WASHINGTON — Doug Hampton, newly indicted on conflict-of-interest charges, all but handed a clear case to federal prosecutors in revealing he had conducted business as a Senate lobbyist within weeks of leaving a Capitol Hill job, according to attorneys following the case.
Hampton’s aim was to draw attention to Sen. John Ensign, R-Nev., his former boss and close friend-turned-foe, who he said was complicit in a scheme to evade federal lobbying restrictions.
But an indictment filed Thursday in Washington targeted only Hampton, 48, a former Las Vegas resident and a central figure in the long-running Ensign scandal, on seven counts of breaking the law.
"It’s the old adage that before you start throwing stones, you better make sure your own affairs are in order," said Douglas McNabb, a veteran Washington defense lawyer. "By lashing out, he drew attention to what he wanted, but it also drew attention to what he didn’t want, and that was for the FBI to look at him."
But as Hampton, a top aide to Ensign until the senator slept with his wife, faces prosecution, some attorneys ask: Why not Ensign also, or members of his staff who were on the receiving end of Hampton emails seeking help for lobbying clients named in the indictment?
Las Vegas defense attorney Charles Kelly, a former federal prosecutor, said it doesn’t make any sense that only Hampton was charged.
"These are conspiratorial-type allegations, and yet they’ve only indicted one party," Kelly said. "It seems unfair at the very least. It certainly doesn’t comport with the Justice Department policies of letting the evidence dictate the indictment and where it leads."
Kelly said the case "makes the common man question why the underling gets indicted and the superior doesn’t."
Ensign, 52, who is still being investigated by the Senate Ethics Committee on the matter, has denied breaking any laws or violating any ethics rules, though he has apologized for his moral lapse.
In December, Ensign’s attorneys said they were told Justice Department investigators had completed their probe of the senator and were not pursuing charges, comments the department signaled were accurate.
Some experts debated whether investigators might have been blocked from accessing documents from Ensign’s office or from being able to use them as evidence. It could be argued they fall under the speech or debate clause in the Constitution, which prevents lawmakers and their aides from facing legal actions related to their official duties.
"You have to wonder if Justice was aware of that, and is that the reason they were not able to pursue anything against (Ensign)," said Tom Fitton, president of Judicial Watch, a self-described conservative, nonpartisan legal watchdog.
"Are those emails arguably part of that? Is the evidence they have that would hold Ensign to account or convict him the type of evidence that might be kept out by a court under the speech or debate clause exemption?
"There may be stuff (investigators) have that is damning but they can’t use," Fitton said.
Melanie Sloan, a former federal prosecutor, said the constitutional issue might have played a limited role in the investigation, but she doubted it was a reason Ensign was not charged.
"Violating the lobbying ban is not about legislative acts; it is about something you did afterwards.
"Violating the lobbying ban itself is not in the legislative sphere," said Sloan, executive director of Citizens for Responsibility and Ethics in Washington, which filed ethics complaints against Ensign in the case.
Sloan said she was puzzled why prosecutors stopped short.
"They said they did not have a case, but I find that hard to believe," she said.
Fitton contended the Justice Department remains gun-shy about pursuing members of Congress after mismanaging the case against the late Sen. Ted Stevens, R-Alaska.
Stevens was convicted in a 2008 corruption trial, and lost re-election eight days later. But his conviction was thrown out six months later on grounds of gross prosecutorial misconduct.
The Justice Department reorganized its Public Integrity Section last year.
"It has been very difficult for the Justice Department," Fitton said. "They were burned in the Ted Stevens case, and it has had a chilling effect, no doubt.
"You can blame the courts. You can blame the Congress for using this (speech or debate) loophole to get out of criminal prosecutions, but the Justice Department is loath to go after high-level politicians. I think it is too early to tell whether this is a case of that, but in the ordinary course you would expect there to be more indictments."
AFFAIR TRIGGERED PROBLEMS
The emerging legal case against Hampton was the latest twist in the soap opera that kicked off when Ensign admitted in June 2009 that he had carried on an eight-month affair with Hampton’s wife, Cindy, who had been his wife’s best friend.
In the weeks that followed, Hampton stepped forward and said he and his wife, also an Ensign political aide, were forced from the senator’s staff as the affair became messy.
Hampton said Ensign, as a way to help the family rebound financially, found him work as a lobbyist and made his staff available to him. Hampton said he and Ensign were aware of the lobbying rules.
Hampton, whose family moved to California after losing their Summerlin home to foreclosure in recent months, is scheduled to be arraigned Thursday in Washington.
He will appear in U.S. District Court at the foot of Capitol Hill and a few blocks from the Russell Senate Office Building where he worked as Ensign’s administrative assistant from January 2007 until April 30, 2008.
The Hampton case has been assigned to U.S. District Judge Beryl A. Howell, who was appointed by President Barack Obama and confirmed by the Senate on Dec. 22.
Howell is a former federal prosecutor from New York and was general counsel for the Senate Judiciary Committee.
The case is being prosecuted by trial attorneys with the Justice Department’s Public Integrity and Fraud Sections.
PLEA DEAL EXPECTED
McNabb said the Justice Department appears to have put together a clear-cut case against Hampton.
Other lawyers said they would be surprised if it gets to trial, and they expect a plea deal will be reached.
"The question is not whether Mr. Hampton was taken advantage of by those in the Senate," McNabb said. "The question is really whether Mr. Hampton did what the government says he did: violate the federal criminal statute."
If the case goes to trial, attorneys predicted Hampton will try to make Ensign an issue.
"Doug Hampton is going to come up and say, ‘Why me and not him, too?’ " Fitton said. "And a D.C. jury might be very receptive to that. The jury pool here tends to be a bit more cynical about the way the government works.
"Here is someone who comes up and gets indicted after he makes allegations about his boss knowingly setting him up as a lobbyist and encouraging him to engage in criminal behavior? They may think something is wrong."
Sloan equated Hampton with government whistle-blowers who get investigated after calling attention to wrongdoing. She contended his indictment will have a chilling effect.
"The message from the DOJ is clear: If you work for the government, and you know your boss is engaged in wrongdoing, keep your mouth shut," Sloan said.
But Tom Devine, legal director of the Government Accountability Project, said, "The most obvious lesson for whistle-blowers is not to surface if their own hands are dirty."
Fitton noted Hampton "wasn’t an aide; he was a lobbyist."
Contact Stephens Washington Bureau Chief Steve Tetreault at firstname.lastname@example.org or 202-783-1760. Contact Review-Journal reporter Jeff German at email@example.com or 702-380-8135.