It’s the second time they’ve asked a judge to remove Special Assistant U.S. Attorney Mack Jenkins, who first prosecuted Fortenberry in California in 2022 on the same allegations.

The judge there denied the motion.

And a jury in Los Angeles found him guilty of one count of concealing conduit campaign contributions and two counts of lying to federal agents during an investigation into $30,000 Fortenberry had gotten from a controversial Nigerian billionaire, Gilbert Chagoury, at a fundraiser in L.A. in 2016.

Fortenberry ultimately donated the money to charity after he learned about it because it is illegal for U.S. elected officials to accept foreign money. But the FBI says he lied in interviews about the money.

Fortenberry resigned from the House of Representatives a week after his conviction. And he later appealed.

On Dec. 26, 2023, a Ninth Circuit Court of Appeals panel reversed the conviction, saying Fortenberry should have been tried in Nebraska or Washington D.C., where he had made the statements at issue, not in California where the fundraiser took place.

Four days after the mandate was issued, the five-year statute of limitations ran out to bring charges against him in Nebraska over the statements he made at his home March 23, 2019.

But on May 8, a grand jury in Washington indicted him on two charges — falsifying and concealing material facts and making false statements — for statements Fortenberry made while still in office during an interview July 18, 2019, at his counsel’s office in Washington.

Court filings in the case Tuesday showed the back-and-forth that followed the decision to retry him, this time in Washington.

In an email exchange that followed, the government offered Fortenberry a plea agreement. Plead to falsifying and concealing material facts. In exchange, the government would ask for time served, plus a reinstatement of the previous $25,000 fine and any community service he hadn’t already completed.

Tobin Romero, Fortenberry’s attorney, responded the same day with Fortenberry’s counteroffer — that the government drop the case — which was rejected.

By Aug. 7, Romero had emailed U.S. Attorney for the District of Columbia Matthew Graves directly asking him to reconsider. 

Two days later, Graves declined, saying he was familiar with the matter, the plea offer and counteroffer.

“I support the team’s assessment and decision to continue the prosecution,” he wrote.

In motions Tuesday, Romero asked a judge to dismiss the indictment and asked for oral arguments on his request to obtain discovery as to whether Fortenberry’s case amounted to “selective prosecution” or “selective enforcement.”

He’ll face a high burden in proving it, but pointed to a 1999 case where an African American defendant charged with cocaine distribution met the standard by showing state prosecutions, but not a single federal prosecution, of a white person in the entire year across four counties of Massachusetts.

“Although courts appropriately pay deference to prosecutorial discretion in the vast majority of cases, the decision to re-indict and retry this case is the kind of unprecedented prosecutorial decision that warrants discovery into government decision-making,” he wrote.

Romero said the defense team wasn’t able to find any cases in the past 10 years in which the federal government, following reversal by a Court of Appeals, retried a defendant who had received probation and had served most of it.

He accused the government not only of disparate treatment, but also of “political bias” against Fortenberry, a Republican and supporter of Donald Trump, pointing to Jenkins’ financial contribution to “Stop Republicans,” a group dedicated to resisting Trump and the Republican Party.

“Separation of powers principles ordinarily require courts to defer to the executive branch’s prosecutorial decisions, but the Constitution importantly provides for some limited checks by the judiciary,” Romero wrote in the motion.

He said he had urged the government not to retry Fortenberry. Even if a retrial were to result in a conviction, he likely would be sentenced to serve no more than the remaining six months of his prior probationary sentence, the attorney said.

Romero also pointed to Fortenberry’s first trial, saying the government focused extensively on its July 18, 2019, interview of Fortenberry where Jenkins questioned him for more than two hours, making him a witness in the case.

“This is unavoidable — the July 18 interview is central to the case, as was SAUSA Jenkins’ role in it,” he wrote.

The government hasn’t yet responded to the motions.