WASHINGTON — Michael Cohen is an unlikely civil rights warrior.
Shameful and without permission the attorney is gaining notoriety of the infamous variety for his long association with Donald Trump.
This relationship ended in a spectacular breakup. He served three years in prison various charges he pleaded guilty to doing things for Trump.
Cohen, now a vocal critic of Trump, is trying to reverse the Supreme Court’s hostility to lawsuits against federal officials for constitutional violations, where he has aligned himself with civil rights activists.
Cohen is making a last-ditch effort to revive a lawsuit alleging Trump sent him back to prison in retaliation for writing a tell-all book. His appeal, now pending in court, is urging the judges to reverse course.
The judges will discuss whether to hear his case at their regular private hearing on October 18.
In an interview via Zoom, Cohen spoke about his work both in terms of a broader legal challenge — to stop officials from taking unconstitutional actions — and to clip Trump’s wings with the possibility of a second term in office if the Republican nominee. The candidate wins the November election.
“Understanding and knowing Donald Trump, based on his own words, he’s not going to stop unless there’s a significant deterrent,” Cohen said. “It’s not going to end with just locking people up.”
He mentioned that Trump suggested earlier Mark Milley, acting chairman of the Joint Chiefs of Staff under Trump, should be executed for treason.
“If there are no obstacles for a person without a moral compass, what do you end up with? Monarch? King? A dictator? Führer?” Cohen said.
Cohen was held in solitary confinement for 16 days after refusing to sign a form barring him from speaking to the press or posting on social media. He was released when a federal judge ruled that the government was retaliating against him for wanting to exercise his free speech rights by writing the book and talking about it.
Cohen later filed a civil rights lawsuit against Trump, former Attorney General William Barr and other officials, seeking damages for, among other things, violations of his right to be free from unreasonable search and arrest under the Constitution’s Fourth Amendment.
The Supreme Court hears only a small number of appeals, and even Cohen’s lawyer, Jon-Michael Dougherty, admitted his client had an “uphill battle.”
That’s because the court has made it increasingly difficult in recent years to bring civil rights lawsuits against federal officials, based on the 1971 precedent Bivens v. Six Unknown Agents of the Federal Narcotics Bureau.
Most recently, in 2022, Egbert v. In Boule, the court put “Bivens claims” on life support in a decision dismissing claims against a Border Patrol agent.
The decision was widely condemned by lawyers on the left and right who support holding government officials accountable.
“Cohen’s filing with the Supreme Court does a great job of showing how federal officials can clearly get away with violating the Constitution when Bivens is reduced to nothing, or perhaps very close to nothing,” said the libertarian-leaning Institute for Justice.
Like NBC News reported last yearThe 2022 Egbert decision has been cited hundreds of times by lower court judges in rejecting Bivens claims in cases raising all kinds of constitutional claims, whether excessive force claims against federal law enforcement agencies or medical negligence claims against federal prison officials.
Cohen’s own work was no exception.
A federal judge in New York and the U.S. Court of Appeals for the 2nd Circuit both cited the Egbert decision to dismiss Cohen’s claims.
Cohen also faces an alliance that will defy his will: Joe Biden and Donald Trump. The current president has a Ministry of Justice submitted a reference states that the former president agreed that the Supreme Court should not interfere in the case.
Solicitor General Elizabeth Prelogar, on behalf of the Biden administration, argued that when the judge ordered his release from prison, Cohen effectively got what he wanted.
In Trump‘s shorthis attorney, Alina Habba, wrote that lower courts “faithfully applied” Supreme Court precedent in ruling against Cohen.
Even if Cohen’s case is allowed to move forward, Habba wrote that Trump would seek immunity from suit based on a 1978 Supreme Court ruling that protects presidents facing civil lawsuits. actions taken in the office.
The court relied in part on that reasoning when it found for Trump in July had certain immunity In the criminal case against him for trying to nullify the results of the 2020 elections.
With his chances of victory looking slim, Cohen described the case starkly, comparing his experience to that of critics of Russian President Vladimir Putin who were jailed for speaking out against the government.
“The only difference between what Vladimir Putin did to those people and what Donald Trump and Bill Barr did to me is that I didn’t die there.”