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OPINION

Biden’s DOJ is flirting with a dangerous clemency precedent

Allowing the Justice Department to re-prosecute someone after they’ve had their sentence commuted — and after a new president is in the White House — will politicize the judicial system and eviscerate the ability of the president to grant clemencies.

If successful, anyone who received clemency from President Biden — and even those who received clemency from Barack Obama or Bill Clinton — could be subject to the “review and retribution” process currently being put into place by the Department of Justice.BRENDAN SMIALOWSKI/AFP via Getty Images

Move over, Bill Clinton.

The most notorious presidential clemency controversy in modern history is about to be unseated. President Biden’s Justice Department is quietly embarking on a reckless and unprecedented course of action that will make Clinton’s last-minute rush of pardons in January of 2001 blush.

Philip Esformes is a Florida resident who owned and operated skilled nursing and assisted living facilities. In 2019, Esformes was convicted on health care kickback, money-laundering, and related charges regarding the operation of those facilities. He was ultimately sentenced to 20 years in prison. Importantly, during that sentencing, the court considered both the counts on which he was convicted and the charges where the jury did not reach any verdict.

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Following his sentencing, Esformes’s attorneys sought relief through the full clemency review process. Their clemency petition demonstrated that there was clear prosecutorial misconduct during the original trial. For example, after an extensive evidentiary hearing, a US magistrate judge found prosecutors’ conduct during the case to be “deplorable.” The trial judge even found that the prosecutors had committed “multiple errors” and “infringed” on Esformes’s attorney-client privilege.

After considering the clemency petition which outlined this prosecutorial misconduct — and noting that the release of Esformes would not put the safety of the community at risk — Donald Trump granted him clemency.

While some people have been critical of some of Trump’s pardons, Esformes’s clemency petition was supported by some of America’s most respected legal voices. That includes former attorneys general William Barr, Edwin Meese, and Michael Mukasey, as well as former deputy attorney general Larry Thompson.

Moreover, Margaret Love, who served as pardon attorney under Presidents George H. W. Bush and Clinton, concluded that Trump’s intention was to end Esformes’s prosecution with no possibility of retrial or further imprisonment.

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But early in the Biden administration, federal prosecutors announced that they would retry Esformes on a number of hung counts from the original trial. That’s despite the Trump administration’s clear intention that Esformes not face a retrial. Moreover, these prosecutors seeking to retry Esformes come from the same office found by the magistrate judge to have engaged in “deplorable” conduct and committed “multiple errors” during the original trial.

What is happening here is clear: By proceeding with this case, the Biden administration is disregarding the clemency process — a dangerous precedent.

The Constitution gives a sitting president the sole authority to grant reprieves and pardons for federal offenses. Allowing the Justice Department to re-prosecute someone after they’ve had their sentence commuted — and after a new president is in the White House — will politicize the judicial system and eviscerate the ability of the president to grant clemencies.

After all, what’s the value of clemency or a pardon if the next president can undo it?

Imagine the outcry if a newly inaugurated Republican president worked within this new paradigm. Anyone who received clemency from Biden — and even those who received clemency from Barack Obama or Clinton — could be subject to the “review and retribution” process currently being put into place by the Department of Justice.

Not only is this revived case against Esformes creating a dangerous precedent — it’s also illegal. The revival of this case is the epitome of “vindictive prosecution,” which is a violation of the US Constitution’s Due Process Clause. A prosecution is presumed to be “vindictive” if a prosecutor seeks to subject a defendant to increased punishment following the defendant’s successful challenge to an initial sentence — whether by appeal or commutation. That is precisely the situation that Esformes finds himself in.

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Moreover, the Double Jeopardy Clause precludes the government from re-litigating any issue that was decided by a jury’s verdict in a prior trial. Here, the conduct alleged in the hung counts was integral to the jury’s decision and the 20-year sentence imposed by the court on all other counts of conviction. Now that Esformes’s sentence has been commuted and he has been fully punished for this conduct, any subsequent retrial and resentencing is barred by the Double Jeopardy Clause.

Our country is better than this. If Biden breaks with precedent and allows his Justice Department to move forward with this retrial, it will severely undermine the power of the president to grant clemency and pardons.

Michael J. Sullivan served as US Attorney for the District of Massachusetts (2001–2009) and acting director of the Bureau of Alcohol, Tobacco, Firearms and Explosives (2006–2009). He is currently a partner at Ashcroft Law Firm, where partner John Ashcroft was one of nine former senior Justice Department officials named in an amicus brief filed in connection with Esformes’s 11th Circuit appeal in 2020.