Glenn Kirschner Is Michael Cohen getting out of prison? Why Barr's coronavirus release rules deserve scrutiny

These Bureau of Prisons flip-flops are yet another example of Barr’s lack of leadership — and a sign of a Department of Justice in free fall.
Image: Michael Cohen, former personal attorney to President Donald Trump, arrives at the Capitol to testify behind closed doors on March 6, 2019.
Michael Cohen, a former personal attorney for President Donald Trump, arrives at the Capitol to testify behind closed doors on March 6, 2019.Chip Somodevilla / Getty Images
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By Glenn Kirschner, former assistant U.S. attorney for the District of Columbia and NBC/MSNBC legal analyst

Just as it affects us all, the coronavirus is affecting our nation's prison population. Inmates across the country are seeking early release in hope of avoiding contracting the virus in their detention facilities. Earlier in April, we learned that Michael Cohen, President Donald Trump's former attorney and self-described "fixer," is supposed to be released from prison early as a result of a coronavirus outbreak in Otisville, New York, where he is serving his sentence.

Many other high-profile inmates are also requesting early release, including the rich, the famous, the infamous and the connected.

Many other high-profile inmates are also requesting early release, including the rich, the famous, the infamous and the connected: Michael Avenatti, Bernie Madoff, R. Kelly, Bill Cosby and others. Avenatti, for example, will be spending the next few months in home detention, heading to the upscale home of a friend in the Venice Beach neighborhood of Los Angeles. Just as important, countless other inmates who are not rich, famous or influential are also seeking early release.

Cohen's pending release had already raised several important questions about the criminal justice system and how it is working. But then last week Politico reported that, in fact, many of the prisoners who had been told they could go home were being sent back to their cells. The institutional flip-flopping is unfair to the inmates and their families, and it undermines the public's confidence in our government's ability to make difficult decisions in times of crisis.

Attorney General William Barr originally directed the Bureau of Prisons to assess the propriety of releasing certain high-risk inmates serving time in "hot spot" prisons. Notably, FCI Otisville, where Cohen was imprisoned, is not one of those prisons. That alone raises questions about why the former lawyer might have been selected for early release. Otisville houses about 800 inmates. Recent reporting indicates that at least 14 inmates and seven staff members have tested positive for the coronavirus.

Now, Politico reports that the Bureau of Prisons guidance has been revised to include prisoners who have served at least 25 percent of their sentences and who have less than 18 months remaining on their terms. That means Cohen would likely still qualify for early release, but other high-profile applicants like Paul Manafort wouldn't qualify. (Manafort still has over seven years left on his sentence.)

Shifting and changing inmate release policies have caused widespread confusion. The lack of a clear, common-sense Justice Department/Bureau of Prisons policy prompted one federal judge to sternly rebuke the government, saying the procedures were "illogical" and "kafkaesque." In another federal case, a judge ordered prosecutors to explain their release policy after an inmate was told one day that he would be released, only to be told the next day that the Bureau of Prisons had reversed course.

Simply put, the Bureau of Prisons flip-flops are yet another example of Barr's lack of leadership and a sign of a Justice Department in free fall. When I was a federal prosecutor, everything I did in court reflected the position of the U.S. government. That is an awesome, weighty responsibility. But Barr has made that job beyond difficult for the country's approximately 2,300 federal prosecutors.

Recall the Roger Stone case: The career prosecutors in that case filed a sentencing recommendation. Thereafter, Trump tweeted that the sentencing recommendation was "horrible and very unfair" and said he would not allow "this miscarriage of justice!" The next day, Barr made prosecutors dramatically lighten their sentencing recommendation.

That conduct by Barr prompted my former colleague Jonathan Kravis, one of the lead prosecutors on the Stone case, to immediately resign from the federal government. This was an enormous loss to the American people, as Kravis is one of the country's premier public corruption prosecutors. (He has since joined the D.C. attorney general's office as a "special counsel for public corruption.")

I was in court for the Stone sentencing and watched Judge Amy Berman Jackson aggressively cross-examine another former colleague, Assistant U.S. Attorney John Crabb, who had to step into the Stone prosecution after all three prosecutors quit the case. Jackson demanded to know why the government had changed its sentencing recommendation. Barr's office may have made the decision, but it was the prosecutors who took the judicial beating. And it was painful to watch.

Barr’s office may have made the decision, but it was the prosecutors who took the judicial beating. And it was painful to watch.

In another sign of a Justice Department in crisis, U.S. District Judge Reggie Walton of Washington, D.C., recently authored a scathing opinion in a Freedom of Information Act (FOIA) case regarding redactions in special counsel Robert Mueller's report, saying Barr tried to "spin" the report and "mischaracterized" its findings before topping off his criticism by saying Barr "lacked candor." The pronouncements, which are amply supported by the evidence of record, deeply damage the Justice Department, damage every federal prosecutor in every court in the land and damage our chances of litigation success on behalf of the American people.

To be sure, federal, state and local officials are struggling to deal with coronavirus outbreaks in prisons, recognizing that such outbreaks endanger inmates and prison staff alike. Wardens and other government officials involved in these decisions must balance multiple public safety priorities. The decisions affect not only inmates and their families, but also the victims of the inmates' crimes and the community generally. Difficult decisions though they may be, we must examine whether the government is acting fairly, responsibly and without favoritism or prejudice in process or practice.

In other words, this situation is hard enough without the Justice Department's ever-changing policies making everything more complicated.

Absent governmental transparency, it's impossible to discern in real time whether any form of favoritism is at play for high-profile federal inmates. (FOIA attorneys, if you're listening ...) Still, history has shown us that notoriety and connections can affect governmental decisions in any number of ways. It's axiomatic that the rich, the powerful and the privileged generally fare far better in the criminal justice system than the poor, the powerless and the underprivileged.

We should remain vigilant to make sure government officials don't use our national health emergency as a smokescreen to dole out preferential treatment to high-profile, influential or connected inmates. We must demand that our public officials act out of a sense of the health and welfare of the inmates in their custody, as well as the public at large, without favoritism to the famous, especially at a time when confidence in our governmental institutions isn't exactly at its zenith. Barr and the Justice Department's release policy pivots certainly aren't helping.