FBI, Justice Department overreach in their pursuit of Trump-pardoned businessman | Opinion

News about the FBI’s raid of Mar-a-Lago has dominated the headlines, and rightly so. As more details come to light, this case grows more and more disturbing — whether it’s the seizure of attorney-client privileged documents or the use of armed federal agents to harass a former president.

However, that’s just the latest in a string of questionable actions by the FBI and the Department of Justice. Their record of overreach stretches back many years.

In 2016, the government engaged in similar behavior when it began to prosecute Philip Esformes, a nursing-home operator in Florida. Ahead of his trial, prosecutors repeatedly violated his attorney-client privilege, raiding one of his nursing homes and seizing hundreds of privileged documents and other materials.

The government allowed prosecutors and case agents to review and use those materials for months before the defendant and the district court learned about these infringements. The government went even further, using informants to record privileged conversations between Esformes and his attorney.

The parallels to the recent raid on Mar-a-Lago are clear, and they are shocking.

A magistrate judge and a district court both recognized these violations of Esformes’ attorney-client privilege. The magistrate judge noted that the “government’s disregard for the attorney-client and work-product privileges has not been limited to a single instance or event,” and added that they found prosecutors’ conduct to be “deplorable.” The district court found that the prosecution team “conducted multiple errors over the course of its investigation and infringed on [the defendant]’s attorney-client and/or work product privileges.”

Despite prosecutors’ abuses, Esformes ultimately was sentenced to 20 years in prison for healthcare kickbacks and on money-laundering charges. That lengthy sentence was handed down even though the jury only ever convicted Esformes on charges that totaled less than $200,000 in losses — despite the government’s attempt to charge Esformes with fraud of over $1 billion. The government also failed to charge any doctors involved in the alleged scheme, and no patient files were presented at trial that could demonstrate that Esformes’ nursing facilities failed to provide medically necessary services to patients.

In 2020, President Trump granted Esformes clemency, citing these violations of his attorney-client privilege. Esformes was allowed to return home to his family after serving almost four and a half years in prison.

But the Justice Department remains intent on catching their white whale.

It recently came to light that that the Justice Department will attempt to retry Esformes on a number of hung counts from the original trial. DOJ is doing so even though those hung counts were already taken into account during Esformes’ original sentencing, and even though Trump did not intend for Esformes to face further prosecution. That interpretation is shared by Margaret Love, who served as the Justice Department’s Pardon Attorney from 1990 through 1997.

Love concluded “that the intent of the commutation request was to end any further prison term for Esformes.”

The list of abuses goes on. For example, there are the shocking details behind the “terrorism plot” to kidnap Michigan Gov. Gretchen Whitmer. During the trial, testimony revealed how the defendants had been victims of FBI entrapment “who had been induced by paid informants to commit crimes they would not otherwise have considered.” Defense filings show that the FBI deployed at least 12 informants and multiple undercover agents.

There is a pattern of abuse here. For far too long, the Department of Justice and the FBI have been playing by their own rules and singling out their enemies. It’s time for that to change if the American people are to regain trust in their institutions.

Going forward, I urge the Department of Justice and FBI to proceed with caution and treat every individual — regardless of their political affiliation — with respect for the rule of law. That means dropping their vindictive attempt to re-prosecute Esformes and ceasing their attempts to harass the former president.

The integrity of our justice system depends on it.

Matthew Whitaker served as Acting U.S. Attorney General from 2018-2019.

This story was originally published September 13, 2022 at 1:38 PM.