Pablo Martinez Monsivais / Associated Press
Saturday, Oct. 3, 2009 | 2 a.m.
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Nevada Sen. John Ensign faces the threat of expulsion from the U.S. Senate and possible criminal penalties, according to several legal and ethics experts interviewed by the Sun.
The New York Times reported Friday that the Republican senator faces a preliminary FBI investigation into his actions after an affair with a campaign aide who was married to his best friend, who was a top staff aide. Also, the Senate Ethics Committee is in the midst of a preliminary investigation.
The senator’s latest troubles arise from a story published Friday in the Times that detailed the extraordinary lengths Ensign, 51, went to mollify Doug Hampton, his then-co-chief of staff and the husband of the Ensign campaign aide, Cynthia Hampton, with whom the senator had the affair.
As the Sun reported this summer, Ensign enlisted the help of his longtime political aide Mike Slanker, who revived his then-dormant lobbying and consulting firm November Inc., so Hampton would have a job after leaving Ensign’s office.
Ensign then called on Nevada power brokers and companies, including Allegiant Air and NV Energy, to become November Inc. clients.
Hampton told the Times that Ensign assured him he would instruct chief of staff John Lopez to assist Hampton by helping the clients Ensign retained for Hampton.
Hampton has acknowledged to the Times failing to register as a lobbyist and ignoring the law banning lobbying for one year after leaving Capitol Hill, which is intended to prevent influence peddling and a revolving door between government and private interests.
Finally, as Ensign acknowledged this summer, Ensign’s parents gave the Hamptons $96,000.
Ensign’s office did not respond to written questions, though a spokeswoman told the Times that Ensign would cooperate with official inquiries.
Hampton’s attorney, Daniel Albregts, did not return phone calls, and Hampton could not be reached for comment.
If Ensign encouraged Hampton to break the one-year rule, as Hampton alleged to the Times, he could be accused of conspiracy.
Willfully violating the law is a felony and carries a maximum sentence of five years.
A Washington lawyer with experience in ethics and political corruption cases, granted anonymity to speak freely, said simply, “Not good. What the hell were these guys thinking?”
Kenneth Gross, who heads the political law practice at the Washington firm Skadden, Arps, Slate, Meagher & Flom, noted the inevitability of a Senate Ethics Committee investigation, while suggesting federal prosecutors would look hard at the facts.
Gross said a criminal case would by no means be a slam dunk, but said an inquiry seems likely — speculation confirmed by news of the preliminary FBI investigation: “Prosecutors are not going to jump in with two feet on the evidence that is out there at this juncture, but I imagine they will be taking a look,” he said.
The law has usually been used to prosecute executive, not legislative, branch officials, Gross said.
Stan Brand, a former House counsel and now a lawyer for Democrats and Republicans, indicated that prosecutors would likely pursue the matter vigorously, hauling in family, aides and the executives who were recruited to be Hampton’s lobbying clients. “They will press everybody hard for their evidence,” he said.
Brand noted that the Justice Department’s Public Integrity Section has 30 lawyers and secured 371 convictions last year.
“That a sitting member of Congress would escape their review on this seems unlikely to me,” he said.
Ian McCaleb, a Justice Department spokesman, said, “Unfortunately, this is a neither confirm nor deny situation.”
If Ensign is prosecuted, it wouldn’t be the first time a member of Congress faced sanction for a former aide’s lobbying activities.
In 2006, former Rep. Bob Ney admitted encouraging former aide Neil Volz to violate the one-year ban and went to prison as part of the wide-ranging investigation into the corrupt lobbyist Jack Abramoff.
Gross noted that the Ney case was different, as prosecutors had a load of material on the Ohio congressman. “They had a lot of allegations. Here, the whole case would have to be built on this,” he said.
Melanie Sloan, a former prosecutor and the executive director of Citizens for Ethics and Responsibility in Washington, said, “Clearly he should resign. He has no business being in the U.S. Senate.” Sloan’s group filed Senate Ethics and Federal Election Commission complaints against Ensign this summer.
Sloan continued: “It was beyond criminal before. There’s new evidence. It’s going to make it that much harder for Ethics and the (Justice Department) to do nothing.”
Hampton also faces significant legal jeopardy, and his own motives are unclear — by implicating Ensign, he implicated himself in a kind of legal and public relations murder-suicide.
In addition to admitting to breaking the law with his lobbying, Hampton told the Times that he sent his attorney, Albregts, to make a restitution demand of just less than $8.5 million, and then, later, about $2 million. The demands were made to Ensign through Sen. Tom Coburn, R-Okla., who acted as an intermediary.
Despite Hampton’s potential criminal liability, Albregts told the Times they welcome official inquiries: “There are real questions as to whether rules and laws were violated as a result of Sen. Ensign trying to cover up the affair,” he said.
Politically, Ensign now appears isolated.
Senate Minority Leader Mitch McConnell, R-Ky., was asked about Ensign at a news conference and declined to offer words of support, saying, “I really don’t have any observations to make about the Ensign matter.”
Steve Wark, a Nevada Republican consultant, said, “People are ambivalent about John Ensign and … I would say John Ensign is hiding in the living room draperies, and that’s about it.”