Column: A judge says Cohen was jailed to punish him for writing about Trump. That’s what dictatorships do

Did the Justice Department really throw President Trump’s former lawyer Michael Cohen back into prison as retaliation for his plan to write an unflattering tell-all memoir about the president?

That’s the kind of thing that happens in authoritarian countries and dictatorships, where critics of the government often find themselves behind bars for speaking out. It happens in China. It happens in Burundi and Belarus. But in the United States, where free speech and the right to criticize politicians are taken for granted, it is unthinkable.

Or it was before the current crop of rogues took over the White House. Now, apparently, it is entirely thinkable. In fact, it’s what happened, according to U.S. District Judge Alvin K. Hellerstein, who on Thursday ordered that Cohen be released.

“I make the finding that the purpose of transferring Mr. Cohen from furlough and home confinement to jail is retaliatory,” Hellerstein said. “And it’s retaliatory because of his desire to exercise his 1st Amendment rights to publish a book.”

But let me back up for a moment to review how we got here.

No one likes bad press. And President Trump is particularly thin-skinned. His war with the media and with critics he deems disloyal is legendary; he’s been waging it for decades. He’s on a constant tear about how his critics are unfair and dishonest and treasonous. Back in 2016, he even suggested “opening up” the country’s libel laws to make it easier to win lawsuits against people who wrote about him.

In recent weeks, with the election rapidly approaching and his poll numbers collapsing, Trump and his factotums have ramped up their harassment and bullying of critics — especially insiders writing books about him.

In June, for instance, Trump’s Justice Department tried to delay the release of a memoir by the president’s former national security advisor, John Bolton, which included new details about the president’s efforts to squeeze political favors out of the president of Ukraine. Trump called the author “low-life dummy John Bolton, a war-mongering fool.” But the Justice Department’s request for a delay was rightly rejected by a federal judge.

Then, Trump’s younger brother Robert sued to stop publication of the recent book by Mary Trump, whom the president called “a seldom-seen niece who knows little about me.” The lawsuit sought to squelch the book in advance of publication — a so-called prior restraint of the sort that courts look on with great skepticism. An appellate court judge ruled that the book (which calls Trump “the world’s most dangerous man” in its title) could move forward, and it has been on the bestseller lists ever since it came out.

Which brings us to Michael Cohen, a former Trump confidante who pleaded guilty in 2018 to campaign finance violations and tax evasion. Cohen has said publicly that Trump ordered him to make hush-money payments during the 2016 presidential campaign to two women.

While serving his sentence, Cohen was released to home confinement in May as COVID-19 surged through prisons around the country.

But the Justice Department set conditions for his continued home release that Cohen said violated his free-speech rights. Among other things, Cohen would have been barred from publishing or publicizing the book he had publicly said he was writing.

When Cohen expressed concerns about the conditions, he was cuffed and returned to prison, where he has spent most of his time in solitary confinement.

The Justice Department denied that retaliation played a role in his reimprisonment, but Judge Hellerstein agreed with Cohen that it was punishment for writing the book.

Hellerstein also said that the Justice Department was out of line in asking Cohen to sign a document that would have restricted his rights of free speech so broadly. “In 21 years of being a judge and sentencing people and looking at the terms and conditions of supervised release, I have never seen such a clause,” he said.

Cohen has said his book will include an unflattering portrayal of the president. Among other things, Cohen has said he will write about virulently racist and anti-Semitic statements made by Trump.

Two things about this episode seem clear.

First, whether you like Cohen or hate him, and whether you support Trump or oppose him, the fact is that convicted criminals don’t give up their 1st Amendment rights when they enter prison. They have the right to write and publish and the government should not try to stop them or punish them for exercising it.

Second, if Cohen was indeed sent back to prison as “retaliation” for writing a book critical of the president, as Hellerstein believes, that’s outrageous.

“The ability to speak critically about people in power is central to our democracy,” said Vera Eidelman, a staff attorney at the American Civil Liberties Union, who served as part of Cohen’s legal team. “It is terrifying that the president or any other public official would throw people in jail for doing so. The 1st Amendment will not abide it.”

The Trump years have been characterized by a shocking rejection of the fundamental rules and norms that govern this country. Thank goodness for judges who will stand up to the president and his enablers, and we can only hope that such confrontations will no longer be necessary after the November election. If Trump is defeated, perhaps we can reinstate the rule of law on the pedestal where it belongs.

@Nick_Goldberg