Patterico's Pontifications

7/23/2020

BREAKING: Judge Orders Michael Cohen Back to Home Confinement, Citing Government’s Attempts to Suppress His Book

Filed under: General — Patterico @ 8:43 am



Breaking now:

I’m sure people will post links and further developments in the comments but I wanted to open a thread for you.

UPDATE: Changing the headline because this is correct:

74 Responses to “BREAKING: Judge Orders Michael Cohen Back to Home Confinement, Citing Government’s Attempts to Suppress His Book”

  1. Yikes.

    DRJ (aede82)

  2. Top Experts: DOJ’s Bureau of Prison Blocking Michael Cohen Book about Trump Violates First Amendment
    …..
    I asked some of the country’s leading First Amendment law experts for their views about the agreement Cohen was told to sign. Their comments are published in full below. They are almost uniform in decrying the condition placed on Cohen by the Bureau of Prisons, an agency under William Barr’s Justice Department. I recommend reading their extensive comments in full, but here are some highlights:

    A foremost scholar in First Amendment law, former Provost of the University of Chicago and Professor Geoffrey R. Stone calls the government’s action “patently unconstitutional.”

    Robert Corn-Revere says it is “an obvious violation of his First Amendment rights.”

    The ACLU’s Vera Eidelman writes that it is “almost certainly unconstitutional.”

    Laura R. Handman puts the situation in the context of the political nature of Cohen’s speech. She writes that the government’s action is a “profound affront to the First Amendment … all the more so when the content of what he would share would likely be … information that is particularly vital to an informed public as they decide whether the President merits re-election.”

    Jameel Jaffer, Executive Director of the Knight First Amendment Institute at Columbia University, had a similar assessment also noting “this gag order is to suppress speech about the president, which is speech at the core of the First Amendment’s concern.”

    Professor Jane Kirtley writes, “this is a prior restraint, pure and simple, and not only violates Cohen’s rights, but also the right of the public to learn what he has to say.” Professor Burt Neuborne writes that “a flat ban on a federal prisoner writing a book or article is, in my opinion, indefensible…..

    …..
    Reformatted for easier reading.

    RipMurdock (d2a2a8)

  3. not the sharpest fellow, trying to defraud the new york state tax department, of course khuzaimi was focused on that, as berman let him,

    narciso (7404b5)

  4. Professor Jane Kirtley writes, “this is a prior restraint, pure and simple, and not only violates Cohen’s rights, but also the right of the public to learn what he has to say.”

    This is pure Donald Trump..

    KenL (6340ff)

  5. Did he violate the terms of his home confinement? This is an easy Yes/No question.

    Let’s see if the Rule of Law folks can answer.

    beer ‘n pretzels (883307)

  6. Has there ever been a more incompetently corrupt bunch of buffoons?

    nk (1d9030)

  7. not the sharpest fellow, trying to defraud the new york state tax department, of course khuzaimi was focused on that, as berman let him,

    narciso (7404b5) — 7/23/2020 @ 9:20 am

    I’ve never thought that Cohen was all that sharp.

    Time123 (653992)

  8. Did he violate the terms of his home confinement? This is an easy Yes/No question.

    No.

    nk (1d9030)

  9. WHERE’S MY ROY COHN?

    nk (1d9030)

  10. 7… see Chicago…

    Colonel Haiku (2601c0)

  11. the possum senate don’t even support their own voters interests, ‘what are they good for, absolutely nothing, say it again’

    narciso (7404b5)

  12. Two squirrels in the first 12 comments. Are you angling for a bonus, narciso?

    nk (1d9030)

  13. it’s run for the criminals and slumlords like rezko, coronello, and the politicians that are supported by them, like burke and madigan, oh you mean average working man, no you’re out of luck,

    narciso (7404b5)

  14. and judge jackson gives greg craig, obama’s roy cohen, and ukrainian fixer, a clean slate, of course podesta nor weber are not charged, to be bipartisan,

    narciso (7404b5)

  15. Cohen will have another chapter for his book.

    Chapter 27: How the Trump DOJ imprisoned me to delay publication of this book.

    DRJ (aede82)

  16. Bet you it’s prominently on the dust jacket too, DRJ.

    nk (1d9030)

  17. will david corn, be ghosting it like the annoying niece who failed to fact check,

    narciso (7404b5)

  18. @9: Thank heavens Cohen can resume dining in swanky Manhattan restaurants past curfew time.

    But, he’s writing a hit job on Trump so that’s okay.

    beer ‘n pretzels (883307)

  19. The government claimed Cohen’s resistance to the terms of home confinement was the reason he was sent back to Otisville Federal Correctional Institution:

    “During the meeting with probation officers, [Cohen] took issue with nearly every provision in the agreement relating to the terms and conditions of his home confinement,” the filing says. “Rather, Petitioner was remanded to FCI Otisville because of his defiant behavior during his meeting at the Probation Office on July 9, 2020, which included objecting to nearly every term and condition of the FLM [Federal Location Monitoring] Agreement that the Probation Officers presented to him.”

    The agreement that Cohen was asked to sign included restrictions on his writing and public appearances: “No engagement of any kind with the media, including print, tv, film, books, or any other form of media/news,” the agreement reads.

    The officer who drafted Cohen’s home confinement agreement, Adam Pakula, said he based the agreement on a sample obtained from a colleague with experience supervising high-profile inmates, and that he wasn’t aware Cohen was writing a book. Pakula detailed several of the objections Cohen raised regarding conditions he would have to abide by while serving his sentence from home.

    “While I was aware that Cohen was a high-profile inmate, at the time I drafted the FLM Agreement I was not aware that Cohen was writing a book. I drafted the FLM Agreement without input from the BOP or anyone in the executive branch,” Pakula said in an accompanying declaration.

    The court filing also said that Cohen is “free to work on his book while incarcerated.”

    Cohen’s lawsuit had said that he was being held in solitary confinement. The government’s court filing said he was in a 14-day quarantine standard for all new inmates, which is meant to protect other inmates from potential infection. The filing said two of 63 inmates are considered “active COVID-19 cases.”

    The government’s court filing noted that Cohen had been spotted dining out at Manhattan restaurants, and said while that was not a factor in his return to prison, it did undercut Cohen’s argument that he was concerned about his health.

    DRJ (aede82)

  20. Ah hellerstein, he moved to have more qbu ghraib pictures released no mattee how inflammatory they were.

    Narciso (7404b5)

  21. ****The Book Donald Trump Doesn’t Want You To Read!****

    I WAS A TEENAGE BUTT GERBIL
    by Michael Cohen

    nk (1d9030)

  22. But, he’s writing a hit job on Trump or any President, politician, person so that’s okay.

    Yes, because of the First Amendment.

    DRJ (aede82)

  23. Yes, because of the First Amendment

    LOL, because prisoners are entitled to nights on the town and zoom calls at will with the media.

    Because First Amendment.

    beer ‘n pretzels (c63793)

  24. That was quick, three and a half years later general flynn still cant get out of this coerced charge based on fraudulent representations

    Narciso (7404b5)

  25. beer ‘n pretzels (c63793) — 7/23/2020 @ 10:27 am

    Are you saying it is wrong to enjoy the the fruits of honest labor?

    felipe (023cc9)

  26. Also, the enjoyment of life, liberty, and the persuit of $$.

    felipe (023cc9)

  27. Well, with the same evidence that the judge posessed (none) I can confidently say that Dinesh D’Souza was targeted for investigation, and jailed by serendipity, after he made a movie criticizing Obama and Paula Jones was subjected to a taxpayer-compliance audit for suing Clinton.

    Kevin M (ab1c11)

  28. Are you saying it is wrong to enjoy the the fruits of honest labor?

    What is the key word in that question?

    Kevin M (ab1c11)

  29. Between 1931 and 1936, Chester Himes, a black man, serving 20-25 years for armed robbery in Ohio Penitentiary, was publishing short stories in national magazines, including Esquire.

    Great writer, BTW. Especially the Coffin Ed and Grave Digger Jones stories.

    nk (1d9030)

  30. It’s truly sad when judges succumb to naive cynicism.

    Kevin M (ab1c11)

  31. If they spot Cohen out on the town again, they should arrest him on the spot.

    Kevin M (ab1c11)

  32. Off topic: Hawaiian Airlines keeps sending me ads about special low fares to Hawaii. The ads also carry a notice that a strict 14-day quarantine is imposed on all arrivals into the state.

    I wonder why they bother.

    Kevin M (ab1c11)

  33. Honeymooners.

    nk (1d9030)

  34. The 14-day quarantine is an incentive.

    nk (1d9030)

  35. What is the key word in that question?
    Kevin M (ab1c11) — 7/23/2020 @ 10:41 am

    I know, right? It was meant to be caught.

    felipe (023cc9)

  36. To be clear, Kevin M, the desired result is the self-identification of a respondent when a certain word is chosen, or “seized upon.”

    felipe (023cc9)

  37. Yes, because of the First Amendment

    LOL, because prisoners are entitled to nights on the town and zoom calls at will with the media.

    Because First Amendment.

    beer ‘n pretzels (c63793) — 7/23/2020 @ 10:27 am

    If the BOP decides that home confinement is appropriate can they then take it away for an illegitimate reason?

    Time123 (653992)

  38. If the BOP decides that home confinement is appropriate can they then take it away for an illegitimate reason?

    Was the night in the town a violation of his home confinement? (And, to pre-empt a BS answer, I don’t care whether it was or wasn’t used as a reason to take it away. That’s irrelevant to the question.)

    Do you swallow whole a need for home confinement based on health concerns when you choose to confine yourself at a downtown restaurant?

    beer ‘n pretzels (7b79e1)

  39. The government’s court filing noted that Cohen had been spotted dining out at Manhattan restaurants, and said while that was not a factor in his return to prison, it did undercut Cohen’s argument that he was concerned about his health.
    DRJ (aede82) — 7/23/2020 @ 10:13 am

    Trumpkins! They’ll git up on their hind laigs, all hoity-toity like, and gaslight you right in your face.

    nk (1d9030)

  40. The government said eating at the restaurant was not a factor in him being jailed. How do you all know it should have been a factor? Maybe he was meeting about his book and the prison supervisor gave him permission. Maybe it was the topic of his meeting that triggered the problem, not the location.

    DRJ (aede82)

  41. I know we don’t read every link but I gave you that information in my comment. I even bolded it.

    DRJ (aede82)

  42. If the BOP decides that home confinement is appropriate can they then take it away for an illegitimate reason?

    Was the night in the town a violation of his home confinement? (And, to pre-empt a BS answer, I don’t care whether it was or wasn’t used as a reason to take it away. That’s irrelevant to the question.)

    beer ‘n pretzels (7b79e1) — 7/23/2020 @ 11:30 am

    From what I understand the answer to that is “Maybe, depending on how close the restaurant in question is to the residence. A sandwich from the corner store being easier to justify then a lengthy sit down on the opposite side of town.” From what I understand this was a sit down restaurant near his apartment, which makes it questionable at best. Not trying to BS, that’s the answer I heard a lawyer (ken white) give on a podcast a couple weeks ago.

    Do you swallow whole a need for home confinement based on health concerns when you choose to confine yourself at a downtown restaurant?

    I think you mean “Does going to a restaurant make claims about health concerns hypocritical or a pretext?” I think they definitely weaken those claimed concerns. I think staying home>restaurant>Public space with AC>Prison as far as catching COVID goes. I don’t think everyone that’s in prison should be released because of covid. I think the BOP response to this should be consistent regardless of the convicts wealth or relationship to the president. No favoritism, no targeting.

    I think if they would have let him stay in home confinement except for the book, then they should let him stay in home confinement.

    Time123 (653992)

  43. This is what was reported when he was arrested, and it had nothing to do with eating out:

    Former Trump fixer Michael Cohen is surprisingly back in prison after an apparent disagreement Thursday over the terms of his continued home confinement. The 53-year-old was released from federal custody six weeks ago on a medical furlough due to the coronavirus and had returned to the courthouse Thursday for what was expected to be a perfunctory extension of his house arrest for the remainder of his prison term, which runs until November 2021. Cohen had been serving a three-year sentence at a minimum security prison in upstate New York and was expected to be allowed to remain at home under a set of strict rules. The former personal attorney for Donald Trump, however, balked at some of the requirements of his confinement at home—including electronic monitoring and a provision that he was not to work on a book or speak to the media while serving out his term—and refused to sign the release document, which ultimately led federal marshals to take Cohen back into custody.

    Cohen indicated he has a book ready for publication this September about his time working with Trump, which would obviously run counter to the terms of his supervised release. There were eight conditions laid out by the release document, including a prohibition on engaging with social media in order to “avoid glamorizing or bringing publicity to your status as a sentenced inmate serving a custodial term in the community.” “No engagement of any kind with the media, including print, tv, film, books, or any other form of media/news. Prohibition from all social media platforms. No posting on social media and a requirement that you communicate with friends and family to exercise discretion in not posting on your behalf or posting any information about you,” the document read.

    DRJ (aede82)

  44. I know we don’t read every link but I gave you that information in my comment. I even bolded it.

    I read your comment and what you bolded.

    As I said in my comment, I don’t care if that wasn’t the reason for taking it away. It’s an entirely legit reason.

    Your scenario of having to go to the restaurant to discuss the book is ridiculously laughable.

    beer ‘n pretzels (b27f61)

  45. Maybe so. I won’t bother you again.

    DRJ (aede82)

  46. In early July after Cohen was taken into custody, Lanny Davis said this about Cohen’s home confinement:

    Lanny Davis is a legal adviser to Michael Cohen, and he says that on Thursday, his client was asked by officials at a meeting to sign a document barring him from speaking or engaging with any media as a condition of his continued home confinement. Cohen refused, and he was eventually arrested and taken back to prison. Davis says Cohen’s legal team had never seen an order like the one his client was asked to sign.

    LANNY DAVIS: We’re not aware of any precedent. When he was allowed to be under home confinement, nobody mentioned to him, you can’t talk to the press. Nobody said, you can’t go to a restaurant. He showed up to get his ankle bracelet on. And suddenly, he’s handed this piece of paper. We cannot find a precedent that you lose your First Amendment rights when you’re under home confinement. The government’s only interest is to keep you under restricted surveillance so that you don’t escape, and you stay in your home under home confinement.

    MARTIN: The New York Times reported getting a copy of the document presented to Mr. Cohen. The purpose of the prohibition, according to the document that was reported by The Times, said – was to, quote, “avoid glamorizing or bringing publicity to your status as a sentenced inmate serving a custodial term in the community.” And I wanted to ask if there’s any precedent for that.

    The government could have said home confinement means stay at home but apparently it didn’t, and it acknowledged that in court. What the Trump DOJ wanted was to muzzle Cohen as a high profile defendant.

    DRJ (aede82)

  47. See “Michael Cohen Ordered to Be Released From Custody By Federal Judge Over Violation of His First Amendment Rights” at Redstate.com for more details on the Cohen hearing and and related matters.

    Stu707 (52fdfe)

  48. DRJ, i think the information you’ve provided makes a strong case that the BOP decisions were based on his speech, and not his behavior.

    Time123 (653992)

  49. Stu707,

    I ask that commenters here not recommend posts written by people who have been banned by this site.

    Patterico (115b1f)

  50. When he was allowed to be under home confinement, nobody mentioned to him, you can’t talk to the press. Nobody said, you can’t go to a restaurant.

    Nobody said, you’re a prisoner.

    In less insane times, Lanny Davis would have the reputation of a clown here.

    beer ‘n pretzels (c63793)

  51. It is hard to find unbiased sources on this story.

    DRJ (aede82)

  52. Did he violate the terms of his home confinement? This is an easy Yes/No question.

    Let’s see if the Rule of Law folks can answer.

    It’s not easy, actually. I thought it looked bad but I am told by people who know better than I that it was not necessarily a violation. It does not seem to be the reason for the Government’s action.

    Patterico (115b1f)

  53. Time123,

    I think home confinement should mean stay at home. I wish Cohen’s failure to do that were the reason he was taken into custody, and I hope further hearings establish what the facts are. But for now it appears he was sent to prison because he wanted publicity for his book and I don’t know if that can be done in this manner. It is especially suspicious given the way Roger Stone was treated.

    DRJ (aede82)

  54. @58, I thought the same thing. But apparently ‘home confinement’ doesn’t mean you can never leave your home. I haven’t found a clear explanation of what the rules are but from what I heard on APL this dinner out wasn’t necessarily a violation of the terms. Had the BOP said “We’re sending you back because you went out to eat.” I wouldn’t have thought much of it. But that’s not what they said.

    Time123 (306531)

  55. The idea of prisoners going to Chili’s is annoying. It’s worth asking why that would be.

    The idea of Trump’s former lawyer talking to the American people about what happened, in the run up to an election, despite a conviction? Yeah that’s what we have a first amendment for.

    One problem is that as Trump and his sleazy partners stab eachother in the back, there is no way to know what the truth is. Cohen could accuse Trump of cheating on his SATs and endorsing concentration camps, but why would I believe it?

    It is hard to find unbiased sources on this story.

    DRJ (aede82) — 7/23/2020 @ 12:22 pm

    It’s kinda like the Lincoln Project. Brilliant, power ads, but I know they don’t have my best interests at heart.

    Dustin (4237e0)

  56. (powerful)

    Dustin (4237e0)

  57. “Home confinement” should mean just that, no matter who has been sentenced to it. I suspect for any number of others on “home confinement,” it would absolutely mean just that.

    Dana (25e0dc)

  58. Dana, maybe. But can you go to the doctor? Can you go to the grocery store? Can you go to a restaurant? Can you hit a drive through? I need to look up the rules.

    Time123 (dfbd2e)

  59. the fernando wood project, snorfle,

    narciso (7404b5)

  60. #54
    Sorry, Pat

    Stu707 (52fdfe)

  61. I think Cohen was released on a continuing federal routine overnight non-transfer furlough pending consideration of his home confinement request. Here are the rules for that kind of furlough. They do not require home confinement on the face of the law, but there may be other applicable requirements. My guess is the other requirements are imposed as an agreed condition of release but that wasn’t ever required. Later, Cohen objected to the publicity-related conditions.

    The DOJ/BOP may have planned to continue to handle Cohen’s release as a furlough rather than as a home confinement if the goal was to impose publicity-related limitations. Home confinement did not seem to be the goal if there was no home confinement order, but I can’t be sure whether or not that happened.

    DRJ (aede82)

  62. This would also explain a lot of things, including why Cohen eating at a restaurant was not something the government could or would complain about.

    DRJ (aede82)

  63. Meanwhile, Paul Manafort was released for Covid home confinement:

    Paul Manafort’s release from federal prison to serve his sentence at home amid the coronavirus pandemic probably won’t be a walk in the park.

    Unlike millions of other people who are allowed to get outdoor exercise and walk their dogs even while they’re under virus shelter-in-place orders, convicts serving home confinement typically can’t go out at all except for doctor’s visits, church services and other limited activities – and only with permission from their probation officers.

    Stay-at-home convicts are also required to call in daily from a landline phone at their home and are subject to random drug tests.

    The article also notes that AG Barr and the BOP are not requiring electronic monitoring in most cases because the “Bureau of Prisons has limited resources to monitor all the inmates sent home.”

    DRJ (aede82)

  64. If the BOP decides that home confinement is appropriate can they then take it away for an illegitimate reason?

    But they GAVE a legitimate reason. A real legitimate reason. The judge imposed his own SUPPOSITION instead.

    Kevin M (ab1c11)

  65. I think if they would have let him stay in home confinement except for the book

    Where is the “what you think” part of the statute?

    Kevin M (ab1c11)

  66. his client was asked by officials at a meeting to sign a document barring him from speaking or engaging with any media as a condition of his continued home confinement.

    He is in home confinement SOLELY because of the COvid-19 situation. It is not unreasonable for such a alternative confinement to have the same conditions that would apply if incarcerated. He should be happy he’s not eating bologna sandwiches.

    Are different conditions being applied here than with others, similarly situated?

    Kevin M (ab1c11)

  67. But they GAVE a legitimate reason.

    Or maybe not.

    Kevin M (ab1c11)

  68. Is there a BOP rule that a prisoner, in his cell, cannot write a book and make arrangements to have it published?

    nk (1d9030)

  69. Oh, yeah, and one more thing. It ain’t nobody’s supposition or what anybody thinks. It was a finding of fact by a trier of fact appointed by a President and confirmed by a Senate to put on a black robe and make findings of fact.

    nk (1d9030)

  70. DRJ @58:

    But for now it appears he was sent to prison because he wanted publicity for his book

    He was coming in to be fitted with an ankle bracelet and make final arrangements because it looks like he was released rather hurriedly.

    Once there, they wanted him to sign an agreement that he (or even members of his family!) would not give interviews to the press, or make public statements, I guess, in any way, for the duration of his sentence. He refused arguing that in prison he could give interviews (at least with permission) and there shouldn’t or couldn’t be more restrictions on him than there are in prison. They went away to talk to their superiors.

    Then they came back and said they were taking him back to jail. He then said he would sign whatever papers they put in front of him. They said it is too late – it was out of their hands. His lawyers later said he had not refused – he asked questions.

    You shouldn’t think that he would necessarily tell the truth – and this is not the issue. If I remember correctly, at an earlier point, Michael Cohen said (unless this was just is lawyer, Lanny Davis) that one day he was in Donald Trump’s office, and Donald Trump got a call from Roger Stone and he put it on speakerphone and Stone said that he had just gotten off the phone with Julian Assaunge and there was going to be another release of hacked mails soon from Wikileaks.

    We know that’s not true, not just improbable, because actual copies of some form of email or text exchanges later between Julian Assaunge and Roger Stone make clear he was not in contact at that time because Assaunge asks him not to claim he is contact and that he’s going to have to deny it and Roger Stone says, not that it is true, but that he has defended Assaunge so Assaunge should not contradict him.

    Sammy Finkelman (db2a13)


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