Court orders Michael Cohen's release

A federal judge has ordered the release of Michael Cohen, reversing a decision earlier this month to reimprison the former attorney to President Donald Trump, after a dispute over a gag order that threatened to scuttle a book Cohen was set to release.

Cohen will serve the remainder of his prison sentence at home, U.S. District Court Judge Alvin Hellerstein ruled.

Hellerstein said Cohen's return to prison amounted to retaliation for his refusal to agree to the broad restrictions on his public statements, including publishing books or articles, as well as communicating with the press. Cohen has argued that the gag order amounted to a retaliatory rule intended to block him from writing a book critical of the president.

"I've never seen such a clause, in 21 years of being a judge, sentencing people and looking at terms and conditions of supervised release, I've never seen such a clause," Hellerstein said during a 35-minute telephone hearing Thursday on a habeas corpus petition Cohen filed seeking his release. "How can I take any other inference but that it was retaliatory?"

Hellerstein, an appointee of President Bill Clinton, ordered Cohen released by 2 p.m. Friday to be confined at his Manhattan home. The judge said the gag order originally proposed by the government will be in place for a week, while lawyers for Cohen and the federal Bureau of Prisons negotiate new terms.

A lawyer for the U.S. Attorney's Office in Manhattan insisted that the conditions presented to Cohen earlier this month were not aimed at quashing publication of his book. Assistant U.S. Attorney Allison Rovner said the probation officer who presented Cohen with the list of limits received the language from a colleague in May and was not even aware that Cohen was planning a book.

"With all respect, your honor, it is actually impossible to draw the inference that you're suggesting," Rovner said.

But the judge made clear from the outset of Thursday's court session that he was highly dubious of the government's position. He said logic dictated that the provision about media contact was aimed at silencing Cohen and that ordering him rejailed because he didn't want to sign also amounted to retaliation.

Officials have denied any political motive in the handling of Cohen's release or reimprisonment. However, in a court filing Wednesday, one prison system official said Bureau of Prisons Deputy Director Gene Beasley was consulted and concurred before Cohen was ordered back into custody two weeks ago. Government lawyers did not submit a declaration from Beasley indicating whether he discussed the matter with the BOP director or officials at Justice Department headquarters.

Hellerstein also said the authorities handling Cohen appeared to have overreacted to efforts by one of his attorneys to negotiate the terms of his release.

Probation officer Adam Pakula submitted a declaration that called Cohen "combative" and "argumentative" during the back-and-forth about the conditions, but Hellerstein said it seemed odd to penalize Cohen simply for objecting.

"Why could not something like that be a subject of negotiation with an attorney? What's an attorney for if he's not going to negotiate an agreement for his client?" Hellerstein asked. "That's a common thing. If you want to call it discussion, negotiation, you can call it that. I can't see there's a fair inference made because an attorney is negotiating, there's an exhibit of intransigence on the part of the defendant."

Hellerstein also complained that after the discussion about the conditions, Cohen was told to wait and then simply taken into custody without any further exchange. Cohen has maintained that while he objected to several aspects of the proposed agreement, he would have signed it if he had known the alternative was to be sent back to prison.

"Mr. Cohen was never given a chance to say, 'If this is it, I will sign,'" the judge said.

Rovner said the Bureau of Prisons wasn't obliged to do anything more.

"I think he was not then given a chance to sign, but he had already refused," Rovner said. "I don’t think that BOP is necessarily required to give him a chance to negotiate."

At one point during Thursday's session, Hellerstein grew prickly as second prosecutor — Thomas McKay — attempted to interject with what he called a "factual matter" related to the dispute.

"Is Ms. Rovner not capable of answering my question?" the judge snapped. "You keep quiet. If Ms. Rovner wants to consult you, she may. ... One person speaks on a side."

While clearly siding with Cohen, the judge did signal that he thought some limits on the former Trump lawyer's media activities were reasonable, noting that he remained a prisoner even if serving his sentence at home.

However, it was unclear whether the judge fully appreciated how broadly someone can engage with the press and the public from home via the use of modern technology.

"Could he turn his home into a television studio?" the judge asked skeptically. "Just as you wouldn't have a press conference from a jail cell, you shouldn't be allowed to have a press conference. You can communicate. You can discuss. You can post on social media. All sorts of thing. ...You can't make a person confined to jail at home into a total free person. There's got to be a limit."

During the hearing, Cohen attorney Danya Perry initially resisted any limits on Cohen's speech, arguing that they did not serve "any legitimate penological purpose." However, she later said she was willing to negotiate with prison officials on terms to cover Cohen's conduct while confined at home.

"He wants to be able to publish and edit his book," said Perry. "Mr. Cohen will be happy to work with them. ... I don't know what the Bureau of Prisons is looking to do."

The language Cohen was initially asked to agree to said the limits on his speech and contact with the media were intended to "avoid glamorizing or bringing publicity to [his] status as a sentenced inmate serving a custodial term in the community.”

In 2018, Cohen was sentenced to three years in prison after pleading guilty to a series of charges, including tax evasion, campaign finance violations related to payments during the 2016 campaign to women claiming sexual relationships with Trump, and lying to a Senate committee about the state of discussions during the same campaign about a Trump Tower Moscow project.

Some lawyers said Trump seemed to be implicated in the campaign finance charges and the charge of lying to Congress, but no charge was ever brought against him.

Justice Department policy bars charging a sitting president. Special counsel Robert Mueller's team declined to opine on whether Trump had or had not broken the law, but Attorney General William Barr announced that the evidence did not support any such charge.

Trump has accused Cohen of fabricating stories in order to try to curry favor with prosecutors.

Cohen was sent home in May after serving about half of his sentence.