Defense for indicted GOP congressman hopes to use bad memory excuse for his alleged crime

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Rep. Jeff Fortenberry (R-NE) appears taking a page from former President Donald Trump's legal playbook.

Rep. Jeff Fortenberry (R-NE) was indicted in October on three felony charges relating to illegal campaign contributions and lying to federal investigators. As he faced charges, Fortenberry denied ever knowing the contributions were illegal, despite a former fundraiser indicating he did receive a warning about them. His lawyers reportedly are now suggesting the 60-year-old incumbent may not have fully remembered what had happened in 2018 — as he runs for reelection on a platform of "personal responsibility."

The Omaha World-Herald reported on Friday that attorneys defending the nine-term representative are seeking to call a memory expert to testify. According to their notice to the government, Dr. Alan Castel would explain that "as we get older, our memory fidelity and accuracy tend to decline, especially for details" and instead rely on "the simplest gist."

They argued that Fortenberry was forced to answer "confusing and repetitive questions" and said at the time that he "did not have a clear recollection of the events." The attorneys said absent such expert testimony, jurors might assume "Fortenberry must have lied to the government."

According to the Department of Justice, in 2016 a foreign national illegally arranged for $30,000 of his own money to be donated to Fortenberry's reelection campaign through conduits at a fundraising event.

Two years later, the indictment alleges, Fortenberry was told by the event co-host that the donations were probably illegal — but did not amend his campaign finance filings and "knowingly and willfully falsified, concealed, and covered up by trick, scheme, and device material facts" about the donations.

In 2019, he repeatedly told federal investigators that he had never been informed that the donations were improper.

In an email, a spokesperson for Fortenberry's campaign told the American Independent Foundation:

This is what Rep. Fortenberry's attorneys actually told the court was the purpose for Dr. Castel’s testimony: "Prof. Castel would explain to the jury that prior retrievals of memory and feedback from others can actually alter the memories themselves, varying the motivation and ability to remember particular details and leading the memories to become more gist-based. Yet, without hearing from an expert, about half (47.6%) the United States population would assume such possibilities do not exist, because this segment believes memory substantially does not change, once formed. Nowhere in the motion before the court does Rep. Fortenberry’s legal team say they want to call Dr. Castel as a witness to speak to any kind of 'declining memory' by Rep. Fortenberry."

Fortenberry previously denied all wrongdoing.

Shortly after the indictment, Fortenberry began raising funds for his legal defense by falsely claiming the crimes he was accused of were "fake" and that he was only being prosecuted because of his political views.

"Politically motivated FBI agents can and do lie in order to manufacture fake crimes against patriots," wrote Fortenberry's wife Celeste in a solicitation email on his behalf. "I'm writing you today because this has become my family's story."
Though the federal investigation began in 2018 under Republican former President Donald Trump, Celeste Fortenberry claimed prosecutors were only after her spouse to "stop his work and flip his seat." Nebraska's 1st Congressional District is solidly red and votes more than 10 points more Republican than the nation as a whole, making it an unlikely focus of purported illegal interference.

It is a common legal tactic to claim that the defendant does not recall details or events. Indeed, Trump famously claimed dozens of times during special counsel Robert Mueller's investigation that he did not "remember" or "recall" what had happened. He also claimed lapses in memory 59 times during a 2015 deposition about his now-defunct Trump University.
Despite his alleged fallible memory and ongoing legal issues, Fortenberry announced in January that he would seek reelection in November.

In his kickoff video message, he bragged that "in spite of the difficulties of this year, we've been able to achieve some major accomplishments," including passage of a noncontroversial ALS therapy bill he co-sponsored with 330 colleagues.
Fortenberry's campaign site welcome page notes his belief that "Nebraska, with our unique cultural heritage of personal responsibility, hard work, and commitment to family and community, has much to give our country by way of example."

Updated to reflect a statement from Jeff Fortenberry's campaign. 

Published with permission of The American Independent Foundation.