Judge orders release of former Trump lawyer Michael Cohen by Friday, says book publication ban was retaliation

Key Points
  • A federal judge on Thursday ordered the release from prison of President Donald Trump's former lawyer and fixer Michael Cohen by Friday afternoon.
  • The judge found that Cohen was sent back to prison in retaliation for not agreeing not to publish a book about Trump while on furlough from prison.
  • Cohen plans to publish that book, which will be critical of Trump, before the 2020 presidential election.
Michael Cohen arrives at his Park Avenue home after being released from federal prison on furlough due to medical concerns related to Covid-19 on May 21, 2020 in New York City.
David Dee Delgado | Getty Images

A federal judge on Thursday ordered the release from prison of President Donald Trump's former lawyer and fixer Michael Cohen by Friday afternoon.

Judge Alvin Hellerstein found that Cohen was taken into custody July 9 and returned to prison in retaliation for balking at a condition that he not publish a book — about Trump or anyone else  — while serving the remainder of his three-year criminal sentence on home confinement. 

"I've never seen such a clause, in 21 years in being a judge and sentencing people," Hellerstein said at a Manhattan federal court hearing held after Cohen sued this week to win his re-release from prison. 

"How can I take any other inference but that it was retaliatory?" Hellerstein asked about the condition, which also would have barred Cohen from speaking to journalists or posting on social media.

Cohen, who pleaded guilty in 2018 to multiple felonies, was furloughed from the federal prison in Otisville, N.Y., in late May due to concerns about the coronavirus pandemic.

Cohen has multiple health issues that make him particularly vulnerable to Covid-19, his lawyers say.

"Any assertion that the decision to remand Michael Cohen to prison was a retaliatory action is patently false," the Bureau of Prisons said in a statement. "While it is not uncommon for BOP to place certain restrictions on inmates' contact with the media, Mr. Cohen's refusal to agree to those conditions here played no role whatsoever in the decision to remand him to secure custody nor did his intent to publish a book."

Shortly before being taken into custody earlier this month, he had been posting on social media about his upcoming book, which is going to be critical of Trump.

During Thursday's hearing, Hellerstein was highly skeptical of arguments by a federal prosecutor that Cohen was not locked up in retaliation for the book or that the book-related condition was not sought by officials for a specific reason in his case.

At one point, when another prosecutor tried to come to the aid of the prosecutor who was answering the judge's questions, Hellerstein angrily cut him off, reminding him of the rule that only one lawyer argued for each side in a case.

Hellerstein in ordering Cohen's release, said that he found that "the purpose of transferring Mr. Cohen from furlough and home confinement to jail is retaliatory, and it's retaliatory because of his desire to exercise his First Amendment rights to publish a book and discuss anything about the book or anything else he wants on social media and others."

Cohen, who has been in quarantine in Otisville since his arrival there, will be released by 2 p.m. after being tested for the coronavirus and will be driven back to his home on Manhattan's Upper East Side by his son, Hellerstein said. 

After his release into home confinement, he will be subject to a number of restrictions on his movement, employment and contact with other people.

But the restriction sought by federal probation officials that he not speak to reporters, post on social media or publish a book is likely to be largely gutted.

Cohen's lawyer Danya Perry and a prosecutor said that in the next several days they will negotiate the issue of any restrictions on Cohen dealing with the media.

Hellerstein suggested it would be inappropriate for Cohen to host a press conference in his apartment with a large number of reporters to promote his book while at the same time still serving his criminal sentence.

"This order is a victory for the First Amendment and we appreciate the Judge's ruling confirming that the government cannot block Mr. Cohen from publishing a book critical of the president as a condition of his release to home confinement," said Perry in a statement issued after Hellerstein said Cohen would be freed.

"This principle transcends politics and we are gratified that the rule of law prevails," Perry said.

Prosecutors from the U.S. Attorney's Office for the Southern District of New York had said that Cohen was locked up after being combative and argumentative during the July 9 meeting with probation officials about the conditions of his home confinement.

They also said that Cohen refused to sign the conditions after objecting to all of them.

Prosecutors denied that he was sent back to prison in retaliation for not agreeing to the restrictions on a book or media contacts.

But Hellerstein noted that court filings by both prosecutors and Cohen's lawyers agree on a key point: that Cohen and his lawyer Jeffrey Levine, after taking issue with at least one of the conditions, were left in a room alone for some time by a probation officer.

They then were abruptly confronted by Bureau of Prisons officials who arrived to take Cohen into custody. Levine has said the officials did so even after Cohen said he would then agree to all of the conditions.

Hellerstein repeatedly noted that probation officials had not given Cohen a warning that if he did not agree to all the conditions presented to him that he would be sent back to prison.

The judge brushed aside arguments by the prosecutor that Cohen and Levine were not allowed to negotiate the terms of the home confinement agreement.

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"Mr. Cohen was never given a chance to say, 'If this is it, I will sign,'" Hellerstein said.

The judge also asked, referring to the book condition, "Why would the Bureau of Prisons ask for something like this ... unless there was a retaliatory purpose?"

Cohen, 53, pleaded guilty in 2018 to multiple financial crimes as well as lying to Congress about an aborted bid to build a Trump Tower in Moscow.

He also pleaded guilty to campaign finance violations related to facilitating hush-money payments to two women, porn star Stormy Daniels and Playboy model Karen McDougal, who say they had sex with Trump.

The president denies their claims, but he and his company reimbursed Cohen for the $130,000 payment that the lawyer made to Daniels to keep her quiet about her allegation shortly before the 2016 presidential election.

Cohen fell out with Trump, whom he had loyally and aggressively served for years, after becoming the target of a federal criminal investigation.

In the lawsuit seeking his prison release, Cohen's lawyers noted that his planned "book describes Mr. Cohen's first-hand experiences with Mr. Trump, and it provides graphic details about the President's behavior behind closed doors."

"For example, the narrative describes pointedly certain anti-Semitic remarks against prominent Jewish people and virulently racist remarks against such Black leaders as President Barack Obama and Nelson Mandela."

Correction:  An earlier version of this story incorrectly reported the day that Michael Cohen was taken into custody.

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