Continuing coverage of DOJ efforts to continue prosecuting recipient of commutation by Prez Trump
Back in June of this year, I had the honor of serving as a witness at a congressional hearing to discuss federal clemency. Specifically, the House Judiciary Subcommittee on Crime and Federal Government Surveillance conducted a hearing titled “The Examination of Clemency at the Department of Justice,” and the hearing page noted that one goal of the hearing was to “examine the Department of Justice’s unprecedented re-prosecution of Philip Esformes, whose prison sentence was originally commuted by President Donald Trump.” I explained in my written testimony why, though I was “only somewhat familiar with the intricacies of the Esformes case,” I found “deeply troubling any Justice Department efforts to re-prosecute any clemency recipient for conduct related to a clemency grant.”
Perhaps unsurprisingly, the Esformes case and related issues continue to garner attention. Indeed, in recent weeks, I have now seen a number of new press pieces on these matters:
From Mother Jones, “Donald Trump Freed a Convicted Medicare Fraudster. The Justice Department Wants Him Back.“
From Salon, “Ex-prosecutor: DOJ targeting freed fraudster a ‘reminder of Trump’s gross abuse of pardon power’“
From the Washington Post, “Fraudster freed from prison by Trump faces prosecution under Biden“
Looking at these issues beyond the specifics of the Esformes case, there is quite an interesting forward-looking political component to these matters given that former Prez Trump is a leading candidate for President in the 2024 election. Because the Supreme Court has ruled there are few formal legal limits on the clemency power set forth in the US Constitution, political accountability serves as the only significant functional restraint on this executive power.
If “the people” were truly troubled by how Trump used his pardon power as president, voters can hold him accountable at the ballot box in the upcoming election. But I have not yet heard any of former Prez Trump’s political rivals directly assailing his past clemency record nor his stated promise to pardon a “large portion” of those convicted of federal offenses for involvement with January 6 riot. It seems, at least within the GOP primary field, that there is little expectation that Trump’s clemency record or promised would be a real political vulnerability.
Notably, this Fox News piece from June quoted a former staffer for former VP Mike Pence stating that “we have to have a real conversation of what would people actually do with the power of the pardon … [and] when you look at Donald Trump’s record when it came to pardons, it was indefensible.” But VP Pence has already dropped out as a candidate for 2024, and I have yet to see on the political trail any high-profile efforts to have a “real conversation” about federal clemency past, present or future. I doubt the Esformes case alone will prompt such a political conversation, but I do think possible clemency discussions could still be worth watching in the 12 months ahead.