Congressman Jeff Fortenberry (R-Nebraska), who was charged with concealing information and making false statements to federal authorities who were probing illegal contributions made by a foreign national to his 2016 re-election campaign, is now complaining that investigators “got him on tape twice,” and claims that evidence should not be heard in court. His argument is baffling to legal experts.
Additionally, federal prosecutors said they have dozens more audio and video recordings and more than 11,600 pages of evidence against the indicted congressman. The banquet of evidence so overwhelmed the defense team that prosecutors asked a judge to delay the trial so the defense can catch up, The Daily Beast reports.
In a recent filing in federal court, Fortenberry’s attorneys acknowledged that the government made at least two recordings of the sitting congressman over the course of its investigation surrounding illicit campaign contributions from a Nigerian-Lebanese billionaire, according to the report.
“But the tapes led Fortenberry’s lawyers to ask the judge for what some legal experts say is essentially a courtroom pipe dream,” The Beast noted.
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“On Nov. 9, Fortenberry’s legal team moved to disqualify the assistant U.S. attorney in charge of the prosecution, arguing that his involvement in the lead-up investigation makes him a witness and may unfairly influence the jury,” the website reported.
Fortenberry’s attorneys reportedly filed a motion asking the court to replace [assistant U.S. Attorney] Mack Jenkins, who had helmed the probe into the congressman and now leads the prosecution against him, arguing that Jenkins’ involvement in the early stages of the investigation made him a witness in the case and could unfairly influence the jury, because they said he secured the warrants to record Fortenberry.
The Nebraska Republican’s lawyers argued that “merely by presenting evidence or argument related to the Washington, D.C., statements, AUSA Jenkins would be vouching personally for Count Three’s central allegation: that Congressman Fortenberry lied to AUSA Jenkins personally.”
“That would make it nearly impossible for jurors to tell the difference between Jenkins’ arguments as lead prosecutor and his personal belief that Fortenberry had lied to him,” the attorneys argued. But legal experts say those dual roles are “quite common.”
Former federal prosecutor Miriam Baer, now a professor at Brooklyn Law School, said: “It’s true that prosecutors cannot vouch for their witnesses’ integrity. Trial courts take that rule seriously because prosecutorial vouching impedes the jury’s fact-finding role. But the argument sounds overly broad.”
“It seems far more likely that a judge would monitor testimony carefully for any signs of vouching and instruct the jury if necessary,” she added, according to The Daily Beast.
