Judge Orders Cohen Released, Citing Retaliation Over Tell-All Book – The New York Times

When Michael D. Cohen, President Trumps one-time lawyer and fixer, met with probation officers this month to complete paperwork that would have let him serve the balance of his prison term at home, he found a catch.

Mr. Cohen was already out on furlough because of the coronavirus. But to remain at home, he was asked to sign a document that would have barred him from publishing a book during the rest of his sentence. Mr. Cohen balked because he was, in fact, writing a book a tell-all memoir about his former boss, the president.

The officers sent him back to prison.

On Thursday, a federal judge ruled that the decision to return Mr. Cohen to custody amounted to retaliation by the government and ordered him to be released again into home confinement. Mr. Cohen is expected back in his Manhattan apartment on Friday.

I make the finding that the purpose of transferring Mr. Cohen from furlough and home confinement to jail is retaliatory, the judge, Alvin K. Hellerstein of Federal District Court in Manhattan, said in court. And its retaliatory because of his desire to exercise his First Amendment rights to publish a book and to discuss anything about the book or anything else he wants on social media and with others.

Judge Hellersteins decision was a remarkable rebuke of prison and probation officials and, by extension, the Trump administration. It raised concerns that the authorities had used the penal system to squelch the free speech rights of one of Mr. Trumps enemies in an effort to protect the president.

Justin Long, a spokesman for the Bureau of Prisons, said that it was not uncommon for prison officials to restrict inmates contact with the media. But he said that Mr. Cohens refusal to agree to the media ban played no role whatsoever in the decision to remand him to secure custody, nor did his intent to publish a book.

Any assertion that the decision to remand Michael Cohen to prison was a retaliatory action is patently false, Mr. Long said.

The question of Mr. Cohens release came before Judge Hellerstein after Mr. Cohen sued U.S. officials on Monday night, claiming that the Trump administration had sent him back to custody to prevent him from completing the book, violating his freedom of speech.

In court papers, Mr. Cohen said the book would paint Mr. Trump as a racist and offer revealing details about the presidents behavior behind closed doors.

Mr. Cohen also pointed out that Mr. Trump and his supporters had sought to derail the publication of books written by John R. Bolton, the former national security adviser, and Mr. Trumps niece, Mary L. Trump, whose best-selling memoir laid bare a history of dysfunction in her family.

E. Danya Perry, one of Mr. Cohens lawyers, called the judges order a victory for the First Amendment.

The court hearing on Thursday was the latest chapter in a long-running saga. Mr. Cohen, a legal bulldog who once bragged he would take a bullet for Mr. Trump, pleaded guilty in 2018 to campaign finance violations and other crimes and was sentenced to three years in prison.

As he entered his plea, Mr. Cohen pointed the finger at the president, telling the court that Mr. Trump had directed him during the 2016 election to arrange hush money payments to two women who claimed they had had affairs with Mr. Trump. The president has denied those allegations.

The provision that Mr. Cohen, 53, objected to would have barred him from engagement of any kind with the media, including print, TV, film, books. It also sought to keep him from posting on social media, according to a copy of the agreement attached to his lawsuit.

Judge Hellerstein, who was appointed to the bench in 1998 by President Clinton, said these measures seemed to him to be highly unusual and appeared to be directly related to Mr. Cohens forthcoming book.

In 21 years of being a judge and sentencing people and looking at the terms and conditions of supervised release, he said, I have never seen such a clause.

Both in court papers and during a hearing on Thursday, the government insisted that the probation officer in Mr. Cohens case, Adam Pakula, did not know about the book when he drafted the provisions. The government has denied the document was a gag order or that it was custom-made for Mr. Cohen by high levels of the executive branch.

Mr. Pakula, in court papers, said he drafted the agreement without input from the B.O.P. or anyone in the executive branch.

In court, Judge Hellerstein seemed skeptical.

Why would Pakula ask for something like this unless there was a purpose to it, unless there was a retaliatory purpose saying, You toe the line about giving up your First Amendment rights or we will send you to jail, the judge asked.

Judge Hellerstein also suggested that Mr. Pakula may have gotten some instruction about including the media ban in the agreement.

The government said in court papers earlier this week that the decision to send Mr. Cohen back to prison had nothing to do with his book, but had been made after he became combative while discussing the agreement, behavior the officers found unacceptable.

Judge Hellerstein said that such behavior seemed to him to be an attorneys effort to negotiate an agreement, which is very common.

In May, Mr. Cohen had been allowed to leave a minimum-security prison camp in Otisville, N.Y., and go home as part of an effort by the Bureau of Prisons to curb the spread of coronavirus in the federal prison system.

Mr. Cohens lawyers had argued that his health conditions, including severe hypertension and a history of respiratory problems, put him at risk if he remained in prison.

But on July 9, prison officials abruptly returned Mr. Cohen to Otisville.

In his suit, Mr. Cohen claimed that he never hid the fact that he was writing a book about Mr. Trump. He noted that he spent his mornings working on the manuscript in plain sight in the prisons law library, and said he also discussed the project openly with prison officials, staff members and even other inmates.

According to the suit, the book will give a glimpse into Mr. Cohens firsthand experiences with Mr. Trump and offer graphic details about the presidents behavior behind closed doors.

The narrative, the lawsuit says, describes pointedly certain anti-Semitic remarks against prominent Jewish people and virulently racist remarks against such Black leaders as President Barack Obama and Nelson Mandela.

The manuscript tentatively titled Disloyal: The True Story of Michael Cohen, Former Personal Attorney to President Donald J. Trump is only the latest book to have emerged in recent weeks containing detailed and critical revelations about the presidents personal and professional life.

Mr. Cohens suit contends that Mr. Trump and his supporters have sought to derail the publication of his book like the others.

In June, the Justice Department asked a judge to delay the release of The Room Where It Happened, a memoir by Mr. Bolton, the former national security adviser who, among other things, confirmed accusations at the heart of the Democratic impeachment case over the presidents dealings with Ukraine. The judge ultimately denied the request.

On the same day that Mr. Boltons book was published, Mr. Trumps younger brother, Robert S. Trump, filed a suit seeking to stop the publication of a family tell-all written by their niece, Mary Trump.

After a few weeks of whirlwind litigation, the judge in that case sided with Ms. Trump, allowing her to publish her memoir, which accused Mr. Trump of embracing cheating as a way of life and of paying someone to take his college entrance exams.