The Daily 202: Michael Cohen asked to sign stay-out-of-jail agreement that may violate his First Amendment rights, lawyers say

by Tom Hamburger

The Washington Post

Michael Cohen, President Trump’s former personal attorney, is back in solitary confinement at a federal prison facility in Otisville, N.Y., and legal scholars across the political spectrum are expressing alarm about his treatment.

Their objections center on a Federal Bureau of Prisons agreement Cohen was asked to sign last week that he and his lawyers say would limit the ex-Trump ally’s ability to work on books, including a forthcoming tell-all about the president.

Cohen’s return to jail last week is likely to open yet another legal front for a man who once described himself as Trump’s loyal “fixer” but later offered testimony implicating the president in possible crimes.

Read the draft of the agreement here

Since May, Cohen had been on a novel coronavirus pandemic-related furlough from jail, living at home in New York City. Last week, he went to New York’s federal courthouse to attend what he thought would be a routine meeting with probation officers to discuss the conditions of his home confinement.

He was stunned to be asked to sign an agreement he thought limited his First Amendment rights, according to descriptions provided last week by members of his legal team. Shortly after expressing concern, federal marshals arrived, handcuffed a panicked Cohen and returned him to prison, the lawyers said.

Since then, a growing number of prominent legal experts have complained about Cohen’s treatment.

“This is the United States of America. We don’t send people to solitary confinement in prison because they want to write a book,” said Alan Dershowitz, a retired constitutional law professor who served on Trump’s defense team during the impeachment trial.

In a Newsmax television interview Tuesday, Dershowitz unloaded on the decision to return Cohen to prison.

“Whether you like him or hate him, the idea that he is handcuffed and taken to solitary because he won’t sign a form that says ‘I’m not going to write my book,’ the First Amendment has to have some impact here … What I see is liberty, our liberty, our constitutional rights, being endangered by the weaponization of our criminal justice system,” Dershowitz said.

Cohen revealed in a July 2 Twitter post he was close to completing a book about Trump. One of Cohen’s legal advisers, Lanny Davis, said he had small portions of the manuscript read to him and pronounced those sections “stunning” for what they reveal about Trump’s willingness to breach conventional legal and ethical standards.

Some critics this week have suggested Cohen’s re-imprisonment reflects a broader pattern by the Justice Department, favoring the president’s allies while punishing or silencing his would-be critics.

After all, Trump granted clemency and commuted the 40-month prison sentence last Friday of his former political adviser, Roger Stone, who was convicted on seven counts of lying about attempts to get dirt on Hillary Clinton and then threatening a witness who could contradict him. Trump’s attorney general, William P. Barr, had previously recommended a more lenient sentence for Stone than the one recommended by career prosecutors. Barr later announced the Justice Department would drop attempts to prosecute former Trump national security adviser Michael Flynn after he twice pleaded guilty to lying to federal agents.

“The department’s principal work product has become releasing criminal friends of the president and then harassing his political adversaries, real or imagined,” said Rep. Jamie Raskin, a Maryland Democrat who taught constitutional law at American University and sits on the House Judiciary Committee. “They have turned the Justice Department in to something you would find in a banana republic.”

Raskin said he and other members of the Judiciary panel plan to grill Barr about the treatment of Cohen when he appears before the committee late this month.

A spokesman for Barr did not respond to requests for comment.

However, a Bureau of Prisons spokesman, Justin Long, said Cohen was returned to prison for the duration of his sentence because “he declined to agree with all of the terms of the Federal Location Monitoring program, most notably electronic monitoring.” Lawyers working with Cohen said last week that claim was “false,” and that Cohen had repeatedly expressed eagerness to start a home confinement program and comply with all monitoring requirements.

Those lawyers, Davis and Jeffrey Levine, declined to comment this week as Cohen hired a new person to lead his legal team, E. Danya Perry, a former New York state deputy attorney general who now works on prison rights issues among other topics.

Perry confirmed her new role Wednesday but otherwise declined to comment.

Cohen and his legal team are still reeling from the events of July 9.

On that day, his legal advisers said the former Trump lawyer went to the courthouse in New York expecting, among other things, to make arrangements to be fitted for an ankle bracelet.

While there that Thursday, probation officers asked Cohen to agree to eight conditions to remain out of jail including “no engagement of any kind with the media, including print, TV, film, books, or any other form of media/news,” according to a copy of the draft agreement.

Cohen was stunned, according to his legal advisers. He initially told officers he did not want to give up his First Amendment rights, but later ­­— as federal marshals approached to arrest him — offered to sign the draft agreement if doing so would keep him out of jail.

Stephen Gillers, a First Amendment expert at New York University School of Law, said the proposed agreement is clearly problematic.

Prisons can limit activities by inmates if there is a clear penological reason to do so, but in Cohen’s case the proposed restrictions have nothing to do with prison management, Gillers said.

“Cohen is being treated like a convicted terrorist in Supermax confinement, where such restrictions are allowed to prevent communications with former associates,” Gillers said. “For Cohen, there is no legitimate penal interest in keeping him from press interviews or publishing a book,” he said, noting that Cohen’s information could be important for voters to consider before Election Day.

J. Michael Luttig, a former federal appeals court judge who reviewed the draft agreement at the request of The Washington Post, said Cohen’s team may be misinterpreting the language of the agreement.

“The Bureau of Prisons agreement does not, by its terms, purport to prevent Mr. Cohen from writing and publishing his book, but if it were interpreted that way by the bureau, it would be an unconstitutional infringement on Mr. Cohen’s First Amendment rights,” he said.  The former judge added that, “if the Bureau of Prisons had wanted to prohibit writing of the book, it could have, and should have, clearly said that, but it did not.”

Robert Weisberg, who co-directs Stanford University’s Criminal Justice Center at the university’s law school, said he had never seen such a broad limit on First Amendment activities proposed as part of a prisoner home confinement agreement, adding the agreement appeared to be an attempt to restrain publication of a book.

That was certainly how Cohen interpreted it, his lawyers said last week.

After hearing Cohen’s objections, the probation officers said they would try to work out a solution, Davis said last week.

While waiting for what they thought would be an easy resolution, Cohen and Levine were shocked to see three federal marshals arrive with manacles to take Cohen back to prison.

A July 9 memo from a residential reentry manager in New York to the U.S. marshals said that Cohen “failed to agree to the terms of Federal Location Monitoring,” though it did not specify which terms.

In statements, the Bureau of Prisons similarly alleged Cohen had “refused the conditions of his home confinement” but did not specify which ones. Cohen’s sentence ends in November 2021. His lawyers vowed last week to seek his rerelease from incarceration.

Earlier this month, Cohen was photographed outside a French restaurant, Le Bilboquet, which is near his Manhattan apartment, sparking speculation he was violating the terms of his release. A Bureau of Prisons statement last week did not address that, and Levine said at the time the matter was not discussed last Thursday.

Cohen pleaded guilty in 2018 in two separate criminal cases. In the first, he admitted to campaign finance violations stemming from payments made before the 2016 election to adult-film actress Stormy Daniels and another woman who alleged they had affairs with Trump years earlier. Trump has denied their claims.

In the second case, Cohen admitted he lied to Congress about a Moscow real estate project Trump and his company pursued while Trump was trying to secure the Republican nomination to become president. In court and in public, Cohen placed responsibility for his actions with the president, saying he felt it was his duty to cover up the “dirty deeds” of his former boss.