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July 26, 2017

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Does ethics report put John Ensign in legal jeopardy?

Ethics report

Sun reporter Karoun Demirjian talks to KSNV about the Senate Ethics Committee report on former Sen. John Ensign, May 12, 2011.

Face to Face

Face to Face, Seg. 2

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  • Face to Face, Seg. 2
  • Face to Face, Seg. 1
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Senate Ethics Committee Chair Sen. Barbara Boxer, D-Calif., is pursued by reporters on Capitol Hill in Washington, Thursday, May 12, 2011, after speaking on the Senate floor about former Nevada Sen. John Ensign.

A few months ago, things were looking up for then-Sen. John Ensign.

First, the Federal Elections Commission dropped its investigation against him, then the Justice Department decided it didn’t have the goods to move on an indictment. By the end of last year, it looked like the legal skies were clearing above him, and Ensign got such a spring in his step that he started take steps toward a reelection campaign.

Four months into the new year, his political career is not only over, it appears he’s also back in the hot seat, awaiting a final word on charges.

The Senate Ethics Committee’s report revealed many details about the steps that led to Ensign’s affair and those he took to cover it up afterward. But it’s most significant contribution to the case against Ensign is that it recommended to the FEC and the Justice Department that they reopen their investigations, because, as Ethics Chairwoman Barbara Boxer said: “We have reason to believe that Senator Ensign violated laws within their jurisdictions.”

But if Ensign’s already been left off the hook, does he really stand a chance of being dragged back by prosecutors?

The answer is a resounding maybe.

The lack of any conclusiveness is because there’s a lack of clarity about exactly what happened in the Justice and FEC investigations. The Senate Ethics Committee released a 75-page report; the Justice Department didn’t even issue a press release at first — Ensign’s lawyers communicated the good news to the public.

Even though the Justice Department’s resources far outpace the Senate Ethics Committee’s, there’s a chance that the Senate ethics investigation dug deeper — and if came up with new, usable evidence that changes the DOJ’s read on things, then it’s quite possible the case will be reopened.

The key in judging whether the DOJ will revisit the possibility of hauling Ensign up on charges that could carry fines or jail time is probably whether, and to what extent, DOJ investigators spoke to John Lopez.

Lopez, Ensign’s former chief of staff, is not only the Senate Ethics Committee’s star witness in the report, he’s also the only one of the big players who demanded, and secured, immunity before he testified. That means what information he gives can’t be used against him.

It’s from Lopez’s testimony that most of the criminal charges stem, and he gives such juicily detailed testimony because of how closely he was involved in the arrangements that led to Hampton breaking a one-year cool-off period for congressional staffers-turned-lobbyists — the only piece of this affair that has, thus far, put a participant in front of a federal judge.

Presumably, Lopez would have had to strike a similar deal with the Justice Department to talk to them. It’s not clear if he did or did not, and Lopez, now a lobbyist with the Washington, D.C., branch of R&R Partners, did not return calls for comment Thursday afternoon.

The Federal Elections Commission inquiry would depend on another piece of the report: the allegations surrounding a $96,000 payoff made to the Hamptons.

That appears to ride heavily on whether the money was given as a gift from Ensign’s parents out of the Ensign Family Trust, or whether it was given under the understanding that it would be a severance payment, paid out of the trust but given to Cynthia Hampton as the equivalent of a year’s salary, and to Doug Hampton as the equivalent of two months’ salary.

What they received from the Ensigns actually was more than the equivalent of that sort of severance. But if it was presented as severance, because Cynthia Hampton was a campaign staffer, the money, even if it originated privately with the Ensigns’ Trust, would technically have to have been routed through the campaign, which raises all sorts of ethical issues about distribution of campaign finances.

Proving wrongdoing there leads one down a much murkier road of definitions and interpretations, it appears from this report, than do the allegations about violating the cool-off period, which depend on more straightforward dates and documents. Those circumstances, as pointed out earlier, have already resulted in a federal indictment of Doug Hampton.

The Justice Department is under no obligation to reopen its investigation against Ensign or adhere to any schedule or deadlines for when a decision about whether to reopen the investigation must be made. Ensign’s lawyer Paul Coggins, an attorney with the Dallas firm of Fish & Richardson, said Thursday that he was “confident that the Department of Justice will conclude that Senator Ensign fully complied with the law.”

But in practical fact, it may be the Federal District Court’s case against Hampton that moves this now-public process along.

Hampton’s next court date is July 1. That won’t be the end of his legal process; it’s not even clear yet if his case will go to trial.

But if he’s found guilty, his actions with Ensign, which are documented in this report, rise to the level of a federal crime. If the details in the report are any guide, it seems likely that, should Hampton be deemed a criminal for his actions, someone is going to accuse Ensign of having aided and abetted him in the process. In effect, the Senate Ethics Committee already did.

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