Judge Orders Michael Cohen Released to Home Confinement, Calling His Jailing ‘Retaliatory’

Michael Cohen arrives back at home after being released from prison during the outbreak of the COVID-19, in New York City, on May 21, 2020. Brendan McDermid/Reuters

A federal judge has ordered President Donald Trump’s former lawyer Michael Cohen to be released from jail and into home confinement, claiming that his return into custody earlier this month was in retaliation for writing a book about Trump.

U.S. District Judge Alvin Hellerstein on Thursday said Cohen—who is serving a three-year sentence for campaign finance violations, tax evasion, and lying to Congress—must be released from a federal prison in upstate New York by 2 p.m. on Friday. He has been held in solitary confinement at a facility in Otisville, around 70 miles northwest of New York City, since July 9. He will be released into the custody of his son and transition into a setting of home confinement in Manhattan.

Cohen sued Attorney General William Barr on July 20, claiming in the lawsuit petition (pdf) that “he is being held in retaliation for his protected speech, including drafting a book manuscript that is critical of the President—and recently making public his intention to publish that book soon, shortly before the upcoming election.”

He was released to home confinement in May over concerns of the spread of the COVID-19 pandemic in prisons but was imprisoned again on July 9 because he “refused the conditions of his home confinement,” the Bureau of Prisons (BOP) told The Epoch Times in a statement at the time.

Michael Cohen, the former personal lawyer for President Donald Trump arrives at his Manhattan apartment after being released from federal prison to serve the remainder of his sentence under home confinement in New York City, N.Y., on May 21, 2020. Brendan McDermid/Reuters

Hellerstein, in ordering Cohen released into home confinement, sided with the claim that his rearrest was retaliatory in nature.

“I make the finding 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,” Hellerstein said at Thursday’s hearing.

While in furlough, Cohen made public statements on Twitter on July 2 that he was finalizing a book about his decade-long experience working as Trump’s lawyer. His attorneys said that when Cohen visited the U.S. Probation Office in downtown Manhattan on July 9 in order to transition from furlough to home confinement, federal officials asked him to sign an agreement that prevented him from engaging with the media or prohibited him from posting on social media.

“They stated that they would then send … [the] inquiry regarding the language of the Prior Restraint Provision ‘up the chain of command’ for a decision,” the lawsuit stated.

“Instead, three United States Marshals arrived with handcuffs and shackles and placed them on Mr. Cohen in order to remand him back to prison.”

At Thursday’s hearing, the judge said he had never seen such a gag order in his two decades of serving on the bench.

“I’ve never seen such a clause, in 21 years in being a judge and sentencing people,” Hellerstein said at Thursday’s hearing, CNBC reports. “How can I take any other inference but that it was retaliatory?” Hellerstein added.

The judge then asked the two sides to negotiate the media provision over the next week so that “it is consistent with the First Amendment but yet serve the purposes of confinement.”

Cohen’s lawyer said he would agree to the imposition of the media gag order pending the negotiation.

Janita Kan and Reuters contributed to this report.