Editor’s note: This report was updated at 8 p.m. CDT Wednesday.
LOS ANGELES — The defense of U.S. Rep. Jeff Fortenberry against charges that he lied to federal investigators picked up Wednesday with his defense seeking to bolster its contention that the congressman was “set up” and misled.
Former U.S. Rep. Trey Gowdy, who was serving as Fortenberry’s attorney after his initial interview with FBI agents, testified that his impression was that his client was “being sized up” as a possible witness to aid the federal investigation, and not someone who was facing criminal charges.
Gowdy said he believed the purpose of a second interview with investigators was “to provide more information and be evaluated if he’d be an effective witness.”
Fortenberry’s chief of staff, Andy Braner, testified about the hectic travel schedule of his boss – including a flight from Kenya a day before FBI agents conducted an unannounced interrogation in March of 2019.
That served to suggest that the congressman was fatigued and “jet lagged,” and thus unable to recall that a year earlier, he’d been told in a phone call that he had been given $30,000 in illegal, “conduit” contributions that originated from a foreigner.
And defense attorneys had an FBI agent read a “Sensitive Interview” request, required before interviewing a member of Congress using a hidden camera, that stated that “case agents will also seek to charge Mr. Fortenberry.”
“In fact, your team had planned to charge Congressman Fortenberry with a crime even before speaking to him?” defense attorney Ryan Fraser asked an FBI case agent, Edward Choe.
“I would disagree with that,” Choe said.
A few moments later, federal prosecutors had Choe read another pre-interview document that contradicted the defense argument. That document, signed by four top FBI officials, stated that “if case agents determine if Congressman Fortenberry made false statements, he will be charged.”
Fortenberry, who has represented Nebraska’s 1st congressional district since 2005, is fighting for his reputation and his political life in a downtown Los Angeles federal courtroom.
The 61–year-old Republican is charged with lying to agents in two interviews in 2019, and attempting to conceal the L.A. donations by not amending his federal campaign reports. He faces up to five years in prison on each felony count.
The trial is expected to wrap up on Thursday or Friday, and it remained unclear if Fortenberry would testify in his own defense.
U.S. District Judge Stanley Blumenfeld advised Fortenberry on Wednesday that he had the right to testify, but he also told him he’d be subject to cross examination by federal prosecutors.
Those prosecutors maintain that Fortenberry was told, at least three times, during a June 2018 phone call from the host of a fundraiser in L.A. in 2016 that the donations were illegal, “conduit” contributions using “straw men.” The congressman was also told the donated money “probably” was provided by a Nigerian-Lebanese billionaire living in Paris, Gilbert Chagoury.
When FBI investigators quizzed Fortenberry twice in 2019 about his knowledge of the illicit gifts, he denied any knowledge of it, leading to the federal charges.
Prosecutors said he should have “disgorged” or given away the $30,000 after the 2018 phone call, but didn’t. (That is unlike then U.S. Rep. Lee Terry of Nebraska, who said he gave away donations he had received from Chagoury as soon as he learned it was illegal.)
Chagoury, as well as associates who funneled the money to Fortenberry, were all supporters of a group called “In Defense of Christians.” That group shared the congressman’s interest in protecting religious minorities in the Middle East.
Fortenberry has pleaded not guilty, and his five-lawyer defense team has worked during the six days in court to discredit the FBI investigation, calling it “a failed memory test.”
Defense attorneys also suggest that Fortenberry didn’t recall the details of the 2018 phone call because he was distracted, had a bad cell phone connection, had a memory lapse, or because he was too tired from a strenuous travel schedule.On Wednesday, the trial judge again rejected a request by Fortenberry’s defense to allow a memory expert to testify.
Under questioning by prosecutor Jamari Buxton, Agent Choe said that the FBI is not obligated to provide what they have learned in an investigation to someone who is being interviewed.
Over and over, Fortenberry’s defense team reminded jurors that FBI investigators – unlike the congressman – had recordings and transcripts of interviews to review to refresh their memory.
During his testimony, Braner was asked at one point if it was “difficult to keep the congressman on track?”
Prosecutors objected, and the judge withheld the objection, blocking the question.
Braner was allowed to testify that Fortenberry had “big ideas” and was a “visionary,” and that it was his job to execute the ideas he expressed.
“He’s one of the last great statesmen,” Braner said of his boss.
Later, the chief of staff added that Fortenberry had a reputation in Congress for “high integrity” and following rules “to the letter.”
He also related a story about lining up a meeting room for an Egyptian delegation visiting the Capitol in April of 2019. A member of the delegation, after thanking him for doing that, attempted to hand him an envelope full of cash.
“Noooo,” Braner testified. “We don’t do business like this.”
Later, when Fortenberry was told about the attempted gift, “he was irate,” Braner said, and immediately called the House Sergeant at Arms, the Capitol Police and the FBI to report the incident.Buxton, though, in cross examining Braner, pointed out that the congressman’s outrage came only a month after he’d been interviewed in Lincoln by FBI agents probing illegal campaign gifts.
Gowdy was obtained by Fortenberry to reach out to the FBI after the interview in Lincoln, in which the congressman gave some vague and evasive responses.
Gowdy said he called or left voicemails more than a dozen times with the lead assistant U.S. attorney on the case, Mack Jenkins, in an effort to offer more information from the congressman.
In that Washington, D.C., interview Gowdy asked Fortenberry point black if he was aware of any “illicit” contributions given to him during the L.A. fundraiser, or if anyone there was not legally allowed to donate to him.
“No,” responded Fortenberry on the audio tape of the interview.