DOJ Pokes Another Stick in Trump's Eye - It Will Retry a Man Donald Trump Granted Clemency To

AP Photo/Julia Nikhinson

The raid on Trump’s home last Monday was the high water mark of Merrick Garland’s politicization of the Department of Justice. That act of weaponizing the DOJ was shocking in that it violated accepted norms. Serving a search warrant and using the FBI as its enforcers were entirely unnecessary. A subpoena or even a phone would have sufficed, but a subpoena or a phone doesn’t send a “we can do whatever we want” message. A 9-hour-long rummage through desks, sock drawers, and Melania Trump’s closet do.

Merrick Garland and his Justice Department aren’t done poking Trump in the eye. The DOJ recently offered up one more act of petty political vengeance aimed directly at Mar-A-Lago. The DOJ has decided that it will retry a man Trump commuted the sentence of with a grant of “time served”.

That’s right, the power of a president to pardon or commute a sentence to any person for any federal crime is plenary and inviolate, but apparently not for the DOJ in 2022.  Never mind that it’s a constitutional power – Trump used it. Trump, like all presidents before him, had the power. Although Trump exercised his power of clemency 1,690 fewer times than Barack Obama, some of the people Trump pardoned were (in my opinion) undeserving of presidential clemency. Trump pardoned the father of Jared Kushner. Charles Kushner was an unsavory businessman who, once charged with various crimes including tax evasion, hired a sex worker to seduce a witness. Kushner planned to send the photos to the man’s wife in an act of vengeance. Kushner wasn’t wrongly convicted. He was just the father of Trump’s son-in-law. Unsavory, yes. Was pardoning within Trump’s authority? Absolutely.

Another man Trump pardoned was Philip Esformes. Esformes was charged with healthcare fraud and was convicted on 14 counts. The jury did not reach a decision on the main count of Medicare fraud, and the jury deadlocked on 5 other counts. He was sentenced to 240 months and he was ordered to forfeit 38 million dollars and fined 5 million. Trump didn’t pardon Esformes rather his sentence was commuted to time served. The fines and forfeiture remained in place. One can ponder why Trump decided to commute Esformes’ sentence to time served. Esformes seems like a “bad guy” but the point isn’t Esformes’ guilt or innocence. While Trump was president he didn’t have to justify his clemency power. Again, that power is plenary. In normal times, without a politicized DOJ, the Justice Department would leave this alone, but these are not normal times at DOJ.  Anything Trump did as president the Justice Department (apparently) will try to undo. And, so is the case with Esformes.

Unsatisfied with Esformes serving “time served” and paying fines and forfeiting 38 million dollars, the DOJ plans to retry Esformes on the 6 counts he wasn’t convicted on. How many times has this happened in American history? How many times has the DOJ reopened a criminal case after a presidential pardon? Never.

Jonathon Turley was a vocal critic of Trump’s pardons, but Turley recognizes that Trump had unfettered authority to pardon whomever he wished to pardon. Turley the sees DOJ reopening the case against Esformes for what it is. This is not about Esformes – it’s about Trump. Others agree.

New York criminal defense attorney Joe Tacopina said:

“And if there’s any question about that, what the prosecution is doing here against Mr. Esformes is unprecedented.” He’s clearly a political casualty of partisan games.”

This sets another dangerous precedent, and it has nothing to do with justice – it has everything to do with poking another stick in the eye of Donald Trump.

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