Michael D. Cohen v. Donald J. Trump, former President of the United States, et al.

Petitioner, Michael Cohen, was eligible for release from federal prison to home confinement for health reasons. But Respondents conditioned his release on his agreeing to waive his First Amendment right to criticize Respondent Trump, who was then the President of the United States. When Cohen questioned this condition, Respondents revoked his release, returned him to prison, and placed him in solitary confinement. Cohen sought a writ of habeas corpus, and the District Court granted it, finding that his confinement was unconstitutional and retaliatory. But when Cohen brought the present action, seeking damages under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), the District Court granted Respondents’ motion to dismiss. The court did so even though it recognized that Respondents had violated his civil liberties and that injunctive relief and habeas relief did not adequately remedy the harm he had suffered and would not deter future violations of constitutional rights. The Second Circuit affirmed and subsequently denied Cohen’s petition for rehearing en banc. The questions presented are:

1. Whether a cause of action exists under Bivens when federal officials imprison a critic in retaliation for his refusal to waive his right to free speech and there is no remedy to deter them from doing so?

2. Whether the retaliatory imprisonment of a President’s critic presents a “most unusual circumstance” under the Court’s ruling in Egbert v. Boule, 596 U.S. 482 (2022), that necessitates recognition of a new Bivens claim.