Sometimes Congressman Jeff Fortenberry forgets things. Like the capital of Norway, or where he left his glasses, or receiving illegal campaign contributions. Who among us, right?
In October of 2021, the Nebraska Republican was indicted for lying the FBI about a 2016 fundraiser in Los Angeles at which he collected $30,000 in cash funneled by Gilbert Chagoury, a Nigerian billionaire. Chagoury and Toufic Baaklini, Rep. Fortenberry’s associate who had knowledge of the plan to donate in other people’s names, both entered into deferred prosecution agreements with the Justice Department.
During the investigation, the DOJ recorded a call in which “Individual H,” the organizer of the fundraiser, told Fortenberry that the money was dirty. Nevertheless, Fortenberry insisted in multiple interviews with prosecutors that he had no idea that he’d received illegal foreign money via straw donors and would have been “horrified” to realize he’d broken the law.
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After trying and failing to get the recordings of these interviews suppressed, the congressman now insists that he has to play them for the jury in their entirety, both to show “context” and to substantiate his expert witness’s claim that he was simply suffering from a memory lapse. Fortenberry, who is 61, would like to call UCLA Prof. Alan Castel, an expert in aging and memory, to “explain to the jury that prior retrievals of memory and feedback from others can actually alter the memories themselves, varying the motivation and ability to remember particular details and leading the memories to become more gist-based.” He appears to be arguing that he wasn’t lying about the campaign finance scheme, he just forgot about it. Or perhaps being asked to think about it so many times by the scary prosecutor corrupted his memory so he couldn’t remember if he knew that he had scooped up a giant pile of tainted cash.
The problem is that he did know, and not just because “Individual H” told him. Just a week after the event, and long before the FBI came knocking, Fortenberry called up his pal Baaklini and asked “whether there was a problem with the fundraiser because Individual H’s family members donated most of the money.” Because this guy’s been in congress since 2005, and he’s no babe in the woods when in comes to campaign finance. In addition to which, Fortenberry’s own campaign consultant warned him before the event that he needed to be careful hanging around with people from countries where corruption is endemic, since they tend to be less than scrupulous about the vagaries of American campaign finance law.
But Fortenberry has an answer for that, and it is to memory-hole both of ’em. The campaign consultant’s testimony is inadmissible because it’s racist, he insists. And Baaklini should be excluded because his testimony would “invite jurors to speculate and, in effect, unduly burden Fortenberry’s constitutional right not to testify because he is the only other possible witness to the alleged conversation.”
Which certainly sounds like Fortenberry’s lawyers are making a “gist-based” argument that the witness should be excluded because he makes their client look really bad. Who knew the Fifth Amendment included a right to block testimony regarding a defendant’s one-on-one statements to a government witness?
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Fortenberry’s lawyers lobbed these arguments at US District Judge Stanley Blumenfeld Jr. yesterday in an avalanche of nine joint motions in limine. In addition to the above, he’d like to exclude any and all text messages and emails; all evidence that he knew before 2018 that the contributions were hinky because it wasn’t alleged in the original indictment; and any other “acts” not charged in the original indictment.
But he’d like the court’s permission to argue that the prosecutor is a Democrat who may be subconsciously biased against him, and thus his assertion that Fortenberry’s lies — oh, sorry, “gist-based memories” — were “material” to an ongoing investigation is not to be trusted. And he’d like his own attorneys to be in charge of voir dire, not the judge. Also with five motions already adjudicated and eleven pending, he’d like a change of venue to Nebraska for the sake of “efficiency.”
And a unicorn that sh*ts glitter, probably.
Well, good luck, congressman!
US v. Fortenberry [Docket via Court Listener]
Fortenberry wants jury to hear from expert on memory and aging [Omaha World-Herald]
Elizabeth Dye lives in Baltimore where she writes about law and politics.