Donald Trump “cannot imprison Michael Cohen for writing a book”, a senior American Civil Liberties Union official said on Monday night, as the organization filed suit against the federal government.
In a tweet on 2 July, Cohen said he was “close to completion of my book, anticipated release date will be late September”. A week later, the former top Trump aide was returned to prison after he had been released due to the coronavirus pandemic.
The ACLU suit against the attorney general, William Barr, and the director of the federal Bureau of Prisons (BOP) follows court battles involving John Bolton, a former national security adviser, and Mary Trump, the president’s niece. They defeated attempts to stop publication by the White House and the Trump family respectively, and saw their tell-all books became instant bestsellers.
Cohen, 53 and Trump’s former personal lawyer and fixer, was convicted of crimes including lying to Congress and facilitating illegal payments to silence two women who alleged affairs with Trump, the adult film-maker and actor Stormy Daniels and Karen McDougal, a former Playboy model.
Trump denies the affairs and ordering the payments.
Cohen went to prison in May 2019. He was released a year later, due to the coronavirus pandemic, and expected to complete his three-year sentence at home. Last week, however, the BOP said Cohen had “refused the conditions of his home confinement and as a result, has been returned to a BOP facility”.
Those conditions, which many observers said were unusual, included forbidding Cohen to speak to the media or to publish his book. Cohen’s lawyer, Lanny Davis, pointed out that Cohen had been allowed to speak to the media from the Federal Correctional Institution in Otisville, New York.
Now the ACLU and law firm Perry Guha LLP have filed suit in US district court in New York. According to the suit, Cohen is being held in solitary confinement at a federal prison in New York state.
“He is being held in retaliation for his protected speech,” the suit says, “including drafting a book manuscript that is critical of the president – and recently making public his intention to publish that book soon, shortly before the upcoming election about President Trump.”
Cohen’s book promises to combine elements of Bolton’s close-access account and Mary Trump’s description of the president’s personal behavior.
Cohen, the suit says, will “tell the American people about Mr Trump’s personality and proclivities, his private and professional affairs, and his personal and business ethics”.
Ben Wizner, director of the ACLU’s speech, privacy, and technology project, told CNN: “The government cannot imprison Michael Cohen for writing a book about President Trump.”
According to the suit, “the gag order that the government sought to impose on Mr Cohen was an unconstitutional prior restraint, and his continued imprisonment is part of a dangerous pattern of retaliation against Trump critics”.
In a tweet last week, Davis contrasted the treatment of his client with another former aide to the president, Roger Stone.
Stone, 67, was spared prison by an act of clemency, shortly before he was due to report for confinement after being convicted of lying to Congress, obstruction of justice and witness intimidation.
Stone’s conviction stands but most observers said he was being rewarded for not turning on Trump during the Russia investigation, as Cohen did.
Trump, Davis said, “can try to bully Michael Cohen by sending him back to jail to try to stop him from telling the truth in his forthcoming book while rewarding Roger Stone for lying about Trump knowledge of Russian meddling.
“But Michael Cohen won’t let Donald Trump bully him. I look forward to publication of … the detailed daily, hourly, minute-by-minute direct evidence of Donald Trump’s lies and crimes under New York state law.”