In an opinion yesterday, Judge Liman granted — albeit with clear reluctance — the government’s motion to dismiss a case brought by former Trump attorney Michael Cohen against various government offices who allegedly retaliated against him for planning to publish a book critical of former President Trump.
Cohen was placed on furlough during his prison sentence, but then suddenly, while negotiating the terms of a transition to home confinement with probation officials, was remanded to prison.
In July 2020, Judge Hellerstein granted Cohen release via an Order stating:
The Court finds that Respondents’ purpose in transferring Cohen from release on furlough and home confinement back to custody was retaliatory in response to Cohen desiring to exercise his First Amendment rights to publish a book critical of the President and to discuss the book on social media.
In the case before Judge Liman, Cohen was suing for damages, primarily by asserting so-called Bivens claims against the federal government. Judge Liman found that the Supreme Court’s more recent interpretations of Bivens — essentially that no Bivens claim can proceed if by statute there is any other remedy, no matter how small — barred Cohen’s lawsuit.
But Judge Liman noted that the result worked a form of “violence” to Cohen’s constitutional rights:
Cohen’s Bivens claims must be dismissed. Before doing so, however, this Court pauses to reiterate the profound violence this holding does to Cohen’s constitutional rights. Cohen’s complaint alleges an egregious violation of constitutional rights by the executive branch—nothing short of the use of executive power to lock up the President’s political enemies for speaking critically of him. The Supreme Court’s precedents ensure that there is at best a partial remedy for the abuse of power and violation of rights against the perpetrators of those wrongs. And those precedents rest on a mistaken proposition—that the Court’s reluctance to imply a damages remedy for statutorily created rights where Congress did not explicitly intend for there to be such a remedy necessarily must extend to a reluctance to find such a remedy for constitutionally guaranteed rights.
As Justice Harlan articulated in Bivens, “[I]t must also be recognized that the Bill of Rights is particularly intended to vindicate the interests of the individual in the face of the popular will as expressed in legislative majorities.” 403 U.S. at 407 (Harlan, J., concurring). The notion that, for there to be any remedy for such a right, it must be explicitly provided for by one of the very branches of government from whom the right is designed to protect the individual is particularly insidious.