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Fortenberry indictment raises questions about the FBI’s tactics

The Justice Department’s prosecution of a Republican lawmaker for allegedly lying to the FBI is raising thorny issues about the use of surreptitious tactics during investigations into members of Congress.

The false-statement indictment brought against Rep. Jeff Fortenberry of Nebraska two months ago is also resurfacing many of the same questions that triggered a firestorm of controversy around the prosecution of former national security adviser Michael Flynn.

Critics say the concerns — about the approval process and threshold to deploy arguably deceptive investigative tactics — are even more acute in Fortenberry’s case because of the role the Constitution lays out for lawmakers as part of a separate branch of government.

“This goes back to the age-old question. … What is the separation-of-powers implication of having the FBI and the Justice Department test members for probity? I just think that’s wrong,” said Stan Brand, a Washington attorney and former general counsel to the House. “I think it’s a mistake, and I think it’s a problem.”

An ill-fated L.A. fundraiser for a Nebraska Republican

The trouble for Fortenberry dates back to a fundraiser in Glendale, Calif., in February 2016 that brought in more than $30,000 for his re-election campaign. That money, federal investigators later concluded, originated with Gilbert Chagoury, a billionaire businessman with French, Lebanese and Nigerian roots who was legally forbidden from donating to U.S. political campaigns.

Chagoury and the straw donors have all said they do not believe Fortenberry was aware at the time that the donors were so-called conduits or that the money came from Chagoury, a prominent philanthropist for various causes, including the plight of Christians in Lebanon, according to Fortenberry’s defense.

The FBI appears to have stumbled on the donations as part of a broader inquiry into Chagoury’s efforts to wield influence in the U.S. Within months of the fundraiser, they gained the cooperation of its host, who agreed to place a recorded call to Fortenberry in June 2018, as he faced another re-election bid, court papers say.

According to the indictment, during that call, the informant told Fortenberry “on multiple occasions” that the $30,000 in donations raised at the 2016 event was the result of cash delivered by one of Chagoury’s top advisers in the U.S., Toufic Baaklini.

The informant also told Fortenberry that the funds “probably did come from Gilbert Chagoury because he was so grateful for your support [for] the cause,” the indictment alleges, apparently referring to efforts to advocate for Christians in the Middle East.

Nine months later, FBI and IRS agents showed up at Fortenberry’s home in Lincoln, Neb., to question him about the money. With the FBI again secretly recording the conversation, the lawmaker said he was completely unaware of any straw donations or any money from foreign nationals that flowed to his campaign, according to the indictment.

After the initial interview, Fortenberry lined up a prominent attorney to advise him, former Rep. Trey Gowdy (R-S.C.). With Gowdy at his side, Fortenberry met in Washington with the FBI and federal prosecutors. There he repeated the same denials, even when asked directly about the June 2018 call, according to the indictment. He also added some new flourishes, prosecutors contend, saying he ended the call with the informant because of some “concerning comment.” Fortenberry also insisted he would have been “horrified” if told about the scheme, the indictment alleges.

FBI’s tactics echo those in Flynn case

The Fortenberry saga has striking similarities to the investigation and prosecution of Flynn.

When the FBI went to interview Flynn at his White House office, an agent already had intercepts of his conversations with then-Russian ambassador Sergey Kislyak. Flynn’s lawyers would eventually argue that his allegedly false denials about the conversation couldn’t have affected any investigation because the FBI already knew what transpired.

Flynn’s lawyers also said the FBI essentially tricked him into thinking the interview was a routine matter and intentionally departed from protocol that would have called for informing the White House Counsel’s office about the interview.

Attorney General William Barr appointed a U.S. attorney from Missouri, Jeff Jensen, to look into the matter and eventually moved to drop the prosecution of Flynn, despite the fact he’d already pleaded guilty to the charge as part of a plea bargain with special counsel Robert Mueller.

Barr said the investigation into Flynn lacked a legitimate basis and that it was far from clear that his statements were “material” to the Justice Department investigation. The decision was sharply criticized by Democrats and many former prosecutors, who said Barr was departing from longstanding practices in false-statement cases and effectively raising the bar for such cases in the future.

Some lawyers say the FBI’s actions against Fortenberry are even more extreme because the only conversation he’s accused of lying about is one that the FBI not only monitored, but ginned up. But for the information allegedly relayed to the lawmaker in that call, there would be no prosecution.

“If the government manufactured a crime, it could backfire if the case goes to trial,” said Ellen Podgor, a law professor at Stetson University in Gulfport, Fla. “I have to wonder where juries would be on something like this today.”

A California-based defense lawyer who has taken over Fortenberry’s case, John Littrell, has filed a flurry of motions complaining about the government’s tactics. Los Angeles-based U.S. District Court Judge Stanley Blumenfeld Jr., an appointee of President Donald Trump, has scheduled a hearing Monday on several of the motions.

“The more the public hears about this case the more they are learning about the deceitful and deceptive conduct the prosecutor and the FBI have used, and continue to use, at every single stage of this investigation,” Fortenberry spokesperson Chad Kolton said.

In a declaration filed with Blumenfeld last week, Gowdy complained that he was misled by the lead prosecutor on the case, Mack Jenkins.

“I specifically asked Mr. Jenkins whether Mr. Fortenberry was considered a subject, target or witness in his investigation,” wrote Gowdy, who has stepped off the case since he could be called as a witness.

“While Congressman Fortenberry was keenly interested in sharing information with federal authorities, it was also critical for me to know how those authorities viewed him. … Mr. Jenkins stated Mr. Fortenberry was a subject trending toward a witness in the investigation,” the former lawmaker wrote. “Had Mr. Jenkins told me Congressman Fortenberry was a target or had Mr. Jenkins told me the agents suspected Mr. Fortenberry had previously made a false statement to the FBI there would not have been a subsequent interview.”

Gowdy also contends that during a break in the July 2019 interview, he asked Jenkins if this was a “bullshit 1001 case,” referring to the false-statement section of the U.S. code eventually used to charge Fortenberry. Gowdy, a former federal prosecutor in South Carolina, said Jenkins assured him it was not.

In addition to the prosecutor’s alleged deception of Gowdy, Fortenberry’s defense contends their client was misled by the FBI agent who visited his home in Lincoln, Neb. in March 2019. Fortenberry says the agent told him he was from the Omaha field office, when he was actually based in California, and that the visit related to a national security investigation. It’s unclear whether any investigation involving a foreign citizen’s efforts to buy influence in the U.S. could be considered a national security matter.

The motions challenging the case face an uphill battle, in part because deception is commonplace in police work. The Supreme Court has upheld a wide range of such tactics. But critics say their use against members of Congress raises the possibility of politically inspired mischief.

Indeed, the Justice Department’s internal policies seem to acknowledge that possibility by requiring that local federal prosecutors consult with DOJ headquarters about investigations involving federal lawmakers.

But what happens after that initial consultation is less clear. Some of the rules appear to require higher-level approval at DOJ for actions such as wiretaps of a member of Congress, but prosecutors have argued in court filings that those rules don’t apply to the kind of sting call the FBI arranged to Fortenberry or to the surreptitious recording of the FBI’s visit to his home.

“The defense’s intimation that there were nefarious or underhanded tactics in obtaining internal approvals during the investigation is both disingenuous and false,” prosecutors wrote in a court filing last month.

Records the prosecution has disclosed to Fortenberry’s lawyers indicate some approvals were sought within the FBI for certain steps, including for use of a “ruse” against the lawmaker, who was elected to the House in 2004. Prosecutors insist that, despite the internal discussion, no “ruse” was used.

Did the FBI target other lawmakers?

Chagoury and his aides have also admitted to illegal donations to three other campaigns: Sen. Mitt Romney’s 2012 presidential race, Rep. Darrell Issa’s 2014 House campaign and former Rep. Lee Terry’s 2014 House bid. Terry and a Romney representative did not respond to requests for comment after Fortenberry’s indictment. Issa answered somewhat cryptically. “No, I don’t have the same issues” as Fortenberry, Issa told POLITICO. “I made no statements to any FBI — or anything else.”

He declined to expand further on the funds his campaign received from Chagoury. “Well,” he said, “I’m not doing an interview.”

The breadth of Chagoury’s political donations has fueled speculation that the FBI arranged secretly recorded calls or used similar sting tactics against other lawmakers.

Brand thinks concerns about the propriety of such moves wouldn’t have held prosecutors back. “If it didn’t stop them with [Fortenberry,] why would it stop them with others?” he asked.

It remains unclear which, if any, of the investigation’s tactics were approved by officials at DOJ headquarters in Washington. Prosecutors have suggested that higher-ups have had no complaints about the way the case was handled. Prosecutors noted in a letter that Fortenberry’s lawyers tried to head off his indictment by appealing to the Deputy Attorney General’s office — a common step in high-stakes, white-collar cases.

“ODAG declined to intervene, had no questions about any missing approvals, and this indictment proceeded,” prosecutors wrote. “The reasonable inference therefrom is that all necessary approvals were obtained in this investigation.”

In response to one of Fortenberry’s motions, prosecutors also said that his lawyers sought a “non-felony resolution” of the case during the contact with Justice Department headquarters. That phrase could encompass a guilty plea to a misdemeanor charge as well as other outcomes like no charges at all or a deferred prosecution agreement.

Kolton, the Fortenberry spokesperson, says the lawmaker never offered to plead to any charge. “Prosecutors never offered a plea, and he would never have taken one because he didn’t lie,” Kolton said.

The Justice Department’s internal policies covering special approvals for investigations all contain language saying the guidelines don’t create legal rights defendants can enforce in court. However, Fortenberry’s lawyers are arguing that they are entitled to full details on what approvals were and were not sought because a jury that may ultimately hear the case will have to decide whether the lawmaker’s alleged falsehoods were material to the investigation.

Former prosecutors say Fortenberry’s discovery demands may find added traction because the Justice Department turned over materials during the Flynn case that would not typically be disclosed to defendants.

Fortenberry’s indictment has prompted complaints from his GOP allies in Congress, including the top Republican on the House Judiciary Committee, Rep. Jim Jordan of Ohio.

Jordan told POLITICO that the case against Fortenberry sounded like a “set up” by the FBI.

“Based on what I’ve read … I have real concerns,” Jordan said. “We’re nervous about all kinds of things that happened with the FBI.”

Among the Republicans grumbling about the Fortenberry case is Rep. Matt Gaetz of Florida, who is the focus of an unrelated FBI investigation into alleged sex trafficking of underage girls — something he has denied.

“In my initial observations of the Fortenberry matter. It seemed as though Jeff had committed no prosecutable crime. And the FBI … constructed a system to indict him anyway,” Gaetz said. “That is bad for our country, and it sends a bad message to the world.”

Some of Fortenberry’s backers also see political overtones to his prosecution. They assert prosecutors in Los Angeles deliberately held back information about the investigation and the ultimate request for an indictment because they feared that Trump-appointed officials in Washington might have blocked the case. Fortenberry’s friends also say the charges make his seat vulnerable to being picked up by a Democrat.

Ultimately, though, Fortenberry’s case raises the question of what threshold of suspicion or evidence the FBI and prosecutors should use before targeting a member of Congress with tactics like informants or hidden recording devices.

During a flap earlier this year over lawmakers’ phone call data being swept up as part of a leak investigation, Barr expressed chagrin to associates that he was never asked about the accessing of lawmakers’ data, which appears to have been not entirely intentional.

Some former department officials say they doubt Barr would’ve approved a sting against a sitting member of Congress over a straw donation or a foreign donation, without some evidence that the lawmaker was in on the crime.

Members of Congress reacted with outrage to the leak-probe episode, prompting new Justice Department leaders to vow a reset of relations with Capitol Hill and to be respectful of Congress’ prerogatives in handling of cases involving lawmakers.

“Consistent with our commitment to the rule of law, we must ensure that full weight is accorded to separation-of-powers concerns moving forward,” Garland said in a June statement.

Garland also promised a prompt overhaul of the department’s policies on lawmakers’ records. Six months later, there has been no public word on the status of that effort. A department spokesperson declined to comment.

A decade of tension between Chagoury and U.S. government

The investigation of Fortenberry appears to be an outgrowth of federal inquiries into Chagoury that date back more than a decade. The Nigerian-born billionaire is described on his website as an “industrialist, advisor, ambassador and philanthropist who is really just a family man at heart.” Among the recipients of his largesse was the Clinton Foundation, which reported he gave between $1 million and $ 5 million.

In 2010, Chagoury was pulled off a private plane at a New Jersey airport as he attempted to fly home to Paris. Press reports said he was on a terrorism-related watchlist due to possible financial ties to terrorism, but he was eventually allowed to travel.

Chagoury adamantly denied any terror links and, in 2016, he sued the U.S. government, claiming that he’d been smeared by illegal leaks from U.S. officials. The suit was settled the following year. As part of the settlement, the U.S. acknowledged he’d never been on a Treasury Department asset-freezing list. The settlement was silent about whether he’d ever been on a no-fly or other watchlist.

Soon thereafter, though, authorities were investigating Chagoury again over alleged illegal political donations. In October 2019, they secretly signed a non-prosecution deal with Chagoury in which he admitted to paying $180,000 to individuals in the U.S. for use in political donations. He agreed to pay a $1.8 million fine and to cooperate with investigators.

Two of Chagoury’s associates, Baaklini and Joseph Arsan, cut similar deals.

It also emerged earlier this year that former Transportation Secretary Ray LaHood secretly took a $50,000 loan from a Chagoury associate in 2012, did not report it on an official financial disclosure form and initially lied about it to investigators. LaHood agreed he “understood” the money came from Chagoury, although that was not explicitly discussed.

LaHood escaped criminal charges as a result of a deal with the same prosecutors handling the Fortenberry case. The former Obama Cabinet member who was once a moderate Republican House member from Illinois agreed to pay a $40,000 fine and to repay the loan, which had gone unrepaid for more than five years.

Case touches hot buttons for Justice Department

Some lawyers say the prospect of foreign influence likely led the FBI and prosecutors to pursue the Fortenberry case more aggressively than a typical straw-donor case.

“It’s a combination of two really hot button issues for DOJ: foreign nationals and straw donations,” said Joseph Birkenstock, a Washington attorney who focuses on campaign and lobbying law.

In one of the three counts, prosecutors contend that Fortenberry carried out an illegal scheme by failing to amend his campaign finance reports once he was told about donations allegedly made on behalf of Chagoury.

Prosecutors also say Fortenberry’s failure to refund the donations was part of an illegal cover-up, but his defense insists he didn’t take that step because prosecutors said doing so might compromise the investigation. “The prosecutors did not tell the whole truth: They directed Rep. Fortenberry not to return those contributions,” said Kolton, a campaign spokesperson.

While candidates are sometimes charged for causing a false report to be filed, several campaign finance law experts said they could not recall a case where a candidate was charged criminally for not fixing one later.

“It’s definitely unique,” said former Federal Election Commission member Ann Ravel.

Some outside lawyers also pointed to the informant’s use of the word, “probably,” in his mention of Chagoury in the recorded call with Fortenberry.

Several campaign finance law specialists said they would not counsel a client to amend the reports without clear information on where the money came from. The experts said they would urge the campaign to send out a written inquiry to the alleged donor anytime suspicions were raised about a donation.

Probably’ is not the same thing as certainly,” Birkenstock said. “Does he really know who the true contributors are?”

Such ambiguities could undermine the government’s case, although prosecutors have insisted the lawmaker was repeatedly and unambiguously told the money was provided in cash by a Chagoury ally in the U.S.

Still, the government’s case appears to ride entirely on Fortenberry’s recollection of a single phone conversation.

“It’s hard to know what went through the Congressman’s mind when the informant called,” said Jerry Goldfeder of the Stroock law firm in New York City. “After all, all of this was news to him, if he even internalized what was supposedly said.”

Brand, the former House counsel, said he thinks the constitutional privileges of House members and Senators should preclude such stings.

“It at least shouldn’t be done for penny ante campaign violations,” he said. “It’s not the Great Train Robbery.”

Kyle Cheney and Olivia Beavers contributed to this report.

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