Reprinted with permission from DCReport
Remember “Lock Her Up,” the wannabe dictator Donald Trump’s rallying cry about Hillary Clinton?
Trump did lock someone up — and in clear violation of the First and Fourth Amendments: Michael Cohen, his longtime lawyer, fixer and the man who paid Stormy Daniels $130,000 to keep quiet about her barely a minute intimacy with Donald.
Now Cohen is suing Trump, then Attorney General William P. Barr and six other individuals. For all eight of them the facts and circumstances are just awful.
Cohen’s federal lawsuit asserts that Trump “issued specific directives and guidance to his co-defendants that govern the treatment” of Cohen as well as others Trump perceived as enemies.
“At his [Trump’s] direction,” the lawsuit alleges, Cohen “was remanded back to prison and subjected to great indignities when he was unlawfully incarcerated.”
Proving that Trump was personally engaged, while easy to believe, may prove difficult.
Throughout his career as a con artist Trump has avoided email, tossed out calendars at the end of each month and, as president, destroyed official documents in violation of federal law.
The National Archives created a team to recover ripped up papers from the Oval Office wastebasket to piece them back together.
Running Roughshod Over Rights
The suit is a so-called Bivens action, named for a 1971 Supreme Court decision against six unnamed federal agents who violated a suspect’s Fourth Amendment rights against unreasonable search and seizure. The high court, voting 5-4, held that since every wrong must have a remedy in law, allowing Bivens and others like him to sue when their Fourth Amendment rights were violated was a remedy implied by the Framers.
Justices Hugo Black and Harry Blackmun, in separate dissents, expressed worries that Bivens actions would flood the federal courts with cases.
Of course, their fears would be realized only if federal agents were routinely running roughshod over Fourth Amendment and other Constitutional rights. Following Justices Black’s and Blackmun’s line of reasoning, had they prevailed, it would have signaled to federal agents that they could indeed run roughshod over constitutional rights.
Cohen has an ironclad First Amendment case for prior restraint of his rights of speech and press even if he can’t prove that Trump personally ordered him thrown into the modern dungeon at Otisville prison, where Jewish prisoners are concentrated.
Forbidden To Speak
Cohen lawyers Andrew Laufer and Jeff Levine describe an extraordinary addition to the boilerplate contract for home release with an ankle monitor. “The very first condition within the agreement specifically forbade Mr. Cohen from speaking to or through all media, including publishing his tell-all book about then President Trump,” Laufer and Levine wrote.
Here’s the exact wording showing irrefutable proof of First Amendment prior restraint:
No engagement of any kind with of the media, including print, tv, film, books, or any other form of media/news. Prohibition from all social media platforms. No posting on social media and a requirement that you communicate with friends and family to exercise discretion in not posting on your behalf or posting any information about you. The purpose is to avoid glamorizing or bringing publicity to your status as a sentenced inmate serving a custodial term in the community.
Lawyers Laufer and Levine call the speak-no-criticism-of Donald language “a prima facie violation of Mr. Cohen’s constitutional rights under the First Amendment as well as in retaliation for his public comments and proposed publication of his tell-all book critical of President Trump.” They are absolutely right about that.
Cohen asked the probation officers who summoned him for some explanation of this extraordinary provision and whether it could be “refined,” his complaint says. Cohen was told to wait while federal probation officer Adam Pakula left to consult with higher-ups. About 90 minutes later Cohen was taken back into custody.
He was held in solitary for 16 days – just for asking a more than reasonable question about an obvious violation of his Constitutional rights. If this case ever gets to trial, you should expect that federal prisons officials will say that solitary confinement was used to protect Cohen from the coronavirus. How convenient for them.
Where are the howls from Fox, Wall Street Journal editorial writers, and those Republicans who rail against tyranny?
Cohen was still in solitary two weeks later when senior U.S. District Judge Alvin K. Hellerstein ordered Cohen’s immediate release from custody. Judge Hellerstein said Cohen’s return to prison was “retaliatory in response” to block Cohen’s “First Amendment rights to publish a book” criticizing Trump.
Federal prison officials and contractor GEO Group, whose top executive was a prominent Trump supporter and seeker of more taxpayer money for private prisons, slow-walked the judge’s order. Cohen spent two more days locked up in solitary the lawsuit asserts. After a Cohen victory at trial or more likely in settlement talks to avoid a trial that implicit contempt for a judicial order will likely prove costly.
But unless a judge, or a settlement agreement, requires the eight defendants to pay out of their own pockets for what they did under the guise of lawful authority we taxpayers will foot the bill for their un-American behavior.
Team Trump’s Lawlessness
Two months after being freed Cohen’s book Disloyal: A Memoir was where he laid out his solid case about Trump’s dishonesty and contempt for the rule of law.
The shut-up condition was totally lawless, but also consistent with Trump’s oft-stated view that no one should be allowed to write about him in ways he dislikes. And then there’s his campaign vow, aimed at journalists who refuse to be sycophants, “to open up libel laws, and we’re going to have people sue you like you’ve never got sued before.”
While Trump broke that promise, like almost every other one he made to con his way into office, legal attacks on honest journalism in America are growing, as are state laws designed to restrict or even shut down honest reporting, as explained well here.
To those with Trump fatigue, me included, it would be easy to just say meh and move on. Who cares that yet another lawsuit has been filed against Donald?
But Trump is still trying to find a way back into power. Worse, people as competent as they are dangerous to liberty are scheming to do what Trump tried and failed to pull off, turning America into a dictatorship.
Cohen’s lawsuit is a reminder of how this isn’t abstract, this isn’t a potential. Cohen’s lawsuit serves as a scary reminder that of a clear and present danger to all of us and to our liberties.
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