Judge Says The Bureau Of Prisons Violated Michael Cohen's 1st Amendment Rights In Sending Him Back To Prison

from the wasn't-expecting-that dept

I wasn’t expecting this, but this morning Judge Alvin Hellerstein ordered Michael Cohen released from prison, saying that the Bureau of Prisons violated his 1st Amendment rights. If you haven’t been following this story beyond the fact that Cohen was sent to prison last year for tax evasion and campaign finance violations, what you need to know is that (following his request for such), Cohen was furloughed from prison to home confinement in May, as the prison system tried to lessen the number of people in prison during the pandemic. A little over a month later, he was returned to prison. While there were reports it had to do with the fact that he was seen eating out, it turned out to be because he refused to sign an agreement saying he would not speak to the media in any form, including saying he could not publish the “tell-all” book he is supposedly writing.

In a bit of role reversal, Cohen — who had been President Trump’s legal asshole threatening people who criticized the President in the past — received a threat letter from the President’s new threatdog, Charles Harder, warning him not to publish the book.

While there was some belief that Cohen’s lawsuit claiming that being sent back to prison was retaliatory against his speech wouldn’t get very far, given that the Bureau of Prisons is given wide leeway in how they handle those who they have within their custody, Judge Hellerstein surprised many and recognized the obvious:

?How can I take any other inference than that it?s retaliatory?? Hellerstein asked prosecutors, who insisted in court papers and again Thursday that Probation Department officers did not know about the book when they wrote a provision of home confinement that severely restricted Cohen?s public communications.

?I?ve never seen such a clause in 21 years of being a judge and sentencing people and looking at terms of supervised release,? the judge said. ?Why would the Bureau of Prisons ask for something like this … unless there was a retaliatory purpose??

In ruling, Hellerstein said he made the ?finding that the purpose of transferring Mr. Cohen from furlough and home confinement to jail is retaliatory.? He added: ?And it?s retaliatory for his desire to exercise his First Amendment rights to publish the book.?

This is a good, 1st Amendment supportive ruling, though I do wonder if it would have come out the same way if it weren’t for the high profile nature of Cohen and the president. The prison system, quite frequently, retaliates against prisoners for their speech, but it would be nice if that would start to change. Unfortunately, this will probably be a one off situation, rather than anything leading to real change.

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Comments on “Judge Says The Bureau Of Prisons Violated Michael Cohen's 1st Amendment Rights In Sending Him Back To Prison”

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This comment has been deemed insightful by the community.
That One Guy (profile) says:

You'd think Trump's laywer would know the first rule of lying...

While I’m glad that the judge saw through the obvious ‘this isn’t retaliation’ lie at the same time I can’t be that impressed because damn was that blatant.

‘Oh no your honor, it’s a complete coincidence that we decided to send him back to jail at that point, it had absolutely nothing to do with him refusing to sign an agreement prohibiting him from talking to the media and/or writing a book, and the fact that the timing would imply that is just a figment of your imagination.’

I guess when you’re accustomed to not being called on your bullshit you get a little sloppy in the lies you come up with.

Uriel-238 (profile) says:


I think Cohen should be able to publish his book. I don’t think he should be allowed to eat out while in house arrest…especially given many of the rest of us are in house arrest.

I also think the prison system is super messed up and super cruel, and we shouldn’t be putting murderers of children in there, not that I can offer a ready alternative.

This comment has been deemed insightful by the community.
Atkray (profile) says:

Re: Torn

"I also think the prison system is super messed up and super cruel"

I agree and it is my belief that we need to start calling it something besides "prison system" or even "judicial system".

The best I have come up with is the criminal education system as that seems to be what it does best.

This comment has been deemed insightful by the community.
Upstream (profile) says:

Re: But what about the corruption?

who’s going to investigate and prosecute this blatant corruption?

No one. Move along, nothing to see here.

Part of the plan is to be so corrupt that we start to think it’s normal.

Normalization of deviance is everywhere, and that is not a good thing, at least not in this context.

This comment has been flagged by the community. Click here to show it.

Uriel-238 (profile) says:

Re: "Why have prisons anymore?"

I wrote a thing about prisons across the ages, and how they all turn into oubliettes.

Rememeber the state sucks at determining the guilty from the innocent, and tends to favor just caging the undesirables, but letting elite deviants walk free. The state also sucks at deciding sentences.

In that light, never build a prison that you would not want to be stuck in.

This comment has been deemed insightful by the community.
Mike Masnick (profile) says:

Re: New Rules

I like these new rules: criminals don’t have to go to prison anymore says our new kritarchy rulers, some obscure judge.

Um. That’s not what anyone said. And I’d hardly call a federal judge "some obscure judge" unless you’re an ignorant buffoon.

Tons of people have been furloughed because (look around) there’s a fucking pandemic going on.

This is great. Cohen promises to stay at home if released and instead goes out to dinner with friends.

It was reported that under the terms of his furlough this was allowed, so… blame the fucking BoP who created those terms.

Who cares? This is great. Why have prisons anymore. Why have judges like this one anymore?

Did you even read the article, or did you just decide that because you like Trump and hate Cohen the judge must be wrong.

The issue is not about whether he belongs in or out of prison. Or about going out to eat. It’s about one thing: was he put back in prison because of a violation of the 1st amendment, and the answer was pretty blindlingly obviously yes.

And you ignore all of that and insult a federal judge… you Trump folks are so transparent.

David says:

Re: Re: New Rules

And you ignore all of that and insult a federal judge… you Trump folks are so transparent.

This has nothing to do with "you Trump folks". This has to do with a majority of U.S. citizens not being able to do anything but regurgitate the dumbed-down talking points of their favorite TV network (whichever this may happen to be).

In essence, the nation is reading its opinions off a teleprompter, with only short bouts of freewheeling in between.

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