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Michael Cohen wants the Supreme Court to take up his appeal seeking damages against Donald Trump and others for alleged retaliation during the former president’s administration. But while the petition from Trump’s former fixer serves to highlight the potential dangers of a revenge-packed second Trump term, he faces a tough road getting the justices to review his case.
The appeal, filed Wednesday, stems from when Cohen was serving federal time for Trump-related crimes and he started writing a book that would be unfavorable to the then-president. He was released to home confinement in 2020 after the Covid pandemic broke out, but his lawyers say that when Cohen “did not agree immediately to waive his right to free speech, he was summarily sent back to prison and thrown into solitary confinement.”
In addition to Trump, Cohen seeks damages against former Attorney General Bill Barr and other Trump-era officials. (Trump attorney Alina Habba has called the lawsuit frivolous.)
His lawyers added in the petition that “the possibility that the federal government has the power to retaliate against critics with imprisonment, without any consequence for or check against the officials engaged in such retaliation, is a chilling prospect.”
No doubt. But the problem Cohen faces is that the legal mechanism he invokes for his lawsuit is one that the Supreme Court has all but abandoned.
In a 1971 case called Bivens, the court allowed a damages claim against federal officials for alleged Fourth Amendment violations. But the court has taken a stingy view since then, routinely rejecting so-called Bivens claims. In a 2022 decision, Justice Clarence Thomas’ majority opinion cited Bivens while noting: “Over the past 42 years, however, we have declined 11 times to imply a similar cause of action for other alleged constitutional violations.” Thomas wrote that the court will deny claims “in all but the most unusual circumstances.”
Cohen’s petition attempts to convince the justices that his case presents such a circumstance. His lawyers wrote:
... a former President and his subordinates conspired to use the federal prison system to silence one of the President’s most vociferous and prominent public critics by revoking his approved release from prison to home confinement when the critic did not agree to waive his rights to speech. More ‘unusual circumstances’ in need of a deterrent Bivens remedy are difficult to imagine.
Still, it’s difficult to imagine the court caring. The justices have discretion to grant or deny Cohen’s petition. It takes four justices to grant review. That would have seemed an unlikely prospect even before the Roberts Court bestowed Trump with broad immunity for criminal conduct while in office. But in the wake of that ruling reaffirming the court’s priorities, it’s clear that the prospect of accountability for powerful officials — presidents in particular — is not among those priorities.