Michael Cohen’s complaint against Bureau of Prisons retaliation for free speech is not the agency’s first
Under the provisions of the Federal Tort Claims Act (FTCA), the government can be held liable for the negligent or wrongful acts or omissions of its employees while acting in the course of their employment. This same law applies to prisoners who are taken care of by the Federal Bureau of Prisons (BOP).
The claim is used by federal inmates more often than many realize, but for reasons that are not so obvious. Inmates file FTCA claims against the BOP for items such as personal items lost after transfers between institutions or during extended stays in special housing units (SHUs). These claims are reviewed by the BOP and, if found to be substantiated, may be settled by the BOP with payments of up to $ 50,000, or through the courts for higher amounts.
Last month, still heavily incarcerated by the BOP but serving the remainder of his sentence in house arrest, Donald Trump’s former personal lawyer Michael Cohen filed an FTCA administrative complaint against the BOP for attempting to suppress his freedom. expression. Cohen claims the BOP falsely sent him back to prison after being housebound in an attempt to prevent the publication of his then-pending book, Treacherous: A Memoir: The True Story of President Donald J. Trump’s Former Personal Attorney, and keep him out of the media during the stormy 2020 presidential campaign.
Cohen was transferred to home containment in May 2020 when the BOP launched a program under the CARES Act that released certain minimum security federal inmates who may be susceptible to an adverse reaction to COVID-19 based on medical conditions underlying. Cohen was one of them and the BOP transferred him to house arrest to complete his prison term (due for release in November 2021). However, Cohen, who has been a mainstay of the mainstream media (CNN and MSNBC), Jimmy Kimmell Live! and has a popular podcast (Mea Culpa), became a vocal critic of Trump in the 2020 election.
Cohen’s complaint against the BOP for trying to silence its free speech is not the first time the agency has been accused of suppressing an inmate’s freedom of speech in a presidential election. Brett Coleman Kimberlin, a convicted marijuana trafficker was sentenced to prison for trafficking in marijuana and also for carrying out a series of bombings that took place at a number of Speedway convenience stores around Indianapolis , IN in 1978. Just days before the 1988 presidential election, Kimberlin, serving a 50-year prison sentence at FCI El Reno, OK, was preparing to lead a press conference call claiming he had already sold and smoked marijuana with running mate Dan Quayle while Quayle was enrolled in Indiana University Law School (1971 -1973). Quayle denied the drug use and also claimed he didn’t even know Kimberlin. However, that didn’t stop then BOP director J. Michael Quinlan from canceling the conference call and throwing Kimberlin into the restrictive special housing unit (SHU) of El Reno. Kimberlin was released from the SHU a few days later but as a âprecautionâ was returned to the SHU on the eve of the 1988 presidential election.
Kimberlin filed an FTCA and the BOP denied its request, stating at the time that Kimberlin had participated in “phone abuse“and that he was disciplined”according to the applicable policy of the Bureau of Prisons. “
The Justice Department Inspector General later concluded that federal prison officials had unfairly disciplined Kimberlin and that â³Manager Quinlan’s personal involvement in overturning a local manager’s decision in this circumstance was quite unusual.The investigation also concluded that Bush / Quayle election teams had no involvement in the case. The United States District Court for the District of Columbia case Kimberlin brought against Opinion Director Quinlan stated that:
“It was clearly established in November 1988 that in the absence of special circumstances, inmates of federal prisons have the right, according to the First Amendment, not to be subjected to government interference in their contacts with the press if this interference is based on the content of their speech or draft speech. As early as 1975, the Third Circuit Court of Appeal explicitly ruled that the First Amendment prohibits prison authorities from granting or denying a prisoner interview to the press based on the content of that interview.
Kimberlin ultimately prevailed against the BOP. Quinlan, who previously had a meritorious career in the BOP including monitoring rioting Cuban prisoners, resigned his post as director of the BOP in 1992 as the investigation into his actions against Kimberlin was in full swing and two months later. the installation of a former deputy director of the BOP, Steven McPeek. a sexual harassment complaint against him. Quinlan said he left the BOP for health concerns, but was healthy enough to resurface as an executive at Corrections Corporation of America ((CCA), now known as CoreCivic) . Quinlan has consistently denied McPeek’s claims despite the settlement.
In July 2020, still on leave from the BOP, Cohen was contacted by a Bronx halfway house manager about his prominent house arrest. A meeting was held at his home to make sure he had a landline and that the premises were acceptableâ¦ they were. Cohen, like others in home confinement, had to be fitted with an ankle bracelet to monitor his movements. Just a day later, an American probation officer contacted Cohen and told him he had to report to 500 Pearl Street, the federal courthouse in Lower Manhattan, rather than the halfway house. Wary of the change of venue, Cohen consulted with his longtime friend and lawyer Jeffrey K. Levine, who agreed it was unusual and that the two should go hand in hand. Levine was instrumental in Cohen’s initial transfer to house arrest under the CARES Act.
While on probation in the United States, Cohen was asked to sign a list of restrictions he would adhere to during house arrest, including a few stating that he would not publish a book, have no contact with the media and that he would assure his friends and family either. contact the media. Levine told me in an interview, “When I read the now infamous restrictive paragraph about not having contact with the media or writing a book, Michael and I became aware of what was going on and said to me, âIt seems to have happened. was written just for me. “. . say hello to Bill Barr [then-Attorney General].‘”
Cohen informed the probation officer that his book had already been sent to the publisher and that his testimony in Congress led to numerous requests for him to be interviewed by mainstream media. Cohen did not refuse to sign the document but, as he discussed his options with Levine, three US Marshals appeared and took him into custody. Cohen was taken to MCC New York where he stayed for days before being blatantly brought back to Otisville, NY, where he was serving his 3-year prison sentence and where Levine had released him 7 weeks earlier. to be placed in house arrest.
Cohen filed a motion for his return to his home and his case was heard by U.S. District Judge Alvin K. Hellerstein of the Southern District of New York (SDNY) who said at a hearing on the matter that during his 21 years on the bench, he had “never seen” a clause requiring a candidate for home confinement to agree not to speak to the media. Cohen left Otisville and has been housebound ever since. His book came out last fall and he is constantly on television networks for his opinions and insights into Trump’s past. He also testified before Congress and 9 other government agencies investigating Trump, his various entities and associates. The Manhattan District Attorney’s Office, which also visited Cohen while in Otisville prison camp, recently indicted former Trump Organization chief financial officer Allen Weisselberg.
Levine made the following statement to me regarding the FTCA’s claim:
“Justice Hellerstein’s ruling on our government’s illegality and retaliation (which has not been appealed) will serve as a springboard in our pending FTCA claim and future action by Bivens to further explore how, why and by whom Mr. Cohen was targeted – names will be named and the rule of law must continue to prevail by holding responsible U.S. departments, officers and executives to account. “
The BOP indicates that FTCA requests may take up to 6 months to process from the date of filing or if no response is received by then the inmate may assume that the request was rejected and can take legal action in the appropriate U.S. District Court … in this case, the SDNY.
Current BOP director Michael Carvajal, appointed by Trump, and former attorney general William Barr are expected to be named in Cohen’s eventual trial. Carvajal drew widespread criticism for his testimony in the Senate and House earlier this year and for his handling of the agency during the COVID-19 crisis where tens of thousands of inmates and staff were infected and 240 inmates died.