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Michael Cohen fights Donald Trump at the Supreme Court.

It is hard to imagine a more clear-cut violation of the Constitution than jailing an American for expressing his political opinions. But, as a federal judge found, that is what happened to Donald Trump’s attorney-turned-adversary Michael Cohen in the summer of 2020. Americans can agree that the courts must provide an adequate remedy for that wrong, as argued in a new amicus brief at the Supreme Court on Wednesday.

Despite all the coverage of Cohen, his unlawful imprisonment is an overlooked episode of the first Trump administration. A federal judge found that Cohen had been incarcerated in “retaliation” for his choice to speak critically of the president and ordered him to be released. But when Cohen filed a damages lawsuit against the individual officials responsible, two federal courts dismissed it, effectively ruling that there is no consequence for officials who imprison critics of the president.

We are hopeful these wrong decisions will be overturned by the United States Supreme Court. (One of us is Cohen’s attorney, and the other is his friend.) But whatever result the court process yields, every American should be alert to the danger this case represents.

In 2020, during the height of the COVID-19 pandemic and while serving a sentence at Otisville Federal Correctional Institution, Michael Cohen was granted a release to home confinement. (Cohen was serving a three-year sentence after pleading guilty to crimes that included campaign finance violations on behalf of Trump.) Then Cohen announced his intention to publish a book about then-President Donald Trump. The result: Cohen was presented by prison officials with a document that conditioned his release on his agreement not to publish the book (and not to speak publicly otherwise about his experiences with and his opinions of the president). After Cohen and his attorney raised questions about this nondisclosure agreement, Cohen’s release was revoked. He was then returned to federal prison and placed in solitary confinement for more than two weeks.

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Cohen filed a habeas corpuspetition, and U.S. District Judge Alvin Hellerstein ordered him released. Hellerstein stated he had never seen anything like it in his decades on the bench. He also found that Cohen had been incarcerated by the federal government in “retaliation” for speaking critically about the president.

Cohen later sought to hold Trump and his subordinates accountable for their conduct. Cohen brought a Bivens action, named for a 1971 Supreme Court case. Bivensallows a plaintiff to sue federal officials in their individual capacity for violations of the plaintiff’s rights. SCOTUS has said that the primary purpose of a Bivens claim is to deter unconstitutional actions by federal officials.

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However, although Bivens remains the law of the land, the Supreme Court has over the past 50 years repeatedly narrowed the right to bring a Bivensclaim. In 2022, in Egbert v. Boule, SCOTUS pronounced that courts should recognize a new Bivens claim only in “the most unusual circumstances,” when there is no reason to defer to Congress for the creation of a remedy. A U.S. District Court and a panel of the U.S. Court of Appeals for the 2ndCircuit ruled that Cohen’s case did not fit through this narrow Bivens window. We believe that those decisions were mistaken.

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What could be more “unusual” a circumstance than federal officials silencing a critic of the president by locking him in a prison? And what conduct could be more in need of a deterrent than conduct that strikes at the hearts of the First and Fourth amendments? If there is anything left of Bivens—and Egbert made clear that something remains—this is the case. There must be no doubt that our federal government lacks the power to imprison someone for criticizing government officials. There must be a strong deterrent if anyone in the government doescommit such injustices.

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Among the most basic protections set forth in the U.S. Constitution are the right to speak one’s mind about issues of public importance and the right not to be imprisoned without a good reason. Incarcerating someone for attempting to speak on issues of public importance is as clear as possible a violation of the Constitution and the most fundamental American freedoms.

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The courts must provide a deterrent remedy to right this wrong, or these “freedoms” will become illusory. A Bivens action for damages provides such a deterrent. An order telling the federal officials to stop what they are doing, without any further consequences for those officials, does not. Without a deterrent remedy for this particular abuse of power, we are confronted with profound implications for American life and rights: Free speech, a free press, unfettered scholarship, frequent and loud protest, and more are at stake.

Every American should be concerned about living in a country where choosing to speak could lead to a prison cell, with no consequences for the people who put them there. That cannot be right. Now it will be up to the United States Supreme Court to say so.

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  • Donald Trump
  • First Amendment
  • Jurisprudence
  • Supreme Court
  • Michael Cohen

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