Constitutional lawyer sounds alarm over 'deeply concerning' action DOJ is taking against man whose prison sentence Trump commuted

George Washington Law School professor Jonathan Turley, a self-described liberal, is raising concern over new Justice Department action against a person whose prison sentence was commuted by former President Donald Trump.

What is the background?

Philip Esformes was sentenced to 20 years in prison in 2019 after he was convicted for running an alleged health care fraud scheme as a nursing home operator. Government prosecutors alleged Esformes ran a "two-decade scheme that involved an estimated $1.3 billion worth of fraudulent claims," according to the New York Times.

But Trump commuted Esformes' sentence in late December 2020, less than one month before he left office.

What are the details?

On Saturday, Turley raised alarm over "deeply concerning" action the DOJ is taking against Esformes.

"I was highly critical of some of the Trump pardons," Turley wrote on Twitter. "But this move by the Justice Department to circumvent a prior commutation is deeply concerning."

"This is a previously tried individual who received executive clemency," the constitutional lawyer added. "The clemency obviously only addressed the conviction but the clear intent was to grant relief from the prosecution as a whole."

Federal prosecutors are working to retry Esformes on six criminal charges over which the jury in his trial were deadlocked. Prosecutors, however, are not attempting to retry the charges on which he was convicted.

Former U.S. Attorney Michael Sullivan described the DOJ's action as "flirting with a dangerous clemency precedent."

Criminal defense attorney Joe Tacopina alleged prosecutors are taking action as political retribution. Tacopina is not a member of Esformes' legal team.

"The situation is entirely unique because the actions of the prosecutors here are incredibly outrageous," Tacopina told CNBC.

“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," the attorney added. "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."

CNBC explained the confusing nature of the case:

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.

Esformes' attorneys believe federal prosecutors are motivated by hatred of Trump, and they have appealed to a federal court the move to retry their client. The appeals court hearing will take place next month.

Ahead of the hearing, prosecutors argued their actions are within the bounds of the law because Trump did not pardon Esformes.

"The President’s commutation order does not impact any of the counts on which the jury failed to reach a verdict," prosecutors argued in a briefing. "By its plain terms, the President’s commutation order is expressly limited to the counts of conviction."

"If President Trump had intended to grant Esformes a pardon, or if the President had intended to grant Esformes clemency on the hung counts, he would have communicated as much in the clemency warrant," prosecutors also said. "Indeed, on the same day President Trump commuted Esformes’ prison sentence, he issued 15 pardons, each of which stated he was granting a ‘full and unconditional pardon’ to the recipient."

Editor's note: This story was updated to clarify that attorney Joe Tacopina is not a member of Esformes' legal counsel.