Ex-Nebraska U.S. Rep. Jeff Fortenberry, facing felony charges in D.C., alleges political prosecution
Former Nebraska U.S. Rep. Jeff Fortenberry, facing a second trial on campaign finance felonies in federal court, filed a series of motions on Tuesday — in part seeking to gather evidence that he has been selectively prosecuted for his political views.
Fortenberry was convicted by a federal jury in Los Angeles of concealing conduit campaign donations and two counts of lying to federal agents, all felonies, in 2022. But those convictions were reversed last year after the 9th U.S. Circuit Court of Appeals found that the trial should have taken place in Nebraska or Washington, D.C., not California. Earlier this year, federal prosecutors opted to retry the case in D.C., with a trial in the case set for February. The sole difference between the cases, besides the venue, is that Fortenberry now faces one count of lying to federal agents, not two.
The charges stem from Fortenberry receiving, through intermediaries, a $30,000 illegal campaign donation from billionaire Nigerian businessman Gilbert Chagoury at a 2016 fundraiser and allegedly lying about his knowledge of the nature of the donation during later interviews with FBI agents. Fortenberry did eventually donate the illegal money to charity, but prosecutors said he only did so after being interviewed by the FBI for a second time.
On Tuesday, attorneys for Fortenberry, a Republican, filed a series of motions arguing that the charges should be dismissed; that the government has selectively targeted Fortenberry for prosecution because of his conservatism; and that one of the prosecutors on the case should be disqualified. Patricia Hartman, spokesperson for the U.S. Attorney's Office for the District of Columbia, said the government would respond to Fortenberry's allegations in court filings.
Fortenberry represented eastern Nebraska's 1st Congressional District from 2005 until his conviction, at which point he stepped down from Congress. He was sentenced to probation, community service and a $25,000 fine. Fortenberry had paid the fine, completed community service and was nearly finished with probation when he was indicted again.
Fortenberry's attorneys allege political motivation to prosecution
Outside of court, attorneys for Fortenberry have long claimed that the original trial and retrial are politically motivated. On Tuesday, they made that argument official.
In a lengthy filing that included more than 400 pages of exhibits, attorneys for Fortenberry requested discovery "into whether he is being selectively prosecuted because of his political identity and speech," essentially accusing the U.S. Department of Justice of retrying the case because of Fortenberry's status as a "member of the Republican party, faithful Catholic, social conservative... who consistently voted for positions advocated by President Trump."
"Defense counsel has been unable to identify a prior case in which the federal government, following a reversal by a Court of Appeals, retried a defendant who had received a probationary sentence and served most of it," defense attorney Tobin Romero wrote in the brief. "We asked the government attorneys whether they could identify precedent for such a re-prosecution. They could not."
The request for discovery encompasses four categories: Data on retrials after appellate court reversals; any "decision-making documents" regarding the charging, trial and retrial decisions in this case; communications, including on personal devices, from agents and prosecutors making negative statements about Fortenberry or the Republican Party; and documents regarding "apparent procedural irregularities."
Defense attorneys requested oral arguments on the motion for discovery. The evidentiary bar is high to prove selective prosecution.
The briefing also highlights political contributions made by the lead prosecutor in the California case, Mack Jenkins, who continues to be involved in the D.C. prosecution. Jenkins is a regular donor to Democratic causes and candidates, including a political action committee called "Stop Republicans."
Fortenberry rejected plea deal; pitched counteroffer, emails show
Tuesday's motions came after plea negotiations over the summer yielded little progress, according to email conversations included in the court filings.
An email on June 18 from Tim Visser, the lead prosecutor, to Fortenberry's attorneys said the government was prepared to offer Fortenberry a plea agreement in which he would plead guilty to the charge of concealing conduit campaign donations. In return, the government would seek time served at sentencing, "plus a reinstatement of the previous fine and any outstanding portion of community service that (he) did not complete."
Romero responded within hours, saying Fortenberry rejected the offer and was proposing a "counteroffer" for the government to drop the case. Further details of the defense's counteroffer were not included in the emails. The counteroffer was rejected in July, with Visser writing that the proposed plea agreement was the government's "best offer."
After a back-and-forth that lasted months, Romero sent an email to U.S. Attorney for the District of Columbia Matt Graves, saying the "unprecedented" retrial of Fortenberry warrants his attention.
"I am familiar with the matter, the plea offer that Mr. Fortenberry rejected, and Mr. Fortenberry's counteroffer to dismiss the case," Graves wrote on Aug. 9. "I support the team's assessment and decision to continue the prosecution."
Fortenberry's attorneys did not respond to a request for comment in time for publication.
What you missed last week in notable Omaha crimes and court casesLast week's local crime and court updates from The World-Herald.
Top StoryA Bellevue man will be sentenced in December after being found guilty of manslaughter and dumping the body of the deceased near Cunningham Lake.
Top StoryOmaha police are investigating a shooting that injured a man Saturday outside a midtown convenience store.
Top StoryA 24-year-old Council Bluffs man has been sentenced to life in prison for shooting the mother of his child and killing her brother in May 2023.
Top StoryAn Omaha man will spend decades in prison after he was found guilty of terrorizing employees at a local nonprofit with a staged active shooter drill — and, separately, of grooming and sexually abusing a girl.
Top StoryA 16-year-old boy was ordered to be held in custody without bail on Thursday for his alleged involvement in a September homicide.
Top StoryAn 18-year-old man has been charged in connection with a homicide that occurred in downtown Omaha.
Top StoryA 16-year-old boy has been arrested on suspicion of second-degree murder in connection with a downtown Omaha shooting that left a 26-year-old man dead.
Top StoryA woman was stabbed outside Siena Francis House's emergency shelter Monday evening. A man came to the Siena Francis campus early Wednesday after having been cut several blocks away, the CEO said.
Top StoryA 35-year-old Ashland man was sentenced to up to 120 years in prison Tuesday for his role in a July 2023 fatal shooting at a southwest Omaha apartment complex.
Top StoryThe jury found Dequanta Zachary guilty in the April 28, 2024, shooting deaths of 36-year-old Deonte Ivory and 25-year-old Michael Anderson.
Top Story A jury trial began Monday for a 61-year-old man accused of shooting and killing a 26-year-old woman at an Omaha hotel last year. Top StoryAn alleged drunken driver drove into a midtown Omaha cemetery early Sunday, causing an undetermined amount of damage to grave markers before becoming disabled.
& Courts newsletter Get the latest in local public safety news with this weekly email. Public safety reporter
