Prosecution rests in case against Fortenberry; defense calls first witnesses

Bayley Bischof reports from Los Angeles.
Published: Mar. 23, 2022 at 3:22 PM CDT|Updated: Mar. 24, 2022 at 10:16 AM CDT
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LINCOLN, Neb. (KOLN) - Honorable, honest and a rule follower.

This is how two defense witnesses described Congressman Jeff Fortenberry to a jury which will soon be deciding if Fortenberry is guilty of lying to the FBI.

The defense, called witnesses Wednesday they believe show he did not, after four and a half days of the prosecution attempting to provide evidence that the Congressman did lie about an illegal campaign contribution.

The first witness called is California Representative Anna Eshoo, who has worked with Fortenberry for several years on legislation related to the persecution of religious minorities in the Middle East, a cause central to this case.

When asked by lead defense attorney John Littrell, Eshoo described the congressman as an honorable person.

“I think he brings honor to what he does because of the individual he is,” Eshoo said. “He’s faith-filled, he’s honest. His word is always good, and I can’t say that about all members of congress, and you find out the hard way.”

Eshoo said he had a reputation of being a rule follower.

Another witness, Andrew Baner, Fortenberry’s Chief of Staff gave similar testimony, sharing a story of the Congressman refusing to use tax payer dollars to buy a stamp for personal mail.

“He’s a scrupulous rule follower,” Baner said.

When defense attorney Kally Kingery asked Baner if Fortenberry was a man of integrity, Baner replied “to the minutia.”

Defense witnesses weren’t only asked about Fortenberry’s character. They also got into the facts of the case.

Trey Gowdy, former South Carolina congressman and lawyer for Fortenberry, testified about his role in the July 2019 interview between Congressman Fortenberry, the FBI and U.S. Attorneys. Gowdy said Fortenberry retained him after the surprise FBI interview in March.

Gowdy couldn’t testify about his interactions with Fortenberry, as the defense didn’t want to waive attorney client privilege, but he did testify about his communications with Assistant U.S. Attorney Mack Jenkins.

Gowdy said they requested the July interview because the Congressman wanted to help the Government in their investigation. Gowdy said he believed Fortenberry was being evaluated as a witness in the case, not the subject of the investigation.

In communications with Jenkins ahead of the interview, Gowdy told them about Fortenberry’s interactions with Gilbert Chagoury which included two in-person meetings and Dr. Elias Ayoub’s mention of Chagoury in the June 4th phone call. Gowdy also told Jenkins before the meeting that Fortenberry didn’t believe anything was out of the ordinary with the February 2016 fundraiser in L.A.

Baner also testified about Fortenberry’s travel schedule. Evidence showed the Congressman was traveling overseas before the phone call with Ayoub and the Nebraska interview with the FBI.

Kingery attempted to get Baner to testify about the Congressman’s attention span or “way of thinking” but the prosecution objected. Baner did testify that the Congressman was very busy and had very little free time.

This was a point of contention in the cross examination by prosecutor Jamari Buxton, when Buxton showed the jury and Baner Fortenberry’s schedule from June 4th where the phone call with Ayoub was the first entry on Fortenberry’s agenda starting at 11:45 a.m.

Baner tried to come to Fortenberry’s defense and said something about Fortenberry’s travel the day before but the prosecution objected and the judge removed the comment from the record.

That wasn’t the only time the prosecution attempted to use a defense witness to further their case. They also asked Congresswoman Eshoo about campaign finance, which has been an important issue for the Silicon Valley representative.

In cross examination, Eshoo said she believes there is too much money influencing politics and not enough transparency.

“It’s chipped away at the confidence American people have in our system,” Eshoo said.

Jenkins asked Eshoo if she was concerned about foreign money, Eshoo said not exactly, because illegal foreign donations were rare. She said she was concerned about “dark money” donated to political action parties with “unlimited sums of money” donated by anonymous donors.

“It conceals the true source of that money,” Eshoo said. “I think the American people should be able to make a determination themselves and if you don’t know who the donors are you don’t know how much money is being put into the system, that’s anti-democratic.”

When Jenkins asked Eshoo what she thought about foreign donors or what she would do if she found out there were illegal donations made to her campaign, the defense objected.

The defense said they would finish presenting their case Thursday. They are likely going to call former Lincoln Police Chief Jeff Bliemeister and the Congressman’s wife Celeste. 10/11 NOW asked defense attorney Littrell if he knew if Fortenberry would testify but Littrell declined to answer. Judge Blumenfeld did inform Fortenberry of his right to testify, or to not testify, the Congressman also didn’t give an indication of his plans.

There are some witnesses, and evidence, the judge isn’t allowing to be part of the defense case. First, is a memory expert the defense wanted to call as a witness. The judge gave a final ruling that this would not be allowed Wednesday.

Second, the prosecution wanted to bring up a letter a letter sent to the clerk of the House of Representatives on March 15. In the letter, Fortenberry requests to vote by proxy for two weeks due to an “ongoing public health emergency” when he’s in court, not out with COVID-19. The prosecution said this is an example of the Congressman being untruthful, a counter to the defense witnesses giving examples of the Congressman being honest. Littrell said this is “boiler plate” language used by all representatives requesting to vote by proxy right now, but Buxton said it’s misleading. The judge said he would not allow this to be used an example because he believes they would need a lot more background information.

Before the case was passed off to the defense, the attorneys finished questioning FBI Special Agent Edward Choe. Defense attorney Ryan Fraser handled that questioning.

Fraser brought up three key issues with Choe- first Fortenberry’s memory and the agent’s experience interviewing people whose memory may not be crystal clear. Fraser asked Choe if it’s possible Fortenberry could have misremembered the pivotal phone call with Dr. Ayoub in the nine and 13 months between the phone call and his two interviews. Fraser pointed out that the FBI and U.S. Attorneys had the chance to review the recording and transcript of the phone call, but Fortenberry could only go off memory.

The prosecution repeatedly objected to topics related to memory, the judge took their side.

The second issue Fraser brought up is an FBI document used to request permission to interview the Congressman ahead of the Nebraska interview in March 2019. In it, Fraser pointed out that the agent who authored it said agents would seek to indict Fortenberry on charges including misprision of felony and conduit contributions, and potentially lying to the FBI. Fraser asked Choe if the agents intended to indict Fortenberry before even talking to the Congressman, based on the charges listed in the document.

Choe denied that he intended to indict Fortenberry before the interview. In re-direct Assistant U.S. Attorney Susan Harr had Choe clarify that it is standard practice to list potential charges that could arise from an interview as that is the purpose of a criminal investigation.

Congressman Fortenberry’s campaign spokesperson sent out a statement on this issue: “The California prosecutors’ own statements highlight the aggressive, deceitful practices they used to set up Congressman Fortenberry. FBI agents used false pretenses to gain approval to interview Fortenberry in his home. Agents created a memo saying they intended to indict him for specific crimes to justify their request to interview him and then never actually charged him with those crimes once the interview was over.

The third major issue Fraser brought up with Choe’s testimony was the Congressman’s statements on the phone call with Dr. Ayoub. Fraser said Fortenberry did mention the phone call and his concerns during the July 2019 interview with the FBI. He said Fortenberry said he had concerns about statements related to Gilbert Chagoury’s potential involvement in a future fundraiser and took action on that by not holding any future fundraisers.

Before resting, prosecutor Harr played the audio from that interview, where after mentioning he had concerns, Fortenberry again denied knowledge of illicit campaign contributions despite being told about it nine months earlier.

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