Where There Is No Remedy, There Is No Right: Holding a Rogue President to Account

What if the President of the United States could lock his public critics in prison and suffer no consequences?  The First, Fourth, and Eighth Amendments to the United States Constitution count for little if the executive can silence his critics with the threat of imprisonment and solitary confinement, while the courts sit idly by.  This can’t be America, right?

Wrong.  Today, in America at least one person, Michael Cohen, has suffered this punishment.  In prison for offenses committed at the direction of then-candidate Donald Trump, Mr. Cohen was about to be released to home confinement during the 2020 height of the COVID-19 pandemic.  He was suddenly thrown into solitary confinement when he did not immediately consent to a surprise condition of his release that he waive his First Amendment rights to speak and write about his experiences with then-President Donald Trump. 

Two federal judges reviewing Mr. Cohen’s case found his imprisonment to be “retaliatory.”  However, the District Court for the Southern District of New York felt it must dismiss Mr. Cohen’s suit for damages because of prevailing Supreme Court precedent, despite recognizing the “horrific allegations” in Mr. Cohen’s complaint and the “violence” the dismissal did to Mr. Cohen’s rights.  Mr. Cohen, with assistance of Gilbert attorneys, has asked the Second Circuit to review the dismissal of his suit for damages against Mr. Trump and his subordinates.

Mr. Cohen’s claims stem from the United States Supreme Court precedent Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).  The Bivens Court recognized that certain egregious violations of a citizen’s rights should have a damages remedy against the offending officials to appropriately remedy the immediate harms and deter future violations.  In later cases, the Court expanded the right to recover against government officials for other civil rights violations.  Carlson v. Green, 446 U.S. 14 (1980); Davis v. Passman, 442 U.S. 228 (1979).  However, the Court has since repeatedly narrowed the right to recover, until the only viable claims that remain are those cases either fundamentally identical to Bivens and its immediate progeny or in new cases that present “the most unusual circumstances” where there is no reason to believe Congress is more suited to craft a remedy.  Egbert v. Boule, 596 U.S. ___, 21-147 (2022); Ziglar v. Abbasi, 137 S.Ct. 1843 (2017).

Mr. Cohen’s case presents the “most unusual circumstances” the Court anticipated may exist.  As detailed in his brief, Mr. Cohen, one of the President’s most prominent critics, claims “[t]he president and his subordinates circumvent[ed] the usual release procedures[,] abruptly condition[ed] his release upon his waiver of his fundamental right to free speech, revoke[d] the approved release when [Mr. Cohen] question[ed] this condition, and ultimately threw [Mr. Cohen] into solitary confinement.”  What could be more unusual?  What could be more repugnant to the nation’s character? 

The courts, and not Congress, are better able to craft a remedy for such a gross violation of the President’s duty to see that the law is faithfully executed.  There is no reason to think Congress would ever create a remedy for this form of executive misconduct—and many reasons to think they would not.  The defense of the citizenry’s rights in such a threatening circumstance, with such ominous implications for the future, cannot be left to a closely-divided, political body.  This is a job for the courts.  For these reasons, Mr. Cohen’s case fits squarely into the existing Bivens precedent.  And if it does not, there must still be a remedy when a President violates his oath of office and a citizen’s rights in as clear and damaging a way as was done here.

Gilbert is proud to assist in the effort to vindicate this fundamental principle: for every harm, there must be a remedy.  Gilbert will work diligently in the Second Circuit appeal and, if necessary, at the United States Supreme Court to ensure ours is a country in which some remedy is available to those wronged by a rogue President.

The caption for Mr. Cohen’s appeal is Michael D. Cohen v. United States of America, et al., 23-0035-cv (2d Cir. 2023) (appealing from Cohen v. U.S., et al., No. 1:21-cv-10774, Dkt. 76 (S.D.N.Y. 2022) (Liman, J.)).  The opening brief is available here.