Michael Cohen goes to the Supreme Court against Trump

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Does the president of the United States have the power to throw you in prison?

That is the test, says Michael Cohen, of the petition submitted to the Supreme Court on Wednesday. 

"The Constitution is the bedrock of our democratic republic and is what makes America the beacon of the world," Cohen says.

"To have a President weaponize the DOJ...is how autocracies are created."

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Michael Cohen, former President Trump's former personal attorney, walking in New York City. (Yana Paskova/Getty Images)

Cohen, former President Trump's controversial long-time lawyer and fixer, is asking the court to hear his claim that he was sent back behind bars, shackled and placed in solitary confinement on the alleged orders of Trump and Justice Department officials in July 2020 in retaliation for his writing his first tell-all book, "Disloyal: A Memoir: The True Story of the Former Personal Attorney to President Donald J. Trump."

"Presidents are not kings," says the petition. "This case represents the principle that presidents and their subordinates can lock away critics of the executive without consequence. That cannot be the law in the country the Founders thought they created when they threw off the yoke of the monarch."

In 2020, U.S. Federal Court Judge Alvin K. Hellerstein found that the Trump administration violated Cohen's First Amendment rights when it sent him back behind bars after he was released to home confinement.

"The purpose of transferring Mr. Cohen from furlough and home confinement to jail is retaliatory," the judge said during a hearing on Cohen's reimprisonment.

"It's 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."

A spokesman for the Bureau of Prisons denied that Cohen was retaliated against, calling the allegation "patently false."

However, Cohen's lawyer says the case goes far beyond the impact on his client, but on the legal protections for all American citizens against any constitutional violations by the executive branch.

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Michael Cohen was sworn in before giving testimony. (Bill Clark/CQ Roll Call)

"This case presents an important and unprecedented question – what remedy will this country provide a citizen who was incarcerated because of their criticism of government officials. No one, especially not the President, can use the prison system to silence their critics," says Cohen's attorney, Jon-Michael Dougherty.

"As it stands now, there is no consequence for officials who lock away their critics. That cannot be America. It must not be America. There is a clear and present danger to Americans’ rights. If speech can lead to a prison cell, many will choose to be silent."

Two courts ruled against Cohen's initial claim, based on a narrow reading of a Supreme Court ruling called "Bivens," which provides citizens the limited legal right to sue federal officials who violate their constitutional rights.

The 2nd U.S. Court of Appeals ruled that the law does not seem to provide damages and cites the fact that Cohen was ultimately released from prison to home confinement was his legal relief. However, Cohen's petition points out that the courts have not ruled on remedies or methods needed to prevent such violations in the future and is asking the Supreme Court to decide just that. 

"This case happens to involve Michael Cohen and Donald Trump, but it is not about Michael Cohen and Donald Trump. This case is not about politics. It is about freedom," Dougherty told Fox News.

However, Trump lawyer Alina Habba, who successfully argued two of the previous cases, says Cohen will not get anywhere with this latest effort.

"Michael Cohen’s suit against the President was doomed from its very inception. Setting aside the fact that his allegations are meritless, the Supreme Court has already held, as recently as 2022, that Bivens suits in this context are not viable," Habba told Fox News.

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Former President Trump gives a speech at a rally in Racine, Wisconsin. (Scott Olson/Getty Images)

During his current campaign, former President Trump suggested he could prosecute his political opponents, establish "televised military tribunals," and has named a variety of officials and prosecutors who have brought cases against him who should be "put in jail." 

"I would have every right to go after them," the former President told Fox News last month, but added he would not actually do that.

Cohen claims that Trump would, in fact, seek revenge, despite Trump's and the government's previous denials.

"Be warned...Donald will do it again and again if given the chance!"

Cohen's petition echoes that prediction.

"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," it says.

"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. This Court should not turn its eyes away from this profound breach of the contract between a government of limited power and free citizenry."

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Michael Cohen makes his way to Manhattan Criminal Court in New York City. (TIMOTHY A. CLARY/AFP via Getty Images)

Dougherty says the petition is in front of Justice Sonia Sotomayor. In order for Cohen's petition to be considered by the full court, four of the nine justices must agree to hear it during the court's next term in the fall.

Habba believes that the court will likely decline to hear Cohen's plea, and if it does, will find that the Justices' recent ruling on establishing immunity for "official acts" of a president will apply to Cohen's case. 

"In the unlikely event that the Supreme Court chooses to entertain Mr. Cohen's petition, and in the even more unlikely scenario that it finds any merit to his Bivens claim, his suit still fails under the doctrine of presidential immunity. If this case proceeds forward, I look forward to a decisive victory," she told Fox News.

In response to the petition, Trump spokesman Steven Cheung said in part that "Michael Cohen is a disgruntled disgrace and a total loser."

"Nothing Mr. Cohen says can be trusted and now that his 15 minutes of fame have expired, he is more desperate than ever."

Cohen was the star witness in the recent trial in Manhattan that convicted Trump of 34 felonies.

Cohen says, "No President should ever be permitted to weaponized the Department of Justice through a willing and complicit attorney general to have a citizen unconstitutionally remanded to prison (solitary confinement) because they refused to waive their first amendment rights. It's a case ripe for SCOTUS."

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Dougherty says the Court has a duty to accept the case because of the unique and compelling Constitutional arguments it presents.

"The Supreme Court has said that the kind of lawsuit Mr. Cohen has brought can be entertained in only 'the most unusual circumstances.' What could be more unusual than a claim, supported by the findings of a federal judge, that the President and his subordinates locked away a critic for refusing to be silent? This is that case."