Fraudster freed from prison by Trump faces prosecution under Biden
Philip Esformes received clemency from Trump in the final weeks of his presidency after well-connected supporters pushed for his release.
But Esformes’s reprieve is now in peril, thrust to the center of an extraordinary legal and political collision between two administrations pushing the bounds of executive authority. The Biden Justice Department is seeking to retry him — a move made possible because the jury that convicted him reached no verdict on six counts, including the most serious charge of conspiracy to commit health-care fraud. Because Trump’s clemency order was silent on those charges, prosecutors say they are able to take him back to court.
At stake is whether the government’s move to reprosecute the architect of one of the largest-ever health-care scams undermines Trump’s decision based on presidential powers laid out in the Constitution and historically considered the last word on a criminal conviction.
The highly unusual decision to retry a clemency recipient on hung charges has emerged as yet another flash point in the broader battle between the far right, which portrays the Justice Department as an arm of an out-of-control “deep state” opposed to anyone associated with Trump, and law-and-order proponents seeking to defend institutions of democracy against incursions by the former president and his allies. Experts say they know of no precedent for this dispute.
In recent months, House Republicans orchestrated a hearing portraying the case against Esformes as a political attack, while an array of Trump acolytes have taken to conservative airwaves and social media to denounce the Justice Department.
“In the annals of American history, no prosecutor has ever tried to reverse a presidential commutation in this manner,” co-wrote Matthew G. Whitaker, who briefly served as acting attorney general under Trump, in a Fox News column. “Does the DOJ have no sense of propriety at all?” tweeted Harmeet Dhillon, a Republican National Committee official from California, whose law firm has represented Trump.
But some former prosecutors say a retrial is a chance to correct a grievous mistake in which Trump bypassed long-standing protocols to grant clemency to a corrupt nursing home executive. If the Justice Department succeeds, Esformes could be sent back to prison, undoing Trump’s executive order that had made him a free man.
“It’s an opportunity for justice,” said Paul Pelletier, a former federal prosecutor for 27 years who led the agency’s fraud section before it criminally charged Esformes. “We use the law to hold people accountable as best as we can.”
As Trump seeks to win back the White House in 2024, the fallout over Esformes’s release shows the repercussions of how he wielded executive authority and portends fierce battles ahead between Trump and the Justice Department if he is reelected. Trump faces more than 40 federal charges in two criminal cases and has vowed to seek retribution against the Justice Department — an extraordinary dynamic that threatens to further test America’s separation of powers.
Clemency is one of the most unfettered powers the Constitution confers on the presidency. The chief executive can offer mercy in the form of a commutation, which cuts short a federal sentence, or a pardon, which erases the civil consequences of criminal convictions.
Justice Department guidelines call for screening clemency requests through a formal petition process. Presidents from both parties have at times ignored those guidelines, but none in modern times as frequently or as brazenly as Trump, who largely used his expansive clemency power to benefit the wealthy and well connected; most of his 238 grants, including the one to Esformes, skirted the agency’s long-standing and onerous vetting process.
Yet Attorney General William P. Barr advocated for Esformes’s release, according to a previously unreported memo to Trump from three former top Justice Department officials lobbying on the health-care mogul’s behalf. Esformes’s commutation — issued while thousands of other inmates who had formally requested clemency were waiting for a decision — infuriated prosecutors who had worked for years to build the case and set the stage for a retrial, according to two people familiar with the case who spoke on the condition of anonymity to describe internal discussions.
The Justice Department declined to comment on whether it had ever prosecuted a clemency recipient on hung counts before.
Esformes’s attorneys declined to make him available for an interview. Supporters say the Orthodox Jewish business executive, who spends an average of nine hours a day praying and studying with rabbis, lives in fear of returning to prison. They argue that retrying Esformes, 55, would violate his constitutional protection against double jeopardy and undercut a lawful executive order.
“There is a spirit among many in the Biden administration that they’re bringing order back to an orderless world, but that extended itself too far in this case because Trump had a right to commute that sentence,” said Josie Duffy Rice, who writes about criminal justice and argues that the Justice Department’s decision is unjust. “Maybe this guy was randomly let off by Trump and maybe he didn’t deserve it, and now we’re going to make this right? Sorry, but that’s not how it works.”
‘He cheated’
Philip Esformes was raised in the large Orthodox Jewish community in suburban Chicago. His father, Morris Esformes, a rabbi and business executive hailed as a leading philanthropist, made a fortune in the nursing home industry. The son was given a large stake in the family business starting when he was a child. He once said in a deposition that he did not know how many nursing homes he owned.
As Esformes expanded the health-care chain in Florida, his business fueled a “lifestyle of the rich and famous,” according to his wife in the divorce case she filed in 2015. “Private planes, multiple residences, exotic cars, no restrictions on expenditures, and, if ever there was a case where money is no object, this is the case,” read one motion filed by his spouse.
He drove a $1.6 million Ferrari Aperta, wore a $360,000 Swiss watch and brought escorts to five-star hotels, prosecutors would later reveal. In Miami, “it’s easy to become … a ruined individual,” Rabbi Sholom Lipskar of the Shul of Bal Harbour, a family friend, would later say in a court hearing. “He lost himself.”
As their nursing home empire grew, Esformes, his father and their business partners paid a total of more than $20 million in 2006 and 2013 to settle two civil lawsuits accusing them of fraud and taking kickbacks, according to records. They did not admit wrongdoing in either case.
In 2016, prosecutors charged Esformes in what they called the largest-ever scheme targeting Medicare and Medicaid, the government programs for the elderly and the poor. Esformes was accused of bribing medical professionals to admit patients to his network of assisted-living facilities and nursing homes for services that were never provided or were unnecessary.
During the two-month trial, prosecutors asserted that Esformes personally received more than $37 million in the scheme. They told the jury he used his proceeds to finance a lavish lifestyle and pay $300,000 in bribes to the head coach of the University of Pennsylvania basketball team to recruit his son.
“He cheated. He tried to take the easy way out,” one of the prosecutors, Allan Medina, said during the trial. “He tried to game the system everywhere he turned.”
In April 2019, a jury convicted Esformes on 20 criminal counts, including conspiracy to defraud the United States, paying and receiving kickbacks, bribery, money laundering and obstruction of justice.
At his sentencing in September 2019, Esformes apologized to the judge, his family and the community. He acknowledged that he had been a “reckless, impulsive, and an arrogant man … a man willing to cut corners without fear of consequences … a man who acted as if the rules do not apply.”
U.S. District Judge Robert N. Scola sentenced him to 20 years in prison and ordered him to pay $5.5 million in restitution and forfeit $38 million in assets to the government. Scola also considered the six deadlocked charges at sentencing under a little-known authority that allows federal judges to take “relevant conduct” into account.
By the time he was convicted, Esformes had been imprisoned for three years while awaiting trial at the Federal Correctional Institution in Miami because he was deemed a flight risk. His attorneys immediately filed an appeal.
And Esformes’s allies launched a lobbying campaign aimed at the one man who could free him.
Lobbying for freedom
By fall 2020, the clock was ticking on Esformes’s hopes for an early release. Presidents typically issue the majority of clemency grants in the final months of their terms, and Trump was intensely focused on trying to undo Joe Biden’s electoral victory.
Esformes was not a Trump donor, campaign records show, unlike many who received clemency. He wasn’t a political loyalist — public records show he registered as a Republican in 2008 but never voted — and wasn’t a celebrity like others who made the list.
But he found another way to reach the White House: through the Aleph Institute, a Jewish charity affiliated with the Chabad-Lubavitch movement.
The nonprofit had worked with the White House on criminal justice legislation. Esformes’s father was a donor to Aleph who had “ramped up” his contributions to the group because of the “direct impact Chabad and the Aleph Institute have had on Philip’s life,” the son’s attorneys said in court documents; the organization’s founder, Rabbi Lipskar, met with Esformes dozens of times during his pretrial detention, according to court records.
A pro bono Aleph Institute attorney, Gary Apfel, began lobbying the White House, enlisting help from several former Justice Department officials who had helped the organization with clemency cases in the past: Edwin Meese, a former U.S. attorney general; Michael Mukasey, another former U.S. attorney general; and Larry Thompson, formerly the second-ranking official at Justice.
The two former attorneys general had potentially beneficial ties to Trump — Meese had received the Presidential Medal of Freedom from the president, while Mukasey’s lawyer son had represented Trump. “It was significant that so many of us who served in the Justice Department joined together,” Meese said recently in a brief telephone interview.
The group urged Trump to commute Esformes’s sentence in a Nov. 16, 2020, memo that said they had spoken to Barr that day. “Specifically, he has authorized us to convey to you that he will not oppose your commuting Mr. Esformes’ 20-year sentence,” the memo said, adding that the attorney general suggested “the precise terms” of his clemency.
The memo echoed arguments made by Esformes’s attorneys, who said prosecutors broke the law by mishandling records seized from Esformes’s in-house lawyer that were protected by attorney-client privilege — conduct that a federal magistrate judge had condemned as “deplorable” but that Scola found did not violate Esformes’s rights.
The memo also said Esformes’s health had dangerously deteriorated. He had been diagnosed with obsessive compulsive disorder, spending so much time praying on his knees that his legs were swollen and purple. He lost more than 60 pounds in prison.
“He has internalized his punishment on a very deep level and spends literally 18+ hours a day in study and prayer, seeking G-d’s forgiveness for his prior conduct,” according to the memo, using a shorthand for God preferred by some in the Jewish faith.
Barr did not respond to an interview request regarding the memo, a copy of which was provided to him by The Washington Post. Mukasey also did not respond to requests for comment.
In an interview, Thompson said that signing on to the memo was warranted because of the “inexcusable” breach of attorney-client privilege during the federal investigation and Esformes’s “faith-based transformation” in prison. Thompson also said that he opposes a retrial.
“I think we should just move on. I don’t think it’s humane,” he said. “I do think that sometimes it is proper to consider mercy and a person’s transformation.”
But other former Justice Department officials say the lobbying on Esformes’s behalf was inappropriate given that he had not accepted legal responsibility for his crimes, cooperated with the government or met other standards for clemency recipients.
“If the office had gotten this case, it would have been rejected 100 percent. There’s no doubt about that,” said Pelletier, who ran unsuccessfully for Congress as a Democrat in 2018. “It’s like the rules don’t apply to him. … The fact there was a letter to the president for him referring to a conversation with the attorney general is absurd and precisely why we have a process.”
In a statement to The Post, the Aleph Institute said it began advocating for Esformes without realizing his father had been a donor. The group said it later returned the money, which totaled $82,500. Aleph also said it conducts a “rigorous review” of clemency requests without regard to race, religion or income; Esformes was among about 30 people whose requests to Trump it championed.
“While the vast majority of the people Aleph helped were at or near the bottom of the socioeconomic ladder, we will not ignore a person’s plight simply because they have money and advocating for them might generate negative publicity,” the statement said.
It’s not clear precisely what led Trump to accept Esformes’s case or who ultimately persuaded him to do so. A Trump spokesman did not respond to interview requests. White House counsel Pat Cipollone and senior White House adviser Jared Kushner, Trump’s son-in-law, who were copied on the letter urging the president to commute Esformes’s sentence, did not respond to requests for comment.
On Dec. 22, 2020, the White House announced Esformes’s commutation. The press release reflected the concerns raised in the memo, saying he “has been devoted to prayer and repentance and is in declining health.”
Nine days after his release, on New Year’s Eve, Esformes attended his daughter’s wedding at his Miami Beach estate. The New York Times reported on the affair, and photos posted to social media showed a tuxedo-clad, grinning father of the bride. Supporters say the festive image disguised his frail mental and physical condition.
“This was a man who was not doing well medically and emotionally,” Apfel, the Aleph attorney, said in an interview. “The fact that someone can still attend a wedding wearing a tuxedo doesn’t mean the person isn’t ill.”
The publicity about the wedding drew attention to the treatment the business executive had received from the White House, allowing him to leapfrog over the thousands of inmates and ex-convicts who had filed formal clemency requests with the Justice Department. When Trump left office, about 14,000 people had outstanding clemency requests.
Esformes’s clemency order, however, did not account for the six counts on which the jury did not reach a verdict. It’s unclear why. The day it was announced was a tumultuous one in the middle of the coronavirus pandemic, and Trump and his allies were feverishly working to overturn Biden’s victory.
“IT WAS A RIGGED ELECTION!!!” Trump tweeted that day, according to an archive of his posts.
A new trial
In April 2021, four months after Esformes’s release, his attorneys and prosecutors appeared before Judge Scola to talk about his appeal. The commutation had cut short his prison sentence but left the financial penalties in place.
That’s when prosecutors revealed their plan to retry Esformes.
“We do intend to proceed on those hung counts,” Medina said. “We do believe that if convicted on the hung counts, he can be sentenced, again, entirely separate from the commutation issue.”
Medina did not respond to requests for an interview. Presidents rarely leave office without a few contentious pardons, but it’s unclear whether any of those cases included hung charges.
Prosecutors argued in a court brief in August 2021 that if Trump had wanted to make sure Esformes could not be retried on the hung counts, “he could easily have done so” by granting him a pardon or specifically referencing those counts. “He did neither,” they wrote.
The Justice Department’s decision sparked an uproar on the right, channeled through social media posts, op-eds and a Capitol Hill hearing on the clemency process that focused on one individual: Esformes.
“This unprecedented prosecution is just the latest in a pattern of repeated systemic corruption by this administration’s Department of Justice,” said Rep. Andy Biggs (R-Ariz.), a leading Trump supporter who chaired the Judiciary subcommittee hearing in June. “They loathe the former president, they loathe his official actions.”
Democrats on the subcommittee advocated a broader overhaul of the clemency system.
“For every case like his, there are hundreds, if not thousands, more people in our federal prisons who cannot afford a whole team of lawyers to pursue clemency and who are not able to persuade a member of Congress to hold a hearing on their case,” said Rep. Jerrold Nadler (D-N.Y.).
Esformes is also making a long-shot request to the U.S. Supreme Court to review his original conviction. The U.S. Court of Appeals for the 11th Circuit affirmed the sentence by the trial court as well as the financial penalties earlier this year.
Criminal justice activists, including celebrity Kim Kardashian, have sought to draw attention to Esformes’s case. Human rights attorney Jessica Jackson alerted advocates and lawmakers across the political spectrum but said Democrats were wary of criticizing the Justice Department as it prosecutes Trump. Jackson said she was swayed by Esformes’s poor health and the constitutional issues at stake.
“‘I know you don’t know me,’” Jackson recalls he told her. “‘But I can’t go back to prison. I’m not going to make it.’”
Supporters say that Esformes’s retrial raises questions about the double jeopardy clause in the Constitution because the judge took the hung charges into account when fashioning Esformes’s sentence. He and the prosecutor also made comments that gave Esformes reason to think he would never be retried, according to court transcripts. “I don’t know what more you are going to get out of the case if you try those additional counts,” Judge Scola said to the prosecution, referring to the hung counts.
But one clemency expert who spoke at the congressional hearing, Mark Osler, a former federal prosecutor and professor at the University of St. Thomas School of Law in Minneapolis, said he has declined to join the outcry against Esformes’s retrial.
“My pro bono activity is on behalf of people in prison who are poor and wait for clemency for years, not this one really rich guy who got plucked out,” he said.
Today, Esformes’s daily routine is much different from his jet-setting lifestyle before his arrest. His bank accounts, health-care business, and properties in Miami Beach, Chicago and Los Angeles have all been seized by the government, according to court records. He lives in a two-bedroom home in Palm Beach County and can’t leave South Florida without permission from his probation officer under the terms of his supervised release.
Among the several rabbis Esformes studies with every day is Nisson Friedman. They talk from 6:30 a.m. to 7 a.m., and Esformes worries constantly about a new trial and the threat of incarceration, Friedman said — something he never could have imagined when Trump freed him from prison 2½ years ago.
A date for his retrial is scheduled to be chosen in November, one month before his three years of supervised release are scheduled to end.
“That’s putting him under tremendous stress,” Friedman said. “He wants to move on with life.”
Posts
No comments:
Post a Comment