Crime

Indicted Rep. Fortenberry Says It's Cool Because Prosecutors Gave Him Permission To Lie To The FBI Actually

Since Michael Flynn got off, these a-holes will try any crazy thing.

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(Image via Getty)

Nebraska Republican Jeff Fortenberry was indicted in October on three counts of making false statements to the FBI about an illegal campaign finance scheme to funnel foreign money to his campaign through straw donors. Since then, he’s plastered the docket with wildly aggressive — yet creative! — motions to get the case tossed.

The most recent of these involves statements the congressman made to prosecutors, both at his home in Nebraska and at the DC office of his then-attorney, former Rep. Trey Gowdy.

The FBI has a recording of “Individual H,” one of the participants in the scheme, telling Fortenberry in June of 2018 that Lebanese-Nigerian billionaire Gilbert Chagoury was “probably” the true source of the $30,000 in campaign funds. This makes it somewhat difficult for Fortenberry to argue that he was telling the truth when he denied knowing that the money was tainted. Instead he’s moving to get the statements tossed based on, wait for it …

PROMISSORY ESTOPPEL.

Didn’t see that one coming, didja? Here’s how Fortenberry’s lawyers are playing this round.

In March of 2019, FBI agents knocked on Fortenberry’s door and asked about the source of the funds from Chagoury. According to the indictment, the congressman told them it was all above board, no straw donors, no illegal foreign contributions, nothing to see here. When prosecutors reached out again in July 2019 about having another chitchat, Gowdy called up the FBI and asked if his buddy Jeff was a subject, target, or witness. According to Gowdy, they told him his client was “a subject trending toward a witness,” and so he “concluded that a further interview was not unduly risky for his client.”

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That was a choice. And not a good one, as it turned out.

The interview focused, at first, on Congressman Fortenberry’s long history of congressional work on behalf of religious minorities in the Middle East. But questioning eventually turned to the 2018 call with Individual H. At that point, AUSA Jenkins’s questioning took on an increasingly accusatory character.

Prosecutors making accusations? Well, I never!

It was then that the penny dropped for Gowdy, who paused the interview to ask the AUSA “if this was some bullshit 1001 case,” attempting to trip his client up in a lie and charge him with false statements. Having been assured that it was not, Gowdy let ‘er rip once again, allowing Fortenberry to repeat the same apparent lies about the recorded call, this time directly to the AUSA’s face.

But none of that counts, according to Fortenberry’s new lawyers, because when the government says it’s not trying to prosecute you for lying, that is automatic permission to tell a whole bunch more lies on top of the ones you already told.

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In the context of Jenkins’s prior representation that Fortenberry was not a target—and even trending away from becoming a target—as well as the known potential misuse of § 1001 by law enforcement to create crimes— Jenkins’s denial that the Washington, D.C., interview was a “bullshit 1001 case” implied that the D.C. interview would not be used in support of a § 1001 charge based on what the government knew by that time. But in fact, AUSA Jenkins asked Congressman Fortenberry about the precise amount of money the government’s informant had insinuated to him had come from a foreign source during the 2018 call. That was not an accident; the most reasonable inference is that AUSA Jenkins asked that question because he believed it would elicit a statement from the Congressman that he could use to form the basis for a false-statements prosecution, as he ultimately did.

It would probably occur to normal person that, when an FBI agent asks about a private phone call that took place a year ago, he likely knows the answer already. But Jeff Fortenberry is clearly not a normal person, so instead of shutting the hell up, for the love of God, man he put his counsel in the position of arguing that equity requires US District Judge Stanley Blumenfield to estop the government from using the July interview as evidence. And while the court is playing Santa Claus, it can toss out the March interview, too, because, sure, why not.

“Reliance was, in fact, induced,” Fortenberry’s counsel argues, citing a 1998 concurrence by Justice Ginsburg in which she worried 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.”

As the government pointed out the last time Fortenberry tried this one, the Supreme Court actually allowed the government to prosecute the defendant for false statements to the FBI in Brogan v. United States. And the holding doesn’t support Fortenberry’s argument that his statement was immaterial and should be excluded, either. Womp womp.

In fact, there’s precious little precedent for the promissory estoppel theory of unindicted witness interviews, which is why Fortenberry attempts to analogize it to plea deals and cooperation agreements.

“Along with the constitutional guarantee of fundamental fairness, the equitable principles of contract law apply to prosecutors’ promises to criminal defendants,” his lawyers urge, eliding the fact that, at the time of the interview, their client was not a criminal defendant. He was just a blabbermouth idiot.

Of course, this is the same defense team that argued that the prosecution against Fortenberry was only cooked up because the FBI hates Arabs, so, par for the wacko course, right?

US v. Fortenberry [Docket via Court Listener]

Elizabeth Dye lives in Baltimore where she writes about law and politics.

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