Judge Says The Bureau Of Prisons Violated Michael Cohen's 1st Amendment Rights In Sending Him Back To Prison
from the wasn't-expecting-that dept
I wasn't expecting this, but this morning Judge Alvin Hellerstein ordered Michael Cohen released from prison, saying that the Bureau of Prisons violated his 1st Amendment rights. If you haven't been following this story beyond the fact that Cohen was sent to prison last year for tax evasion and campaign finance violations, what you need to know is that (following his request for such), Cohen was furloughed from prison to home confinement in May, as the prison system tried to lessen the number of people in prison during the pandemic. A little over a month later, he was returned to prison. While there were reports it had to do with the fact that he was seen eating out, it turned out to be because he refused to sign an agreement saying he would not speak to the media in any form, including saying he could not publish the "tell-all" book he is supposedly writing.
In a bit of role reversal, Cohen -- who had been President Trump's legal asshole threatening people who criticized the President in the past -- received a threat letter from the President's new threatdog, Charles Harder, warning him not to publish the book.
While there was some belief that Cohen's lawsuit claiming that being sent back to prison was retaliatory against his speech wouldn't get very far, given that the Bureau of Prisons is given wide leeway in how they handle those who they have within their custody, Judge Hellerstein surprised many and recognized the obvious:
“How can I take any other inference than that it’s retaliatory?” Hellerstein asked prosecutors, who insisted in court papers and again Thursday that Probation Department officers did not know about the book when they wrote a provision of home confinement that severely restricted Cohen’s public communications.
“I’ve never seen such a clause in 21 years of being a judge and sentencing people and looking at terms of supervised release,” the judge said. “Why would the Bureau of Prisons ask for something like this ... unless there was a retaliatory purpose?”
In ruling, Hellerstein said he made the “finding that the purpose of transferring Mr. Cohen from furlough and home confinement to jail is retaliatory.” He added: “And it’s retaliatory for his desire to exercise his First Amendment rights to publish the book.”
This is a good, 1st Amendment supportive ruling, though I do wonder if it would have come out the same way if it weren't for the high profile nature of Cohen and the president. The prison system, quite frequently, retaliates against prisoners for their speech, but it would be nice if that would start to change. Unfortunately, this will probably be a one off situation, rather than anything leading to real change.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: 1st amendment, alvin hellerstein, bureau of prisons, charles harder, donald trump, free speech, furlough, gag order, home confinement, michael cohen, retaliation
Reader Comments
Subscribe: RSS
View by: Time | Thread
"though I do wonder if it would have come out the same way if it weren't for the high profile nature of Cohen and the president"
This situation really wouldn't exist without that high profile nature.. There wouldn't be any need to muzzle the prisoner without without it either.
[ link to this | view in thread ]
You'd think Trump's laywer would know the first rule of lying...
While I'm glad that the judge saw through the obvious 'this isn't retaliation' lie at the same time I can't be that impressed because damn was that blatant.
'Oh no your honor, it's a complete coincidence that we decided to send him back to jail at that point, it had absolutely nothing to do with him refusing to sign an agreement prohibiting him from talking to the media and/or writing a book, and the fact that the timing would imply that is just a figment of your imagination.'
I guess when you're accustomed to not being called on your bullshit you get a little sloppy in the lies you come up with.
[ link to this | view in thread ]
Torn
I think Cohen should be able to publish his book. I don't think he should be allowed to eat out while in house arrest...especially given many of the rest of us are in house arrest.
I also think the prison system is super messed up and super cruel, and we shouldn't be putting murderers of children in there, not that I can offer a ready alternative.
[ link to this | view in thread ]
Remarkable how someone who never shuts up, seems to think everyone else needs to shut up.
[ link to this | view in thread ]
Re: Torn
"I also think the prison system is super messed up and super cruel"
I agree and it is my belief that we need to start calling it something besides "prison system" or even "judicial system".
The best I have come up with is the criminal education system as that seems to be what it does best.
[ link to this | view in thread ]
Re: You'd think Trump's laywer would know the first rule of lyin
See also:
Every police force in the US
[ link to this | view in thread ]
It's refreshing to see a judge have and apply common sense, without hiding behind legalistic excuses.
[ link to this | view in thread ]
But what about the corruption?
I mean, I'm glad the judge made the right decision here, but who's going to investigate and prosecute this blatant corruption? Part of the plan is to be so corrupt that we start to think it's normal.
[ link to this | view in thread ]
Re: But what about the corruption?
No one. Move along, nothing to see here.
Normalization of deviance is everywhere, and that is not a good thing, at least not in this context.
[ link to this | view in thread ]
New Rules
I like these new rules: criminals don't have to go to prison anymore says our new kritarchy rulers, some obscure judge.
This is great. Cohen promises to stay at home if released and instead goes out to dinner with friends.
Who cares? This is great. Why have prisons anymore. Why have judges like this one anymore?
[ link to this | view in thread ]
"Why have prisons anymore?"
I wrote a thing about prisons across the ages, and how they all turn into oubliettes.
Rememeber the state sucks at determining the guilty from the innocent, and tends to favor just caging the undesirables, but letting elite deviants walk free. The state also sucks at deciding sentences.
In that light, never build a prison that you would not want to be stuck in.
[ link to this | view in thread ]
I didn't finish my thought.
I wrote a thing about prisons across the ages, and how they all turn into oubliettes...but it took me to a dark place and I deleted it for everyone's benefit...
We really need to find something better than an incarceration system.
[ link to this | view in thread ]
Re: New Rules
I like these new rules: criminals don't have to go to prison anymore says our new kritarchy rulers, some obscure judge.
Um. That's not what anyone said. And I'd hardly call a federal judge "some obscure judge" unless you're an ignorant buffoon.
Tons of people have been furloughed because (look around) there's a fucking pandemic going on.
This is great. Cohen promises to stay at home if released and instead goes out to dinner with friends.
It was reported that under the terms of his furlough this was allowed, so... blame the fucking BoP who created those terms.
Who cares? This is great. Why have prisons anymore. Why have judges like this one anymore?
Did you even read the article, or did you just decide that because you like Trump and hate Cohen the judge must be wrong.
The issue is not about whether he belongs in or out of prison. Or about going out to eat. It's about one thing: was he put back in prison because of a violation of the 1st amendment, and the answer was pretty blindlingly obviously yes.
And you ignore all of that and insult a federal judge... you Trump folks are so transparent.
[ link to this | view in thread ]
Re: Re: New Rules
This has nothing to do with "you Trump folks". This has to do with a majority of U.S. citizens not being able to do anything but regurgitate the dumbed-down talking points of their favorite TV network (whichever this may happen to be).
In essence, the nation is reading its opinions off a teleprompter, with only short bouts of freewheeling in between.
[ link to this | view in thread ]
"reading its opinions off a teleprompter"
Decades of defunding general education and renouncing critical thinking skills are having their (intended) effect.
[ link to this | view in thread ]