Wednesday, March 13, 2024

Creators: When Clemency Is Not Enough

Matthew T. Mangino
Creators Syndicate
March 11, 2024

Ever hear of Philip Esformes? If you haven't, chances are you will hear about him this summer or fall.

Philip Esformes was raised in an Orthodox Jewish community outside Chicago. His father, Morris Esformes, a rabbi, business executive and well-known philanthropist, made a fortune in the nursing home industry.

Philip eventually took over the family business, expanding the health care chain in Florida. According to The Washington Post, as Esformes' wealth expanded, he bought private planes, multiple residences and exotic cars; he drove a $1.6 million Ferrari and wore a $360,000 wristwatch.

The son of a rabbi was living the high life. That all came crashing down in 2016. Esformes was charged by the United States Department of Justice as part of the largest health-care fraud scheme ever prosecuted.

At the time, prosecutors said Esformes bribed doctors to put patients into his nursing homes, where they often received inadequate care or were given unnecessary services that were then billed to Medicare and Medicaid.

Esformes personally netted more than $37 million from the yearslong scheme. According to CNBC, a federal prosecutor described Esformes as "a man driven by almost unbounded greed."

The jury convicted him of 20 criminal counts at trial, but deadlocked on six other counts. A judge sentenced Esformes to twenty years in prison.

After his incarceration, Esformes immediately sought the influence of high-ranking former government officials to seek clemency. An attorney with the Aleph Institute, a Jewish charity affiliated with the Chabad-Lubavitch movement and frequent object of the elder Esformes' charity, began lobbying the White House. Esformes' team enlisted help from Edwin Meese and Michael Mukasey, two former U.S. attorneys general; and Larry Thompson, a former second in command at the DOJ.

With the support of then Attorney General William Barr, the fruits of their labor paid off. Having served less than five years of a 20-year sentence, Esformes walked out of federal prison. In the waning days of Donald Trump's presidency, Trump granted him clemency.

Esformes had seemingly caught a big break. He was a free man. However, the Biden Justice Department had a different idea. The DOJ announced that it intended to retry Esformes on the six counts that the jury could not reach a unanimous verdict.

Retrying a defendant on charges in which the jury is deadlocked, commonly known as "hung," is not unusual. Retrying a defendant after a few charges are hung but a majority of charges result in convictions is unusual. Retrying a defendant on hung charges after clemency is granted is also extremely unusual.

It was Trump who left the door open to new prosecutions. Trump granted clemency, cutting short the length of the sentence, on the 20 charges Esformes was convicted of but did not grant relief on the six charges he was not convicted.

The questions surrounding the case come down to whether trying Esformes again violated the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution — being tried twice for the same crime.

According to The Washington Post, prosecutors argued 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.

Although the decision to retry Esformes was universally assailed on the "right," it appears to have been accepted by his legal team.

Last month, Esformes pleaded guilty to one count of conspiracy to commit health care fraud and was sentenced to time served, with prosecutors agreeing to dismiss the remaining five counts.

In the meantime, the Federal Court of Appeals affirmed the District Court's judgment on Esformes' original convictions and sentence, the restitution award of $5.5 million and the forfeiture judgment in the amount of $38.7 million.

It was a rather subdued conclusion to what started out as a highly charged decision by the DOJ. If this were any other year or any other time, that might be the end of the story. But this is 2024, anything is political fair game in the Trump v. Biden rematch.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book "The Executioner's Toll, 2010" was released by McFarland Publishing. You can reach him at and follow him on Twitter @MatthewTMangino.

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