Michael Cohen loses Bivens claim against Trump and other constitutional retaliators

In 1971, the Supreme Court held that civil rights violations against federal officials may be remedied through a Bivens action. Bivens was the name of the case that said this. It implies a constitutional remedy similar to cases under Section 1983, which are brought against state defendants. But ever since that time, we have had a Bivens problem. This case highlights that.

The case is Cohen v. Trump, a summary order issued on January 2. Michael Cohen used to to be Donald Trump's attorney and fixer. As you probably know, they had a falling out after Cohen used his money to pay off a porn star who claimed she and Trump had an affair. Trump reimbursed Cohen, but only Cohen went to jail over this campaign finance violation. While in jail, Cohen worked on a memoir that painted Trump in a negative light. Cohen claims that, after he was given early release from federal prison in the wake of the COVID pandemic, he was remanded back to federal prison where he spent 16 days in solitary confinement with bad ventilation and no air conditioning. A federal judge eventually granted Cohen's writ of habeas corpus, ruling that Cohen was remanded back to prison in retaliation for writing a book that criticized Trump. Had a governor done this, Cohen would have a good Section 1983 claim. But Trump and the other defendants are federal officials, so Cohen has to invoke Bivens.

Cohen's constitutional lawsuit against Trump and the other federal officials who caused his remand to prison fails because the Supreme Court has, over the years, narrowed Bivens to the point that nearly all Bivens claims fail. Here is the unforgiving, two-part legal standard:

The first step requires a court to determine “whether the request involves a claim that arises in a ‘new context’ or involves a ‘new category of defendants.’” We interpret “new context” broadly, and a context is “‘new’ if it is ‘different in a meaningful way from previous Bivens cases decided by’” the Supreme Court. If a claim arises in a new context, the second step requires a court to determine whether “there are ‘special factors’ indicating that the Judiciary is at least arguably less equipped than Congress to ‘weigh the costs and benefits of allowing a damages action to proceed.’”

My guess is the Supreme Court will someday dispense with Bivens claim altogether. For now, Bivens is still on the books, but it is barely breathing. Cohen loses "because there is reason to hesitate before extending Bivens to this new context. Cohen sues a former President, a former Attorney General of the United States, FCI Otisville’s warden, and officers and agents of the BOP and the PTS. Cohen’s Fourth Amendment claim involves 'new categor[ies] of defendants' that were not contemplated in Bivens." Cohen also loses because he did get some relief from this governmental misconduct in the form of a favorable habeas ruling from Judge Hellerstein that sprung Cohen out of prison on First Amendment grounds. That ruling did not award Cohen any damages (habeas rulings do not provide for damages) but it did get Cohen some relief. Under Bivens, that's enough.