Barely a week after former Rep. Jeff Fortenberry, R-Neb., was convicted of lying to the FBI about overseas money coming into his campaign fund, the nine-term lawmaker announced he is appealing his sentence (320 hours of community service, two years probation, and a $25,000 fine).
"But this is not just an 'ordinary appeal,'" Fortenberry attorney Glen Summers told Newsmax on Sunday night. "It will demonstrate false and misleading tactics on the part of the lead agent in the case and the use of Section 1001 [of the U.S. Criminal Code] by the FBI to take down people they suspect of wrongdoing but cannot prove are guilty."
Section 1001 makes it a crime to "knowingly and willfully make any materially false, fictitious, or fraudulent statement or representation in any matter within the jurisdiction of the executive, legislative, or judicial branch of the United States."
To FBI critics, the Fortenberry affair is the latest example of an agency once considered the Ivy League of law enforcement worldwide now gone "rogue" and pursuing dubious cases against officials with the full resources of the federal government behind them.
The case against the Nebraskan — who resigned his Lincoln-area seat a day after his conviction March 25 — centers around a surprise interview by FBI agents at his home in Lincoln about a fund-raising event held for him in Los Angeles in February of 2016.
At the interview — suddenly and unexpectedly requested on a Saturday evening by the agents — Fortenberry was asked if he was "aware" of foreign contributions made to his re-election campaign. The congressman replied that he was "concerned" that there may have been "a couple of people…. that are connected to the broader community" who donated to the Los Angeles event.
"But instead of allowing him to fully address their question as to whether he was 'aware' of illegal foreign campaign contributions, the agents shifted the discussion to the timing of the events," attorney Summers told us, adding that the interview was concluded without allowing Fortenberry to explain what he meant by his concern there may have been foreign contributions.
In a subsequent Washington, D.C. interview with the FBI, the congressman said the man who organized the Los Angeles event for him, Dr. Elias Ayoub, had told him in June 2018 that if he did another event for him, "the amounts would not be as large because Gilbert won't be involved."
For Fortenberry, the "red flag" had just gone up: "Gilbert," he knew, was Gilbert Chagoury — a Lebanese-Nigerian billionaire, with a long record of involvement in U.S. politics. Chagoury had been a major financial backer of Bill and Hillary Clinton and of the Clinton Foundation.
Chagoury had also been accused of making illegal donations to U.S. politicians and, as it turned out, had channeled $30,000 in foreign funds to the Fortenberry campaign through three individuals who attended the Los Angeles event.
None of this, Foretenberry's lawyers insisted, was the congressman ever aware of.
But all of this, they charge, the FBI did know when its agents interviewed Fortenberry in Lincoln and Washington, D.C. According to documents submitted in court by Fortenberry's lawyers, the agents themselves "orchestrated the call [from Dr. Ayoub], told Dr. Ayoub what to say, and made a complete contemporaneous recording."
"The real purpose of the interviews was simply to test Mr. Fortenberry's veracity," said Summers. "There was no pending decision the Government needed to make that Mr. Fortenberry's statements could reasonably have influenced."
As testimony and documents in the trial revealed, the lead FBI agent in the case, Todd Carter, had written a memo seeking permission to interview Fortenberry and explaining that "[c]ase agents will also seek to indict Fortenberry with Misprison of Felony and Conduit Contributions. In addition, if case agents determine from the interview that Fortenberry is making false statements he will be charged with False Statement."
This memo also made clear that the agent who conducted the interview would "seek to indict Fortenberry" and that one of the potential charges he would develop was a false statement charge under Section 1001.
As for a "quid pro quo" for the illegal foreign dollars, the FBI cited the enactment of Fortenberry's House Resolution 75 on March 14, 2016, 24 days after the Los Angeles event. The resolution labels Islamic State actions targeting Christians and other ethnic minorities as war crimes and genocide.
This resolution was something sought by Lebanese Christian Chagoury and clearly something Fortenberry did in return for the illegal campaign dollars, claimed the FBI.
But this doesn't hold water, shot back Fortenberry's lawyers. The resolution was something in which the devout Roman Catholic lawmaker strongly believed and which he initially introduced on Sept. 9, 2015 — well before the fund-raising event.
The resolution also passed the House by a vote of 393-to-0.
Along with what the defense team considers half-truths and un-truths cobbled together to pervert Section 1001 and thus convict their client, they also point to the venue in which Fortenberry was tried: Los Angeles, a liberal Democratic city in which a Midwestern Republican with a strongly conservative voting record would not exactly be tried by a jury of his peers.
The late Supreme Court Justice Ruth Bader Ginsburg once warned that law enforcement officers can easily "create crimes" under Section 1001 for false statements that "misled no one," as a "substitute" for crimes they suspect an individual committed but cannot prove. She might easily have foreseen the plight of Jeff Fortenberry, as the proof of any wrongdoing or scheme to channel illegal dollars is never close to being proven.
At 62, Fortenberry's political career is over. The case he waged against the FBI and federal officials has cost him and his family dearly. Those things a successful appeal will not give back to him. But it may give him back something near and dear to him: his good name.
John Gizzi is chief political columnist and White House correspondent for Newsmax. For more of his reports, Go Here Now.
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