(Paskova/Getty Images)
Michael Cohen is heading home this afternoon thanks to Bill Barr.
If the Attorney General hadn’t destroyed the credibility of his department by using it as a political tool to aid and abet the president, the court would have probably accepted the sworn declarations of Bureau of Prisons employees that they had no idea about Michael Cohen’s upcoming book and remanded him into custody out of pure spite. Instead, Judge Alvin Hellerstein took about fifteen minutes to decide that the BOP was lying about inserting the gag provision in Cohen’s furlough agreement more or less at random, and cut Cohen loose.
“I’ve never seen such a clause, in 21 years of being a judge, sentencing people and looking at terms and conditions of supervised release, I’ve never seen such a clause,” Judge Hellerstein said in yesterday’s tele-hearing. “How can I take any other inference but that it was retaliatory?”
BOP argued that Cohen had been remanded to custody because he was “antagonistic” when he was summoned to be fitted for his ankle bracelet, “asking various hypothetical questions about jobs he could hold,” “stating that he was writing a book ‘no matter what happens,’” and telling the probation officer to “say hello to Mr. Barr.” Cohen’s lawyer at the probation meeting, Jeffrey Levine, also had the temerity to object to the ankle monitor, “stating that this was only for violent criminals.”
Although Cohen later agreed to sign the agreement as written, Assistant U.S. Attorney Allison Rovner took the position that merely questioning the furlough agreement was grounds for revoking it.
“I don’t think that BOP is necessarily required to give him a chance to negotiate,” she argued during yesterday’s hearing.
But Judge Hellerstein disagreed.
“Why could not something like that be a subject of negotiation with an attorney? What’s an attorney for if he’s not going to negotiate an agreement for his client?” he demanded.
In the end, the court dismissed out of hand the sworn declarations of BOP staff that the media ban appeared as the very first clause in the gag order because the supervising official “obtained a sample from a colleague in another district who had experience with supervision of high-profile inmates.”
In a bygone era, the government enjoyed a presumption of regularity with the court. But thanks to Bill Barr, who squandered the Justice Department’s credibility in service of a mendacious president’s short-term political goals, that’s gone up in smoke.
So, welcome home, Michael Cohen. Expect that lawsuit from the Trump Organization demanding prior restraint on your book based on some ancient NDA in 3…2…
Court orders Michael Cohen’s release [Politico]
Memorandum of Law in Opposition to Motion [Cohen v. Barr et al, No. 1:20-cv-05614 (S.D.N.Y. Jul 22, 2020)]
Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.