Philanthropist Philip Esformes attends the 15th annual Harold & Carole Pump Foundation gala at the Hyatt Regency Century Plaza on August 7, 2015 in Century City, California.
Tiffany Rose | Getty Images
A highly unusual move by the Justice Department to retry Florida nursing home owner Philip Esformes on health-care fraud criminal charges after then-President Donald Trump commuted his 20-year prison sentence is headed to an appeals court hearing as defense lawyers suggest prosecutors are motivated by anger at Trump.
“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…
Read More: DOJ plans to retry Philip Esformes despite Trump commuting sentence