“The situation is entirely unique because the actions of the prosecutors here are incredibly outrageous,” said Joe Tacopina, a leading New York criminal defense attorney.
“There’s no question in my mind that the [Justice Department’s] flagrant disregard of President Trump’s clemency order is motivated by acrimony towards him,” said Tacopina.
Tacopina is not representing Esformes in the case. But he is assisting Esformes’ new team from the Reed Smith law firm in preparing for the federal appeals court hearing next month in Miami.
He said prosecutors are engaged in an “obvious vendetta” against the former president for letting Esformes out of prison after a years-long criminal case.
“And if there’s any question about that, what the prosecution is doing here against Mr. Esformes is unprecedented,” Tacopina said. “He’s clearly a political casualty of partisan games.”
The Justice Department and a spokeswoman for the Miami U.S. Attorney’s Office, which is prosecuting the case, did not respond to requests for comment on those claims.
At issue is the Justice Department’s plan to retry Esformes on six criminal counts that jurors at his Florida federal court trial deadlocked on, even as they convicted him of 20 other crimes.
Tacopina and other advocates for Esformes say that effort is not legal, as it flies in the face of what they argue was Trump’s clear intent to put an end to the case by commuting his sentence.
Trump did not respond to a request for comment.
Esformes’ appeal action, which seeks to overturn his conviction and argues that his retrial is barred, also says the case should be tossed out altogether because of prosecutorial misconduct.
The defense team faces a potentially daunting challenge in winning its argument against a retrial on the grounds of Trump’s clemency.
There is no federal statute that explicitly says prosecutors cannot retry a defendant on so-called hung counts when they have had their sentence commuted by the president for counts on which they were convicted.
Nor is there federal case law that provides guidance on that question, because Esformes’ situation is apparently the first time the issue has arisen.
Presidential pardons, on the other hand, bar prosecutors from lodging federal charges against defendants for the same conduct that was the subject of their pardon.
Prosecutors, in a court brief replying to Esformes’ appeal, wrote, “The President’s commutation order does not impact any of the counts on which the jury failed to reach a verdict.”
“By its plain terms, the President’s commutation order is expressly limited to the counts of conviction.”
In the same brief, prosecutors wrote, “If President Trump had intended to grant Esformes a pardon, or if the President had intended to grant Esformes clemency on the hung counts, he would have communicated as much in the clemency warrant.”
“Indeed, on the same day President Trump commuted Esformes’s prison sentence, he issued 15 pardons, each of which stated he was granting a ‘full and unconditional pardon’ to the recipient,'” they added.
Esformes was one of the dozens of people to receive executive clemency, which included pardons and sentence commutations, from Trump in his last months of office after he lost a re-election bid to President Joe Biden. Before that flurry of clemency actions, Trump was notably stingy with them, even when compared to other one-term presidents.
The Justice Department, when it obtained an indictment of Esformes, said he was at the top of the largest health-care fraud scheme ever prosecuted by the department. The department said the scheme spanned two decades and involved an estimated $1.3 billion in losses as the result of fraudulent claims to Medicare and Medicaid, the federal health insurance programs that cover older and low-income Americans, respectively.
With the proceeds of those crimes, authorities said, Esformes bought a $360,000 Greubel Forsey watch, a $1.6 million Ferrari Aperta automobile and paid for female escorts, according to the indictment.
He also paid $300,000 in bribes to then-University of Pennsylvania’s men’s basketball coach, Jerome Allen, who helped get Esformes’ son admitted to that Ivy League school’s Wharton School of Business by falsely claiming he was a prized basketball recruit, prosecutors said.
Allen pleaded guilty in 2018 to a single count of money laundering, was sentenced to four years of supervised release, and ordered to pay a fine of more than $200,000.
Allen, who is currently an assistant coach on the NBA’s Detroit Pistons, in 2020 was hit by the National Collegiate Athletic Association with a 15-year show-cause penalty — tied for the NCAA record — which in most cases effectively bars coaches from being hired by a college during that time period.
In 2019, Laura Janke, a former assistant women’s soccer coach at the University of Southern California, pleaded guilty as part of a national college admissions scheme masterminded by the college preparation consultant William “Rick” Singer. That scheme was exposed by federal authorities earlier that year in “Operation Varsity Blues.”
At her plea hearing, a prosecutor said that Esformes’ daughter was among the four students that Janke assisted in obtaining admission to USC under bogus athletic qualifications. Esformes reportedly paid $400,000 over several years to a foundation controlled by Singer, which was used to launder money from clients and dole out bribes to get students admitted to college.
When Esformes was convicted in 2019 in the health-care fraud case, after a trial in which Allen was one of the witnesses for the prosecution, then-Deputy Special Agent in Charge Denise Stemen of the FBI’s Miami Field Office, said, “Philip Esformes is a man driven by almost unbounded greed.”
“Esformes cycled patients through his facilities in poor condition where they received inadequate or unnecessary treatment, then improperly billed Medicare and Medicaid,” Stemen said.
“Taking his despicable conduct further, he bribed doctors and regulators to advance his criminal conduct.”
When he sentenced Esformes to two decades in prison, Judge Robert Scola said that “the length and scope and breadth of the criminal conduct” of the defendant was “seemingly unmatched in our community, if not our country.”
More than a year later, on Dec. 22, 2020, Trump commuted Esformes’ prison term.
But Trump left intact the portion of the sentence that called for Esformes to serve three years of supervised release and pay $5.5 million in restitution for his crimes. Esformes also was left on the hook for an order to pay a $38 million forfeiture judgment.
In a statement detailing the commutation, Trump’s then-press secretary Kayleigh McEnany noted that former U.S. Attorneys General Edwin Meese and Michael Mukasey supported the move.
She added that Esformes, “While in prison … has been devoted to prayer and repentance and is in declining health.”
A subsequent court filing by Esformes’ lawyers said that Trump’s Attorney General William Barr had personally approved the terms of the clemency.
McEnany in her statement also pointed out that Meese and Mukasey, along with two other former attorneys general, John Ashcroft and Alberto Gonzalez, former FBI Director and federal judge Louis Freeh, and other former top Justice Department officials had filed a legal brief supporting the dismissal of Esformes’ case.
That brief said prosecutors had violated rules barring them from using communications between defendants and their lawyers as evidence.
“The government in this case eviscerated the defendant’s attorney-client privilege and work-product protection,” the brief said. “Dismissal is the only remedy that can fix these pervasive violations.”
Prosecutors in a reply brief in the appeals case said that the trial judge in Esformes’ case “correctly denied” a motion to dismiss the charges and to disqualify the prosecution team.
“Esformes failed to establish the demonstrable prejudice necessary to warrant the extreme sanction of dismissal or disqualification,” prosecutors wrote in that brief. “Indeed, given the court’s suppression rulings, Esformes has failed to prove he suffered any articulable prejudice from the government’s missteps.”
Days after the commutation of Esformes’ sentence, The New York Times published an article detailing the role of the Aleph Institute, a Jewish humanitarian non-profit group that supports prisoners’ rights, in assisting his bid for clemency from Trump.
Esformes’ father, Morris, is a rabbi.
The Times noted that the Esformes family for years donated to the movement of Hasidic Jews known as Chabad-Lubavitch, “to which [Trump’s son-in-law Jared] Kushner has longstanding ties.” Kushner was a senior White House advisor during Trump’s presidency.
A day after Trump commuted Esformes’ sentence, Trump issued a pardon to Kushner’s father Charles, a real-estate mogul who was sentenced to two years in prison in 2004 after pleading guilty to tax evasion, witness tampering and making unlawful campaign contributions.
Charles Kushner, in an effort to intimidate his own brother-in-law from acting as a witness against him, hired a prostitute to lure the other man into a sexual tryst. Charles Kushner then sent a secretly recorded videotape of that account to the man’s wife, the sister of Charles.
In a 2006 press release, the Justice Department said Philip and his father Morris, along with a third man, had paid $15.4 million to settle federal and Florida civil health care fraud claims related to kickback and medically unnecessary treatments at Larkin Community Hospital, which they had owned.
And an August 2013 article in The Chicago Tribune reported that Philip and Morris Esformes agreed in principle to pay the U.S. government $5 million to settle claims that they “took kickbacks related to the sale” for $32 million of a pharmacy partially owned by Philip to the pharmaceutical giant Omnicare.
In April 2021, months after Philip Esformes was released from prison as the result of Trump’s commutation, federal prosecutors in Miami told a judge they intended to re-try Esformes on the counts where jurors had failed to reach a verdict.
In August that same year, a judge set a $50 million release bond for Esformes, which was co-signed by his father and children.
The decision to retry Esformes outraged his legal team at the time, and still does more than a year later.
In an appeals court brief filed last year, Esformes’ lawyers said, “the text and context of this grant of clemency reveal an intent to end the prosecution and incarceration of Esformes for the conduct at issue in this case.”
Those attorneys also argued that a re-trial was barred under the double-jeopardy clause of the Constitution because the judge, when sentencing Esformes, had factored in conduct that was the basis for the major criminal count on which jurors deadlocked.
“Simply put, there can be no retrial of Philip Esformes,” lawyers wrote in their appeals brief.
Tacopina, in an interview this week, said the alleged misconduct by prosecutors in using information against Esformes that was protected by attorney-client privilege, and which was “illegally obtained in violation of his Constitutional rights,” underscores the unfairness of retrying him.
“It would be a gross miscarriage of justice to let these same prosecutors thumb their noses at the president’s grant of clemency to retry Mr. Esformes on any part of their infected case,” Tacopina said.
Asked why the public should feel sympathy for Esformes, given his conduct, Tacopina noted that, “Mr. Esformes always maintained his innocence.”
“The president granted him clemency, and now, after a change in administration, the new Biden Justice Department wants to undo that,” Tacopina said.
“The public should be very concerned when prosecutors — more interested in career advancement and political games — violate the law and pervert justice for those reasons,” Tacopina said.
“Because that circumstance puts us all in jeopardy.”