The Daily 202: Michael Cohen asked to sign stay-out-of-jail agreement that may violate his First Amendment rights, lawyers say

Their objections center on a Federal Bureau of Prisons agreement Cohen was asked to sign last week that he and his lawyers say would limit the ex-Trump ally’s ability to work on books, including a forthcoming tell-all about the president.

Cohen’s return to jail last week is likely to open yet another legal front for a man who once described himself as Trump’s loyal “fixer” but later offered testimony implicating the president in possible crimes.

Since May, Cohen had been on a novel coronavirus pandemic-related furlough from jail, living at home in New York City. Last week, he went to New York’s federal courthouse to attend what he thought would be a routine meeting with probation officers to discuss the conditions of his home confinement.

He was stunned to be asked to sign an agreement he thought limited his First Amendment rights, according to descriptions provided last week by members of his legal team. Shortly after expressing concern, federal marshals arrived, handcuffed a panicked Cohen and returned him to prison, the lawyers said.

“This is the United States of America. We don’t send people to solitary confinement in prison because they want to write a book,” said Alan Dershowitz, a retired constitutional law professor who served on Trump’s defense team during the impeachment trial.

In a Newsmax television interview Tuesday, Dershowitz unloaded on the decision to return Cohen to prison. 

“Whether you like him or hate him, the idea that he is handcuffed and taken to solitary because he won’t sign a form that says ‘I’m not going to write my book,’ the First Amendment has to have some impact here … What I see is liberty, our liberty, our constitutional rights, being endangered by the weaponization of our criminal justice system,” Dershowitz said.

Cohen revealed in a July 2 Twitter post he was close to completing a book about Trump. One of Cohen’s legal advisers, Lanny Davis, said he had small portions of the manuscript read to him and pronounced those sections “stunning” for what they reveal about Trump’s willingness to breach conventional legal and ethical standards.

Some critics this week have suggested Cohen’s re-imprisonment reflects a broader pattern by the Justice Department, favoring the president’s allies while punishing or silencing his would-be critics.

After all, Trump granted clemency and commuted the 40-month prison sentence last Friday of his former political adviser, Roger Stone, who was convicted on seven counts of lying about attempts to get dirt on Hillary Clinton and then threatening a witness who could contradict him. Trump’s attorney general, William P. Barr, had previously recommended a more lenient sentence for Stone than the one recommended by career prosecutors. Barr later announced the Justice Department would drop attempts to prosecute former Trump national security adviser Michael Flynn after he twice pleaded guilty to lying to federal agents.

“The department’s principal work product has become releasing criminal friends of the president and then harassing his political adversaries, real or imagined,” said Rep. Jamie Raskin, a Maryland Democrat who taught constitutional law at American University and sits on the House Judiciary Committee. “They have turned the Justice Department in to something you would find in a banana republic.” 

Raskin said he and other members of the Judiciary panel plan to grill Barr about the treatment of Cohen when he appears before the committee late this month.

A spokesman for Barr did not respond to requests for comment. 

However, a Bureau of Prisons spokesman, Justin Long, said Cohen was returned to prison for the duration of his sentence because “he declined to agree with all of the terms of the Federal Location Monitoring program, most notably electronic monitoring.” Lawyers working with Cohen said last week that claim was “false,” and that Cohen had repeatedly expressed eagerness to start a home confinement program and comply with all monitoring requirements.

Those lawyers, Davis and Jeffrey Levine, declined to comment this week as Cohen hired a new person to lead his legal team, E. Danya Perry, a former New York state deputy attorney general who now works on prison rights issues among other topics.

Perry confirmed her new role Wednesday but otherwise declined to comment.

On that day, his legal advisers said the former Trump lawyer went to the courthouse in New York expecting, among other things, to make arrangements to be fitted for an ankle bracelet.

While there that Thursday, probation officers asked Cohen to agree to eight conditions to remain out of jail including “no engagement of any kind with the media, including print, TV, film, books, or any other form of media/news,” according to a copy of the draft agreement.

Cohen was stunned, according to his legal advisers. He initially told officers he did not want to give up his First Amendment rights, but later ­­— as federal marshals approached to arrest him — offered to sign the draft agreement if doing so would keep him out of jail.

Stephen Gillers, a First Amendment expert at New York University School of Law, said the proposed agreement is clearly problematic.

Prisons can limit activities by inmates if there is a clear penological reason to do so, but in Cohen’s case the proposed restrictions have nothing to do with prison management, Gillers said. 

“Cohen is being treated like a convicted terrorist in Supermax confinement, where such restrictions are allowed to prevent communications with former associates,” Gillers said. “For Cohen, there is no legitimate penal interest in keeping him from press interviews or publishing a book,” he said, noting that Cohen’s information could be important for voters to consider before Election Day.

J. Michael Luttig, a former federal appeals court judge who reviewed the draft agreement at the request of The Washington Post, said Cohen’s team may be misinterpreting the language of the agreement.

“The Bureau of Prisons agreement does not, by its terms, purport to prevent Mr. Cohen from writing and publishing his book, but if it were interpreted that way by the bureau, it would be an unconstitutional infringement on Mr. Cohen’s First Amendment rights,” he said.  The former judge added that, “if the Bureau of Prisons had wanted to prohibit writing of the book, it could have, and should have, clearly said that, but it did not.”

Robert Weisberg, who co-directs Stanford University’s Criminal Justice Center at the university’s law school, said he had never seen such a broad limit on First Amendment activities proposed as part of a prisoner home confinement agreement, adding the agreement appeared to be an attempt to restrain publication of a book.

That was certainly how Cohen interpreted it, his lawyers said last week.

After hearing Cohen’s objections, the probation officers said they would try to work out a solution, Davis said last week.

While waiting for what they thought would be an easy resolution, Cohen and Levine were shocked to see three federal marshals arrive with manacles to take Cohen back to prison.

A July 9 memo from a residential reentry manager in New York to the U.S. marshals said that Cohen “failed to agree to the terms of Federal Location Monitoring,” though it did not specify which terms. 

In statements, the Bureau of Prisons similarly alleged Cohen had “refused the conditions of his home confinement” but did not specify which ones. Cohen’s sentence ends in November 2021. His lawyers vowed last week to seek his rerelease from incarceration.

Earlier this month, Cohen was photographed outside a French restaurant, Le Bilboquet, which is near his Manhattan apartment, sparking speculation he was violating the terms of his release. A Bureau of Prisons statement last week did not address that, and Levine said at the time the matter was not discussed last Thursday.

Cohen pleaded guilty in 2018 in two separate criminal cases. In the first, he admitted to campaign finance violations stemming from payments made before the 2016 election to adult-film actress Stormy Daniels and another woman who alleged they had affairs with Trump years earlier. Trump has denied their claims.

In the second case, Cohen admitted he lied to Congress about a Moscow real estate project Trump and his company pursued while Trump was trying to secure the Republican nomination to become president. In court and in public, Cohen placed responsibility for his actions with the president, saying he felt it was his duty to cover up the “dirty deeds” of his former boss.

“Trump announced Wednesday night that he is replacing campaign manager Brad Parscale with longtime political aide Bill Stepien as recent polls show him falling further behind Joe Biden,” Josh Dawsey and Michael Scherer report. “The president wrote on social media that Parscale, ‘who has been with me for a long time,’ will stay as a senior adviser focusing on digital and data strategies. Parscale has been marginalized in the campaign for several weeks, officials said, with Trump angry about a botched rally in Oklahoma … Stepien was the field director for the 2016 campaign and has worked for the president since the election. He’s known for a low-key style and his knowledge of battleground states. He was formerly a top aide to Gov. Chris Christie of New Jersey. Stepien was expelled from Christie’s orbit in the aftermath of bridge lane closures at the George Washington Bridge in 2013 — an episode known as Bridgegate. Widely regarded as the governor’s top political aide, Stepien was not accused of any criminal wrongdoing and made a comeback in 2016 on Trump’s campaign. … 

“Parscale’s standing with the president had been growing shakier since the spring, according to people close to the president … [Trump had] been more vocal in his frustration with Parscale, and the campaign leadership had begun to shift, with Stepien and other advisers taking an increasing hand in strategy and messaging. … The president has also grown angry at times over how much money Parscale was making off the campaign, according to people familiar with the situation. … Stepien faces a difficult challenge as Parscale’s replacement working for a president who has regularly disregarded campaign advisers’ recommendations and has seen his approval numbers fall because of his handling of the coronavirus outbreak and racial unrest across the country. Stepien is expected to conduct an analysis of the campaign and could make changes in the coming weeks.” 

Trump’s son-in-law and adviser Jared Kushner was the one to inform Parscale of his demotion. Kushner also recruited Stepien to join the Trump campaign, CNN reports. A Republican close to the campaign said Kushner “is, and has been, running most everything.” 

This is Biden’s biggest lead over Trump in a public poll this year, with 52 percent of registered voters backing him over Trump’s 37 percent. In last month’s poll, Biden held a lead of just 8 points over Trump. Fifty percent of voters also said Biden would do a better job handling the economy, a reversal from last month when Trump held a slight lead on that issue, 51-46 percent. Trump’s job approval rating dropped six points to 36 percent, his worst since August 2017. 

A new Monmouth University poll found Biden holds a 13-point lead over Trump among all Pennsylvania registered voters. Biden was favored, 53 to 40 percent,  in a state the president carried by a razor-thin margin in 2016. 

The Republican Party will hold a scaled-back convention in Jacksonville, Fla., next month that includes a mix of outdoor and indoor venues, according to a letter sent to delegates that was obtained by The Post’s Josh Dawsey.

The accounts “were the targets of a widespread hack to offer fake bitcoin deals on Wednesday in one of the most pronounced security breaches on a social media site,” Rachel Lerman, Cat Zakrzewski and Joseph Marks report. “Accounts for former president Barack Obama, Microsoft co-founder Bill Gates, musician Kanye West and both Uber and Apple also posted similar tweets, all instructing people to send cryptocurrency to the same bitcoin address. The tweets were removed throughout the afternoon, shortly after being posted. … The widespread nature of this attack suggested an unusually broad access to internal controls …

“The attack also partially shut down the network. Twitter said in a tweet on Wednesday afternoon that some users weren’t able to tweet while it was addressing the incident. Users with the check mark indicating that their accounts were verified by Twitter reported that they weren’t able to tweet. Twitter started letting verified accounts tweet again Wednesday night but warned the ‘functionality may come and go’ as it worked on a fix to the breach. … Twitter said in a later tweet that it ‘detected a coordinated attack by people who successfully targeted some of our employees with access to internal systems and tools.’ The hackers used that access to take over the accounts. … 

“Cybersecurity experts warned that this type of breach, where influential accounts are taken over, could have devastating effects if used for something more dangerous than to take money from unsuspecting users. The consequences could be greater if it involved an account like Trump’s or spread misinformation on some type of global security threat. … If U.S. adversaries gained similar control of a politician’s accounts on Election Day, they could wreak havoc by spreading misinformation about polling locations or phony rumors about voter fraud,” said disinformation expert Clint Watts. 

Vice’s Motherboard reported the Twitter insider was responsible for the account takeovers, according to leaked screenshots and two sources. “‘We used a rep that literally done all the work for us,” one of the sources [said]. The second source added they paid the Twitter insider. … A Twitter spokesperson [said] the company is still investigating whether the employee hijacked the accounts themselves or gave hackers access to the tool. … The accounts were taken over using an internal tool at Twitter, according to the sources, as well as screenshots of the tool obtained by Motherboard.”

The president may “argue now that attempts to subpoena his accounting firm are politically motivated, Trump’s lawyers told a judge,” Shayna Jacobs reports. Last week, the Supreme Court “rejected Trump’s bid to have the grand jury subpoena tossed on grounds that, as sitting president, he has absolute immunity from state court proceedings. The Supreme Court decision favored efforts by Manhattan District Attorney Cyrus Vance Jr., whose office is investigating Trump and his business over hush-money payments made to two women during the 2016 presidential campaign. Lawyers for Vance’s office, which faces a looming statute-of-limitations deadline should he decide to pursue a felony case, said in Wednesday’s joint filing that the district attorney could enforce the subpoena immediately but would give the president until July 27 to file his new claims before doing so.” 

“Problems caused by a spike in absentee voting during this year’s primaries are serving as potential warning signs for the U.S. Postal Service, which is bracing for an expected onslaught of mail-in ballots this fall as states and cities push alternatives to in-person voting because of the pandemic,” Michelle Ye Hee Lee reports. “The concern extends to local elections offices that may be unaccustomed to aspects of the mail, such as the time it takes for parcels to reach their destinations and how to design their ballots to meet postal standards. So the Postal Service is regularly sending advice and checklists to thousands of elections officials. Local elections offices are hiring temporary workers to process absentee ballots, and some local elections boards are adding options for voters to do curbside drop-offs of their mail ballots on Election Day. The Postal Service is also recommending that voters request their ballots at least 15 days before Election Day and mail their completed ballots at least one week before the due date.”

“Masks on Wednesday moved ever closer to becoming a new national reality in America’s pandemic-scarred life, with businesses, states and health experts preaching their promise as the country’s last line of defense against a fast-growing viral threat,” Griff Witte reports. “Alabama’s governor, who leads one of the country’s most conservative states, on Wednesday said people would be obligated to wear masks when leaving the house. The announcement, which came as Alabama recorded a new single-day novel coronavirus death record, means nearly half of all states now have a mandate. 

“The world’s largest retailer and a staple of rural communities nationwide, Walmart Inc., issued the same requirement for shoppers in its stores. A powerful trade group quickly embraced the choice, raising the prospect that other major chains will soon follow. ‘Shopping in a store is a privilege, not a right,’ said the National Retail Foundation. … The moves came only hours after Robert Redfield, director of the Centers for Disease Control and Prevention, declared that coronavirus outbreaks — now raging across much of the country — could be ‘under control’ within one or two months if the public adopts widespread mask use. So far, that hasn’t happened — despite a toll that on Wednesday topped 134,000 deaths and hit nearly 3.5 million cases. Health experts say that if masks aren’t more routinely used, governors will have little choice but to continue rolling back economic reopenings as cases surge. … 

“Oklahoma Gov. Kevin Stitt (R) became the first state chief executive to announce he has tested positive for the coronavirus. Just over three weeks ago, Stitt appeared unmasked at a Trump rally in Tulsa …  Stitt said he felt ‘fine’ and would be isolating. The governor, who urged residents to flock to restaurants early in the outbreak even as other state leaders were shutting down, said he did not believe he had contracted the virus at Trump’s rally. The news came as Oklahoma reported more than 1,000 new coronavirus cases — a single-day record as the average number of new deaths also increases.”

Meanwhile, Georgia Gov. Brian Kemp (R) banned cities and counties from mandating masks. Kemp’s order “still encourages, rather than requires, Georgians to wear masks in public. The governor has called such a requirement ‘a bridge too far,’ and his office has said local mandates are unenforceable,” the Atlanta Journal-Constitution reports. “The governor’s coronavirus orders have for months banned local governments from taking more restrictive or lenient steps than the state. But the new set of rules he signed on Wednesday specified for the first time that cities and counties can’t require the use of masks or other face coverings.”

“The opposition came after the Department of Health and Human Services notified governors and hospital leaders this week that it was changing the protocol for sending the federal government daily information about coronavirus patients, supplies and bed capacity. Administration officials say that replacing a data-collection system run by the CDC would streamline reporting and lead to more efficient distribution of therapeutics, testing supplies and protective gear,” Amy Goldstein and Lena Sun report. “Critics, however, say they fear the elimination of the CDC’s role as a main data-keeper for the pandemic will be damaging, depriving states, hospitals and others of frequent analyses of data about the virus’s path in their communities. Smaller hospitals, in particular, are ill-equipped to suddenly adopt new data methods, critics said, though the industry has pledged to comply with the change. … Bruce Meyer, president of Jefferson Health in Philadelphia, said the CDC’s data collection and analyses have been ‘highly reliable and efficient. Sidestepping these established tracking systems creates deep concerns that we will be unable to obtain appropriate and relable information to perform research and manage our response to the virus.’” 

“Days after anonymously disseminating a list of negative talking points about Anthony S. Fauci, the nation’s top infectious-disease expert, the White House sought to distance itself from the anti-Fauci effort Wednesday by publicly chastising trade adviser Peter Navarro for writing a USA Today op-ed blasting the popular public health official,” John Wagner, Meryl Kornfield and Toluse Olorunnipa report. “Trump chided Navarro [for the piece] … and the White House released a statement saying the article was unauthorized. Fauci told the Atlantic that ‘I can’t explain Peter Navarro’ and that ‘he’s in a world by himself.’ … ‘He made a statement representing himself. He shouldn’t be doing that,’ Trump said of Navarro … The effort to disavow Navarro’s op-ed came despite moves in recent days by Trump and senior administration officials to raise questions about Fauci’s credibility, including by giving reporters a list of instances in which they alleged Fauci had been incorrect about aspects of the pandemic. Fauci  … called the attempts to discredit him ‘bizarre’ and counterproductive.” 

“If you talk to reasonable people in the White House, they realize that was a major mistake on their part, because it doesn’t do anything but reflect poorly on them,” Fauci said of the list the White House released in an attempt to hurt his credibility. “I cannot figure out in my wildest dreams why they would want to do that. I think they realize now that that was not a prudent thing to do, because it’s only reflecting negatively on them.” (The Atlantic) 

“The deliberations come as Senate Majority Leader Mitch McConnell (R-Ky.) prepares to unveil legislation next week that would serve as the GOP’s opening offer for negotiations on what could be Congress’s last major coronavirus spending bill before the November elections,” Laura Meckler and Erica Werner report. “Republican officials familiar with the negotiations said the bill may include somewhere between $50 billion and $100 billion for elementary and secondary schools, with one person familiar with the talks saying the target was about $70 billion. Negotiators are looking at $20 billion to $30 billion for higher education, GOP officials said. The officials cautioned that the sums were fluid and that no final decisions had been made. GOP lawmakers and administration officials are also debating how to use the legislation to encourage schools to reopen … Some White House officials are pushing for conditioning the aid on schools reopening partly or fully, but others involved prefer to offer incentives to schools to take steps to reopen. … It is unclear how the final proposal will be structured, and it is likely to encounter intense opposition from Democrats.” 

• The Houston Independent School District – one of the largest in America – will remain online-only for the first six weeks of the school year. Families then will have the option to remain online-only or return to campuses. (Houston Chronicle)
• Schools in Maryland’s Prince George’s County – the second-largest school system in the state, and one of the 20 largest districts in the country – will stay online at least through January. (Donna St. George)

The state’s safety and health codes board adopted “what is called an ’emergency temporary standard,’ which will require businesses to implement safety measures to protect people from being infected with the coronavirus at work. Companies could face financial penalties of up to $130,000 if they are found to have violated the policies,” Eli Rosenberg reports. “The policies prohibit workers suspected of having the coronavirus from showing up to work, require companies to notify workers of possible exposure to infected co-workers within 24 hours, and include mandates about physical distancing, protective gear, sanitation, disinfecting and hand-washing. It also prohibits employers from retaliating or discriminating against workers who air concerns about infection risks on the job with each other, government agencies, traditional news outlets or on social media.” 

• The greater D.C. region recorded its highest daily coronavirus caseload since June 4, as D.C. lost more ground in its fight against the pandemic. The transmission rate in the city surpassed 1 after steadily rising since mid-June. City leaders want the rate to fall below 1 for five consecutive days before considering shifting into the third stage of recovery. In Maryland, Gov. Larry Hogan (R) said that noncompliance with restrictions in bars and restaurants could force the state to shut down those businesses again. (Fenit Nirappil, Ovetta Wiggins, Rachel Chason and Dana Hedgpeth)
• At least 20,000 fans were allowed to attend a NASCAR race in Thunder Valley last night, the largest sporting event crowd in the U.S. since the pandemic began. (NBC Chicago)
• American Airlines said as many as 25,000 employees could be furloughed come Oct. 1. It is likely other carriers may soon take similar action. (Lori Aratani)

“The footage, captured by cameras worn by two of the four officers charged in Floyd’s May 25 death, presents an even more desperate scene than previously known. Floyd appeared visibly shaken and scared of police, whom he called ‘sir’ and ‘Mr. Officer.’ He moaned and begged for his life after they pinned him to the ground, a white officer’s knee at his throat for more than eight minutes,” Holly Bailey reports. “The videos, made available to the public by a Hennepin County judge, were filed as evidence in the former officers’ criminal case and presented for viewing in court just hours before Floyd’s family filed a wrongful-death civil suit against the city of Minneapolis and the four police officers charged in his death. … 

“In the body camera videos, Floyd appears increasingly anxious and afraid of the officers and complains of being claustrophobic as they try to place him in a squad car. Floyd complained at least 25 times that he could not breathe while he was restrained, telling the police he had been diagnosed with covid-19. As then-officer Derek Chauvin pressed a knee into his neck, he told Floyd that he must be okay because he was able to speak, saying that he was using up a lot of oxygen pleading for help. ‘They’ll kill me. They’ll kill me,’ Floyd gasped in response. A few seconds later, Floyd was motionless. He was later pronounced dead.”

“Even though she lived hundreds of miles from the street corner in Minneapolis where police pinned Floyd to the ground, [Christine] Tell felt complicit in his death. She had convicted herself — and white people just like her — of a lack of concern about racism in America, shaping a country in which black men could be killed in such a disturbing and public way,” Robert Samuels reports from Tulsa. “She wanted to be an anti-racist, although she was still trying to figure out what that meant. It was a messy process, stumbling toward wokeness, in which she would learn the limits and frustrations of trying to dismantle structural racism. Tell was among the throngs of white people across the country reexamining their role in America’s racial dilemma.” 

• The Smithsonian’s National Museum of African Art was accused of promoting a culture of racism. In a letter sent last week to Smithsonian Secretary Lonnie G. Bunch III, unidentified individuals said that more than 10 former and current black employees of the museum dedicated to African art and culture have experienced ‘incidents of racial bias, hostile verbal attacks, retaliation, terminations, microaggressions and degrading comments” that date back at least five years. (Peggy McGlone)
• Martin McCaulay, a longtime fan of Washington’s NFL team, has stockpiled Washington NFL trademarks for years in anticipation of the team changing its name. Now that that’s happening, McCaulay is facing online abuse as fellow fans accuse him of blocking the team from adopting a new name and  profit-seeking. (Rick Maese)

The Trump campaign appears to have changed its position on Brad Parscale fairly quickly:

Trump posed with some assorted Goya products as the debacle over company CEO Robert Unanue’s endorsement of the president continues: 

After the White House tried running a smear campaign against Anthony Fauci, Vice President Pence tweeted a photo that appeared to bury the hatchet: 

And here’s Fauci, on the digital cover of a fashion magazine: 

Stephen Colbert said goodbye to Jeff Sessions’s political career: 

Seth Meyers analyzed Trump’s bizarre Rose Garden event: 

And Trevor Noah is confused by the Trump family’s support for Goya products: