U.S. Secret Service and Mar-a-Lago security members stand at the entrance of former President Donald Trump’s house in Palm Beach, Fla., Aug. 9.



Photo:

Eva Marie Uzcategui/Bloomberg News

The raid on

Donald Trump’s

Mar-a-Lago residence this week was political theater, pure and simple. It was an attempt by the Justice Department and the Federal Bureau of Investigation to tarnish the current president’s political enemy by misusing the power of the federal government.

But while the media feasted on images of agents toting assault rifles outside Mr. Trump’s home, a team of federal prosecutors have been working out of sight to exploit a legally dubious loophole to undermine a core tenet of the Constitution: the president’s authority to grant clemency.

Like every modern president, Mr. Trump used that constitutional power to pardon convicts and commute sentences. He did so 237 times, a low figure compared with recent predecessors. President Obama used the power nearly 2,000 times. President Clinton pardoned or granted clemency to 456 people, including 140 on his last day in office.

Philip Esformes,

a South Florida nursing-home operator, was among those to whom Mr. Trump granted clemency. In 2019 Mr. Esformes was convicted of a massive Medicare fraud scheme and sentenced to 20 years in federal prison despite a magistrate judge’s holding that federal prosecutors had improperly obtained and handled evidence in the case. Judge

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Alicia Otazo-Reyes

said she “found the government’s attempt to obfuscate the evidentiary record to be deplorable.”

Mr. Esformes is pursuing an appeal, but in December 2020 Mr. Trump granted clemency and commuted his prison sentence. The reprieve was short-lived. Not long after President Biden’s inauguration, the Justice Department announced that it would attempt to retry Mr. Esformes. In the original trial, the jury failed to come to a verdict on six of the 26 counts against him.

In a May 2021 filing with the 11th U.S. Circuit Court of Appeals,

Margaret Love,

who served as the Justice Department’s pardon attorney from 1990 through 1997, attested that she had reviewed the record and concluded “that the intent of the commutation request was to end any further prison term for Esformes.”

Why would prosecutors pursue him at this point? Perhaps because administration officials see an opportunity to humiliate a political foe. As with the Mar-a-Lago raid, justice and the rule of law were sacrificed on the altar of politics. The Justice Department’s antipathy for Mr. Trump appears to have led to norm-shattering decisions that set dangerous precedents for future administrations.

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Americans should be disturbed by the misuse of the FBI’s power to embarrass Mr. Biden’s political rival—and also about abuses of power that are taking place outside the media spotlight.

Mr. Tolman is executive director of Right on Crime. He served as U.S. attorney for Utah, 2006-09.

Wonder Land: An FBI raid against a former president should never happen. End of discussion. Images: Corbis via Getty Images/Reuters Composite: Mark Kelly

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Appeared in the August 12, 2022, print edition.


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