The Biden administration’s effort to retry former healthcare executive Philip Esformes is “a travesty of justice,” Rep. Andy Biggs (R-Ariz.) said at a congressional oversight hearing on June 22.
Convicted in a healthcare fraud scheme, Esformes was sentenced to 20 years in prison in 2019.
In December 2020, then-President Donald Trump commuted to time served the sentence of Esformes who had been behind bars since he was arrested in 2016. Trump did not, however, pardon Esformes for several “hung” counts that were not resolved by the jury, nor did he relieve Esformes of the burden of paying $5 million in restitution and complying with an order of three years of supervised release.
But after his release and despite the commutation, the U.S. Department of Justice (DOJ) decided it would retry Esformes on the hung counts, an unusual move that was met with disapproval by legal experts.
The Esformes prosecution was what the DOJ described as the “largest health care fraud scheme ever charged” by the agency.
Prosecutors said Esformes spearheaded an “extensive health care fraud conspiracy” between January 1998 and July 2016 in connection with his chain of assisted living facilities and skilled nursing facilities. Patients were sent to his facilities at which they “often failed to receive appropriate medical services or received medically unnecessary services billed to Medicare and Medicaid.”
Witnesses said poor conditions prevailed at many of the facilities. Esformes is said to have covered this up by bribing state officials in Florida, according to a case summary on the Law & Crime website.
The DOJ found that Esformes “personally benefited from the fraud” by more than $37 million. He used “criminal proceeds to make a series of extravagant purchases, including luxury automobiles and a $360,000 watch,” and also gave a bribe to a University of Pennsylvania basketball coach who facilitated his son’s admission to the Ivy League institution of higher learning.
A jury found Esformes guilty in April 2019 of 20 counts of various offenses, including fraud, conspiracy to commit bribery, money laundering, and obstruction of justice. But the jury was hung, failing to deliver a verdict on other counts. Among the hung counts were conspiracy to commit healthcare fraud, federal program bribery, and other offenses related to healthcare fraud.
Later that year, U.S. District Judge Robert N. Scola, who was appointed by former President Barack Obama, sentenced Esformes, the summary said.
The hearing was held by the House Judiciary Committee’s Subcommittee on Crime and Federal Government Surveillance, which is chaired by Biggs. The DOJ previously considered criminally investigating Biggs in connection with the Jan. 6, 2021, security breach at the U.S. Capitol that delayed final congressional certification of the 2020 presidential election for several hours.
The panel has jurisdiction over the federal criminal code, the administration of justice, federal prosecutors, drug enforcement, sentencing, internal and homeland security, the Federal Rules of Criminal Procedure, the use of surveillance tools by federal law enforcement, and prisons.
Although the DOJ argued Esformes’s actions cost the government $1.4 billion, the jury found the government’s actual losses totaled under $200,000, Biggs wrote.
“To rectify the role of the prosecutorial misconduct … President Trump commuted his sentence to time served, based in part on the recommendations of former U.S. Attorneys-General Edwin Meese and Michael Mukasey, and former Deputy Attorney General Larry Thompson,” the congressman said.
“For years, the DOJ has unjustly and unlawfully targeted its political opponents,” the letter said. The case “highlights what most Americans already know: Our nation has a two-tier justice system and it does not serve the American people fairly.”
Ignoring “clemencies granted by President Trump” is “a reckless move that is contrary to American history and further indicates how weaponized the DOJ has become.”
“Mr. Esformes has already served time and has been publicly humiliated. Re-prosecuting a case that has already been commuted by a former U.S. president is unprecedented and would set a dangerous path forward. In fact, a re-prosecution would permit virtually all presidential grants of clemency to be overturned—undermining this constitutional authority.”
“Attorney General Garland cannot continue down this unprecedented path that turns our nation into a Banana Republic,” Biggs wrote.
At the hearing, Biggs said the “unprecedented prosecution” of Esformes “is just the latest in the pattern of repeated systemic corruption by this administration’s Department of Justice.”
The ranking member on the subcommittee, Rep. Sheila Jackson Lee (D-Texas), pushed back, saying Esformes was “a man driven by almost unbounded greed.”
Rep. Jerrold Nadler (D-N.Y.), the ranking member on the full committee, recounted details of Esformes’s crimes.
“Under this scheme, sick elderly patients were moved from one facility to another to maximize billable services. Some patients received unnecessary treatments. While others testified that they faced poor conditions.”
Apart from the prison term and restitution, Esformes was “forced to forfeit $38.7 million obtained from the scheme until he got the attention of President Trump in the final months of the Trump administration,” using connections “to reach out to the highest levels of the White House.”
Republicans claim this case shows there is a two-tiered system of justice and “far too often that is right, but the tiers are not based on political views,” Nadler said.
“While Republicans imagine that white wealthy conservative men are the victims of these disparities, Democrats know that there’s actually poor people and people of color who find the deck stacked against them. Whether you spend the night in jail doesn’t turn on who you voted for, but it might very well turn on whether you have a lawyer on speed dial or enough money to post bail.”
Biggs said at the hearing that the DOJ is out of control.
“Under the leadership of Merrick Garland, the attorney general, the Department of Justice has weaponized power in unprecedented ways, with new examples seemingly uncovered every week,” he said.
“In recent times, we’ve seen President Trump indicted for conduct also committed by Secretary of State Hillary Clinton and Senator Joe Biden,” Biggs said, apparently referring to allegations that the two figures illegally had sensitive government documents in their possession.
“We’ve heard reports that prosecutors have quotas for the number of Jan. 6 related cases they must bring. We’ve seen Catholic worshippers targeted in churches and concerned parents targeted by this DOJ at school board meetings. And just yesterday, Special Counsel John Durham testified about his report that found systemic problems within DOJ and FBI, which were weaponized by individuals with political bias against President Trump.”
It is unclear if any legislation will be proposed to deal with cases of re-prosecutions after commutations.
