LINCOLN — Attorneys for U.S. Rep. Jeff Fortenberry filed another motion Tuesday to dismiss the federal charges against him, arguing that he was set up by the FBI after they were unable to charge him with accepting illegal political contributions from a Nigerian billionaire.
The motion argues that any misstatements made by Fortenberry to investigators were not “material” to crimes the FBI was investigating, so the three felony charges against the Republican congressman should be dismissed.
“The government’s investigation revealed that Congressman Fortenberry was unaware of any illegal foreign or conduit contributions to his 2016 campaign. With no basis to charge the congressman with a crime, the government instead concocted one,” stated a motion to dismiss, filed Tuesday afternoon.
“This was a setup,” the motion added.
Federal prosecutors, in a reply brief filed late Tuesday, shed new light on the allegations against the congressman.
The brief stated that it could not be “credibly disputed” that Fortenberry’s false statements were not material to the investigation into illegal campaign contributions.
The prosecution also slammed an effort by the congressman to dismiss the indictments in California because the alleged misstatements were not made there, but in Nebraska and Washington, D.C. The statements impacted the investigation in California, thus that is the proper venue for a trial, prosecutors stated.
“Defendant’s attempt to recast his plight as a victim of ‘opportunistic venue shopping’ by the government is more hyperbole better befitting a political stump speech than is reflective of the facts of his case,” stated the brief from the U.S. Attorney’s Office for the Central District of California.
Fortenberry, who has represented Nebraska’s 1st Congressional District since 2005, is fighting for his political future after a grand jury in California indicted him a month ago. He has pleaded not guilty to all three charges.
The indictment stemmed from an investigation into $180,000 in “conduit” campaign contributions made by a Nigerian billionaire now living in Paris, Gilbert Chagoury, to four U.S. politicians, including Fortenberry and then-Rep. Lee Terry, a Republican who previously represented Nebraska’s 2nd District.
Chagoury, federal officials have said, gave $30,200 in cash to a Washington, D.C., associate, Toufic Baaklini, who forwarded it to the organizer of a 2016 fundraiser in Los Angeles. That money, in turn, was distributed to several people at the event who donated it to Fortenberry. It is illegal for non-U.S. citizens to donate to American political campaigns directly or through “conduits,” third parties.
Chagoury eventually paid a $1.8 million fine and agreed to cooperate with the federal investigation. Baaklini and another Chagoury associate also paid fines and aided the FBI.
Fortenberry’s motion, filed with the U.S. District Court in Los Angeles, claims that the FBI told an informant to call the congressman in 2018 and tell him that a group of campaign donations he had received a few months earlier were illegal.
Later, Fortenberry couldn’t recall what he was told by the informant during two interviews with federal investigators, which led to a grand jury indictment for two counts of making false statements to investigators and one count of attempting to conceal facts.
Fortenberry was not charged with accepting an illegal contribution — he claims he didn’t know that the money came from a foreigner — but with lying to FBI investigators.
He was first interviewed during a surprise visit at his Lincoln home in March 2019, and then later that year, at his request, in a more formal setting in Washington, D.C. Even later in 2019, Fortenberry gave away the donations to two Nebraska charities, after apparently becoming convinced that the donations were illegal.
He has denied that he lied to the FBI. His lead attorney has said he didn’t recall everything he was told during the 2018 phone call with the FBI informant. Fortenberry and his wife have insisted that he was just trying to help their probe and that he was misled by the FBI.
“This case is entirely about Congressman Fortenberry’s failure to accurately repeat back to the government the content of the ten-minute phone call that the government’s informant placed to him,” the motion stated.
Fortenberry’s lawyers also cited a concurring legal opinion written in 1998 by then-Supreme Court Justice Ruth Bader Ginsburg in another case alleging false statements. Ginsburg warned that “an overzealous prosecutor or investigator — aware that a person has committed some suspicious acts, but unable to make a criminal case — will create a crime by surprising the suspect, asking about those acts, and receiving a false denial.”
A Fortenberry campaign spokesman, Chad Kolton, charged that a federal prosecutor “created an excuse to charge” the congressman after failing to find that he knowingly accepted an illegal campaign gift.
“This setup of a highly effective and well respected member of Congress is another alarming example of a Justice Department and FBI that are out of control and destroying the lives and reputations of far too many Americans,” Kolton said.
Officials with the U.S. Attorney’s Office in Los Angeles said they had no comment Tuesday.
But a reply brief filed late Tuesday by federal prosecutors addressed many of the issues. It stated that an investigation began in 2015 after a tip about suspicious wire transfers from Chagoury to an individual in Los Angeles, and then subsequent donations to a California U.S. congressman in similar amounts.
Investigators later learned of other contributions to other political candidates with similar political and religious interests, as well as a $50,000 loan to then U.S. Secretary of Transportation Ray LaHood.
At a February 2016 fundraiser in L.A., Fortenberry raised $30,200 in donations that originated with Chagoury, federal prosecutors said. After the fundraiser, the organizer of the event, identified only as “Individual H,” agreed to help with the federal investigation.
Federal prosecutors, in their reply brief Tuesday, said jurors will hear a recording of a telephone call in June 2018 in which Individual H called Fortenberry, who asked him to set up another fundraiser for him, and “have some continuation of the fine generosity” of 2016.
The congressman continued to press for a second fundraiser despite “Individual H expressly and repeatedly” informing Fortenberry that the contributions originated with Chagoury, the brief stated. The congressman did not express “surprise or concern or seek clarification” about the funds originating from a foreigner.
“The call concluded with (Fortenberry) noting that he had told Baaklini to deliver his regards to Chagoury, who defendant correctly understood was ‘still in Paris,’” the brief stated.
The FBI decided to interview Fortenberry in March 2019 after he did not amend his federal campaign statements to either reflect that the money came from Chagoury, or “disgorge the funds,” as required by the Federal Election Commission.
In that 20-minute interview, which was secretly recorded, FBI agents stated that they were from California, that any statements were voluntary, and that it was a crime to lie to them. Despite that, Tuesday’s brief stated, Fortenberry “repeatedly denied” knowledge of any conduit contributions from Chagoury.
Sometime later, Fortenberry, through an attorney, asked for a second interview with the FBI, which was held in Washington, D.C., in July 2019. Fortenberry again denied knowledge of any conduit contributions originating with Chagoury, but “misleadingly claimed that Individual H (in the 2018 phone call) had made only a vague comment referencing Chagoury that caused him some undecipherable ‘concern,’” the prosecution brief stated.
“Defendant also misleadingly stated that he had ended the call after Individual H made the ‘concerning’ comment when, in fact, defendant persisted” in trying to arrange a second fundraiser in 2018, the brief stated.
Such motions to dismiss because a charge lacks “materiality” are rare but not unheard of. The prosecution of President Donald Trump’s former national security adviser Michael Flynn for lying to two federal judges was dropped in 2020 by the Department of Justice after it concluded that his statements were not “material” to any FBI investigation.
The Flynn case was one of the most prominent cases brought by special counsel Robert Mueller, who investigated ties between the Trump campaign and Russia.
The latest motion to dismiss is expected to be argued on Dec. 7.
Previously, Fortenberry has called for the California indictments to be dismissed because any alleged misstatements were made in Nebraska or Washington. That motion, seeking proper venue, is scheduled to be argued in court on Nov. 23.