Biden's Justice Department changes presidential pardons for the worse

The Biden administration has spent the last two years reversing almost every decision, executive order, or regulation put in his place by Donald Trump.  This comes as no surprise on issues that largely break along partisan lines, such as climate change, gender identity and immigration. Elections have consequences, after all. But the Biden team has now taken their crusade to erase Trump’s legacy to absurd lengths, going so far as to nullify one of Trump’s clemency decisions. 

Nowhere do presidents have more authority than when granting pardons and commuting prison sentences. Presidents turn to the clemency process to right a prosecutorial wrong, as President Trump did in the case of Philip Esformes. Now, the Department of Justice is trying to undo his clemency.

Esformes was indicted on 32 counts related to his healthcare business.  During the trial, a magistrate judge strongly criticized the prosecutors’ unethical moves to uncover and utilize information that was clearly covered by the attorney-client privilege. 

It’s easy to win a criminal case when you know the other side’s strategy.  And that is exactly what happened. Pointing out that the Justice Department blatantly broke the rules and then tried to cover it up, the magistrate characterized the prosecutors’ conduct as "deplorable." Shockingly, the magistrate’s findings were ignored by the trial judge. 

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With the advantage of having illicit, insider information, the Justice Department was able to convict Esformes on 20 counts. The jury was unable to reach a verdict, however, on six of the charges.  Phillip Esformes was then sentenced to two decades in prison. 

Faith groups brought the Esformes case to Trump’s attention.  Former Attorney-General John Ashcroft – certainly not a person who could be characterized as ‘soft on crime’ – called the prosecutorial misconduct in Esformes' trial "amongst the most abusive" he has ever seen.

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Trump was asked to grant clemency to Esformes on the recommendation of numerous respected legal figures, including former Attorneys-General Edwin Meese, Alberto Gonzales, and Michael Mukasey, as well as former Deputy Attorney-General Larry Thompson. These former law enforcement officials saw the prosecutorial misconduct as fundamentally tainting Esformes’ conviction. 

Looking to right a wrong, Trump commuted Philip Esformes’ sentence to time served. But that’s not the end of the story. 

Still stinging from the criticism of prosecutorial misconduct two years later, the Justice Department is working feverishly to reverse Trump’s clemency decision.  DOJ intends to re-try Esformes on the six counts where the jury couldn’t reach a verdict. 

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Prosecutors hate when presidents exercise their clemency powers. They view a grant of clemency as implicit criticism of their work. In the Esformes case, that is exactly what it was. This is an extraordinary move by government lawyers whose pride is hurt. In the annals of American history, no prosecutor has ever tried to reverse a presidential commutation in this manner.

The fact is Trump’s granting of clemency was intended to end the government’s prosecution of Phillip Esformes, according to those who understand the process. But with the Biden administration looking broadly to erase Trump’s record, those burrowed in at the Justice Department saw a three-pronged opportunity.  

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By retrying Esformes, partisan operatives at DOJ could further erode the legacy of the prior administration.  They could rewrite the history of the case to cover up the misconduct identified by the magistrate.  And they could set a precedent that fundamentally weakens Presidential clemency powers going forward. 

The Justice Department’s move is audacious.  But for those who believe in a strong chief executive, it represents an alarming attempt to undercut presidential authority to review criminal cases and address unfairness, overzealousness, and other miscarriages of justice. 

David Safavian is the General Counsel and Senior Vice President of Conservative Political Action Coalition.