Clemency offers a study in special access
Philip Esformes acquired a $1.6 million Ferrari and a $360,000 Swiss watch and traveled around the United States on a private jet, a spending spree fueled by the spoils from what federal prosecutors called one of the largest Medicare fraud cases in history.
“Philip Esformes is a man driven by almost unbounded greed,” Denise Stemen, an agent in the FBI’s Miami field office, said last year after Esformes, 52, a nursing home operator, was sentenced to 20 years in prison for the two-decade scheme that involved an estimated $1.3 billion worth of fraudulent claims.
That prison term ended suddenly this week, when President Donald Trump commuted what remained of Esformes’ sentence.
His rapid path to clemency is a case study in how criminals with the right connections and resources have been able to cut through normal channels and gain the opportunity to make their case straight to the Trump White House.
For Esformes, that involved support from a Jewish humanitarian nonprofit group that advances prisoners’ rights and worked with the White House on criminal justice issues, including clemency and legislation overhauling sentencing laws that was championed by Trump and Jared Kushner, his son-in-law and adviser.
Esformes’ family donated $65,000 to the group, the Aleph Institute, over several years starting after his indictment, the group says.
His name adorns a school in Chicago associated with the Chabad-Lubavitch group of Hasidic Jews, whose leader at the time was involved in the creation of the Aleph Institute in the early 1980s. His father is a rabbi in Florida.
His family also has donated for years to the ChabadLubavitch movement, to which Kushner has longstanding ties.
In the announcement of the commutation, the White House said Esformes had been “devoted to prayer and repentance” while in prison and is in “declining health.”
Alan Dershowitz, a longtime supporter of clemency who works with the Aleph Institute on a volunteer basis, said the group “played a significant role” in Esformes’ clemency effort and “put together the papers” for the petition.
Process overridden
Trump largely has overridden a highly bureaucratic process overseen by pardon lawyers for the Justice Department and handed considerable control to his closest White House aides, including Kushner.
They, in turn, have outsourced much of the vetting process to political and personal allies, allowing private parties to play an outsize role in influencing the application of one of the most unchecked powers of the presidency.
Among those allies is the Aleph Institute, a force in criminal justice issues that beyond Esformes’ case also has weighed in on less highprofile clemency requests to Trump.
The White House on Wednesday specifically cited Aleph in announcing Trump’s commutation of what supporters had contended was a disproportionately severe 20-year sentence given to Daniela Gozes-Wagner, a single mother and mid-level manager in Houston, in a health care fraud and money laundering case.
Clemency efforts represent a small fraction of the work done by the Aleph Institute, which has championed fewer than 50 such cases, a majority of which involve prisoners who are not Jewish and are indigent, the group says.
“Aleph has worked with more than 35,000 inmates and their families since its inception,” Rabbi Sholom Lipskar, the institute’s founder, said in a statement Thursday. “Almost all of the people Aleph works with are destitute, and the same is true for almost all the clemency cases.”
Aleph has helped advance at least five of the 24 commutations handed out by Trump.
Dershowitz said the Aleph Institute’s effectiveness stemmed from the thoroughness of the clemency applications it submits to the White House.
He said that staff members in the White House Counsel’s Office, which has worked with Kushner’s team to vet the applications presented to Trump, told him that “the counsel’s office relies heavily on the
credibility of Aleph, and they prove credible repeatedly.”
Institute’s founding
The Aleph Institute was founded nearly four decades ago by Lipskar of the Chabad-Lubavitch movement of Hasidic Jews, at the direction of the movement’s leader, Rabbi Menachem Schneerson, who emphasized the rehabilitation of prisoners.
The Aleph Institute had a budget of $6.9 million during the 12-month period from fall 2018 to fall 2019. The group takes its name from the first letter in the Hebrew alphabet and supports a range of programs beyond clemency, including criminal justice reforms and expanded religious and social services for prisoners and military personnel.
Lipskar said in an interview in August that the organization was working on a commutation for Esformes but had not yet met with anyone in the White House.
He said he did not remember precisely how he came to learn about the case of Esformes.
Kushner and his wife, Ivanka Trump, have their own connections to Chabad-Lubavitch, having chosen a home in Washington within walking distance to a Chabad synagogue where they attend Shabbat services.
The weekend before the 2016 election, they visited the grave site of Schneerson. The Kushner family foundation has donated hundreds of thousands of dollars to projects and institutions associated with Chabad, according to a tally by Israeli newspaper Haaretz.
After Esformes was indicted, Lipskar said he visited Esformes in prison at least 25 times and “became
almost like his personal rabbi.”
Esformes’ father “ramped up his financial commitment to Aleph,” according to a 2019 court filing by Esformes’ lawyers. They said the money was donated partly “in appreciation for all that Aleph has done for Esformes” and was given to the group “generously, if not exclusively selflessly.”
The donations, which began in 2016 and ended in 2019, totaled $65,000, according to Aleph.
Kushner, who had championed a criminal justice overhaul that Trump signed into law, is seen by supporters of overhauling the criminal justice system as an ally who is willing to consider recommendations on sentencing changes and clemency petitions. The legislation expanded early release programs and modified sentencing laws, including mandatory minimum sentences for nonviolent drug offenders, to more equitably punish drug offenders. But it fell short of more expansive measures sought by many activists.
Personal tie
Kushner also had a personal connection to the issue. His father, Charles Kushner, served 14 months in a federal prison in Alabama for tax evasion, witness tampering and making illegal donations. The elder Kushner was among those pardoned Wednesday by Trump.
Jared Kushner played a role in recommending that Trump commute the sentence of Rubashkin, the former kosher meat processing executive whose commutation in 2017 was supported by Aleph Institute.
This year, the Aleph Institute hired former federal prosecutor Brett Tolman, to lobby on criminal justice issues, including the so-called trial penalty, when defendants who refuse plea deals offered by prosecutors receive far longer sentences after being convicted at trial.
Two of the people whose sentences were commuted by Trump on Wednesday, Mark Shapiro and Irving Stitsky, were each sentenced to 85 years in prison for their roles in a $23 million real estate scheme after they turned down plea agreements of less than 10 years each.
The White House specifically credited Tolman and the Aleph Institute for supporting the commutations.
Dershowitz, whose brother’s daughter-in-law has worked with the group on alternative sentencing, called the case “a paradigmatic trial penalty case.”
Tolman, who was paid $50,000 to lobby for the Aleph Institute this year, did not respond to questions about his work for the group or with the White House, except to say in an email, “I have not done any work on behalf of Philip Esformes.” He referred questions about the case to the Aleph Institute.
Esformes was convicted of a scheme in which he directed employees to pay doctors kickbacks in cash, using code words like “fettuccine.”
He then took a cut worth about $37 million of the illegal profits, prosecutors said, using the money to pay for items such as escorts, travel expenses and a bribe to a coach at the University of Pennsylvania to help his son gain admission.
At his sentencing last year, Esformes described himself as “reckless, impulsive” and “arrogant,” and said he had “cut corners without fear of consequences.” He added, “There’s no one to blame but myself.”
The judge overseeing the case called Esformes’ behavior a violation of trust of “epic proportions.”
But supporters of Esformes say he was a victim of misconduct by prosecutors in his case, who were found by a magistrate judge to have improperly gained access to dozens of boxes of documents compiled by his lawyers, material that should have been protected under attorney-client privilege.
“It is a litany of the worst prosecutorial misconduct I have ever seen and fatally damaged any chance Esformes had for a fair trial,” Roy Black, a lawyer for Esformes, said in a statement.