By Paul Kane
Washington Post Staff Writer
Tuesday, February 1, 2011; 10:27 PM
The Senate Ethics Committee has appointed a special counsel to lead the investigation of activities connected to Sen. John Ensign's affair with a political aide.
Tuesday's announcement is a dramatic turn in the probe of the Nevada Republican that has been under way for more than 16 months, suggesting that the scrutiny will run deep into the 2012 election season.
In a bipartisan statement, the committee announced the hiring of Carol Elder Bruce, a veteran white-collar criminal defense lawyer at K&L Gates. It is the first time in two decades that the Senate ethics panel has retained a special counsel to investigate a senator.
The committee is examining Ensign's affair with Cynthia Hampton, who was one of his wife's closest friends and who worked for the political committees of the once rising star in the GOP. The case appears to be focusing on Ensign's help in getting lobbying work for Hampton's husband, Doug Hampton, also a close family friend and onetime aide to the senator. Both Hamptons had been dismissed in spring 2008. Federal law and Senate rules required Doug Hampton to refrain from lobbying Ensign's office for one year.
Ensign, who admitted the affair in June 2009, denied any wrongdoing in an interview Tuesday, citing the decision in December by the Justice Department to abandon its criminal investigation and the Federal Election Commission's decision to drop a probe into whether payments to the Hamptons violated campaign rules.
"The Justice Department saw it that way; FEC saw it that way, that I broke no laws. And I don't think I broke any Senate ethics rules, and we're hoping they see it the same way," Ensign said.
The senator added that he had met with his fundraising team that morning and that he was going "full speed ahead" in his run for reelection next year. He predicted that it would be an "exceptionally ugly" race that might prompt a primary challenge from fellow Republicans.
The ethics investigation is not focused specifically on whether the senator's actions were serious enough to warrant a federal criminal trial but on issues connected to congressional rules governing what a senator can do to help former senior aides in the lobbying field. In addition, the ethics committee can simply declare that a senator engaged in "conduct unbecoming" of the institution, as the panel declared in its 1995 report recommending the expulsion of then-senator Bob Packwood (R-Ore.) for sexual misconduct.
The Ensign investigation remains at the "preliminary inquiry" stage, which under Senate rules is similar to a grand jury investigation. But the appointment of an outside legal team suggests the case could be more far-reaching. If the preliminary inquiry uncovers "substantial credible evidence" of a serious rules breach, the committee is required to open an "adjudicatory review" that would normally require hiring an outside counsel to lead what amounts to a trial phase of the investigation.
Other cases that involved the hiring of special counsel include the 1990 "Keating Five" investigation, involving public hearings into the actions of five senators who met with prominent banker Charles Keating in the savings-and-loan scandal, as well as the 1990 investigation into then-senator David Durenberger's personal finances. Both were led by prominent Washington lawyer Robert Bennett.
Those cases ended with then-senator Alan Cranston (D-Calif.) receiving a "strong and severe reprimand" and Durenberger (R-Minn.) being publicly "denounced" by the full Senate for improperly collecting reimbursement fees from the Senate for personal travels. Both senators retired instead of seeking reelection.
Ensign said he did not know that the special counsel appointment was coming because he does not talk to the committee. "We're hoping that it speeds the things up, and we'd like to get this thing resolved as quickly as possible," he said.
Sen. Barbara Boxer (D-Calif.), the committee's chairman, declined to say Tuesday whether the investigation was about to move into a more serious phase and why the panel thought it needed to hire Bruce.
"The committee, on a bipartisan basis, decided this was an appropriate step," Boxer told reporters. "The committee has done a lot of work, and at this stage, we think it's appropriate in order to expedite things, to move it through. This is what we're doing and to have the expertise we need."
The six-senator committee is evenly divided among Democrats and Republicans, requiring a vote of at least four senators to take such a step.
Bruce is a heavy hitter among D.C. lawyers, with deep experience conducting ethics investigations. In the 1990s she was appointed independent counsel to investigate then-Interior secretary Bruce Babbitt for his agency's decision to reject a request from an Indian tribe for a casino license. In the 1980s she served as deputy independent counsel in the investigation of then-attorney general Edwin Meese III's personal finances.
At the time his affair was disclosed, Ensign held the No. 4 GOP leadership post and was testing the waters for a 2012 presidential bid by traveling to Iowa, the earliest state to hold a caucus. Now, he is a remote figure inside the Republican Conference, with most of his onetime allies wishing he would announce his retirement rather than wage what many consider an uphill fight for reelection.
Ensign, whose father, Mike Ensign, is a prominent Las Vegas casino executive, eventually admitted that his parents gave the Hamptons and their children $96,000 in gift income soon after they were dismissed from the senator's staff - the exact legal maximum they could donate without triggering tax laws.
Ensign then also helped Doug Hampton line up lobbying work with his top consultants and landed clients that included top donors to Ensign's political committees. Hampton never registered as a federal lobbyist, despite having meetings with administration officials and Ensign's office, during what should have been his one-year cooling-off period.
In spring 2009, Doug Hampton sought more help from Ensign, who eventually accused Hampton of essentially extorting him. Sen. Tom Coburn (R-Okla.), once a close Ensign friend and former roommate on Capitol Hill, intervened and tried to negotiate a seven-figure settlement. Those talks broke down, and Doug Hampton began contacting media outlets about the affair, prompting Ensign to fly home to Las Vegas in June 2009 to address the issue.
Since then, Ensign said, he has traveled throughout the state and faced the question about his affair and the investigations.
"I had it asked in front of a high school class, and I responded very honestly: I told them I made the biggest mistake of my life. I've said that many times, because it was the biggest mistake of my life," he said Tuesday. "You know, I regret the pain that it caused my family, my friends, everybody. That's something I have to live with."