Convicted Fraudster Granted Clemency is Facing Jail Due to Trump's Incompetency

Philip Esformes thought he had beat the system.  Less than five years into a 20-year sentence for his role in a massive fraud scheme — bankrolling a high-flying Miami Beach lifestyle of luxury cars, designer clothing and high-priced escorts — Esformes walked out of federal prison thanks to Donald Trump, who granted him clemency in the waning days of his presidency.

But Esformes’s reprieve is now in peril, because the Justice Department is seeking to retry him — a move made possible because the jury that convicted him reached no verdict on six counts, including the most serious charge of conspiracy to commit health-care fraud. Because Trump’s clemency order was silent on those charges, prosecutors say they are able to take him back to court.

Former prosecutors say a retrial is a chance to correct a grievous mistake in which Trump bypassed long-standing protocols to grant clemency to a corrupt nursing home executive.  “It’s an opportunity for justice,” said Paul Pelletier, a former federal prosecutor for 27 years who led the agency’s fraud section before it criminally charged Esformes. “We use the law to hold people accountable as best as we can.”

Philip Esformes is the son of Morris Esformes, who made a fortune in the nursing home industry. The son was given a large stake in the family business starting when he was a child. He once said in a deposition that he did not know how many nursing homes he owned. As an adult, Esformes expanded the health-care chain in Florida, his business fueled a “lifestyle of the rich and famous,” according to his wife in the divorce case she filed in 2015. “Private planes, multiple residences, exotic cars, no restrictions on expenditures, and, if ever there was a case where money is no object, this is the case,” read one motion filed by his spouse. He drove a $1.6 million Ferrari Aperta, wore a $360,000 Swiss watch and brought escorts to five-star hotels, prosecutors would later reveal. 

As their nursing home empire grew, Esformes, his father and their business partners paid a total of more than $20 million in 2006 and 2013 to settle two civil lawsuits accusing them of fraud and taking kickbacks, according to records. They did not admit wrongdoing in either case.  In 2016, prosecutors charged Esformes in what they called the largest-ever scheme targeting Medicare and Medicaid, the government programs for the elderly and the poor. Esformes was accused of bribing medical professionals to admit patients to his network of assisted-living facilities and nursing homes for services that were never provided or were unnecessary.

During the two-month trial, prosecutors asserted that Esformes personally received more than $37 million in the scheme, using $300,00 of it to pay bribes to the head coach of the University of Pennsylvania basketball team to recruit his son.   “He cheated. He tried to take the easy way out,” one of the prosecutors, Allan Medina, said during the trial. “He tried to game the system everywhere he turned.”   In April 2019, a jury convicted Esformes on 20 criminal counts, including conspiracy to defraud the United States, paying and receiving kickbacks, bribery, money laundering and obstruction of justice.

U.S. District Judge Robert N. Scola sentenced him to 20 years in prison and ordered him to pay $5.5 million in restitution and forfeit $38 million in assets to the government.  Federal prosecutors never made a decision to re-try Esformes on the six charges the jury deadlocked on-- they were never prohibited by the court from refiling on those charges.  

On Dec. 22, 2020, the White House announced the commutation of Esformes’ sentence. It’s not clear precisely what led Trump to grant Esformes’s request for clemency or who ultimately persuaded him to do so. A Trump spokesman did not respond to interview requests. White House counsel Pat Cipollone and senior White House adviser Jared Kushner, Trump’s son-in-law, who were copied on the letter urging the president to commute Esformes’s sentence, did not respond to requests for comment.

Justice Department officials said Esformes' clemency was highly inappropriate given that he had not accepted legal responsibility for his crimes, cooperated with the government or met other standards for clemency recipients. “If the office had gotten this case, it would have been rejected 100 percent. There’s no doubt about that,” said Pelletier,

In April 2021, four months after Esformes’s release, his attorneys and prosecutors appeared before Judge Scola to talk about his appeal. The commutation had cut short his prison sentence but left the financial penalties in place. That’s when prosecutors revealed their plan to retry Esformes.  “We do intend to proceed on those hung counts,” Medina said. “We do believe that if convicted on the hung counts, he can be sentenced, again, entirely separate from the commutation issue.”

Prosecutors argued in a court brief in August 2021 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.