FEC lawyers urged deeper inquiry into $96,000 Ensign check

WASHINGTON -- The Federal Election Commission's general counsel in March recommended a deeper investigation into a $96,000 check paid to the family of Sen. John Ensign's former mistress, saying at least part of the sum might have been illegal, according to documents made public Monday.

The commission rejected the advice. In November, without dissent, it cleared Ensign of allegations the payment to former campaign treasurer Cindy Hampton constituted unreported job severance and an illegal campaign contribution.

The attorneys' report was one of a handful of documents about the Ensign case that the FEC posted to its website. The agency makes material public on individual enforcement cases 30 days after issuing a decision.

Melanie Sloan, an ethics watchdog who filed the election complaint against the Nevada Republican, said the outcome of the case despite the urging of FEC attorneys to dig more is further evidence the elections agency is toothless in pursuing allegations of wrongdoing.

The commission's six members, who are appointed by presidents, face Senate confirmation and serve six-year terms, are evenly split between Democrats and Republicans.

"You have to wonder what happened between the general counsel's report and the statement of reasons" the FEC issued in dismissing the case, said Sloan, executive director of Citizens for Responsibility and Ethics in Washington.

The report "shows the general counsel's office thought there was plenty of evidence," Sloan said. "But it didn't happen because the commission never wants to investigate anybody."

Attorneys for Ensign contended such "reason to believe" reports by the FEC general counsel are fairly routine, and the agency ultimately weighed and dismissed the case on the information it had in hand. Commissioners in November said they did not believe more would be gained by expanding the investigation.

FEC officials could not be reached Monday evening for comment, nor could the Las Vegas attorney for the Hampton family.

Dismissal of the FEC complaint on Nov. 17 was the first break Ensign caught in the year-long scandal stemming from his acknowledged extramarital affair with Hampton, a longtime family friend and the wife of one of his top Senate aides.

The Department of Justice earlier this month dropped a related investigation of Ensign without filing criminal charges.

Yet another investigation, by the Senate Ethics Committee, is ongoing although further developments in that matter are not expected until next year.

At the FEC, the general counsel's office issued its report after reviewing evidence surrounding the $96,000 check that Ensign's parents, Michael and Sharon, signed on April 7, 2008, to Hampton, her husband, Doug, and two of their three children. Both of the Hamptons left Ensign's employ later that month.

"Based on available information it appears there is reason to believe that at least part of the $96,000 transfer was a severance payment to Ms. Hampton," according to the report issued by FEC general counsel Thomasenia Duncan and signed by three agency lawyers.

If that was the case, some amount could have been considered an excessive contribution to Ensign's campaign from his parents that was required to be reported at the risk of facing a civil fine for violating election finance law.

"An investigation into this matter is warranted to resolve questions raised by the conflicting available information," the attorneys said. They said the FEC should "find reason to believe" Ensign's parents made, and Ensign's campaign accepted, an excessive contribution and failed to disclose it.

The attorneys further recommended the FEC issue subpoenas for documents and testimony in the case.

Chris Gober, an Ensign lawyer, said "reason to believe" reports are not findings of fault.

"A 'reason to believe' finding is not a finding that a violation occurred, but instead means that further investigation is warranted to determine whether a violation occurred. There's a big difference ...," Gober said. "The FEC ultimately dismissed CREW's complaint and cleared Senator Ensign."

In dismissing the case in November, FEC commissioners said they relied heavily on affidavits and information submitted by Ensign and his parents to rebut the allegations. Five of the six commissioners signed the decision; Commissioner Steven Walther, who is from Nevada, recused himself.

In their ruling, the commissioners said they did not believe more would be gained by expanding the agency's investigation.

Michael and Sharon Ensign swore the money was not severance but a gift to the Hamptons "out of concern for the well-being of long-time family friends." They said they made the payment of their own accord after learning of the extramarital affair that had torn apart the two families.

The Ensigns also provided evidence the check was part of a pattern of gift-giving to the Hamptons that included $60,000 in loans and almost $40,000 for other purposes.

But the FEC attorneys said there appeared to be an abundance of evidence that Doug Hampton had provided to the news media to support his belief the check was a final severance payment.

"Given that the Hamptons' description of the facts appears to be supported by contemporaneous documentation, there is reason to believe that the payment the Ensigns made may have been severance instead of part of a pattern of giving to the Hamptons," the attorneys said.

The conflict between the Hamptons and the Ensigns over the payment "suggests that an investigation is warranted," they said.

Review-Journal reporter Jeff German contributed to this report. Contact Stephens Washington Bureau Chief Steve Tetreault at stetreault@stephensmedia.com or 202-783-1760.