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WHAT CREW HAS LEARNED ABOUT THE JOHN ENSIGN INVESTIGATION

AND WHY HE WAS NEVER PROSECUTED


INTRODUCTION
Of all of the public corruption investigations the Department of Justice (DOJ) closed
without bringing charges, its investigation of former Senator John Ensign (R-NV) raises some of
the most troubling questions. Although there appears to be a substantial record of criminal
behavior by Sen. Ensign, including that assembled by the Senate Ethics Committee, DOJ
declined to prosecute him, deciding instead to take action against his former top aide. Through
Freedom of Information Act (FOIA) requests of DOJ, CREW was able to uncover additional
evidence, but questions remain about why Sen. Ensign was never prosecuted.
After DOJ announced that Sen. Ensign would not be charged, CREW filed FOIA
requests with the FBI, the Executive Office for United States Attorneys (EOUSA), and the
DOJ Criminal Division to uncover the details of the investigation and attempt to ascertain why
the government had decided not to bring charges. Following administrative denials by these
three DOJ components based on categorical withholdings of all documents on privacy grounds,
CREW sued DOJ in the U.S. District Court for the District of Columbia. As a result of decisions
in similar cases brought by CREW recognizing a strong public interest in information regarding
corruption by high-ranking government officials, DOJ backed off of its categorical denials and
agreed to process responsive records. From the spring of 2014 through this fall, DOJ released
thousands of pages from its Ensign investigation.1
Despite redactions of hundreds of pages and passages, the documents offer new details
about the 2009 revelation that Sen. Ensign had engaged in an affair with Cynthia Hampton, the
wife of his best friend and former aide, Doug Hampton. While Mr. Hampton was charged with
and pleaded guilty to illegal lobbying in June 2012, remarkably Sen. Ensign never faced any
criminal charges.2
DOJ began a public corruption investigation on October 19, 2009, to determine if Sen.
Ensign violated criminal statutes restricting lobbying activities, denied constituents of honest
services, and violated campaign finance laws by having his parents pay $96,000 to Ms.
Hampton.3 According to the FBI, the decision not to pursue charges against Sen. Ensign was

The correspondence and releases made by DOJ are available at


https://www.scribd.com/collections/2910948/CREW-Regarding-John-Ensign.
2
Kevin Freking, Doug Hampton, Former John Ensign Aide, Pleads Guilty to Misdemeanor, Huffington Post, June 7,
2012; Hannah Dreier, Former Sen. John Ensign opens Vegas animal hospital, Associated Press, September 5, 2013.
3
FBI document 58-C-WF-24037-1 (FBI Letterhead Memorandum describing predication of investigation and
summarizing issues to be investigated) (references are to the FBI serial numbers on the documents released by the
FBI) available at http://www.scribd.com/doc/204296878/Responsive-document-FBI-CREW-RegardingInvestigation-into-John-Ensign-2-3-14.

made on March 25, 2011.4 DOJ officially closed the investigation more than a year later on June
12, 2012.5
The documents released to CREW in response to its FOIA requests reveal that DOJ failed
to undertake the investigation on its own initiative despite widespread media reports of alleged
criminal behavior by Sen. Ensign. Further, DOJ declined to prosecute Sen. Ensign after
reviewing not only its own investigatory records, but the extensive records gathered by the
Senate Ethics Committee. It appears DOJ had everything it needed to prosecute Sen. Ensign but
the agency again fell victim to two of its most glaring weaknesses: undue deference to public
officials and the reluctance to take on potentially tough defendants with powerful legal
representation. Finally, CREW learned at least some of the reasons the FBI declined to
prosecute Sen. Ensign, which are enlightening when considered in the context of other highprofile corruption cases DOJ pursued unsuccessfully around the same time.
BACKGROUND
DOJs investigation is best understood in the context of the affair between Sen. Ensign
and Ms. Hampton, and the events that occurred after her husband learned of the affair.
On June 16, 2009, Sen. Ensign announced publicly he had engaged in an extramarital
affair with a former campaign staffer later identified as Cynthia Hampton from December
2007 through August 2008.6 Ms. Hamptons husband, Doug, had been a close friend and top
aide to the senator.7 Mr. Hampton claimed publicly he and his wife had been dismissed in April
2008 because of Sen. Ensigns conduct and relentless pursuit of my wife.8 After leaving Sen.
Ensigns employ, the Hamptons received $96,000 from Sen. Ensigns parents a payment
characterized variously as severance and as a gift from Sen. Ensigns parents.
The affair itself was well documented by the Senate Ethics Committee, which hired
special counsel Carol Elder Bruce to conduct an investigation. The committee issued a report
(The Senate Report) on May 10, 2011, finding substantial credible evidence Sen. Ensign

FBI document 58-C-WF-241033-93 (FBI Letterhead Memorandum describing case status) available at
http://www.scribd.com/doc/204296878/Responsive-document-FBI-CREW-Regarding-Investigation-into-JohnEnsign-2-3-14.
5
DOJ Form OBD-25, Notice of Closed Files available at http://www.scribd.com/doc/213134860/Responsive-DocsCREW-FBI-Regarding-Investigation-of-John-Ensign-3-18-14.
6
Molly Ball and Steve Tetreault, Ensign Admits Affair with Ex-Campaign Staffer, Las Vegas Review-Journal, June
16, 2009.
7
Id.
8
Letter from Douglas Hampton to Megyn Kelly, June 11, 2009, reprinted in Las Vegas Sun, June 19, 2009.

committed various violations of federal law.9 The committee released the report publicly and
referred the matter to DOJ and the Federal Election Commission (FEC) for further action.10
The Senate Report detailed the affair that grew out of the friendship between the Ensigns
and the Hamptons. In summary, the couples became friends in the 1980s, and often vacationed
together.11 A few years after his election to the Senate, Sen. Ensign hired Mr. Hampton as a
member of his Senate staff.12 Ms. Hampton also became an employee of the Ensign campaign
and eventually the treasurer for his re-election campaign.13
The affair began after the Hamptons were temporarily forced to move into the Ensigns
Las Vegas home in November of 2007.14 It continued without the knowledge of either spouse
until December 23, 2007, when Mr. Hampton found text messages from Sen. Ensign on his
wifes cellphone.15 Mr. Hampton confronted his wife while the couple was on their way to
McCarran International Airport to pick up their college-aged son who was coming home for
winter break.16 Sen. Ensign coincidently was also going to the airport to welcome the
Hamptons son home.17 Mr. Hampton attempted to confront Sen. Ensign about the affair and
chased him through the airports parking lot.18
Following the scene at the airport, the Ensigns and Hamptons agreed the affair would
end, but by early 2008 Sen. Ensign and Ms. Hampton had resumed their relationship.19 Mr.
Hampton sought outside assistance in ending the affair, and on February 14, 2008, Sen. Ensigns
spiritual advisor, Tim Coe, along with Sen. Tom Coburn (R-OK) and others confronted Sen.
Ensign and advised him to end the affair.20 The affair nevertheless continued until July of
2008.21 Mr. Coe decided that having Mr. Hampton employed as the senators top aide was no
longer in the parties best interests.22 Accordingly, an exit plan for Mr. Hampton was devised
under which he would move full-time to Nevada and work for a previously created company,
November, Inc., as a lobbyist a job secured directly with Sen. Ensigns assistance.23 Sen.

United States Senate Select Committee on Ethics and Special Counsel Carol Elder Bruce, Report of the
Preliminary Inquiry into the Matter of Senator John E. Ensign, May 10, 2011 (Senate Report) at 3 available at
http://www.ethics.senate.gov/downloads/pdffiles/Public%20Report_Preliminary%20Inquiry%20into%20the%20mat
ter%20of%20Sen%20Ensign.pdf.
10
Senate Report at 7.
11
Id.
12
Id. at 10.
13
Id. at 10-11.
14
Senate Report at 11.
15
Id. at 12.
16
Id.
17
Id.
18
Senate Report at 12.
19
Id.
20
Id. at 8.
21
Id. at 14.
22
Senate Report at 15.
23
Id. at 15-17.

Ensign promised to assist Mr. Hampton in finding clients in his new position.24 In addition, the
Hamptons received a check for $96,000 from the Ensign Family Trust.25 The Trust was
controlled by Sen. Ensigns father, Michael Ensign, who authorized the check.26 Mr. Hampton
had identified a previous $25,000 payment from Sen. Ensign to Ms. Hampton personally as
severance,27 but when news of the $96,000 payment broke, Sen. Ensigns office explained the
$25,000 severance payment really was part of the $96,000 gift from his parents.28 Notes Mr.
Hampton made contemporaneously with conversations he had with the senator however, which
he shared with the New York Times, reveal that the money was conceived as severance for both
Hamptons.29
DOJS INVESTIGATION
Despite the widespread media reports of the affair dating back to June 2009, and the very
suspicious $96,000 payment to the Hamptons in the summer of 2009 by Sen. Ensigns parents,30
DOJ did not open up an investigation on its own until October of 2009, and then only in response
to a request from CREW seeking an investigation based on an October 2, 2009 New York Times
article about the matter.31 In fact, this was CREWs second request for an investigation of Sen.
Ensign; by letter dated July 9, 2009, CREW asked DOJ to investigate the senator for failing to
report severance payments he made to his former mistress in violation of federal campaign
finance laws.32 Less than two weeks after CREW submitted this request, DOJs Criminal
Division advised CREW it should forward any evidence to the FBI, making clear the Criminal
Division was not commencing an investigation.33 DOJ acted only after repeated requests from
CREW and in the face of mounting evidence Sen. Ensign had violated criminal laws.

24

Id.
Senate Report at 19-20.
26
Id.
27
Dan Eggen and Chris Cillizza, Ensigns Parents Made Payments To His Mistress and Her Family, The
Washington Post, July 9, 2009.
28
David Stout, Senators Parents Gave Mistress Thousands, New York Times, July 9, 2009.
29
Eric Lichtblau and Eric Lipton, Senators Aid After Affair Raises Flags Over Ethics, New York Times, October 1,
2009.
30
Id.
31
FBI document 58-C-WF-24037-1 (FBI Letterhead Memorandum describing predication of investigation and
summarizing issues to be investigated) available at https://www.scribd.com/doc/204296878/Responsive-documentFBI-CREW-Regarding-Investigation-into-John-Ensign-2-3-14#page=8; FBI document 58-WF-241033-2
(Washington Field Office Letterhead Memorandum describing investigation and providing attached CREW letter)
available at http://www.scribd.com/doc/204296878/Responsive-document-FBI-CREW-Regarding-Investigationinto-John-Ensign-2-3-14.
32
Id.; Letter from Executive Director Melanie Sloan, Citizens for Responsibility and Ethics in Washington (CREW)
to Attorney General Eric H. Holder, Jr., July 9, 2009 available at http://www.citizensforethics.org/page//PDFs/Legal/Investigation/CREW_Ensign_DOJ_Complaint_20090709.pdf?nocdn=1.
33
Letter from William M. Welch II, Chief, Public Integrity Section, U.S. Department of Justice to Melanie Sloan,
Executive Director, Citizens for Responsibility and Ethics in Washington, July 16, 2009 available at
http://www.scribd.com/doc/204296878/Responsive-document-FBI-CREW-Regarding-Investigation-into-JohnEnsign-2-3-14#page=78.
25

The investigation sought to determine if Sen. Ensign and others had violated federal
lobbying and campaign finance laws and if he denied his constituents of honest services.34
The DOJ investigation included a review of thousands of pages of documents, including
depositions from the Senate Ethics Committees investigation.35 In addition, the FBI conducted
numerous interviews of its own during the course of its investigation.
Armed with the results of its own investigation and records from the Senate Ethics
Committees report, DOJ did get someone to plead guilty as a result of its investigation. On June
7, 2012, as the result of a plea agreement, Mr. Hampton, the victim of Sen. Ensigns behavior,
pleaded guilty to a misdemeanor charge for violating a one-year ban on former staffers lobbying
the Senate.36 This was the only tangible result of DOJs investigation.
On the other hand, DOJ declined to prosecute Sen. Ensign for any of his actions in the
matter and closed the investigation.37 Until releasing documents to CREW, DOJ did not provide
any rationale for its handling of the Ensign investigation.38 An FBI document from June of 2012
revealed that the prosecution of Sen. Ensign was officially declined by the United States
Governmentdue to insufficient evidence and exculpatory witness testimony.39 The decision
was made on December 2, 2011.40
No further information on the decision has been released. Other material released by
DOJ, however, provides some insight into DOJs actions.
One of the main areas of the investigation was whether the $96,000 payment to the
Hampton family was an in-kind contribution to Sen. Ensigns campaign that should have been
reported under campaign finance laws.41 The April 2008 check was paid by the Ensign Family
Trust.42 The payment was made public more than one year later in July of 2009, and
acknowledged by a statement from Sen. Ensigns office.43
DOJs decision not to prosecute Sen. Ensign for violating campaign finance laws appears
to rest largely, if not exclusively, on the testimony of Sen. Ensigns father. The FBI interviewed
34

FBI document 58-C-WF-24037-1.


https://www.scribd.com/collections/2910948/CREW-Regarding-John-Ensign.
36
Freking, Huffington Post, June 7, 2012.
37
Eric Lichtblau and Eric Lipton, Prosecutors Wont Charge Ensign, New York Times, December 1, 2010; Eric
Lichtblau, Ex-Aide to Senator Pleads Guilty in Scheme That Snared Only Him, New York Times, June 7, 2012.
38
Id.
39
FBI document 58C-WF-241033-113 (Letterhead Memorandum dated June 11, 2012 describing case status)
available at http://www.scribd.com/doc/204296878/Responsive-document-FBI-CREW-Regarding-Investigationinto-John-Ensign-2-3-14.
40
Id.
41
FBI document 58-C-WF-24037-1 (FBI Letterhead Memorandum describing predication of investigation and
summarizing issues to be investigated) available at http://www.scribd.com/doc/204296878/Responsive-documentFBI-CREW-Regarding-Investigation-into-John-Ensign-2-3-14#page=8.
42
Senate Report at 19.
43
Lisa Mascaro, Ensigns parents gave Hampton family $96,000, Las Vegas Sun, July 9, 2009.
35

Michael Ensign on August 24, 2010, in Las Vegas, Nevada.44 The senior Ensign told the FBI his
son did not ask him to send the payment, acknowledged the payment was the maximum amount
allowed under gift tax laws, and said he felt damn good about sending the money. 45 He also
stated he had no recollection of having a conversation with his son about making any severance
payments to the Hamptons.46 The FBI followed up this interview by questioning an individual,
most likely Bruce Hampton (no relation to Doug and Cynthia Hampton), who executed orders
from Michael Ensign for the Ensign Family Trust.47 That interview took place in Henderson,
Nevada on August 27, 2010, and largely verified the statements made by Michael Ensign about
the issuance of the check to the Hamptons.48 Though hardly definitive on the issue of the nature
of the $96,000 payment, Michael Ensigns lack of recall appears to have been enough to tip the
balance for DOJ, which declined to prosecute Sen. Ensign based on purportedly exculpatory
evidence.
The Senate Report reviewed largely similar FEC affidavits from the Ensigns but reached
very different conclusions. Sen. Ensign defended the payment to the Hamptons by claiming the
$96,000 represented a pattern of generosity from his parents to the Hampton family. 49 The
Senate Report found the after-the-fact testimony of Michael Ensign to be self-serving, and
recommended that the Ensigns be prosecuted for providing false and misleading statements.50
According to the Senate Report, Michael Ensign disavowed the statements he made in his own
affidavit, saying he never paid for a Hampton family trip to Hawaii.51 We never paid for
anything. We let them use the airplane, thats itI absolutely did not pay for anything in
Hawaii.52 Further, Sen. Ensigns parents had no pattern of prior giving to the Hamptons, and in
fact, their relationship with Mr. Hampton was described as contentious[.]53
The Senate Report also pointed to Sen. Ensigns prior statements characterizing the
$96,000 payment as severance, including statements to his staff on June 15, 2009, multiple drafts
of a public statement disclosing the affair, his own personal journal entities written more than a
year after the payments were made, and corroborating testimony from at least four witnesses.54
Moreover, as the report found, the term severance was removed from Sen. Ensigns statement

44

FBI Document 58-C-WF-241033-sub302-41 (FBI-302 form transcribing interview on August 24, 2010) available
at http://www.scribd.com/doc/215918309/Responsive-Documents-CREW-FBI-Regarding-Investigation-of-JohnEnsign-3-31-14.
45
Id.
46
Id.
47
Senate Report at 20; FBI Document 58-C-WF-241033-sub302-38 (FBI-302 form transcribing interview of trustee
of Ensign Family trust on August 27, 2010) available at http://www.scribd.com/doc/215918309/ResponsiveDocuments-CREW-FBI-Regarding-Investigation-of-John-Ensign-3-31-14.
48
Id.
49
Senate Report at Page 44.
50
Id.
51
Id. at 45.
52
Id.
53
Senate Report at 4-5.
54
Id.

to the public about his affair after his legal counsel advised that classifying the payment as
severance could expose him to criminal charges.55 Nevertheless, unlike the Senate Ethics
Committee, DOJ apparently was willing to accept Michael Ensigns testimony at face value.
The FBI also focused its investigation on whether Sen. Ensign violated or conspired to
violate the one-year lobbying ban imposed on former congressional employees.56 According to
the FBI, Mr. Hampton immediately began lobbying Sen. Ensigns office on behalf of the
companies the senator had helped him sign as clients.57 The FBI also found Sen. Ensign assisted
in advancing the companies business interests.58 Following DOJs investigation, Mr. Hampton
pleaded guilty to a misdemeanor after being charged with violating this ban.59 Inexplicably, Sen.
Ensign faced no charges, including conspiracy charges, despite DOJ having access to all of the
Senate and FBI interviews of many individuals, among them employees of companies Sen.
Ensign approached to hire Mr. Hampton as a lobbyist. Sadly, it appeared the Hamptons
struggled in the aftermath of the affair. The documents contain several May 2008 emails, first
released by the New York Times, from Mr. Hampton to the senator lamenting that his efforts
were falling short of expectations because November, Inc. had few clients and, therefore, he had
no income.60 He felt wronged and noted that the issues prevented his family from moving
forward.61 I dont believe I can lay this issue on anyone else but you he wrote to Sen.
Ensign.62 In July 2008, he wrote it was getting harder to take that high road with you because
I believe this is never going to stop.63
Again, the Senate Ethics Committee reached the exact opposite conclusion in considering
whether Sen. Ensign violated the lobbying ban. 64 According to the Senate Report, Sen. Ensign
aided and abetted Mr. Hamptons violation of the lobbying ban by securing him a position as a
lobbyist with November, Inc. and recruiting clients on his behalf without advising them that Mr.
Hampton was subject to a one-year ban.65 The report also found the senator aided and abetted
Mr. Hampton by conducting all contact between Mr. Hampton and his office through his Chief

55

Id.
FBI document 58-C-WF-24037-1 available at http: //www.scribd.com/doc/204296878/Responsive-documentFBI-CREW-Regarding-Investigation-into-John-Ensign-2-3-14.
57
Id.
58
Id.
59
Freking, Huffington Post, June 7, 2012.
60
Lichtblau and Lipton, New York Times, Oct. 1, 2009; http://documents.nytimes.com/in-wake-of-affair-senatorensign-may-have-violated-an-ethics-law-2; Email to nvensign, May 27, 2008 available at
http://www.scribd.com/doc/213134860/Responsive-Docs-CREW-FBI-Regarding-Investigation-of-John-Ensign-318-14#page=95.
61
Id.; Email to nvensign, May 30, 2008 available at http://www.scribd.com/doc/213134860/Responsive-DocsCREW-FBI-Regarding-Investigation-of-John-Ensign-3-18-14#page=96.
62
Id.
63
Email to nvensign, July 14, 2008 available at http://www.scribd.com/doc/213134860/Responsive-Docs-CREWFBI-Regarding-Investigation-of-John-Ensign-3-18-14#page=97.
64
Senate Report at 52-56.
65
Id. at 54.
56

of Staff, John Lopez, and taking official action, as requested by Mr. Hampton.66 Following the
release of the report, the chairman and vice chairman of the Senate Ethics Committee wrote a
letter to Attorney General Eric Holder outlining the crimes they believed Sen. Ensign committed,
which in addition to the lobbying violations also included making false statements to the FEC,
violating campaign finance laws, and obstructing the committees preliminary inquiry.67
Additionally, in March of 2011, the Committees chief counsel sent a letter to Lanny Breuer,
Assistant Attorney General for the Criminal Division, saying the committee was perplexed as to
why the Department has publicly declined to proceed in a case against the Senator in favor of
prosecuting two staffers before the committee even finished obtaining evidence on the subjects. 68
It also seems Assistant Attorney General Breuer was surprised by Sen. Ensigns decision the
following month to step down. Responding to a story reporting Sen. Ensigns resignation, he
wrote to Public Integrity Section lawyers Thoughts? Why resign now?69
The documents CREW received in response to its FOIA requests undermine the
departments decision not to prosecute Sen. Ensign. For example, the documents contain
interviews with several witnesses who said Sen. Ensign actively used his office to help Mr.
Hampton land a job and lobby clients. One witness said the senator wanted to find an
unidentified individual a job in government affairs or lobbying.70 Sen. Ensign, in a meeting with
a potential government contractor, spoke privately with a representative from the company to see
what services an individual whose name was redacted from the document, but likely was Mr.
Hampton, could offer in helping them acquire a federal contract.71 Sen. Ensign also became
angry at an unidentified individual for his lack of effort in finding a job for a staffer of Sen.
Ensigns whose identity was redacted, again likely Mr. Hampton.72 The witness thought it was
extremely brazen to expect someone to find a job for a member of Sen. Ensigns staff.73
Additionally, according to one interviewee, Sen. Ensign promised to find Mr. Hampton three or

66

Id.
Letter from the Chairman and Vice Chairman of the Senate Select Committee on Ethics to Attorney Eric H.
Holder, Jr., Re: Referral of Matters Arising from the Preliminary Inquiry of Senator John Ensign, May 12, 2011
available at http://www.scribd.com/doc/235945901/Responsive-documents-CREW-DOJ-Regarding-CriminalInvestigation-of-John-Ensign-8-4-2014-Groups-8-12#page=67.
68
Letter from Chief Counsel and Staff Director and Special Counsel of the Senate Select Committee on Ethics to
Assistant Attorney General Lanny Breuer, March 15, 2011 available at
http://www.scribd.com/doc/235945901/Responsive-documents-CREW-DOJ-Regarding-Criminal-Investigation-ofJohn-Ensign-8-4-2014-Groups-8-12#page=68.
69
Email from Lanny A. Breuer to Mythili Raman, et al, Fw: FYI- Politico reporting Ensign will resign tomorrow,
April 21, 2011 available at https://www.scribd.com/doc/235945901/Responsive-documents-CREW-DOJRegarding-Criminal-Investigation-of-John-Ensign-8-4-2014-Groups-8-12#page=188.
70
FBI document 58-C-WF-241033-IA available at http://www.scribd.com/doc/210586526/Responsive-DocumentsCREW-FBI-Regarding-Investigation-of-John-Ensign-3-4-14#page=204.
71
FBI document 58C-WF-241033 SUB 302 62 available at http://www.scribd.com/doc/215918309/ResponsiveDocuments-CREW-FBI-Regarding-Investigation-of-John-Ensign-3-31-14#page=528.
72
FBI document 58C-WF-241033 SUB 302 18 available at http://www.scribd.com/doc/215918309/ResponsiveDocuments-CREW-FBI-Regarding-Investigation-of-John-Ensign-3-31-14#page=572.
73
Id.
67

four clients once he was set up with employment.74 In a May 2008 email, Mr. Hampton said
explicitly, today I have one client you have truly made happen for me (Allegiant Air).75 Thus,
Sen. Ensign was complicit in conspiring to assist Mr. Hampton violate the one-year lobbying
ban.
The documents also contain several items of correspondence between Sen. Ensigns
office, the Department of Transportation (DOT) and Allegiant Airlines, one of Mr. Hamptons
November, Inc. clients. Apparently at Mr. Hamptons request, Sen. Ensign arranged a meeting
between DOT Secretary Ray LaHood and Maury Gallagher, CEO of Allegiant Airlines, to
discuss a pending enforcement action against the company for its marketing and pricing
practices.76 One witness said the contact with Secretary LaHood was not personal in nature.77
Again, it seems Sen. Ensign violated federal law by taking official action on behalf of Mr.
Hampton and November, Inc. DOT dismissed the complaint against Allegiant Airlines in
December 2009, however, and it is unknown what part Sen. Ensigns actions played in the
decision.78
The Criminal Division released an email exchange from February 16, 2011 while the
decision of whether or not to proceed with a criminal case was pending before Assistant
Attorney General Breuer. In the thread, Raymond Hulser, Deputy Chief of the Public Integrity
Section, stated to a colleague that his takeaway from a discussion with Patty (likely Patty
Stemler, Chief of the Criminal Divisions Appellate Section) was the legal theory is possible
with the right facts, but that mere response by a current employee to a request by a former
employee (or acting on the former employees request) is not enough.79 Thus it seems the
department did not believe the actions of Sen. Ensigns office, taken in response to requests by

74

FBI document 58C-WF-241033 1A 104 available at http://www.scribd.com/doc/210586526/ResponsiveDocuments-CREW-FBI-Regarding-Investigation-of-John-Ensign-3-4-14#page=377.


75
Email to nvensign, May 30, 2008 available at http://www.scribd.com/doc/213134860/Responsive-DocsCREW-FBI-Regarding-Investigation-of-John-Ensign-3-18-14#page=96.
76
Email from Simon Gros to DJ Gribbin, Melissa Burt, et al, Subject: Ensign Call, July 8, 2008 available at
http://www.scribd.com/doc/210586526/Responsive-Documents-CREW-FBI-Regarding-Investigation-of-JohnEnsign-3-4-14#page=25; Heideh Shahmoradi, Acting Deputy Assistant Secretary for Governmental Affairs,
Memorandum to the Secretary of the U.S. Department of Transportation, Re: Call with Senator John Ensign (RNV), January 28, 2009 available at http://www.scribd.com/doc/210586526/Responsive-Documents-CREW-FBIRegarding-Investigation-of-John-Ensign-3-4-14#page=49.
77
FBI document 58C-WF-241033 SUB 302 6 available at http://www.scribd.com/doc/215918309/ResponsiveDocuments-CREW-FBI-Regarding-Investigation-of-John-Ensign-3-31-14#page=548.
78
Samuel Podberesky, Assistant General Counsel for Aviation Enforcement and Proceedings, Department of
Transportation, Order Dismissing Complaint, OST 2009-0294, December 2, 2009 available at
http://www.scribd.com/doc/210586526/Responsive-Documents-CREW-FBI-Regarding-Investigation-of-JohnEnsign-3-4-14#page=492.
79
http://www.justice.gov/criminal/about/appellate.html; Email from Raymond Hulser to Mary Patrice Brown,
Subject: Ensign meeting, February 16, 2011 available at http://www.scribd.com/doc/235945901/Responsivedocuments-CREW-DOJ-Regarding-Criminal-Investigation-of-John-Ensign-8-4-2014-Groups-8-12#page=110;
Carrie Johnson, Justice Department picks ex-Brooklyn prosecutor to lead public integrity unit, Washington Post,
March 12, 2010.

Mr. Hampton, were sufficient to level charges against the senator for aiding and abetting Mr.
Hampton to violate the one-year lobbying ban.
The email also suggests DOJ did not believe it had the right facts, instead finding
contact between Mr. Hampton and Sen. Ensigns office regarding lobbying matters, by itself, did
not violate the ban.80 Mary Patrice Brown, then-Deputy Assistant Attorney General,81 responded
to the email asking do we think there is any possibility of uncovering those facts at this stage of
the investigation? If not, why are we still talking about [redacted] suggesting DOJ was not
particularly interested in tracking down the right facts.82 Absent specific overwhelming facts
directly linking Sen. Ensign or his staff to the lobbying efforts of Mr. Hampton, DOJ was
unwilling to charge Sen. Ensign with conspiring to violate the one-year ban. Of course, this begs
the question of why DOJ pursued a prosecution of Mr. Hampton based on the same evidence.
In fact, according to internal communications between DOJ officials, the Senate Ethics
Committee wanted to offer immunization to an unknown individual, likely Mr. Hampton, but
DOJ appears to have rushed to indict him before the committee could do so.83 In an email,
Mythili Raman, then-Principal Deputy Assistant Attorney General of the Criminal Division,
wrote to her DOJ colleagues about responding to the committee that they should throw them a
bone.84 Emails also show DOJ was reluctant to provide the committee with transcripts of
witness interviews to help with the immunization process.85 Mr. Hulser even suggested
providing a particular interview transcript because it might give them room to hold off on
immunizing.86 Thus, it seems the Senate Ethics Committee wanted to immunize Mr. Hampton
in order to prosecute Sen. Ensign, but DOJ preferred to prosecute Mr. Hampton instead.
CREW has uncovered as much as possible about the ill-fated investigation of former Sen.
Ensign. Unfortunately, however, DOJ continues to hide behind privilege and exemption claims,
80

Senate Report at 54.


http://www.omm.com/mary-patrice-brown/.
82
Email from Mary Patrice Brown to Raymond Hulser, Re: Ensign meeting, February 16, 2011 available at
http://www.scribd.com/doc/235945901/Responsive-documents-CREW-DOJ-Regarding-Criminal-Investigation-ofJohn-Ensign-8-4-2014-Groups-8-12#page=110.
83
Email from Raymond Hulser to Mary Patrice Brown, Subject: scheduling, February 25, 2011 available at
https://www.scribd.com/doc/235945901/Responsive-documents-CREW-DOJ-Regarding-Criminal-Investigation-ofJohn-Ensign-8-4-2014-Groups-8-12#page=123; Email from Raymond Hulser to Jack Smith, et al, Re: Draft of letter
to OCE, May 27, 2012 available at https://www.scribd.com/doc/235945901/Responsive-documents-CREW-DOJRegarding-Criminal-Investigation-of-John-Ensign-8-4-2014-Groups-8-12#page=183.
84
http://www.cov.com/mraman/; Email from Mythili Raman to Raymond Hulser and Mary Patrice Brown, Subject:
RE: Ethics Committee Ensign response, March 4, 2011, available at
https://www.scribd.com/doc/235945901/Responsive-documents-CREW-DOJ-Regarding-Criminal-Investigation-ofJohn-Ensign-8-4-2014-Groups-8-12#page=124.
85
Id.
86
Email from Raymond Hulser to Jack Smith, et al, RE: Senate Ethics Committee re Ensign, et al, March 17, 2011
available at https://www.scribd.com/doc/235945901/Responsive-documents-CREW-DOJ-Regarding-CriminalInvestigation-of-John-Ensign-8-4-2014-Groups-8-12#page=127; Email from Raymond Hulser to Jack Smith, et al,
Re: Draft of letter to OCE, May 27, 2012 available at https://www.scribd.com/doc/235945901/Responsivedocuments-CREW-DOJ-Regarding-Criminal-Investigation-of-John-Ensign-8-4-2014-Groups-8-12#page=183.
81

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refusing to let the public know the full reasons behind its refusal to prosecute the senator. In
fact, DOJ redacted several paragraphs of an internal DOJ email exchange explaining why it did
not prosecute Sen. Ensign.87
The documents, however, reveal the flaws in DOJs investigation process. DOJs
revolving door may have played a role in its decision to take it easy on Sen. Ensign. In a 2010
email to three other DOJ officials, then-Associate Deputy Attorney General Matthew Axelrod
noted that the attorney for Sen. Ensigns chief of staff, John Lopez, was a former partner of
Assistant Attorney General Breuer at Covington & Burling LLP.88 Mr. Breuer was recused from
the investigation until DOJ personnel obtained a waiver for him to participate.89
Despite significant evidence of criminal conduct by Sen. Ensign an opinion shared by
Special Counsel Carol Elder Bruce, a woman with over a decade of prosecutorial experience90
and the Senate Ethics Committee, Mr. Hulser, Deputy Chief of the Public Integrity Section,
wrote in a response to an email about the Ensign case this is a really tough case to win.91 At
least one heavily redacted email exchange entitled dj vu all over again indicates DOJ was
less than thrilled with the Senate Ethics Committees referral with an official writing So I see
youre supposed to redo your Ensign investigation.92 Perhaps DOJ believed Sen. Ensigns
resignation was punishment enough, or it was gun shy based on its failed prosecutions of former
Sen. Ted Stevens (R-AK)93 and former Sen. John Edwards (D-NC).94 In a June 29, 2011 email
to Public Integrity Chief Jack Smith, Mr. Hulser proposed holding a meeting on the Ensign case

87

Email from Mary Patrice Brown to Raymond Hulser and Jack Smith, Re: ensign, February 23, 2011 available at
http://www.scribd.com/doc/235945901/Responsive-documents-CREW-DOJ-Regarding-Criminal-Investigation-ofJohn-Ensign-8-4-2014-Groups-8-12#page=183.
88
http://www.cohenmilstein.com/attorneys.php?PeopleID=105; Email from Matthew Axelrod to Raymond Hulser,
et al, Re: FYI outlets reporting FBI investigation Ensign, January 19, 2010 available at
http://www.scribd.com/doc/235945901/Responsive-documents-CREW-DOJ-Regarding-Criminal-Investigation-ofJohn-Ensign-8-4-2014-Groups-8-12; Email from Raymond Hulser to Jack Smith, Re: Tuesdays weekly meetings,
July 5, 2010 available at http://www.scribd.com/doc/235946631/Responsive-documents-CREW-DOJ-RegardingCriminal-Investigation-of-John-Ensign-8-4-2014-Groups-19-22#page=311.
89
Email from Mythili Raman to Raymond Hulser and Matthew Axelrod, Re: Ensign, May 12, 2010.
http://www.scribd.com/doc/235946631/Responsive-documents-CREW-DOJ-Regarding-Criminal-Investigation-ofJohn-Ensign-8-4-2014-Groups-19-22#page=300.
90
http://www.klgates.com/carol-elder-bruce/.
91
Email from Raymond Hulser to Jack Smith, Re: Tuesdays weekly meetings, July 5, 2010 available at
http://www.scribd.com/doc/235946631/Responsive-documents-CREW-DOJ-Regarding-Criminal-Investigation-ofJohn-Ensign-8-4-2014-Groups-19-22#page=311.
92
Email to @usdoj.gov, Subject: dj vu all over again, May 12, 2011 available at
https://www.scribd.com/doc/235946847/Responsive-Documents-CREW-DOJ-Regarding-Criminal-Investigation-ofJohn-Ensign-8-4-2014-Groups-23-26#page=159.
93
Del Quentin Wilber, Judge Orders Probe of Attorneys in Stevens Case, Washington Post, April 8, 2009. Criminal
Division Attorneys had been involved in the Stevens case that was dismissed because of prosecutorial misconduct in
2009, and was the subject of an investigation at the time of the Ensign investigation.
94
Kim Severson and John Schwartz, Edwards Not Guilty on One Count, Mistrial on Five Others, New York Times,
May 31, 2012.

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to understand e-mail destruction, FEC lies, and on what we had and didnt have, and why.95
This reiterates his previous statement that DOJ did not have the right facts and it raises a
number of questions about the departments evidence gathering procedures, its decision making
process and the thoroughness of the investigation. It also implies DOJ officials were aware of
possible false statements made to the FEC by the Ensign camp as alleged by the Senate Ethics
Committee. Despite all of the evidence, DOJ declined to prosecute Sen. Ensign and directed the
full weight of the federal government only against the hapless Mr. Hampton.
DOJ personnel were also well aware of their reputations in the media and the public.
Emails show that agency officials anticipated unflattering coverage in the New York Times
following DOJs decision to decline the case.96 They also discussed wording documents on the
decision to avoid sounding apologetic.97 An unidentified DOJ public affairs specialist also
said, I cant quite tell these days who they think we should/should not indict, about the medias
perception of the Ensign case.98
Unfortunately, with the limited record DOJ is willing to release, we are left largely to
guess at why DOJ allowed Sen. Ensign to evade prosecution in the face of so much evidence
pointing to his culpability, while Doug Hampton largely a victim of a powerful senator
was prosecuted to the full extent of the law.

95

Email from Raymond Hulser to Jack Smith, Subject: draft weekly, etc, June 29, 2011 available at
https://www.scribd.com/doc/235946847/Responsive-Documents-CREW-DOJ-Regarding-Criminal-Investigation-ofJohn-Ensign-8-4-2014-Groups-23-26#page=198.
96
Email to Mythili Raman, Mary Patrice Brown, et al, Subject: Ensign, May 13, 2011 available at
http://www.scribd.com/doc/235945901/Responsive-documents-CREW-DOJ-Regarding-Criminal-Investigation-ofJohn-Ensign-8-4-2014-Groups-8-12#page=136.
97
Email from Raymond Hulser to Jack Smith, et al, Subject: Ensign Dec, May 10, 2012 available at
http://www.scribd.com/doc/235946847/Responsive-Documents-CREW-DOJ-Regarding-Criminal-Investigation-ofJohn-Ensign-8-4-2014-Groups-23-26#page=202.
98
Email to Jack Smith, Raymond Hulser, et al, Subject: Wash Post on PIN, June 7, 2011 available at
https://www.scribd.com/doc/235945901/Responsive-documents-CREW-DOJ-Regarding-Criminal-Investigation-ofJohn-Ensign-8-4-2014-Groups-8-12#page=153.

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