In an opinion yesterday, Judge Liman granted — albeit with clear reluctance — the government’s motion to dismiss a case brought by former Trump attorney Michael Cohen against various government offices who allegedly retaliated against him for planning to publish a book critical of former President Trump.
Cohen was placed on furlough during his prison sentence, but then suddenly, while negotiating the terms of a transition to home confinement with probation officials, was remanded to prison.
In July 2020, Judge Hellerstein granted Cohen release via an Order stating:
The Court finds that Respondents’ purpose in transferring Cohen from release on furlough and home confinement back to custody was retaliatory in response to Cohen desiring to exercise his First Amendment rights to publish a book critical of the President and to discuss the book on social media.
In the case before Judge Liman, Cohen was suing for damages, primarily by asserting so-called Bivens claims against the federal government. Judge Liman found that the Supreme Court’s more recent interpretations of Bivens — essentially that no Bivens claim can proceed if by statute there is any other remedy, no matter how small — barred Cohen’s lawsuit.
But Judge Liman noted that the result worked a form of “violence” to Cohen’s constitutional rights: