Could an Edwards indictment be precursor of one for Ensign?

By Karoun Demirjian

Sunday, May 29, 2011 | 2 a.m.

The federal indictment that is due any day now for former presidential candidate and Sen. John Edwards, who fathered a child with a campaign staffer and then tried to cover it up, is raising speculation around Washington about another similarly scandal-ridden senator: If Justice goes after Edwards, would it be more likely to go after John Ensign?

The circumstances of Edwards’ and Ensign’s cases are eerily similar. Both had been charting a course toward the White House; both took up affairs with campaign staffers; and both have since been haunted by accusations that they misspent campaign money to cover their tracks. (Both also have the same initials, J.E., and an obsession with their own, admittedly impressive, heads of politician hair.)

But although the Justice Department seems poised to pull Edwards up on charges that he broke finance laws by using campaign money to support his mistress, it passed on a chance to indict Ensign on allegations that he had broken those same laws to pay severance to his mistress, and encouraged inappropriate contact between his office and her husband, an Ensign staffer-turned-lobbyist, late last year. So did the Federal Election Commission.

In a report released this month, the Senate Ethics Committee urged both to reopen their investigations of Ensign, because “we have reason to believe that Sen. Ensign violated laws within their jurisdictions,” committee Chairwoman Barbara Boxer of California said.

The question now is whether they will — and whether the Edwards case will at all influence that decision.

Any legal decision of course must be made on the facts of the case, and despite how similar the allegations are, there are differences that could suggest the Edwards scenario is a more prosecutable case.

Prosecutors say Edwards used hundreds of thousands of dollars donated by millionaires Rachel Mellon, 100, and the late Fred Baron, to pay for a house for Rielle Hunter, the campaign videographer with whom he fathered a child. Edwards claims the money that went to house Hunter and support his out-of-wedlock child were personal gifts not tied to his campaign; prosecutors, citing Baron and Mellon’s history of giving to Edwards’ campaign and associated political action committees, say they were misappropriated campaign funds.

The $96,000 payoff in Ensign’s case was much less, and the money came from a much murkier source: Ensign’s family trust. It was his parents who cut the check to Cynthia Hampton, Ensign’s mistress; Doug Hampton, his former top aide and best friend; and two Hampton children in equal parts.

But new revelations about the Justice Department’s tabled Ensign investigation suggest there may actually be a new compulsion to resume the case.

According to the news agency Reuters, the Justice Department didn’t have all the documents that were available to the Ethics Committee because Ensign’s lawyers didn’t turn them over to ethics investigators until after Justice had shuttered its case.

The formerly missing documents include about a thousand emails among Ensign, advisers and attorneys that the Ethics Committee tried unsuccessfully to snag for 18 months, until one day, they just handed them over.

Now, the investigation found through attorneys close to the case, it’s “almost certain” that the Justice Department will reopen its case, not least because it has to protect its reputation.

“Each case has its own individual facts and each person is entitled to a judgment on his own case,” said Daniel Lowenstein, an expert in election law who teaches at UCLA. “On the other hand, certainly, any prosecuting agency should have some consistency.”