Ensign: preliminary inquiry and referrals
Publications naming John E. Ensign
The committee published a special counsel report and referral letters to the Justice Department and FEC. Publication and referrals do not constitute expulsion by the Senate.
Original documents
Read available indexed text (partial)
This is a partial extract. Open the official document for the full context.
__________________________________________ REPORT OF THE PRELIMINARY INQUIRY INTO THE MATTER OF SENATOR JOHN E. ENSIGN __________________________________________ SUBMITTED TO THE UNITED STATES SENATE SELECT COMMITTEE ON ETHICS BY CAROL ELDER BRUCE, SPECIAL COUNSEL MAY 10, 2011i TABLE OF CONTENTS Page I. INTRODUCTION AND SUMMARY OF FINDINGS ......................................................... 1 A. Introduction ............................................................................................................. 1 B. Summary of Findings.............................................................................................. 3 C. The Special Counsel Recommends Referrals to the Department of Justice and the Federal Election Commission..................................................................... 7 II. FINDINGS OF FACT............................................................................................................. 7 A. Factual Background ................................................................................................ 7 B. Senator Ensign s Affair with Cynthia Hampton ................................................... 10 1. Mr. Hampton s Discovery of the Affair.................................................... 12 2. Mr. Hampton Seeks Assistance to End the Affair and an Intervention Is Held ............................................................................... 13 3. The Affair Continues until July 2008........................................................ 14 C. Senator Ensign Plans for Transition Finances for Mr. Hampton....................... 15 D. Senator Ensign Arranges a Consulting Firm Position for Doug Hampton After Terminating Mr. Hampton........................................................................... 16 E. The Senator Has Extensive Discussions with Doug Hampton about Severance Payments.............................................................................................. 17 F. The Senator s Father Makes a Payment of $96,000 from the Ensign Family Trust to the Hamptons............................................................................... 19 G. Mr. Hampton Receives Excessive Unused Vacation Pay..................................... 20 H. Senator Ensign Takes Action Surrounding Mr. Hampton s Post- Employment Lobbying.......................................................................................... 21 1. Senator Ensign Takes Steps to Reduce Records Retention, Communicate Off of the Senate Server, and Minimize Contacts with the Ethics Committee ......................................................... 21 2. Senator Ensign Takes Efforts to Persuade and Compel Constituents to Hire Mr. Hampton............................................................ 22 I. Mr. Hampton Departs and Immediately Lobbies Senator Ensign s Staff............. 23 J. Senator Ensign and John Lopez Agree to Channel Mr. Hampton s Lobbying Contacts Through Mr. Lopez................................................................ 27 1. Senator Ensign and John Lopez Assist Allegiant Airlines Based on Mr. Hampton s Lobbying.......................................................... 29ii 2. John Lopez Assists Mr. Hampton s Client Entravision ............................ 33 3. Mr. Hampton Lobbies Senator Ensign s Office on Behalf of NV Energy................................................................................................. 34 4. Mr. Hampton Requests Help in Developing Relationships Between Allegiant Airlines and Federal Officials .................................... 35 K. Mr. Hampton Hires a Lawyer and Raises Damage Claims; Senator Coburn Handles Negotiations with Senator Ensign........................................................... 37 L. Senator Ensign Discloses the Affair to His Staff and the Public in June 2009....................................................................................................................... 38 1. The Senator Speaks of Making the Hamptons Whole ........................... 38 2. Senator Ensign Makes Journal Entries Describing the Payment to the Hamptons ......................................................................... 39 3. Senator Ensign Makes Draft Public Statements Referring to a Severance Payment................................................................................ 40 4. Based on Advice from Senator Ensign s Attorney, His Staff Removes All References to Payments in the Final Public Statement................................................................................................... 41 5. Mr. Hampton Reveals in Public That the Senator Made Payments to the Hamptons........................................................................ 42 6. Michael Ensign, Sharon Ensign, and Senator Ensign Submit Affidavits to the FEC Regarding the Payment.......................................... 43 a. There Was No Evidence Supporting the Assertion in the FEC Affidavits That the Senior Ensigns Paid for the Hamptons Trip to Hawaii....................................................... 44 b. Michael and Sharon Ensign s Payment to the Hamptons Greatly Exceeds Other Gifts Given to Non-Ensign Family Members....................................................... 45 M. The Senator s Chief of Staff Misleads the Public Regarding Senator Ensign s Actions and Mr. Hampton s Lobbying Efforts ...................................... 46 III. SUMMARY OF PRELIMINARY INQUIRY INVESTIGATION...................................... 47 A. The Request for Investigation of Senator Ensign.................................................. 47 B. The Preliminary Inquiry........................................................................................ 47 1. Initial Document Productions, Witness Interviews, and Depositions................................................................................................ 48 2. Retention of Special Counsel to Assist with Preliminary Inquiry ....................................................................................................... 49 a. Additional Document Production and Forensic Imaging.......................................................................................... 49iii b. Additional Depositions and Immunized Testimony...................... 50 C. The Retirement and Resignation of Senator Ensign ............................................. 51 IV. FINDINGS OF THE SPECIAL COUNSEL......................................................................... 51 A. There Is Substantial Credible Evidence That Senator Ensign Conspired to Violate, and Aided and Abetted Mr. Hampton s Violations of The Post Employment Contact Ban, 18 U.S.C. § 207 ......................................................... 51 1. Mr. Hampton s Contacts Were Not Exempt as Informational Contacts .......................................................................... 51 2. Contacts by Covered Persons Are Illegal Even If the Requested Action Would Have Been Taken in Any Event ...................... 52 3. Evidence of Aiding and Abetting.............................................................. 53 4. Evidence of Conspiracy ............................................................................ 55 B. Findings Concerning the $96,000 Payment to the Hamptons............................... 56 1. There Is Substantial Credible Evidence That the Payment Was Severance and the Evidence Does Not Support Claims That the Payment Was a Gift............................................................................. 56 2. There Is Substantial Credible Evidence That Senator Ensign Made False or Misleading Statements Concerning the Payment to the Hamptons ......................................................................... 57 3. There Is Substantial Credible Evidence That the Payment Violated Senate Rule 38 and Statutory Prohibitions on Unofficial Accounts with Respect to Mr. Hampton.................................. 58 4. There Is Substantial Credible Evidence That the Payment with Respect to Ms. Hampton Constituted an Unlawful and Unreported Campaign Contribution.......................................................... 59 5. Even if Senator Ensign s Assertions That the Payment Was a Gift Were Credible, Senate Rule 35 Would Have Been Violated ..................................................................................................... 60 C. There Is Substantial Credible Evidence That Senator Ensign Permitted Spoliation and Engaged in Obstruction of Justice ................................................ 61 D. There Is Substantial Credible Evidence That Senator Ensign Engaged in Improper Conduct Reflecting Upon the Senate, Including Violations of His Own Senate Office Policies............................................................................ 62 1. The Applicable Standard........................................................................... 62 2. Application of the Improper Conduct Standard ........................................ 63 V. RECOMMENDATIONS AND CONCLUSION.................................................................. 67iv KEY INDIVIDUALS & PRIMARY AFFILIATIONS Daniel Albregts Counsel for Cindy and Doug Hampton Brooke Allmon Director of Nevada Policy for Senator Ensign Dick Bouts Department of Interior Brian Chatwin Legislative Assistant for Senator Ensign Senator Tom Coburn United States Senator (R Oklahoma) Tim Coe Fellowship Foundation Senator John Ensign United States Senator (R Nevada) Darlene Ensign Senator Ensign s wife Michael Ensign Senator Ensign s father Sharon Ensign Senator Ensign s mother Rebecca Fisher Director of Communications for Senator Ensign Maury Gallagher Chief Executive Officer, Allegiant Air Chris Gober Outside Counsel for Senator Ensign at Fish & Richardson P.C. Simon Gros Assistant Secretary for Governmental Affairs, U.S. Department of Transportation Bruce Hampton Treasurer for The Ensign Family Trust (no relation to Doug or Cindy Hampton) Cindy Hampton Campaign treasurer for Ensign for Senate and BattleBorn PAC; wife of Douglas Hampton Douglas Hampton Friend of Senator Ensign s; Administrative Assistant to Senator Ensign; husband of Cindy Hampton Ponder Harrison Vice President, Allegiant Air, Nevada Tinna Jackson Deputy Chief of Staff for Senator Ensign Yorick Jurani Information Systems Manager for Senator Ensign Starla Lacy NV Energy, Nevada John Lopez Chief of Staff for Senator Ensignv Nick Lowry Senior Attorney, U.S. Department of Transportation Office of Aviation Enforcement and Proceedings Tory Mazzola Director of Communications for Senator Ensign Matt Mesmer Attorney, Senate Select Committee on Ethics Jason Mulvihill Chief Counsel and Legislative Director for Senator Ensign David Quinalty Legislative Assistant for Senator Ensign Rachel Roberts Scheduler for Senator Ensign Sig Rogich Rogich Communications Group Lindsey Slanker November Inc. Mike Slanker November Inc. Paul Steelman Steelman Partners Marty Sherman Fellowship Foundation Pam Thiessen Legislative Director for Senator Ensignvi GLOSSARY BattleBorn PAC Senator Ensign s Political Action Committee CAA Congressional Accountability Act CACI E-discovery vendor employed by SSCE CODEL Congressional Delegation trip Committee United States Senate Select Committee on Ethics CREW Citizens for Responsibility and Ethics in Washington DOT U.S. Department of Transportation EEOC Equal Employment Opportunity Commission EFS Ensign For Senate - Senator Ensign s Campaign Committee EIS Environmental Impact Statement FAA Federal Aviation Administration FEC Federal Election Commission FECA Federal Election Campaign Act of 1971 Manual Senate Ethics Manual NRSC National Republican Senatorial Committee Report Report of Special Counsel Carol Elder Bruce RPC Republican Policy Committee SAA U.S. Senate Sergeant at Arms and Doorkeeper SSCE Senate Select Committee on Ethics1 I. INTRODUCTION AND SUMMARY OF FINDINGS A. Introduction The United States Senate Select Committee on Ethics ( SSCE or Committee ), assisted by Special Counsel, conducted a Preliminary Inquiry into certain conduct of Senator John E. Ensign.1 The scope of the Preliminary Inquiry included an examination into allegations that Senator Ensign violated Senate rules and federal law, including provisions of the criminal code, and/or engaged in conduct that reflecting discredit upon the United States Senate regarding the termination of Doug Hampton s Senate employment, Mr. Hampton s post-employment contacts with the Senate, and payments made to the Hamptons, and any other matters as the Committee may direct. On April 21, 2011, as the Preliminary Inquiry neared its conclusion, Senator Ensign announced he would resign as the 24th Senator from the State of Nevada. Senator Ensign s resignation was effective May 3, 2011, the day before his sworn deposition was scheduled to begin.2 Although Senator Ensign s resignation divests the Committee of jurisdiction to impose discipline on him as of its effective date, Special Counsel, as required by the governing Resolution and Rules of the Senate, tenders this Report to the Committee for its consideration in the exercise of its continuing authority, obligations, and discretion under the Resolution and Rules. The Committee s investigation began after it received a complaint on June 24, 2009, from Citizens for Responsibility and Ethics in Washington ( CREW ). CREW supplemented that complaint on October 6, 2009. These filings presented allegations of sexual harassment/employment discrimination, post-employment ban violations, and issues related to payments to Douglas and Cynthia Hampton, Senator Ensign s former Administrative Assistant and campaign treasurer. Based on these serious allegations and other information available to it, the Committee undertook an extensive Preliminary Inquiry as provided by Rule 3 of its Supplementary Procedural Rules. Article I, section 5, clause 2 of the Constitution of the United States of America provides that [e]ach House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member. Under the Committee s authorizing resolution, Senate Resolution 338, 88 th Cong. 2d Sess. (1964) ( S. Res. 338 ), the Committee is empowered to investigate not only violations of law, the Senate Code of Official Conduct, and the rules and regulations of the Senate, but also improper conduct which may reflect upon the Senate. While Senators are expected to comply with all laws, Senate Rules and Standards of Conduct, the Senate and the Committee have made clear that a Senator s obligations of ethical behavior go beyond this: 1 Special Counsel Carol Elder Bruce was appointed on January 31, 2011. 2 Since the very beginning of the investigation, Committee staff has been in communication with Senator Ensign through his counsel and offered him the opportunity to provide any information or legal arguments he wanted the Committee to consider, and he has availed himself of this opportunity. Special Counsel continued this policy after her appointment.2 Certain conduct has been deemed by the Senate in prior cases to be unethical and improper even though such conduct may not necessarily have violated any written law, or Senate rule or regulation. Such conduct has been characterized as improper conduct which may reflect upon the Senate, and has provided the basis for the Senate s most serious disciplinary cases in modern times.3 During the course of the 22 month investigation, Committee staff, later joined by Special Counsel, conducted 72 witness interviews and depositions, including members of Senator Ensign s current and former staff and numerous third parties. The staffs for the Committee and Special Counsel also reviewed over a half million documents received from numerous sources, including Senator Ensign and his staff. Included in the materials reviewed were hundreds of documents previously withheld or not disclosed that were produced after the Special Counsel was appointed and challenged the basis for the non-disclosure. Special Counsel was careful not to seek intimate details of the extramarital affair referenced in the initial complaint. Whether a person is unfaithful to his or her spouse is generally the couple s own business to deal with, perhaps, in private communications with wronged spouses, marriage counselors, and others, and to surface the infidelity only if and when there is some public complaint or settlement made (such as in divorce proceedings or private resolutions). Reconciliation or resolution in private can protect the families involved and serve the greater good. This is no less true if one of the individuals is a public official. This case, however, involved two individuals whose employment and financial well being were dependent upon the Senator who employed them. This situation placed these individuals in a particularly vulnerable situation. Further, although concealment is part of the anatomy of an affair, the concealment conduct in this case by Senator Ensign exceeded the normal acts of discretion and created a web of deceit that entangled and compromised numerous people, including a loyal Chief of Staff, was an abuse of the Senator's power, and raised serious issues of violations within the Committee's jurisdiction. Therefore, the details of the affair itself and the concealment activities are presented only to the extent relevant to establish the basis and context of the actions that led to the alleged violations. As will be developed below, it is Special Counsel s determination that substantial credible evidence exists that gives substantial cause to conclude that Senator Ensign engaged in violations of law and of Senate Rules within the Committee s jurisdiction under S. Res. 338, as amended, including improper conduct which reflects upon the Senate under Section 2(a)(1) of S. Res. 338. Had Senator Ensign not resigned the Special Counsel would have recommended that the Committee initiate an adjudicatory review for the purpose of considering the appropriateness of disciplinary action against the Senator. The Special Counsel is confident that the evidence that would have been presented in an adjudicatory hearing would have been substantial and sufficient to warrant the consideration of the sanction of expulsion. Special Counsel notes, 3 Senate Ethics Manual ( Manual ), Appendix E, at 432.3 though, that Senator Ensign, by resigning before the Special Counsel could question him under oath in a deposition about the facts, did not have the opportunity to challenge factual assertions and evidence, the Special Counsel s interpretation of the facts, or the strength of the case against him. B. Summary of Findings Based on the record in this matter, the Special Counsel respectfully submits that there is substantial credible evidence that provides substantial cause to conclude that Senator Ensign violated Senate Rules and federal civil and criminal laws, and engaged in improper conduct reflecting upon the Senate, thus betraying the public trust and bringing discredit to the Senate. The following summarizes the Special Counsel s findings. There Is Substantial Credible Evidence That Senator Ensign Conspired to Violate, and Aided and Abetted Mr. Hampton s Violations of The Post Employment Contact Ban, 18 U.S.C. § 207. o Senator Ensign facilitated Mr. Hampton s unlawful post-employment lobbying by pressuring contributors and constituents to hire Mr. Hampton even though he had no public policy experience or value as a lobbyist other than access to the Senator and his office. For example, when a prominent Nevada constituent declined to hire Mr. Hampton, Senator Ensign instructed John Lopez, his Chief of Staff, to jack him up to high heaven and inform the constituent that he was cut off from Senator Ensign and could not contact him any longer. o Senator Ensign agreed with Mr. Hampton and Mr. Lopez, to have Mr. Lopez be the point person for Mr. Hampton s contacts with the Senator s office in order to provide Mr. Hampton with the necessary assistance for his lobbying efforts during his post-employment period, and not for the purpose of making certain that Mr. Hampton complied with lobbying restrictions. o Contemporaneous email communications reveal that Senator Ensign agreed to and encouraged the improper contacts between Mr. Hampton and Mr. Lopez. Additionally, according to Mr. Lopez, Senator Ensign wanted him to assist Mr. Hampton, and wanted it out of sight, out of mind, so that Mr. Lopez could take the heat on his [the Senator s] behalf. o Mr. Hampton improperly contacted Senator Ensign s office regarding at least twelve different client matters, and initiated at least thirty improper contacts to Senator Ensign s office and various other Senate offices during his one-year post-employment ban period. o Senator Ensign communicated with Mr. Hampton and took action on behalf of his clients, including the following matters, among others, which are explained in detail in this Report: (1) a Department of Transportation 4 ( DOT ) enforcement action that was successfully resolved with a small fine; (2) a draft environmental impact study; and (3) facilitating high-level meetings between one of Mr. Hampton s clients and the DOT Secretary, as well as other Senators. o Before and after Mr. Hampton s termination and during the time period when the Senator was helping Mr. Hampton get clients, Senator Ensign instituted office policies that had the effect of making Mr. Hampton s contacts harder to detect, including a shredding policy, discouraging use of official Senate email accounts in favor of Gmail, and directing that all inquiries of the Committee go through Mr. Lopez, the person he directed to interact with Mr. Hampton. There Is Substantial Credible Evidence That Senator Ensign and His Parents Made False or Misleading Statements to the Federal Election Commission Regarding the $96,000 Payment to the Hamptons. o A $96,000 payment to Mr. Hampton, Ms. Hampton, and two of their three children from the Ensign Family Trust Fund, made at the time the Hamptons were terminated from the Senator s employ, constituted a severance payment, and Senator Ensign s affidavit to the Federal Election Commission ( FEC ) that the payment was not severance is false. o Senator Ensign referred to the payment as severance on multiple occasions, including: (1) during an emergency staff meeting on June 15, 2009, when he disclosed his affair with Ms. Hampton to his Senate office staff; (2) in multiple drafts of a public statement in which the Senator publicly disclosed an affair with Ms. Hampton; (3) in credible testimony from at least four witnesses, one of whom stated that Senator Ensign said I m going to give him as much severance as possible ; and (4) in his own personal journal entries, written in June 2009, over a year after the payment was made, describing his intent to help them transition into their new life. o Evidence revealed that the term severance was removed from Senator Ensign s final June 2009 public statement not because Senator Ensign no longer believed the payment to be severance, but because he received legal counsel informing him that calling it severance could expose him to a host of criminal charges.4 o Senator Ensign s parents affidavits to the FEC are also misleading and potentially false. The affidavits stated that the $96,000 payment was part of their pattern of giving to the Hamptons, and cited payment of an all- 4 Special Counsel reviewed the document containing this legal advice, which had previously been withheld as privileged, and determined that the document was not privileged because it was addressed to a third party, not to Senator Ensign. The Senator has abandoned his prior claim of privilege as to this document.5 expenses paid trip to Hawaii in 2006 for the Hamptons as support for this pattern of giving. The FEC credited and relied upon these affidavits in dismissing a complaint against Senator Ensign and his campaign, despite a recommendation by FEC staff counsel that an investigation be opened. o There was no evidence of any pattern of giving from Michael or Sharon Ensign to the Hamptons. The senior Ensigns and Mr. Hampton had a contentious relationship not conducive to large monetary gifts and a pattern of giving, and had never directly given the Hamptons a gift before. Additionally, the senior Ensigns had never given a single gift from the Ensign Family Trust Fund of the size of the Hampton payment to any non-family member, and also had no pattern or practice of giving significant gifts to any friends of their children. There is Substantial Credible Evidence That a Portion of the $96,000 Payment Constituted an Unlawful and Unreported Campaign Contribution and Violated Federal Law and a Senate Rule Prohibiting Unofficial Office Accounts. o The part of the payment that was severance to Ms. Hampton constitutes an excessive and illegal campaign contribution pursuant to the Federal Election Campaign Act of 1971 ( FECA ) because it exceeded the $2,000 limit for authorized political committees and the $5,000 limit for other political committees. The payment, as well as the failure to report the payment, are violations of federal civil and criminal law. o The part of the payment that was severance to Mr. Hampton would also constitute an improper unofficial office account as it was a payment from a private person, in this case the Ensign Family Trust Fund, to defray official expenses. There Is Substantial Credible Evidence That Senator Ensign Permitted Spoliation of Documents and Engaged in Potential Obstruction of Justice Violations. o Senator Ensign deleted relevant documents and files after he knew they were likely to be subject to a legal claim and before and after formal notices to retain all documents relevant to the Preliminary Inquiry were issued. o Senator Ensign should reasonably have known no later than June 15, 2009, that this evidence could be relevant to anticipated legal proceedings, and has stated through counsel that he did in fact anticipate legal proceedings as to the matters at issue in the Preliminary Inquiry no later than that date. o Senator Ensign s Gmail account, which the Senator generally used instead of his official Senate email account and was thus not backed up on the 6 Senate server, was deleted and replaced on October 1, 2009. Consequently, this important account was not available to be reviewed by the Committee s information technology vendor. o Additionally, the evidence establishes that Senator Ensign deleted at least 5 relevant documents after an October 21, 2009 document retention notice issued by the Committee, including a document that directly contradicted the Senator s assertion that the payment to the Hamptons was not severance. There is no evidence that the Senator took any steps at any time to alter his email deletion practices or to ensure that his office was retaining his emails pertinent to the matters at issue in the Preliminary Inquiry. There Is Substantial Credible Evidence That Senator Ensign Discriminated on the Basis of Sex and Engaged in Improper Conduct Reflecting Upon the Senate by Terminating the Hamptons Employment Because of the Affair. o Senator Ensign engaged in and continued an extramarital affair with Ms. Hampton, an employee of the Senator s campaign committee and his leadership PAC, even though it was unwelcome to her, and then determined that the affair made it impossible for either of the Hamptons to continue working for him. o According to Ms. Hampton, the affair caused her considerable emotional distress, she repeatedly sought to end it, and she repeatedly expressed concern to Senator Ensign about losing her job. Senator Ensign nonetheless persisted in seeking to continue the affair, initiating constant and even relentless contacts after promising to end the affair multiple times. o Senator Ensign had enormous power over the Hampton family at the time of the affair. He controlled the sole sources of income for both Mr. and Ms. Hampton, provided tuition and other financial assistance to the family, and had maintained a very close personal relationship with the family for years. There Is Substantial Credible Evidence That Senator Ensign Violated His Own Senate Office Policies. o Senator Ensign violated his own Senate office policies, including, among others, policies regarding fraternization and sexual harassment based on his affair with Ms. Hampton. o The Senator engaged in conduct that would have been the basis for termination of one of his own employees pursuant to the Senator s written office policies. It is reasonable to conclude that a violation of the Senator s
Publication title and source
Preliminary Inquiry concerning Senator John E. Ensign