CORRECTION, Jan. 2, 2024: The headline for this article should include a reference to the DOJ. Some versions featured a different acronym.
This is just what President Joe Biden’s Department of Justice needs for the new year: A high-profile conviction of a Republican getting overturned by an appeals court.
On Dec. 26, a federal appeals court tossed out former Nebraska GOP Rep. Jeff Fortenberry’s 2022 conviction for lying to the FBI, arguing the case wasn’t tried in the proper venue.
“Fortenberry’s trial took place in a state where no charged crime was committed, and before a jury drawn from the vicinage of the federal agencies that investigated the defendant,” U.S. District Judge James Donato wrote in the decision, according to The Hill.
“The Constitution does not permit this. Fortenberry’s convictions are reversed so that he may be retried, if at all, in a proper venue.”
The case involved a $30,200 donation from a Nigerian businessman to Fortenberry’s campaign in 2016.
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“During interviews with the FBI, Fortenberry told investigators that he was unaware of any illegal contributions to his campaign,” The Hill reported. “But court filings indicate the agency had listened into an earlier phone call, in which a cooperating witness told Fortenberry that the Nigerian businessman was likely the source of the $30,200 donation.”
However, the problem with Fortenberry’s conviction wasn’t with the evidence. It was where the case took place. The FBI interviewed Fortenberry at his home in Lincoln, Nebraska, and at his lawyer’s office in Washington, D.C. — not in Los Angeles, where he was tried.
The casual observer would be forgiven for thinking that DOJ prosecutors were venue-shopping for an unfriendly locale to Republicans, but prosecutors claimed to justify it because the investigation was run out of the FBI’s field office in the City of Angels and the alleged false statements affected the FBI’s inquiry there.
The appeals court didn’t buy it: “We conclude that an effects-based test for venue of a Section 1001 offense has no support in the Constitution, the text of the statute, or historical practice,” Donato wrote.
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Clearly a Trump-ist shill, this Judge Donato. Except he was appointed by … um, former President Barack Obama. Wow, he must have really fooled Barry!
The other two judges on the panel — Gabriel Sanchez and Salvador Mendoza Jr. — were appointed by the easily fool-able President Biden.
Whether or not Fortenberry is retried at all is a somewhat immaterial question to why this case is important — although, for the record, the former representative, who served in the House from 2005 to 2022, expressed gratitude on behalf of himself and his wife.
“We are gratified by the Ninth Circuit’s decision. Celeste and I would like to thank everyone who has stood by us and supported us with their kindness and friendship,” Fortenberry said via a statement.
Instead, the real effects behind the Fortenberry ruling are going to be felt in how the DOJ goes forward after the Fortenberry humiliation with two very political trials that loom in the imminent future.
Keep in mind that, as conservative outlet Just the News reported, three out of 10 public corruption cases tried over the past two decades cited by the publication (including Fortenberry’s) resulted in reversed convictions.
“Among the rest, three sentences were commuted by presidential pardon under the Trump Administration and in one other, federal prosecutors failed to convince a jury to find the defendant guilty,” Just the News reported.
That last case appears to refer to the 2017 prosecution of Democratic New Jersey Sen. Bob Menendez on bribery charges, which ended in a mistrial when jurors could not agree on a verdict. In 2018, a judge acquitted Menendez of some of the charges, as CNN reported at the time. The Justice Department later dropped the remaining charges, as Politico reported.
Menendez, however, faces new charges now.
Arguably the most high-profile of the DOJ’s overturned cases involved now-special counsel Jack Smith, who’s charged former President Donald Trump in two venues with numerous counts. In that case, the Supreme Court unanimously overturned the 2014 conviction of former Virginia Republican Gov. Robert McDonnell, a Republican, whom Smith went after for “participating in a scheme to violate federal public corruption laws.”
“There is no doubt that this case is distasteful; it may be worse than that. But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns. It is instead with the broader legal implications of the Government’s boundless interpretation of the federal bribery statute,” Chief Justice John Roberts wrote for the court in the decision.
“Setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an ‘official act.’”
Furthermore, the case of venue looms over both the Trump case — where he’s being tried in both the District Court for the District of Columbia and the District Court for the Southern District of Florida — and in the current case against Menendez, who was indicted in New York for a slew of bribery counts.
Former U.S. attorney Joe diGenova told Just the News that taking the case away from Menendez’s New Jersey power base, while it may indeed make it easier to convict him, is venue-shopping.
“Why was that case brought in New York? The [Southern District of New York] and the Public Integrity Section did not want the case to be brought in New Jersey where [Menendez] has support,” diGenova said.
“He was previously tried [in New Jersey] and the case failed. The case should be in New Jersey. They wanted to try Menendez in a place where he had no influence in the jury selection.”
As for the cases against Trump, diGenova said the DOJ’s Public Integrity Section “has been infused with partisan animus,” adding that “[i]t is believed by many people on the bench and bar that there is political motivation.”
Maybe a few more overturned cases — particularly if it involves a former president and a current Democrat senator — and maybe the establishment media suzerains will start believing there’s something amiss at the DOJ. Until then, don’t hold your breath for cases like Fortenberry’s to elicit anything more than ripples outside of the conservative sphere.
