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U.S. judge finds Cohen target of retaliation, releases from prison

by Reuters
Thursday, 23 July 2020 15:58 GMT

(Updates with comment from judge)

By Karen Freifeld

July 23 (Reuters) - U.S. President Donald Trump's former lawyer Michael Cohen was ordered released from prison and will return to home confinement on Friday after a federal judge found he was a target of retaliation for planning to publish a book about the president.

Cohen was sent home from prison in May because of the coronavirus pandemic.

He was shackled again on July 9 after he questioned an agreement that barred him from publishing his book, engaging with news organizations and posting on social media. Judge Alvin Hellerstein said he had never in his 21 years on the bench seen a provision barring a prisoner from speaking to the media. "How can I take any other inference but that it was retaliatory?"

Cohen has been in solitary confinement in a federal prison in Otisville, New York, about 70 miles (110 km) northwest of New York City.

Hellerstein asked the two sides to negotiate the media provision so that "it is consistent with the First Amendment but yet serve the purposes of confinement."

For the time being, Cohen's lawyer said he would agree to the imposition of the media gag order pending the discussion so he does not have to wait.

The judge said he found that reasonable.

"He should be released by 2 p.m. to his son," the judge said.

Cohen's lawyers had said in court papers the U.S. Bureau of Prisons violated his First Amendment rights to free speech.

"Michael Cohen is currently imprisoned in solitary confinement because he is drafting a book manuscript that is critical of the President of the United States -- and because he recently made public that he intends to publish this book shortly before the upcoming election," Cohen's lawyers, who include attorneys from the American Civil Liberties Union, wrote in seeking an order for his immediate release.

Lawyers for the government told the judge that Cohen was "antagonistic" during the July 9 meeting with probation officers. Hellerstein said Cohen and his lawyer were merely negotiating an agreement.

Cohen on July 9 had taken issue with nearly every provision of an agreement that would have let him finish his sentence at home, prosecutors said. Among the provisions were the media ban, electronic monitoring and approval for employment.

Jon Gustin, a Federal Bureau of Prisons official, said in a court filing that he made the decision to send Cohen back to prison.

"In my view, Cohen's behavior and, in particular, his refusal to sign the conditions of home confinement was unacceptable and undermined his suitability for placement on home confinement," Gustin wrote.

Cohen, who once said he would "take a bullet" for Trump, was sentenced in 2018 for directing hush payments to pornographic film star Stormy Daniels and former Playboy model Karen McDougal, who claimed they had affairs with Trump. Trump has denied having the encounters.

Cohen served a year of his three-year sentence before being released in May.

In a friend-of-the-court filing, 10 law professors said the government cannot jail a critic for exercising his right to free speech under the U.S. Constitution.

The professors noted the Trump administration's "disparate treatment of its allies and prior attempts to silence or retaliate against critics of the President." (Reporting by Karen Freifeld Editing by Noeleen Walder, Tom Brown and Jonathan Oatis)

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