Biden DOJ to retry on same charges former health executive whose sentence had been commuted by Trump

 April 11, 2023

In December 2020, then-President Donald Trump commuted the 20-year prison sentence imposed in 2019 on Philip Esformes, a former executive in charge of a network of assisted living facilities and nursing homes who'd been convicted on multiple charges related to an alleged scheme to defraud Medicaid and Medicare of more than $1 billion.

Now, however, despite having his sentence commuted following a trial and conviction, President Joe Biden's Department of Justice is now aiming to re-prosecute Esformes on the same charges and send him back to prison again, Reason reported.

The libertarian-leaning decried the "legal loophole" being exploited here by Biden's DOJ and how it raised "grave questions about double jeopardy, the absolute power of the clemency process, and the weaponization of the criminal legal system against politically expedient targets."

20-year sentence commuted by then-President Trump

The Associated Press reported in December 2020 that then-President Trump had commuted the remainder of Esformes' 20-year sentence due to allegations of prosecutorial misconduct in seizing office records that shouldn't have been taken and included an "invasion of the attorney-client privilege."

Esformes, first indicted and arrested in 2016 and held with no bail in solitary confinement, had been found guilty by a jury in 2019 on just some of the charges pressed against him, including bribery and money laundering, but the jury had remained deadlocked on the most serious counts of the indictment, including the alleged scheme to defraud the Medicaid and Medicare programs of more than $1 billion.

Infuriatingly enough, Reason reported how in spite of the jury being hung on the most serious charges, U.S. District Judge Robert Scola, who himself had called out prosecutors for their "reckless" alleged misconduct, nonetheless used his discretion to issue a maximum sentence against Esformes as though he had been convicted by the jury on all of the charges.

"When somebody gets sentenced [at the federal level] … they get sentenced on all charges, even the ones they're acquitted on, [as long as] they get convicted on one count," explained Brett Tolman, a former U.S. Attorney from Utah, who noted that federal judges are not obligated to follow a jury's verdict. "This defendant, as much as you might not like him … do you think he should be punished two or three times for the same conduct? I don't find anybody who thinks that's fair."

Will soon face re-prosecution on same charges

Except, apparently, for President Biden's DOJ, which is now set to retry Esformes on the six counts he was not previously convicted of after he lost a federal appeal on the 20 other counts that he was convicted of in 2019, according to a CNBC report in January.

Attorneys for Esformes had argued that all of the charges should have been dismissed due to the serious allegations of prosecutorial misconduct, but their arguments were unanimously rejected by a three-judge panel of the 11th Circuit Court of Appeals. A request for a rehearing by the entire panel of 11th Circuit judges is currently pending.

"The Court of Appeals did not decide the question of whether President Trump’s grant of clemency to Philip Esformes bars further prosecution on any counts," Kim Watterson, an attorney for Esformes, told CNBC. "Rather, the Court held that -- as an appellate court -- it lacked the necessary jurisdiction to decide the clemency argument at this point in time, expressly stating that it was not reaching the merits of the argument."

This is "clearly double jeopardy"

Jessica Jackson, a left-leaning attorney who helped advocate for the passage of the First Step Act criminal justice reform measure during the Trump years, told Reason, "While there are a lot of people who disagree with how Donald Trump handled his clemencies, it's his absolute right as a president to issue commutations and pardons. And I think that's an important right to protect."

"Philip is struggling with anxiety and depression. He's been triggered by the threat of being re-prosecuted and brought back to a prison where he was assaulted multiple times," she continued. "It might be Philip Esformes today, but it could be thousands of young mothers and fathers stuck in the system tomorrow."

"If you walk through the facts, it's clearly double jeopardy. The judge on the record at sentencing used the hung conduct as part of his sentence," Jackson added. "That sentence was then commuted by President Trump. In my mind, while it's a novel area of legal precedent, this is double jeopardy by the letter of the law, really."

Former U.S. Attorney Tolman agreed that a second prosecution of Esformes by the Biden DOJ "directly violates the double jeopardy clause," and added, "The jury has been impaneled, so double jeopardy attaches, you're in the same jurisdiction, and the judge has indicated that he's sentencing him for [the hung counts]."

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