official” actions. Cohen has been involved in multiple pieces of civil litigation since parting ways with Trump, and was also a key witness in Trump’s criminal trial, which ended in the former president’s conviction on 34 felony counts in New York.
But the appeal to the Supreme Court is separate from the immunity ruling and hinges on a little-noticed ruling by the same justices this year, which was part of the 6-3 conservative majority overruling Roe v. Wade.
The Supreme Court’s Dobbs decision overturning federal protections for abortion rights also overturned a 1971 case Bivens v. Six Unknown Named Agents. That case ruled a victim of unlawful search and seizure could sue the government for violating their Fourth Amendment rights despite the lack of a government statute outlining such a remedy.
In overturning that ruling along with Roe v. Wade, the court undercut Fourth Amendment protections against unlawful search and seizure—effectively kicking back to individual states what rights people have to sue for unlawful search or seizure.
Cohen filed a writ of certiorari—a direct appeal to the justices—seeking clarification on what happens when “federal officials imprison a critic in retaliation for his refusal to waive his right to free speech and there is no remedy to deter them from doing so?”
He also cited a ruling on his conditions of release from Judge Alvin K. Hellerstein, who described the move from Trump and the DOJ as “retaliatory.”
“In 21 years of sentencing people and looking at the terms of release,” the judge wrote in his July 2020 ruling, “I’ve never seen such a clause.”
The clause in the documents Cohen refused to sign included a ban on “engagement of any kind with the media, including print, TV, film, books, or any other form of media/news… Prohibition from all social media platforms.”
It also had a requirement that Cohen refrain from any communication “with friends and family to exercise discretion in not posting on your behalf or posting any information about you.” The DOJ explicitly stated the “purpose is to avoid glamorizing or bringing publicity to your status as a sentenced inmate serving a custodial term in the community.”
Now Cohen wants to find out if another judge’s ruling would allow him to receive damages from the government, specifically under a clause around some citizens falling into “the most unusual of circumstances” which would still give them Fourth Amendment protections under Bivens at the federal level, rather than requiring a state law or act of Congress to outline specific remedies.
“More ‘unusual circumstances’ in need of a deterrent Bivens remedy are difficult to imagine,” Cohen’s petition reads.
Cohen previously tried and failed to bring his retaliation claim in 2022 but his case was dismissed by U.S. District Judge Lewis J. Liman—a Trump appointee.
