Esformes Retrial Confronts Questions About Power of Commutation

The Justice Department’s efforts to retry a Florida man whose sentence was commuted by Donald Trump in the final days of his presidency raises a constitutional question that some experts say hasn’t been confronted: Does commuting a sentence forever end a case, as a pardon does?

Philip Esformes’s case has the potential to alter the perception of presidential powers, especially if the new prosecution succeeds. Numerous court dates in the US District Court for the Southern District of Florida related to the retrial have been canceled in recent weeks, which is often an indication that a plea deal is being discussed, and the Supreme Court in December declined to hear an appeal of his conviction.

“As far as I know there’s no precedent for this sort of situation,” said Curt Miner, a former assistant US attorney in Florida’s Southern District.

A Justice Department spokesman declined comment. Esformes’s legal team didn’t respond to an email seeking comment.

Esformes was convicted for his role in a billion-dollar Medicare fraud scheme in 2019 and sentenced to 20 years in prison. Trump commuted his sentence in the waning days of his presidency. “I leave intact and in effect the remaining three-year term of supervised release with all its conditions, the unpaid balance of his $5,530,207 restitution obligation, if any, and all other components of this sentence,” Trump said in the order.

A White House news release at the time cited “prosecutorial misconduct related to violating attorney-client privilege” for the commutation. A commutation usually reduces a sentence, in comparison to a pardon, which forgives the crime.

The DOJ—which under Trump was largely cut out of its customary role recommending pardons and commutations—decided in 2022 to try him again on charges that the trial jury couldn’t reach a decision on.

Outraged Republicans on a House Judiciary subcommittee held a hearing in June on “the unprecedented re-prosecution of Philip Esformes.” Douglas Berman, an Ohio State University law professor, testified that the effect of the re-prosecution could be endless. “Even a single re-prosecution risks creating a life-altering chill for thousands of individuals who received pardons and commutations from past presidents,” he said in his written testimony.

The questions surrounding the case largely come down to whether trying Esformes again violates the constitutional prohibition against being tried twice for the same crime. On the topic of commutations, the Constitution says only that the president “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”

Miner, now a trial lawyer at Colson Hicks Eidson, said while the case is unusual, pursuing the new trial “is not pushing their constitutional authority because it’s not a double-jeopardy situation.” The unique circumstances of the case and the magnitude of the alleged fraud counter any claims that the department is abusing prosecutorial discretion, he said.

But the question is out there.

Sam Smargon, a former US magistrate judge, said the Esformes team could file a motion to dismiss the case, citing double jeopardy, because his sentence took into account the six counts that the jury didn’t reach a verdict on.

The Future

The case has also sparked debate about political interference—both by Trump and by President Biden’s DOJ. “Politically, it plays both ways,” said Jeff Kay, who handled white-collar prosecutions previously as a lawyer at the US Attorney’s Office.

Guy Lewis, a former US attorney for the Southern District of Florida, said Trump’s decision clearly created a backlash in the Justice Department. Still, the law is based on consistency and predictability, Lewis said. “And what the current administration has done, I think has undermined the consistency and predictability associated with decision making at the highest level of government and the highest levels of Department of Justice,” Lewis said.

The controversy around the Esformes retrial attempt would encourage future presidents using clemency power to use it as broadly as possible to foreclose re-prosecution of the same crimes, said Kimberly Wehle, a law professor at the University of Baltimore.

“It’s going to create an incentive for future lawyers who are lobbying the White House and lobbyists and the Kim Kardashians of the world that are close to power to advocate for as broad a pardon as possible to completely insulate people from any kind of accountability,” said Wehle, who has a book coming out this year on presidential pardons.

Headline Grabber

Esformes was a headline-grabbing case to begin with.

After he was sentenced, the Justice Department said his role in the healthcare fraud was the largest of its kind. “For nearly two decades, Philip Esformes bankrolled his lavish lifestyle with taxpayer dollars, paying bribes with impunity and robbing Medicare and Medicaid by billing for services that people did not need or get,” said Assistant Attorney General Brian A. Benczkowski at the time.

Esformes was responsible for health facilities that were in poor condition where patients received inadequate or unnecessary treatment, following which he improperly billed Medicare and Medicaid, the DOJ said in a news release.

He received more than $37 million from this scheme, according to the government, buying expensive cars and a $360,000 watch.

The story got even bigger after DOJ disclosed in 2021 that it wanted to retry him.

It is almost certain that the case will set a precedent that any pardon or commutation by a president might not be the final say, Lewis said.

The case is US vs. Esformes, S.D. Fla., No. 1:16-cr-20549, Order to continue 12/15/23