Amicus Curiae Brief — Michael D. Cohen, Petitioner v. Donald J. Trump, former President of the United States, et al.

No. 24-41

IN THE

Supreme Court of the United States

__________

MICHAEL D. COHEN

Petitioner,

v.

DONALD J. TRUMP, FORMER PRESIDENT OF THE UNITED

STATES, ET AL.

Respondents.

__________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

__________

BRIEF OF AMICI CURIAE CONSTITUTIONAL

SCHOLARS AND FORMER FEDERAL

OFFICIALS IN SUPPORT OF PETITIONER

__________

KATHERINE KEATING

Counsel of Record

BRYAN CAVE LEIGHTON

PAISNER LLP

560 Mission Street,

25th Floor

San Francisco, CA 94105

(415) 268-1972

katherine.keating@

bclplaw.com

ERIC RIEDER

LAITH J. HAMDAN

BRYAN CAVE LEIGHTON

PAISNER LLP

1290 Avenue of the

Americas

New York, NY 10104

August 14, 2024

QUESTION PRESENTED

Whether a cause of action exists under Bivens when

federal officials imprison a critic in retaliation for his

refusal to waive his right to free speech and there is

no remedy to deter them from doing so?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF AMICI CURIAE ................................ 1

SUMMARY OF ARGUMENT .................................... 5

ARGUMENT ............................................................... 7

I.

This Court Has Consistently Declined to

Overrule Bivens .......................................... 7

II.

A Damages Remedy is Essential to Deter

Federal Officials From Imprisoning their

Critics Lawlessly....................................... 12

CONCLUSION.......................................................... 16

iii

TABLE OF AUTHORITIES

CASES

Page(s)

Bivens v. Six Unknown Named Agents of Fed.

Bur. Of Narcotics,

403 U.S. 388 (1971) ............. 1, 5, 6, 7, 8, 10, 11, 15

Bridges v. California,

314 U.S. 252 (1941) .......................................13, 15

Bush v. Lucas,

462 U.S. 367 (1983) .............................................. 9

Carlson v. Green,

446 U.S. 14 (1980) .................................8, 9, 10, 11

Chappell v. Wallace,

462 U.S. 296 (1983) .............................................. 9

Cohen v. United States,

640 F. Supp. 3d 324 (S.D.N.Y. 2022), aff’d

sub nom. Cohen v. Trump, 23-35, 2024 WL

20558 (2d Cir. Jan. 2, 2024) ....................6, 12, 13, 14

Correctional Services Corp. v. Malesko,

534 U. S. 61 (2001) ........................................... 5, 9

Davis v. Passman,

442 U.S. 228 (1979) ...................................8, 11, 14

Egbert v. Boule,

596 U.S. 482 (2022) .............................9, 10, 11, 15

F.D.I.C. v. Meyer,

510 U. S. 471 (1994) ......................................... 5, 9

Hernandez v. Mesa,

589 U.S. 93 (2020) .......................................... 9, 10

Hui v. Castaneda,

559 U.S. 799 (2010) .............................................. 9

iv

Marbury v. Madison,

5 U.S. 137 (1803) .........................................5, 8, 14

Minneci v. Pollard,

565 U.S. 118 (2012) .............................................. 9

Perez v. Mtge. Bankers Ass’n,

575 U.S. 92 (2015) .............................................. 14

Schweiker v. Chilicky,

487 U.S. 412 (1988) .............................................. 9

United States v. Nixon,

418 U.S. 683 (1974) .............................................. 3

United States v. Stanley,

483 U.S. 669 (1987) .............................................. 9

Wilkie v. Robbins,

551 U.S. 537 (2007) .............................................. 9

Ziglar v. Abbasi,

582 U.S. 120 (2017) .....................................5, 9, 10

STATUTES, REGULATIONS, AND RULES

U.S. Const. Amend. I ................................................ 13

U.S. Const. Amend. IV................................................ 7

U.S. Const. Amend. V ................................................. 8

U.S. Const. Amend. VIII ............................................. 8

Supreme Court Rule 37 .............................................. 1

Supreme Court Rule 37.2 ........................................... 1

Supreme Court Rule 37.6 ........................................... 1

OTHER MATERIALS

Laurence Tribe, Death by a Thousand Cuts:

Constitutional Wrongs Without Remedies

After Wilkie v. Robbins, 2007 Cato Sup. Ct.

Rev. 23 ................................................................ 15

INTEREST OF AMICI CURIAE 1

Pursuant to Supreme Court Rule 37, Amici Curiae

(identified below, “Amici”) respectfully submit this

brief in support of the petitioner, Michael D. Cohen.

Amici include constitutional scholars and former senior and longtime federal officials from all three

branches of government who have collectively spent

decades defending the U.S. Constitution, the interests

of the American people, and the rule of law. They are

thus well qualified to address the significance of maintaining a private damages remedy under Bivens v. Six

Unknown Named Agents of Fed. Bur. Of Narcotics,

403 U.S. 388 (1971) as a means of deterring misconduct by federal officials. Amici and their backgrounds

(for identification purposes only) are as follows:

Lee C. Bollinger served as President of Columbia

University (2002-2023) and is currently President

Emeritus, the Seth Low Professor of the University,

and a member of the faculty of the Law School at Columbia University.

Louis E. Caldera served as United States Secretary

of the Army, (1998-2001); Director of the White House

Military Office (2009); President, University of New

Mexico (2003- 2006); California State Assembly member (1992-1997); United States Army officer (19781 Pursuant to Supreme Court Rule 37.2, counsel of record for

all parties received notice of Claudine Schneider’s intention to

file an amicus curiae brief at least 10 days prior to the due date

for the amicus curiae brief.

Pursuant to Rule 37.6, Amici affirm that: (i) no counsel for a

party authored this brief in whole or in part; (ii) no such counsel

or party made a monetary contribution intended to fund the preparation or submission of this brief; and (iii) no person other than

Amici or their counsel made such a monetary contribution.

2

1983); and serves currently as a Senior Lecturer of

Business Administration, Harvard Business School.

Tom Coleman served as Assistant Attorney General

of Missouri (1969-1972); Missouri State Representative (1973-76); and Member of Congress (1976-1993).

Mickey Edwards served as Representative of the

Fifth Congressional District of Oklahoma (19771993); is a founding trustee of the Heritage Foundation; and is the former National Chairman of both the

American Conservative Union and the Conservative

Political Action Conference.

John J. Farmer Jr. served as New Jersey Attorney

General, appointed by Governor Christine Todd Whitman (1999-2002); Chief Counsel to Governor Whitman (1997-1999); Deputy Chief Counsel to Governor

Whitman (1996-1997); Assistant U.S. Attorney for the

District of New Jersey in the George H.W. Bush and

Clinton Administrations (1990-1994); and Senior

Counsel to the 9/11 Commission (2003-2004).

Stuart M. Gerson served as Acting Attorney General

(1993); Assistant Attorney General for the Civil Division (1989–1993); and Assistant United States Attorney for the District of Columbia (1972–1975).

Judge Nancy Gertner served as District Court

Judge for the U.S. District Court of Massachusetts,

appointed by President Bill Clinton (1994-2011) and

is a Senior Lecturer on Law at Harvard Law School.

Philip Allen Lacovara served as Deputy Solicitor

General in the Nixon Administration in charge of the

government's criminal and national security cases

(1972-1973); Counsel to the Special Prosecutor, Watergate Special Prosecutor’s Office (1973-1974); and

drafted the brief for the United States and presented

3

arguments in United States v. Nixon, 418 U.S. 683

(1974).

Trevor Potter served as Chairman of the Federal

Election Commission (1994); and Commissioner of the

Federal Election Commission, appointed by President

George H.W. Bush (1991-1995).

Alan Charles Raul served as Associate Counsel to

the President (1986-1988); General Counsel of the Office of Management and Budget (1988-1989); General

Counsel of the U.S. Department of Agriculture (19891993); Vice Chairman of the Privacy and Civil Liberties Oversight Board (2006-2008); and currently

serves as a Lecturer on Law at Harvard Law School.

Claudine Schneider served as a Member of the U.S.

House of Representatives (R-RI) (1981-1991).

Robert Shanks served as Deputy Assistant Attorney

General in the Office of Legal Counsel (1981-1984).

Abbe Smith is the Scott K. Ginsburg Professor of

Law at Georgetown University Law Center, a member

of the American Board of Criminal Lawyers, and was

previously the Deputy Director of the Criminal Justice

Institute at Harvard Law School.

Geoffrey Stone is the Edward H. Levi Distinguished

Service Professor of Law at the University of Chicago;

the former Dean of the University of Chicago Law

School (1987-1994); and the former Provost of the University of Chicago (1994-2002).

Laurence H. Tribe is the Carl M. Loeb University

Professor of Constitutional Law Emeritus at Harvard

4

University and the former Director of the Office of Access to Justice in the U.S. Justice Department.

Olivia Troye served as Special Advisor, Homeland

Security and Counterterrorism to Vice President Mike

Pence (2018-2020).

William F. Weld served as U.S. Attorney for Massachusetts (1981-1986); Assistant U.S. Attorney General in charge of the Criminal Division (1986-1988);

and Governor of Massachusetts (1991-1997).

5

SUMMARY OF ARGUMENT

The petition here raises questions that go to the

heart of ordered liberty and the rule of law. More than

50 years ago, this Court in Bivens held that the “very

essence of civil liberty” mandated the existence of an

independent cause of action for constitutional violations committed by federal officials. 403 U.S. at 397

(quoting Marbury v. Madison, 5 U.S. 137, 163 (1803)).

In Bivens and its progeny, this Court recognized that

where an individual’s constitutional rights are violated by federal officials, the victim must be able to

seek damages from the violators in order to deter future misconduct. Otherwise, officials may do it again,

knowing that the worst consequence is an order stopping them from continuing the misconduct, rather

than liability for what they have done. In the decades

since, this Court has reaffirmed the critical rationale

underlying Bivens: “to deter the officer” from violating

the constitutional rights of the individuals over whom

officers wield the power of the federal government.

Ziglar v. Abbasi, 582 U.S. 120, 140-41 (2017) (quoting

F.D.I.C. v. Meyer, 510 U. S. 471, 845 (1994)).

Although Bivens remains good law that this Court

has declined to overrule on multiple occasions, it has

“consistently refused to extend Bivens liability to any

new context or new category of defendants.” Correctional Services Corp. v. Malesko, 534 U. S. 61, 68

(2001). As a result, the lower courts are left to wonder

whether the high bar this Court has set to overcome

the “caution” it has urged in recognizing a Bivens

cause of action is impossible to clear.

This is the case for the Court to answer that question. The extraordinary facts alleged here illustrate

the essential necessity of deterrence to the rule of law.

6

Petitioner’s complaint alleges that, after serving time

in prison, he was furloughed and scheduled to be released to home confinement pursuant to a federal policy related to COVID-19. But then, at a processing

meeting with prison officials, petitioner was asked to

sign a non-disclosure agreement that would have prevented him from writing about then-President Donald

Trump. When he and his lawyers asked questions rather than simply sign the agreement, prison officials

took him back into custody, returned him to prison,

and placed him in solitary confinement. He was released from prison again only weeks later after a federal court granted his habeas petition.

Petitioner then filed this Bivens claim seeking damages from the defendants responsible for the egregious

violation of his rights. The District Court recognized

that the complaint alleges “nothing short of the use of

executive power to lock up the President’s political enemies for speaking critically of him.” Cohen v. United

States, 640 F. Supp. 3d 324, 341 (S.D.N.Y. 2022), aff’d

sub nom. Cohen v. Trump, 23-35, 2024 WL 20558 (2d

Cir. Jan. 2, 2024). But it dismissed the complaint anyway, reluctantly holding that Bivens provides no

cause of action for damages even in the extraordinary

circumstances of this case. The courts below reached

that shocking conclusion because they interpreted this

Court’s Bivens caselaw to require it. 2 But under the

circumstances of this case – involving an attempt to

hold accountable members of the political branches for

unconstitutionally punishing political criticism –

there is no reason to think Congress, one of those two

branches, would be better equipped to create a

2 The Second Circuit similarly indicated that it felt bound by

existing precedent to affirm the dismissal. See Pet. App. 9a.

7

damages remedy, and thus under this Court’s precedent, the courts should find a remedy under the Constitution.

The stakes could not be higher. The decision below

sends a clear signal to federal actors that critics of the

government can be punished without repercussion for

exercising their constitutional rights. A federal court

may ultimately order the critic released from custody,

but the official remains undeterred from engaging in

the same misconduct again. Amici urge this Court to

grant the petition for writ of certiorari and reverse the

judgment of the court of appeals.

ARGUMENT

I. This Court Has Consistently Declined to

Overrule Bivens

This Court first recognized the existence of a cause

of action for violations of constitutional rights by federal officials in Bivens. There, agents of the Federal

Bureau of Narcotics allegedly violated the plaintiff’s

Fourth Amendment rights by using excessive force

while searching his apartment and arresting him,

without probable cause. 403 U.S. at 389-90. Although

the Constitution does not expressly authorize a civil

damages claim by parties deprived of their constitutional rights, the Court held that such a right was implicit in the Constitution. Id. at 396. Because a federal “agent acting – albeit unconstitutionally – in the

name of the United States possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own” (id. at 392), the

Court determined that the “very essence of civil liberty” mandated the existence of an independent cause

of action for constitutional violations committed by

8

individuals in such capacity. Id. at 397 (quoting Marbury, 5 U.S. at 163).

In Davis v. Passman, the Court again recognized a

cause of action for damages where the plaintiff alleged

that a U.S. Congressman violated her Fifth Amendment rights by terminating her employment on the

basis of her sex. 442 U.S. 228, 231 (1979). Quoting

from James Madison’s presentation of the Bill of

Rights to Congress in 1789, the Court recognized the

judiciary’s historical responsibility to protect the constitutional rights of the American people from encroachment by the political branches:

If these rights are incorporated into the

Constitution, independent tribunals of justice will consider themselves in a peculiar

manner the guardians of those rights; they

will be an impenetrable bulwark against

every assumption of power in the Legislative or Executive; they will be naturally led

to resist every encroachment upon rights

expressly stipulated for in the Constitution

by the declaration of rights.

Id. at 241-42 (quoting 1 Annals of Cong. 439 (1789))

(internal alterations omitted). According to the Court,

“unless such rights are to become merely precatory,”

individuals with “no effective means other than the judiciary to enforce these rights, must be able to invoke

the existing jurisdiction of the courts for the protection

of their justiciable constitutional rights.” Id. at 242.

One year later, in Carlson v. Green, the Court held

that a plaintiff could seek damages under Bivens,

when federal prison officials violated a prisoner’s

Eighth Amendment rights by failing to provide him

with proper medical attention. 446 U.S. 14, 16 n.1

9

(1980). In response to the defendants’ argument that

a Bivens remedy should not be available because the

legislature created an express cause of action against

the United States, the Court emphasized that the existence of a direct cause of action against the individual defendants “serves a deterrent purpose” that

would be lacking unless “the individual official faces

personal financial liability.” Id. at 21.

Consistent with the Court’s reasoning in Carlson,

the Court has subsequently stated that “Bivens ‘is concerned solely with deterring the unconstitutional acts

of individual officers’….” Egbert v. Boule, 596 U.S.

482, 498 (2022) (quoting Corr. Serv. Corp., 534 U.S. at

61). It is intended “to deter the officer” from violating

the constitutional rights of the individuals over whom

they wield the power of the federal government.

Ziglar, 582 U.S. at 140 (quoting F.D.I.C., 510 U.S. at,

845).

However, since Carlson was decided, the recognition

of a Bivens remedy to deter unconstitutional conduct

has become “a disfavored judicial activity.” Egbert,

596 U.S. at 483 (quoting Ziglar, 582 U.S. at 135). Beginning in 1983, the Court has issued twelve consecutive decisions in which it declined to recognize a

Bivens remedy for a constitutional violation. 3 As the

Court stated in Ziglar, during this period, “the Court

adopted a far more cautious course before finding

3 See Chappell v. Wallace, 462 U.S. 296 (1983); Bush v. Lucas,

462 U.S. 367 (1983); United States v. Stanley, 483 U.S. 669

(1987); Schweiker v. Chilicky, 487 U.S. 412 (1988); F.D.I.C., 510

U.S. 471; Corr. Servs. Corp., 534 U.S. 61; Wilkie v. Robbins, 551

U.S. 537 (2007); Hui v. Castaneda, 559 U.S. 799 (2010); Minneci

v. Pollard, 565 U.S. 118 (2012); Ziglar, 582 U.S. 120; Hernandez

v. Mesa, 589 U.S. 93 (2020); Egbert, 596 U.S. 482.

10

implied causes of action.” 582 U.S. at 132. In recognition of the potential costs to the government in the

form of defense or indemnification of claims against

its officials, and the potential administrative burdens

involved in litigation, among “other reasons, the

Court’s expressed caution as to implied causes of actions under congressional statutes led to similar caution with respect to actions in the Bivens context,

where the action is implied to enforce the Constitution

itself.” Id. at 133-34.

The Court most recently addressed the viability of a

Bivens cause of action in Egbert, where a U.S. Border

Patrol agent allegedly used excessive force against the

plaintiff while conducting a search on his property.

596 U.S. at 489. Prior to Egbert, the Supreme Court

case law described a two-step analysis for the recognition of a Bivens remedy: first the court must determine if the claim involves a “new context” that is

“meaningfully different” from the causes of action recognized in Bivens, Davis, and Carlson; 4 then, if the

context is new, the court must determine if any “special factors” warrant refusal to recognize a new

4 By the time Egbert was decided, the Court had endorsed a

“broad” view of new contexts for this purpose. See Hernandez,

589 U.S. at 102. Indeed, a claim could be deemed “meaningfully

different” from previously recognized causes of action based on

any of the following, non-exhaustive, considerations: “[1] the

rank of the officers involved; [2] the constitutional right at issue;

[3] the generality or specificity of the official action; [4] the extent

of judicial guidance as to how an officer should respond to the

problem or emergency to be confronted; [5] the statutory or other

legal mandate under which the officer was operating; [6] the risk

of disruptive intrusion by the Judiciary into the functioning of

other branches; or [7] the presence of potential special factors

that previous Bivens cases did not consider.” Ziglar, 582 U.S. at

140.

11

remedy. Egbert, 596 U.S. at 492. In Egbert, the Court

explained that those two steps “often resolve to a single question: whether there is any reason to think that

Congress might be better equipped to create a damages remedy.” Id. “[I]f there is any reason to think

that ‘judicial intrusion’ into a given field might be

‘harmful’ or ‘inappropriate’ … or even if there is the

‘potential’ for such consequences, a court cannot afford

a plaintiff a Bivens remedy.” Id. at 496. (internal quotations omitted)

Despite these decisions, the Court has consistently

declined to “dispense with Bivens altogether….” Id. at

491. Nor has the Court rejected the principle that deterrence of constitutional violations by federal agents

– the chief aim of Bivens and its progeny – is important for the protection of individual rights and the

values embodied in the U.S. Constitution. Thus, the

Court left open the possibility that in “the most unusual circumstances” when there is no reason to think

judicial intervention would be inappropriate, a cause

of action for damages may still be available to victims

of constitutional violations that are not identical to the

claims asserted in Bivens, Davis, and Carlson. Egbert,

596 U.S. at 486.

This case involves allegations of politically motivated constitutional violations by one of the political

branches of the federal government, designed to chill

political speech that is critical of or unfavorable to the

political party in power. Such allegations present the

kind of unusual circumstances where judicial intervention would not be inappropriate, and a damages

remedy should be available. The Court should grant

Mr. Cohen’s petition for a writ of certiorari to clarify

the viability of Bivens in this “most unusual” and most

significant context.

12

II. A Damages Remedy is Essential to Deter

Federal Officials From Imprisoning their

Critics Lawlessly

In this case, Mr. Cohen, a prominent public figure,

was allegedly placed in solitary confinement by agents

of the executive branch to punish Mr. Cohen for his

plans to publish a book critical of the president. Such

conduct is “nothing short of the use of executive power

to lock up the President’s political enemies for speaking critically of him.” Cohen v. United States, 640

F. Supp. 3d 324, 341 (S.D.N.Y. 2022), aff’d sub nom.

Cohen v. Trump, 23-35, 2024 WL 20558 (2d Cir. Jan.

2, 2024).

Mr. Cohen is a former personal attorney of respondent Donald Trump. Pet. App. 12a. Mr. Cohen alleges

that, after pleading guilty to crimes committed at the

direction of Mr. Trump, he publicly announced his intention to publish a book featuring critical and unfavorable information about Mr. Trump, who was then

President of the United States and running for re-election. Pet. App. 12a.-13a. Subsequently, while finalizing a previously-approved transition of his sentence to

home confinement, Mr. Cohen was informed that the

first condition of his transition was a waiver of his

right to engage with the media, including books and

social media. Pet. App. 14a. In retaliation for Mr. Cohen’s request to eliminate that term, he was remanded to prison and placed in special segregated

housing or solitary confinement until his release was

ordered by a federal judge of the U.S. District Court

for the Southern District of New York. Pet. App. 16a18a. While in solitary confinement, Mr. Cohen spent

all but thirty minutes of each day alone in a twelve by

13

eight-foot cell with poor ventilation, no air conditioning, and temperatures frequently over one hundred

degrees, causing significant health problems. Id.

The District Court, based on its reading of Egbert

and other authority from this Court, indicated that it

felt compelled to dismiss Mr. Cohen’s complaint, but

also expressed considerable reluctance in doing so and

identified the important constitutional values at

stake. As the District Court stated, the facts alleged

in the complaint “raise fundamental questions about

the meaning and value of constitutional rights, the relationship between a citizen and the government, and

the role of the federal courts in protecting those

rights.” Cohen, 640 F. Supp. 3d at 330. The District

Court not only emphasized the dangers of government

officials’ punishing an individual for political speech

protected by the First Amendment, but it also underscored the need for a remedy when such government

action occurs:

The ability to publicly criticize even our

most prominent politicians and leaders

without fear of retaliation is a hallmark of

American democracy; political speech is

core First Amendment speech. ‘[I]t is a

prized American privilege to speak one’s

mind, although not always with perfect

good taste, on all public institutions.’

Bridges v. California, 314 U.S. 252, 270

(1941). And it is a further hallmark of

American democracy that, where one’s

rights have been violated, one may seek to

vindicate those rights in the courts. In the

oft-quoted words of Chief Justice John

Marshall: ‘The government of the United

States has been emphatically termed a

14

government of laws, and not of men. It will

certainly cease to deserve this high appellation, if the laws furnish no remedy for

the violation of a vested legal right.’ Marbury v. Madison, 5 U.S. 137, 163 (1803).

Cohen, 640 F. Supp. 3d at 340 (cleaned up). The Second Circuit similarly indicated that it felt bound by

existing precedent to affirm the dismissal. See Pet.

App. 9a.

Under the unique circumstances alleged – a politically motivated violation of the petitioner’s constitutional rights, intended to chill speech critical of an

elected official – judicial involvement is particularly

appropriate to deter future misconduct. A statutory

remedy for such unconstitutional deprivations of liberty would require action by Congress with the concurrence of the President, subject to congressional

override by supermajority vote. See Perez v. Mtge.

Bankers Ass’n, 575 U.S. 92, 118 (2015). As a matter of

common sense, it is unrealistic to think that the members of the two political branches would be motivated

to create a mechanism for holding them to account for

the actual damages that they cause by unconstitutionally punishing a person for engaging in political criticism. Thus, if the American people are to have any

protection against unconstitutional punishment of political speech, as a practical matter, the judicial

branch cannot wait for an express act by the other

branches. See Davis, 442 U.S. at 241-42 (recognizing

judiciary are “in a peculiar manner the guardians” of

individual constitutional rights against encroachment

by the other branches) (quoting 1 Annals of Cong. 439

(1789)).

15

The need for deterrence is especially important in

this unique context. If the defendants’ goal in this

case was to chill protected political speech, that goal

was accomplished when Mr. Cohen was punished for

refusing to waive his rights. Now, “all but the most

intrepid” individuals taking note of this example will

have reason to pause before risking similar punishment by exercising their First Amendment rights to

criticize members of the federal government. Cohen,

F. Supp. 3d at 340.

If habeas corpus or injunctive relief were the only

remedies available, deterrence would be nonexistent.

Agents of the political branches seeking to curtail unfavorable speech are free to punish critics with impunity, taking comfort that the most severe repercussion

will be an instruction, by way of injunction, to cease

punishment. Id. at 340; see also Laurence Tribe,

Death by a Thousand Cuts: Constitutional Wrongs

Without Remedies After Wilkie v. Robbins, 2007 Cato

Sup. Ct. Rev. 23, 60 (“Without the threat of personal

liability under Bivens, officials working for a federal

agency that seeks” to achieve an unconstitutional goal

“have nothing to lose and much to gain” by violating

the constitutional rights of individuals). And where

the punishment of political speech favors the party in

control of a federal agent’s governmental branch, as

alleged here, a grievance to that agent’s supervisors is

particularly unlikely to result in internal punishment

or deter future misconduct. Cf. Egbert, 596 U.S. at

498 (finding “no warrant to doubt” that grievance procedure “secured adequate deterrence”).

The right to speak critically of public officials is a

“prized American privilege” protected by the U.S. Constitution. Bridges v. California, 314 U.S. 252, 270

(1941). Denying Mr. Cohen a damages remedy under

16

the highly unusual circumstances alleged sets a precedent that could have devastating consequences for

this important constitutional right, and there is every

reason to conclude that only the courts are capable of

fashioning a meaningful remedy for this kind of constitutional violation. Cf. Egbert, 596 U.S. at 496. The

Second Circuit’s decision affirming the District

Court’s dismissal of the complaint should be reversed

in order to prevent such a result.

CONCLUSION

This Court should grant the petition.

KATHERINE KEATING

Counsel of Record

BRYAN CAVE

LEIGHTON

PAISNER LLP

560 Mission Street,

25th Floor

San Francisco, CA 94105

(415) 268-1972

katherine.keating@

bclplaw.com

ERIC RIEDER

LAITH J. HAMDAN

BRYAN CAVE

LEIGHTON

PAISNER LLP

1290 Avenue of the

Americas

New York, NY 10104

August 14, 2024