Prohibition against speaking with media or publishing

July 24, 2020

A federal judge on Thursday ordered that President Donald Trump’s former personal attorney and “fixer, Michael Cohen be returned to home confinement, after the he was sent back to prison earlier this month over a dispute with federal corrections officials, The Hill reports.

Judge Alvin Hellerstein of the U.S. District Court for the Southern District of New York, accused the federal Bureau of Prisons (BOP) of trying to violate Cohen’s First Amendment rights by imposing a gag order as a condition of his home confinement.

“I make the finding that the purpose of transferring Mr. Cohen from furlough and home confinement to jail as retaliatory, and it’s retaliatory because of his desire to exercise his First Amendment rights to publish the book and to discuss anything about the book or anything else he wants on social media” and elsewhere, Hellerstein said during a court hearing on July 23.

Cohen had been writing a book about his time working for Trump and the American Civil Liberties Union (ACLU) filed a lawsuit this week alleging that he was sent back to prison in retaliation for the tell-all. Cohen is serving a three-year sentence for various charges, including fraud and lying to Congress.

“This order is a victory for the First Amendment,” Cohen’s attorney Danya Perry said in a statement after the hearing. “The First Amendment does not allow the government to block Cohen from publishing a book critical of the president as a condition of his release to home confinement. This principle transcends politics. We are gratified that the rule of law prevails.”

Cohen had been released to home confinement in May amid concerns about the coronavirus pandemic’s effects on the prison population, The Hill said..

Earlier this month, Cohen and his attorney met with corrections officials to finalize the terms of the home confinement agreement and objected to a number of the conditions, including a prohibition against speaking with the media or publishing any sort of writing.

According to the report by The Hill, Justice Department officials detained Cohen during the meeting over his objections and sent him back to prison.

The DOJ denied that the gag order was aimed at stopping Cohen from proceeding with his book or that his being returned to prison was retaliation over the planned publication.

During Thursday’s hearing, Hellerstein, who was appointed to the court by former President Clinton, appeared disturbed by the manner in which BOP officials decided to reincarcerate Cohen and the gag order that they tried to impose upon him.

“I’ve never seen such a clause,” Hellerstein said. “In 21 years of being a judge and sentencing people and looking at the conditions of supervised release, I’ve never seen such a clause.”

A spokesman for the U.S. Attorney’s Office for the Southern District of New York, which defended the BOP’s move in court, did not immediately respond when asked for comment.

Research contact: @thehill