The preservation of our American rule of law is not guaranteed. It takes careful supervision and calculated, corrective action. As a former U.S. attorney general, I am both privileged and obligated to do my part toward its preservation. It is also what led me to get involved in the troubling case of Philip Esformes, a man who has faced terrible injustices at the hands of the government.
Even with confessed defendants and in the most serious cases, it is important that convictions be supported not only by a culpable defendant but also an innocent system.
Mr. Esformes is a nursing home operator who was indicted on allegations related to health care fraud. Prosecutors repeatedly — and egregiously — violated his attorney-client privilege. Informants were used to record privileged conversations between Mr. Esformes and his attorneys. After raiding his attorney’s office, the FBI and prosecutors repeatedly viewed privileged documents for months before the defendant — or the court — ever learned about the violations.
The depth and breadth of the purposeful intrusion into Mr. Esformes’ constitutionally protected attorney-client privilege is unprecedented. At first, the justice system worked as it should.
A magistrate judge found the prosecutors’ conduct “deplorable.” A district court found that the prosecution team committed “multiple errors over the course of its investigation and infringed on [the defendant]’s attorney-client and/or work product privileges.”
But despite the courts’ findings, not only was the prosecution allowed to move forward, but the prosecutorial team was also allowed to stay on and finish the case. Eventually, Mr. Esformes was convicted on certain counts and the jury hung — was undecided — on other counts. Nevertheless, Mr. Esformes was sentenced to 20 years in prison — a severe sentence given that the jury convicted Mr. Esformes only on charges that totaled less than $200,000 in losses.
He spent multiple years in solitary confinement over the course of his sentence before being granted clemency by President Donald Trump in 2020. But the injustice was just beginning.
In an unprecedented move, the Department of Justice is trying to re-prosecute Mr. Esformes on the jury hung counts from his original trial. That’s despite the fact that Margaret Love, the U.S. pardon attorney from 1990 through 1997, found that “the best understanding” of Mr. Trump’s clemency warrant “is that it was intended to end the government’s prosecution and imprisonment of Esformes.”
In mid-September, the system was given a chance to course-correct. The 11th U.S. Circuit Court of Appeals heard arguments as to whether the ongoing case against Mr. Esformes should be dismissed.
At the hearing, the Justice Department attorneys admitted that the prosecutors acted “recklessly” in their initial attempts to prosecute Mr. Esformes. The government also acknowledged that it had implemented new processes and protocols to prevent this reckless invasion of attorney-client privilege from happening again. Of course, this leads one to ask why Mr. Esformes should still face the unfair consequences of these improper processes and protocols.
Along with several other high-ranking Justice Department officials, I signed a ‘friend of the court” brief urging the Court of Appeals to dismiss the case because the Justice Department’s breach of its prosecutorial obligations should not go unpunished. Prosecutors must not be rewarded for persistent and pervasive breaches of the constitutional adversarial rules safeguarding the rule of law in America.
Think of the judicial system as both protector of the public: meting out punishment against lawbreakers, but also protecting the system by guarding the rights ensured by the rule of law. The catalog of abuses in this situation was substantial and serious. No mere knowing wink or nod should excuse them. No accused should face the consequences of reckless criminal prosecution, and we do not want our criminal justice system to give that conduct a pass.
The court has the inherent authority to put an end to unfair prosecution and deter this sort of conduct in the future. In Mr. Esformes’ case, the utter breakdown in the adversarial process calls for dismissal. Not only so Mr. Esformes can finally find justice, but so we can collectively maintain confidence in our criminal justice system.
• John Ashcroft was the 79th U.S. attorney general in the George W. Bush administration from 2001 to 2005.