Michael Cohen Going Back To The Big House
Photo: Iowa Politics, Creative Commons license 2.0

Bill Barr ain't subtle. Michael Cohen's habeas petition against Barr and the Bureau of Prisons just dropped, and it's a doozy. Cohen alleges that BOP ignored him and left the conditions of his COVID furlough nebulous for two months after they released him. But the second Cohen started tweeting about his plans to release a book about Donald Trump, the wardens suddenly remembered that he existed and tried to slap a gag order on him.

Cohen was released on May 21, 2020, and wandered around his neighborhood with no ankle bracelet until July 2.

At which point he was summoned to the courthouse for a meeting on July 9 and presented with a furlough agreement BOP had cooked up especially for him.


Here's the very first clause, where Cohen is told he'll have to clear all his media contacts with BOP and stay off social media, "to avoid glamorizing or bringing publicity to your status as a sentenced inmate serving a custodial term in the community."

See that part about "no engagement of any kind with the media" including "books"? That means Cohen wouldn't be able to complete his manuscript under the terms of his release. That is not clause one of the standard furlough agreement. In fact, BOP policy explicitly encourages incarcerated inmates to "use their leisure time for creative writing and to permit the direct mailing of all manuscripts as ordinary correspondence."

To be clear, prisoners, even the ones who are on home confinement, have drastically curtailed First Amendment rights. Cohen's description of this as a "Prior Restraint Provision," explicitly linking his case to Mary Trump and John Bolton, is probably inapposite. But it certainly appears that the BOP is singling Cohen out for disparate treatment in an attempt to stop him publishing embarrassing details about the president.

In plain English, we treat prisoners like shit in this country, so if BOP always put a "no media" provision in release agreements, it would probably be legal. But using the power of the corrections system to stifle only those prisoners who criticize the president is abnormal to the point of being Orwellian.

But since we've just seen Bill Barr ratfuck the DOJ to benefit Trump's pals Roger Stone and Michael Flynn, it's pretty clear that he thinks he's entitled to wield law enforcement power to punish Trump's enemies. Hell, he said as much in that fateful "President is God King" memo he sent to Trump in 2018 when he was trying to get hired in the first place.

But even with all that, COHEN WAS WILLING TO SIGN IT TO STAY OUT OF JAIL, and BOP didn't care. According to the petition, Cohen asked about the "no media" provision and BOP agents told him they would have to run his objections "up the chain of command." They disappeared for 90 minutes, and then slapped the shackles back on him and took him back into custody. When he objected that he would sign the agreement as written, they told him it was out of their hands.

The BOP released a statement implying that Cohen had refused the conditions of release, saying, "[A]s a federal inmate, Mr. Cohen remains subject to compliance with BOP policy, which includes agreement to electronic monitoring and obtaining pre-approval for media interviews. He declined to agree with all of the terms of the FLM program, most notably electronic monitoring, and as a result, he was returned to a BOP facility for service of his sentence." But Cohen's lawyer Jeffrey K. Levine, who was at the meeting, says no such thing occurred.

Since being taken back into custody, Cohen has been in solitary confinement, with just 30 minutes outside his cell during weekdays, and no break on weekends. Which sounds extraordinarily punitive! And it puts us back where we've been every damn day since that lunatic was sworn into office — asking the question of whether it's legal for the president to use the power of his office for his own political advantage.

Sure, the president can direct the Justice Department to de-prioritize certain crimes, but is it legal for him to ask the FBI to drop an investigation into his political ally? Yes, he can fire the FBI director, but can he do it to stop an investigation into his own campaign? Sure the president can assert executive privilege, but is it legal for him to do it to prevent his staff from testifying to Congress? Yes, the executive branch has the power to put an emergency hold on foreign aid allocated by congress, but can it withhold that money until a foreign government agrees to launch a criminal investigation of the president's political rival? If the president has the power to fire a US attorney, can he fire one to put an end to an investigation of his political allies? Sure the Justice Department controls the BOP, which has the power to set the terms for released prisoners, but can they use that power to ensure Michael Cohen's book doesn't come out?

According to Bill Barr, the answer to all these questions is a resounding YES. And in November, we'll find out if he's right.

[Habeas Petition]

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Liz Dye

Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.

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