Judge finds Michael Cohen's return to prison 'retaliatory,' orders his release

Cohen had refused to sign a form that would have barred him from speaking in public, including by publishing a book, as a condition of home confinement.

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By Pete Williams and Tom Winter

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 2 p.m. Friday, the judge said.

Cohen's lawyers said during a telephone hearing that prison officials violated his constitutional right of free expression on July 9 by ending his home confinement and returning him to the federal penitentiary in Otisville, New York, after the longtime Trump fixer and confidant said a book about his experiences working closely with the president would be published in the fall.

In a statement, Cohen's lawyer Danya Perry called the order "a victory for the First Amendment," adding, "We appreciate the Judge’s ruling confirming that the government cannot block Mr. Cohen from publishing a book critical of the president as a condition of his release to home confinement."

“This principle transcends politics and we are gratified that the rule of law prevails,” Perry said.

The Bureau of Prisons denied the idea Cohen was sent back to prison was retaliatory as "patently false."

"Mr. Cohen refused to agree to the terms of the program, specifically electronic monitoring," the BOP said in a statement. "In addition, he was argumentative, was attempting to dictate the conditions of his monitoring, including conditions relating to self-employment, access to media, use of social media and other accountability measures."

"Mr. Cohen refused to acknowledge and sign the conditions of his transfer of home confinement and was remanded into custody," the statement said.

Cohen began serving a three-year prison sentence last year for financial crimes and lying to Congress. But when the pandemic hit, he was released in May as part of a nationwide program allowing federal inmates to be transferred to other prisons or confined to their homes. He said that because of his condition — age 53 and with a history of high blood pressure and respiratory problems — continued incarceration at Otisville, where the infection was rampant, would jeopardize his health.

"I've never seen such a clause in 21 years of being a judge and sentencing people," federal District Judge Alvin Hellerstein said. "How can I take any other inference but that it was retaliatory?"

A week after tweeting that he was finishing a tell-all book about Trump, Cohen was told by a probation officer that he would have to agree to a complete ban on speaking in public, including by publishing a book, as a condition of continued home confinement, according to court documents. He was asked to sign a form that included this provision: "No 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."

The form said it was intended "to avoid glamorizing or bringing publicity to your status as a sentenced inmate serving a custodial term in the community."

"I've never seen such a clause in 21 years of being a judge and sentencing people," U.S. District Court Judge Alvin Hellerstein said. "How can I take any other inference but that it was retaliatory?"

Cohen's lawyers said when they asked if that provision could be modified, they were told that the officers would need to discuss it with their superiors. But a short time later, Cohen was placed in handcuffs and shackles and sent back to Otisville.

"Michael Cohen refused the conditions of his home confinement and as a result, has been returned to a BOP facility," prison officials said in a public statement. But his lawyers said he never refused to sign anything.

Sending him back to prison was an effort by the Trump administration to censor criticism of the president, Cohen's lawyers told the judge. They cited previous court rulings that held that prisoners retain the First Amendment right to write and publish articles critical of government officials.

But the Justice Department said Cohen was sent back because he refused to sign the document and contested several of its provisions, including a requirement to get advance approval for any employment and a ban on contacting other convicted felons.

The officials he talked with about the conditions of his release had no idea he was writing a book, government lawyers said, and that issue "played no role whatever" in the decision to send him back to Otisville, where he is free to continue writing, they said.

As for Cohen's concern about his health and the risks of contracting COVID-19, the government lawyers said "he was reportedly seen dining out at Manhattan restaurants on more than one occasion" during his time out of prison. That fact, they said, was "relevant to assessing the severity" of his claimed health concerns.

The government also said because federal law gives the BOP exclusive authority to dictate whether a prisoner is confined, courts cannot interfere or review those decisions.

In a declaration filed in court, Cohen said his book will describe his experiences working as a lawyer for Trump before and after the presidential election, including "graphic and unflattering details" about Trump's behavior.

"For example, the manuscript describes 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," it said.

In his earlier tweet, Cohen said the book would be out by late September.