Trump Commuted His Sentence. Now the Justice Department Is Going To Prosecute Him Again.Philip Esformes' case is a story about what happens when the government violates some of its most basic promises.
BILLY BINION
4.6.2023
When Philip Esformes walked out of prison in December 2020, he'd spent four and a half years behind bars, the majority of which were in solitary confinement. He reportedly weighed about 130 pounds. He was, in many ways, a broken man. But Esformes' luck was changing: He had recently received clemency from former President Donald Trump, giving him the chance to rebuild his life after paying a debt to the country.
That fortune has quickly soured.
In a move that defies historical precedent, the Department of Justice under President Joe Biden is using a legal loophole to reprosecute Esformes' case—raising grave questions about double jeopardy, the absolute power of the clemency process, and the weaponization of the criminal legal system against politically expedient targets.
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But Esformes was not convicted of the most serious charges leveled against him. The government failed to convince a jury, for example, that he committed conspiracy to commit health care fraud and wire fraud. So his 20-year sentence—handed down by U.S. District Judge Robert N. Scola of the Southern District of Florida—may appear grossly disproportionate to his convictions.
Until you realize the judge explicitly punished Esformes for charges on which the jury hung.
That is not an error. "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," says Brett Tolman, the former U.S. Attorney for the District of Utah who is now the executive director of Right on Crime. It is a little-known, jaw-dropping part of the legal system: Federal judges are, in effect, not obligated to abide by a jury's verdict at sentencing. They can, and do, sentence defendants for conduct on which they were not convicted. In this case, Esformes was already sentenced—and had that sentence commuted—for the crimes that the DOJ now wants to retry.
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A Case Tainted by Prosecutorial MisconductThe government's misbehavior in the Esformes case was "deplorable," wrote U.S. Magistrate Judge Alicia Otazo-Reyes in August 2018.
In 2016, the FBI raided one of Esformes' medical facilities. The agency, as well as prosecutors, knew that the building contained documents subject to attorney-client privilege, which the government was therefore barred from seeing. That didn't stop them from retaining and reviewing such documents anyway—for months. They also leveraged government informants to secure recordings of private conversations between Esformes and his lawyers.
"This violates any person's right to defend themselves by virtue of the government having access to your communications and therefore your theory of your defense…. If [prosecutors] know in advance what the defense is going to be, and the particulars of that defense, that gives the government a hand up," says Michael P. Heiskell, owner of Johnson Vaughn & Heiskell and President-elect of the National Association of Criminal Defense Lawyers (NACDL). "This intrusion offends bedrock principles of our American criminal legal system and taints the legitimacy of the adversarial process and assurance of justice."
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Source:
https://reason.com/2023/04/06/trump-commuted-his-sentence-now-the-justice-department-is-going-to-prosecute-him-again/
