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November 11, 2023

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.

November 11, 2023 at 11:24 AM | Permalink


DOUG: We should not lose sight of the fact that former Kentucky Governor Matt Bevin also abused his clemency powers, to the point that the DOJ, in unprecedented actions against people whose state crimes and sentences had been pardoned and/or commuted, indicted two of the people to whom Bevin had granted clemency. The Feds have not previously gone after such people, despite the Doctrine of Dual Sovereignty. Interestingly, both Dayton Jones and Patrick Baker were subsequently prosecuted by Russell Coleman, who was then the U.S. Attorney for the Western District of Kentucky. This past Tuesday, Republican Russell Coleman was elected as Kentucky's new Attorney General! Patrick Baker had been convicted of killing a drug dealer during a robbery of the drug dealer in his house trailer, with his wife and children present. At the time he was pardoned by Gov. Matt Bevin, Baker had served only 2 of 19 years of his state sentence. Baker's brother and sister-in-law had held a post-election fundraiser for Gov. Bevin at their home, which raised $21,000 to help pay off Bevin's campaign debts. There is an appearance of impropriety, but no one has ever been charged with a crime concerning that pardon. Subsequently, Baker was prosecuted in Federal court for the same homicide during the home invasion robbery of a drug dealer, convicted and sentenced to 39 years (20 years longer than his prior state sentence) in Federal prison. Dayton Jones had been convicted in state court of assault, wanton endangerment and making a video portraying sexual acts by a minor, over an incident in which he anally assaulted a 15-year-old boy with a 12-inch-long sex toy, which perforated the victim's bowel, almost killing him. Baker had served 3.5 years of his 15-year state sentence when he was pardoned by Gov. Bevin. Jones was subsequently indicted in Federal Court for manufacturing child pornography (the 3-second-long video of him assaulting the boy with the sex toy), which carries a sentence of 15 to 30 years. The defendant Baker qualified to get a sentence of less than the 15-year mandatory minimum by cooperating with law enforcement concerning drug dealing in a jail where he was held. Defense counsel also asked the Federal Judge to credit the defendant Baker with the 3.5 years of time that Baker had served in state prison against his Federal sentence. The Federal Judge compromised and gave Baker a sentence of 8 years, 7 years below the Federal mandatory minimum and also less than his former 15-year (paroleable) state sentence. But Baker also agreed to pay $50,000 in restitution to the victim and the Judge imposed a 15-year term of Supervised Release (the Government had requested lifetime Supervised Release). DOJ policy says that the Feds should only prosecute those who receive clemency under state law for their crimes if that clemency results in an "unjust or corrupt result". Although Gov. Bevin lost the 2019 election to Gov. Andy Beshear by only 5,080 votes (0.02% of all votes cast), Bevin did not file to run against Beshear in the November 2023 election, in part because of his indefensible 670 pardons and commutations, and because of his affair with another woman, resulting in an illegitimate child (these facts are not widely known), and the fact that his wife of 27 years, Glenna, with whom he has 9 biological and adopted children, has sued him for divorce. Given those issues, he couldn't really run again for public office. Also, Bevin never released hs tax returns, despite having said in 2019 that he would release them if he was elected. Bevin made his fortune managing pension funds, and subsequently sold that business. Many believe that he may be worth as much as $50 million.

Posted by: Jim Gormley | Nov 11, 2023 4:50:12 PM

The tale of how Gov. Matt Bevin came to pardon and commute about 670 criminals during his term of office (ending in December 2019) is fascinating. Attorneys and Ministers associated with the Kentucky Coalition to Abolish the Death Penalty lobbied Gov. Bevin to commute the death sentences of the 26 people on Kentucky's death row. As part of that lobbying campaign, they wrote Bevin and his General Counsel a Memorandum of Law about the scope of his clemency powers under the Kentucky Constitution and statutes. Not being an attorney himself, Bevin had previously known almost nothing about the scope of his clemency powers, before he read that Memo. Needless to say, Bevin never commuted any of the death sentences for those on death row, but he did take that Memo and the education the lobbyists had given him, and use it recklessly to grant 670 other pardons and commutations. The Law of Unintended Consequences played out in a big way here. The subsequent prosecution by the DOJ of two of those pardoned by Bevin is virtually unprecedented in American legal history, despite the Doctrine of Dual Sovereignty.

Posted by: Jim Gormley | Nov 11, 2023 6:11:43 PM

I don't know enough about the case to have an opinion whether the present prosecution is just or wise. But I'm quite sure that under the law, there is no barrier against it. The clemency did not reach or purport to reach crimes for which there had been no conviction.

Posted by: Bill Otis | Nov 12, 2023 12:56:19 AM

From the brief summary above, this individual had a sentence commuted. Even without the commutation (which does not impact the conviction), the double jeopardy clause would bar trying him for the same offense. Of course, current case law (primarily Goowin and Bordenkircher) would allow the federal government to pursue additional charges for related conduct if the government thinks that additional punishment is needed. I know of nothing that requires the current administration to accept the prior administration's determination of what punishment is appropriate.

Posted by: tmm | Nov 12, 2023 9:20:04 AM

I believe there were six counts in the original Esformes jury trial that were hung, and I do not believe many are forcefully arguing that Prez Trump's commutation serves to create a formal legal restriction on DOJ seeking now to pursue conviction on those counts. But I believe doing so is unprecedented. And there are often unresolved counts or allegation against persons who receives a clemency grant. Prez Obama commuted over 1700 sentences, most drug defendants (but including politically high-profile folks like Chelsea Manning and Oscar Lopez Rivera), in the final months of his presidency. Would it have been good policy or a good look for the Trump Admin to have reviewed every one of those grants looking for cases to prosecute again? If the next Prez is troubled by Prez Biden's blanket pardons of past federal clemency possession offenses --- perhaps thinking many cases actually may have involved trafficking --- would it be good policy or a good look to review every one of those grants looking for cases to prosecute again?

Posted by: Doug B | Nov 12, 2023 10:35:42 AM

There is also a "flip side" to the issue presented now. Many will remember President Clinton's many grants of clemency during his last 2 weeks in office. One of those was the infamous Marc Rich case. Rich had been a fugitive from justice for years, because Switzerland, where he lived, refused to extradite him for the alleged crime of "trading with the enemy", which has no counterpart under Swiss law. Soon after George W. Bush was inaugurated, he instructed the DOJ that he wanted them to find a way to "undo" Clinton's pardon of Mr. Rich. After conducting some legal research, the DOJ was constrained to advise President Bush that a subsequent President cannot in any way "undo" a pardon granted by a prior President. Congress held hearings about the Marc Rich parson, but no one was ever indicted or prosecuted over it. My friend Kitty Behan, who was then a partner at Arnold & Porter in D.C. had been paid $300,000 by Mr. Rich to handle and write his pardon application, which was submitted directly to President Clinton (by a former Asst. White House Counsel), without going thru the DOJ's Office of Pardon Counsel. Ms. Behan and A & P spent more than their legal fee from Mr. Rich defending themselves before Congress. The clemency process is frequently controversial. Few receive the grace of Presidential clemency.

Posted by: Jim Gormley | Nov 12, 2023 3:38:07 PM

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