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September 17, 2014

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THE SENATOR’S SCANDAL:

Ensign likely in cross hairs of feds, ex-prosecutors say

Former Justice officials say charges wouldn’t come for months

John Ensign

John Ensign

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Doug Hampton is a former senior aide to Sen. John Ensign and is married to the woman with whom the senator admitted to having an affair.

WHAT HAPPENS NEXT

… If Ensign decides to stay in office

Don’t expect his Senate colleagues to bounce him out. The last time the Club of 100 did that was during the Civil War.

… If Ensign decides to step down

If one of Nevada’s sitting U.S. senators resigns, the governor appoints a replacement who occupies the seat until the next general election, which would be in November 2010.

If the resignation occurred before March 12, the last day to file to run in the 2010 election, candidates would face voters in the June primary election before going to the general election in November, according to Matt Griffin, deputy secretary of state.

If the resignation occurred after March 12, the parties' central committees would nominate candidates for the general election ballot, Griffin said.

The elected replacement would again face voters in 2012, when Ensign’s six-year term expires.

The governor is not considering any potential appointees, said Dan Burns, a spokesman for Gov. Jim Gibbons. “At this point there’s no need for such a matter to be considered,” Burns said.

— David McGrath Schwartz

Dead Man Walking?

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A year ago, a small, little-known cadre of lawyers at the Justice Department headquarters in Washington was in federal court prosecuting the rarest of prizes for a group devoted to ferreting out public corruption. The man standing trial was a sitting United States senator, and he eventually not only would be convicted but also would lose his bid for reelection after decades in the nation’s capital.

Now, according to several former prosecutors who have worked in the unit, the Public Integrity Section has almost certainly set its sights on another sitting senator, John Ensign of Nevada, and either is completing an initial inquiry or has expanded the matter into a full-bore criminal investigation.

The sources said their former colleagues in the unit, created three decades ago in the wake of the Watergate scandal, would be seeking to determine whether Ensign and a former aide, Doug Hampton, violated federal law by skirting restrictions on conducting lobbying work less than a year after Hampton left Ensign’s staff. If the investigation produces felony charges, Ensign and Hampton could face up to five years in prison.

“There’s a good chance there is already an assistant U.S. attorney assigned to this case,” said Guy Singer, who as part of Public Integrity Section helped prosecute the Capitol Hill corruption cases involving lobbyist Jack Abramoff.

“Basically you’re opening an investigation where someone has made very clear allegations of potential criminal conduct,” Singer added. “It’s not a fishing expedition.”

Joshua G. Berman, who prosecuted corruption cases when he worked in the Public Integrity Section, said he “wouldn’t be surprised” if the matter has been cleared for a full investigation.

“Usually you do a very quick, preliminary look at the facts, maybe just the public record,” Berman said. “Talk to some witnesses. See if there is enough to do a full investigation. And I wouldn’t be surprised if they felt in this case there was enough predication for a full investigation. Theoretically, they could be there already.”

Current Justice and FBI officials refused to comment on any ongoing reviews.

How the process works

The former prosecutors in separate interviews described how the process works inside the two-dozen-prosecutor unit and characterized the Ensign matter as a fairly simple case to put together. They said an investigation could have been triggered any number of ways — including by curious agents watching the Ensign matter unfold this year, by Hampton himself or by people close to Hampton who contacted the government.

They said protocol would require a Justice Department supervisor, perhaps as high as the deputy attorney general’s office, to sign off on a written brief for expanding an initial inquiry into a full criminal probe. They also said that Attorney General Eric Holder in all likelihood would be advised about the investigation — especially since the matter has received such intense media attention.

“You’re talking about a senator as a target,” Singer said.

Ensign has acknowledged that he carried on an extramarital affair with Hampton’s wife, Cynthia. It also has been revealed that Ensign’s parents paid the Hamptons $96,000 when he left Ensign’s staff.

Last week The New York Times reported allegations that Ensign helped Doug Hampton find work as a lobbyist and intervened with federal regulators to benefit Hampton’s new clients. Federal law requires federal employees to wait at least a year before engaging in lobbying activities. Ensign has said little about his involvement, if any, in the alleged lobbying arrangement. On Tuesday he told CNN that he and his staff members “absolutely did nothing wrong.” He told the Sun and other reporters that he was “fully planning on working, staying in office.”

Where Doug Hampton stands

Singer and Berman said Public Integrity prosecutors, and possibly FBI agents and assistant prosecutors from the Washington and Nevada field offices, would move quickly to scoop up the public record and seek interviews with Doug Hampton and other potential witnesses.

Key to their investigation would be statements Hampton has made about an arrangement with Ensign and the senator’s help in his lobbying efforts, as well as e-mail and other documents that Hampton has made public. By doing so, the former prosecutors said, Hampton appears to have deeply incriminated himself along with Ensign.

Singer, now a partner in the Washington law office of Fulbright and Jaworski, said investigators would want to sit down with Hampton immediately, especially because he appears still upset with Ensign over the affair.

“It’s the reverse of hell hath no fury like a woman scorned,” Singer said. “This guy is in an emotional rage. He opens up and bleeds all over himself. You want to lock this guy down with some kind of a statement, if not to the grand jury, at least to an FBI agent.”

Berman, now head of litigation in Washington for the firm of Sonnenschein Nath and Rosenthal, agreed. But he went a step further, suggesting that Public Integrity officials may already be presenting documents and other material to a grand jury.

“You have witness interviews. You have documents being subpoenaed, e-mails being supplied,” Berman said. “And if the grand jury is being used, it can go very quiet for a while.”

He and Singer thought it could be up to six months before criminal charges, if any, are sought. A trial could come a year or more later. Much of it depends on cooperation from witnesses, and whether Ensign thinks it is hurting him politically.

A historical parallel

But they also pointed out that the Ensign allegations are much simpler than the complex web of the Abramoff case. One of the biggest targets was Congressman Bob Ney, R-Ohio, accused of activities very similar to what has surfaced in the Ensign matter.

Ney eventually pleaded guilty to conspiracy to commit multiple offenses, including fraud and crimes surrounding violation of the one-year lobbying ban. In January 2007 he was sentenced to 30 months in prison and a $6,000 fine.

Two of his former chiefs of staff, Neil G. Volz and William J. Heaton, also pleaded guilty but were given probation after they cooperated with the government against Ney.

Singer said that scandal “was the largest corruption investigation since Watergate, in breadth and scope.” Numerous Capitol Hill and K Street lobbying figures were prosecuted, including ultra-lobbyist Jack Abramoff, who traded off his congressional ties to raise fees from a wide range of clients, such as American Indian tribes seeking casino licenses.

However, the Ensign matter, Singer said, is a more “discreet investigation of a specific senator and his alleged misconduct.”

Put another way, Singer said, “Bob Ney was one spoke on a large wheel where Abramoff was the hub of that wheel. In this case, if there’s a hub, it’s Sen. Ensign.”

But Berman cautioned that even simpler cases do not always pan out.

The senator being tried by the Public Integrity Section a year ago was Ted Stevens of Alaska. He was convicted of lying on a Senate disclosure form to hide $250,000 in gifts and home renovations. Stevens, then the longest-serving Republican in the Senate, consequently lost his seat. But in a surprising chain of events, the conviction was tossed out after a judge ruled prosecutors had withheld some evidence helpful to the defense.

Given that, Berman said, “it’s impossible to know how these things will turn out.”

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