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The Ensign Affair, Lobbying Laws & Honest Services Fraud

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By Caleb Groos on October 07, 2009 12:52 PM

Senator John Ensign is back in the news after a New York Times article questioned whether the aftermath as his affair violated criminal laws and Senate ethics rules. At least preliminary investigations on both fronts appear likely. What criminal laws might come into play? Conspiracy to assist a former employee break a federal lobbying law, and perhaps "honest services fraud."

For the background on Senator Ensign's affair with the wife of his former co-chief of staff Doug Hampton, and the "soft landing" in a lobbying job Ensign reportedly arranged for Hampton, see the New York Times article that has some anticipating investigation by the Department of Justice.

So, what laws would be in play?

First off, federal lobbying laws. Federal law forbids some former employees of Senators from lobbying any Senator for one year after their employment. In this context, lobbying means knowingly communicating with or appearing before any Senator (or employee of the Senate) with the intent to influence them regarding something on which the former employee seeks action by any Senator or any part of the Senate.

The same one year cooling off period applies to former employees of House members, except they are banned only from lobbying the specific House member who used to be their boss.

This law speaks about the former employees turned lobbyists, but what about the elected officials they lobby?

In a scenario where forbidden lobbying takes place, the elected official can go down on conspiracy charges -- specifically, conspiring to help the former employee break the lobbying law described above. Such a crime carries a possible prison sentence of 5 years and fine of up to $250,000.

In 2006, former Representative Bob Ney from Ohio pleaded guilty to this type of conspiracy. He was the first elected official toppled by the Abramoff scandal. Amongst the charges to which he pleaded guilty was conspiracy to help his former chief of staff Neil Volz violate the one year lobbying ban.

Ney also pleaded guilty to "honest services wire and mail fraud." This means a fraudulent scheme to deny those he was elected to represent the benefit of his honest services. The wire and mail part of it simply means using virtually any means of communication (mail, phone, wire, email, etc.) to execute the scheme to defraud.

Ney's case involved more traditional corruption -- an elected official who allegedly takes money or things of value in exchange for official acts. The law, however, does not require you to receive money or property as part of an honest services fraud scheme. However, honest services fraud is a fairly unclarified area of law. Though increasingly charged, it currently faces court challenges as too vague.

If further investigation finds evidence that Ensign took official action at the behest of Hampton, Ensign could face charges of conspiring to break the lobbying laws, and also honest services fraud if he did so in exchange for Hampton's silence rather than for the benefit of the citizens of Nevada.

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