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The post Ex-Trump lawyer’s jailing ‘retaliation’ for book appeared first on Virus Reports.
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Image copyright
Getty Images
Michael Cohen was released initially to home confinement in May
President Trump’s ex-lawyer will return to home confinement after a judge ruled he was sent back to jail in retaliation for writing a tell-all book.
Michael Cohen had been released in May over Covid-19 concerns from a three-year sentence for charges including Trump campaign finance violations.
Authorities this month had said Cohen resisted the terms of his confinement.
Cohen argued his re-arrest was retaliation for his plans to publish a critical book about Donald Trump.
He said that probation officers had asked him to sign a release agreement that would prohibit him from speaking to, or through, any media. When he questioned this order, he was taken back into custody.
US Judge Alvin Hellerstein issued the ruling during a tele-hearing on Thursday.
He said that Cohen’s return to jail was “retaliatory because of his desire to exercise his First Amendment rights to publish a book and to discuss anything about the book or anything else he wants on social media and with others”.
The Manhattan judge added that, in 21 years on the bench, he had never seen such a provision for a prisoner. “How can I take any other inference but that it was retaliatory?”
Cohen was re-arrested on 9 July – days after he tweeted that he was “close to completion” of his tell-all book relating to the president. The book reportedly details alleged racist comments made by Mr Trump.
This week, Cohen had sued US Attorney General William Barr and the prison bureau director over the so-called “gag order”.
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The suit, brought by Cohen’s attorneys and the American Civil Liberties Union (ACLU), claimed that Cohen’s re-jailing over the order violated his constitutional right to free speech.
According to court filings, Cohen’s book would provide “graphic and unflattering details about the President’s behaviour behind closed doors”, including descriptions of his “pointedly anti-Semitic remarks and virulently racist remarks” against former President Barack Obama and Nelson Mandela.
The White House has not yet commented on these allegations.
Prosecutors on Wednesday argued that Cohen had been combative during the discussion and took issue with nearly all aspects of the home confinement agreement, US media report.
The judge has ordered prosecutors and Cohen to renegotiate his confinement terms within a week.
Image copyright
Reuters
The two men pictured in 2016
Cohen has temporarily agreed to the current confinement order so that he can return home immediately, his lawyer said, according to Reuters.
The 53-year-old will be released home this afternoon, local time, from the Otisville federal prison following a Covid-19 test.
“Today’s important ruling recognises that individuals retain their right to speak even when they are incarcerated,” said ACLU attorney Vera Eidelman.
Cohen has served a year of his three-year sentence.
The former fixer admitted to lying to Congress about a Trump Tower project in Moscow, and to campaign finance violations for his role in making hush money payments to women alleging affairs with Mr Trump. He also admitted to other tax and bank fraud charges unrelated to the president.
The Department of Justice earlier declined to comment on the matter.
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]]>The post Defense lawyers rail about unfair prosecutions. Flynn’s case shows why. appeared first on Virus Reports.
]]>The Justice Department is moving to drop its own criminal charges against Michael Flynn, President Donald Trump’s former national security adviser, after “a considered review of all the facts and circumstances of this case, including newly discovered and disclosed information.”
It’s long been the view of the criminal defense bar that law enforcement can be aggressive.
Sometimes federal agents are criticized for “creating” a crime instead of investigating one. Sting operations are examples of crimes that are a consequence of law enforcement actions. Agents create a fictional crime to trick a suspect into attempting to join that crime, thereby creating the crime.
Similarly, Flynn’s crime of lying to government agents was the consequence of the government agents’ investigation of Flynn. If there was no crime before Flynn’s interview, then there’s little reason to interview Flynn as part of a criminal investigation, unless the agents were looking to create a crime.
Criminal defense attorneys have long complained that, while these are sanctioned law enforcement techniques, they don’t feel very fair.
Probably no one in the criminal defense bar ever expected the Justice Department to take their side on this point. But that’s what the DOJ did in the Flynn case.
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In a blockbuster motion to dismiss the charges against Flynn, Timothy Shea, the interim U.S. Attorney for the District of Columbia, the government describes “aggressive” agents who appear less focused on investigating already-committed crimes than on getting someone “to lie, so we can prosecute him or get him fired.”
On the one hand, DOJ supervisors should be encouraged to review the investigative techniques and charging decisions of agents and line prosecutors. On the other hand, for those thousands of prisoners hoping the boss of the prosecutor who convicted them will take a second look at their case — they should forget it. Statistically, almost no other defendants get the “Michael Flynn treatment” by a U.S. Attorney or anyone at the Justice Department, especially after the defendant has already pleaded guilty and is awaiting sentencing.
Another disturbing reality emerges from the U.S. Attorney’s motion. On Jan. 24, 2017, government agents went to Flynn’s office to interview him and that interview resulted in the charges against him. Flynn was formally charged some 10 months later, on Nov. 30, 2017 and he pleaded guilty days after, on Dec. 1, 2017.
Years later, in 2020, just-revealed internal investigative documents provided the basis for the DOJ’s turnaround and its motion to dismiss.
If Flynn had been sentenced already, or if his new lawyers hadn’t fought relentlessly for information about internal decision-making, or if the higher-ups at the DOJ hadn’t intervened, or if this wasn’t the former national security adviser, would any of this exculpatory evidence have ever come to light?
The answer is no. And that’s the way it is for the overwhelming majority of defendants you’ve never heard of.
Most prisoners never get a glimpse at the inner-workings of the agency that prosecuted them and sent them to prison. Defendants are not entitled to this kind of discovery in run-of-the-mill federal criminal cases. Defendants are not entitled to disclosure of the agents’ personal text messages, revelations about their personal and romantic lives and the handwritten notes of counterintelligence chiefs. Not even close.
There is no general constitutional right to discovery in a criminal case.
Reports, memoranda and other internal government documents created by a government agent in connection with the investigation or prosecution of the case are immune from discovery. Defendants are not entitled to conduct wholesale reviews of the government’s investigations. To comply with due process, the government need only disclose all material or potentially exculpatory evidence before the trial ends.
In other words, government agents are entrusted with determining what in their files should be turned over to the defendant. But the information leading to the DOJ to move to dismiss Flynn’s case didn’t even surface until years after he pleaded guilty, and largely because his attorneys fought for it even after he was convicted.
The Flynn dismissal motion is the government exercising its authority to correct prosecutorial failing. If that authority is only exercised for the politically connected defendants then it is just an illusory tool of justice.
Danny Cevallos is an MSNBC legal analyst who practices in the areas of personal injury, wrongful conviction and criminal defense in Pennsylvania, New York and the U.S. Virgin Islands.
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