Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify
the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed July 15, 2003
Division No. 94-1
IN RE: MADISON GUARANTY SAVINGS & LOAN
(CLINTON FEE APPLICATION)
Division for the Purpose of
Appointing Independent Counsels
Ethics in Government Act of 1978, As Amended
–————
Before: SENTELLE, Presiding, FAY and REAVLEY, Senior
Circuit Judges.
ORDER
This matter coming to be heard and being heard before the
Special Division of the Court upon the application of William
Jefferson Clinton and Hillary Rodham Clinton for reimburse-
ment of attorneys’ fees and costs pursuant to section 593(f) of
the Ethics in Government Act of 1978, as amended, 28 U.S.C.
§ 591 et seq. (2000), and it appearing to the court for the
reasons set forth more fully in the opinion filed contempora-
neously herewith, that the petition is not well taken, it is
hereby
ORDERED, ADJUDGED, and DECREED that the peti-
tion of William Jefferson Clinton and Hillary Rodham Clinton
2
for attorneys’ fees they incurred during the Independent
Counsel’s investigation be denied, save for a single unique
item.
PER CURIAM
For the Court:
Mark J. Langer, Clerk
By:
Marilyn R. Sargent, Chief Deputy Clerk
Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify
the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed July 15, 2003
Division No. 94-1
IN RE: MADISON GUARANTY SAVINGS & LOAN
(CLINTON FEE APPLICATION)
Division for the Purpose of
Appointing Independent Counsels
Ethics in Government Act of 1978, As Amended
–————
Before: SENTELLE, Presiding, FAY and REAVLEY, Senior
Circuit Judges.
ON APPLICATION FOR ATTORNEYS’ FEES
Opinion for the Special Court filed PER CURIAM.
PER CURIAM: William Jefferson Clinton and Hillary Rodham
Clinton petition this Court under section 593(f) of the Ethics
in Government Act of 1978, as amended, 28 U.S.C. §§ 591–
599 (2000) (the Act), for reimbursement of attorneys’ fees in
the amount of $3,549,561.22 that they incurred during and as
a result of the investigation conducted by independent coun-
sel. Because we conclude that the Clintons have not carried
their burden of showing that the fees would not have been
incurred but for the requirements of the Act, we deny the
petition, save for a single unique item.
2
BACKGROUND
In 1978, then-Arkansas Attorney General William Jefferson
Clinton, his wife Hillary Rodham Clinton, and Jim and Susan
McDougal purchased 230 acres of undeveloped property in
Arkansas. To develop the property they formed a partner-
ship known as the Whitewater Development Company. In
1982 Jim McDougal purchased a savings and loan and re-
named it Madison Guaranty Savings and Loan Association.
Over the next few years, Jim McDougal and Madison Guaran-
ty were involved in questionable financial transactions, some
of which benefitted Whitewater Development. Also during
this time period Mrs. Clinton and one of her law partners,
Webster Hubbell, performed legal work for Madison Guaran-
ty involving at least one of the questionable transactions.
These activities eventually drew the attention of federal bank
regulators, who made a criminal referral in 1992 to the U.S.
Attorney’s Office in Little Rock. The referrals alleged that
Jim and Susan McDougal had fraudulently misused bank
accounts at Madison Guaranty to benefit entities owned by
them, including Whitewater Development. Additional refer-
rals soon followed, some of which concerned questionable
campaign contributions to Mr. Clinton in 1985. The U.S
Attorney’s Office undertook an investigation, and in late 1993
transferred the case to the Criminal Division of the Depart-
ment of Justice.
Following Mr. Clinton’s inauguration as President in Janu-
ary of 1993, public pressure began mounting for the appoint-
ment of an independent prosecutor to investigate Mr. Clin-
ton’s role in the Madison Guaranty matters. The Ethics in
Government Act,1 which had provided the mechanism for
appointing statutory independent prosecutors to investigate
1 In 1978 the Congress, in response to concerns about the impar-
tiality of the Executive Branch during the investigation of the
Watergate matter, enacted the Ethics in Government Act, which
authorized a special court to appoint an independent counsel to
prosecute violations of the criminal law involving high government
officials, including the President. As its name implies, this counsel
was to function independent of any federal government agency.
3
allegations of wrongdoing by high government officials,
lapsed by its terms in 1992 and had not been reenacted by the
Congress. Consequently, in early 1994, the Attorney General
appointed Robert B. Fiske, Jr., as regulatory independent
counsel to continue the investigation of all matters relating to
Madison Guaranty. During the approximately eight months
of Fiske’s investigation, his office conducted hundreds of
interviews, subpoenaed millions of pages of documents, and
obtained three guilty pleas. Subsequently, in June of 1994,
the independent counsel statute was reauthorized by the
Congress. Pursuant to the statute, in August of that year we
appointed Kenneth Starr as statutory independent counsel
(hereinafter ‘‘IC’’ or ‘‘OIC’’) to take over the investigation.
Starr was authorized to investigate, inter alia, the Clintons’
relationships with Whitewater and Madison Guaranty. Even-
tually, the McDougals were convicted of numerous banking
violations, and Webster Hubbell was convicted in connection
with his efforts to cover up his relationship with Madison
Guaranty. During the investigation the OIC also looked into
the death of Deputy White House Counsel Vincent W. Foster,
Jr.; the dismissal of employees from the White House Travel
Office; the receipt by the White House Office of Personnel
Security of a number of FBI files; and Mr. Clinton’s giving
and suborning of false testimony concerning his relationship
with White House intern Monica Lewinsky.2 While the Clin-
tons were not indicted, President Clinton was impeached, and
the independent counsel obtained 24 indictments and at least
16 convictions of other subjects of the investigation. See In
re Madison Guar. Sav. & Loan Assn., 187 F.3d 652, 653
(D.C. Cir., Spec. Div., 1999) (per curiam). Pursuant to
§ 594(h)(1)(B) of the Act, the OIC filed final reports on each
area of its jurisdiction, including four volumes on the Madison
Guaranty/Whitewater investigation.
The Clintons, pursuant to section 593(f)(1) of the Act, have
now petitioned this Court for reimbursement of the attorneys’
2 By agreement between the Independent Counsel and former
President Clinton, no attorneys’ fees are being sought by Mr.
Clinton for legal representation related to the Lewinsky matter.
4
fees that they incurred during the IC’s investigation. As
directed by section 593(f)(2) of the Act, we forwarded copies
of the Clintons’ fee petition to the Attorney General and the
IC and requested written evaluations of the petition. The
Court expresses its appreciation to the IC and the Attorney
General for submitting these evaluations, which we have
given due consideration in arriving at the decision announced
herein.
DISCUSSION
Unique in the criminal law structure of the United States,
the Ethics in Government Act provides for reimbursement of
attorneys’ fees expended by subjects in defense against an
investigation under the Act. Specifically, 28 U.S.C.
§ 593(f)(1) states:
Upon the request of an individual who is the subject of
an investigation conducted by an independent counsel
pursuant to this chapter, the division of the court may, if
no indictment is brought against such individual pursuant
to that investigation, award reimbursement for those
reasonable attorneys’ fees incurred by that individual
during that investigation which would not have been
incurred but for the requirements of this chapter.
Because the Act ‘‘constitutes a waiver of sovereign immuni-
ty it is to be strictly construed.’’ In re Nofziger, 925 F.2d
428, 438 (D.C. Cir., Spec. Div., 1991) (per curiam). Therefore,
the Act provides reimbursement only for attorneys’ fees that
survive an elemental analysis determining whether the peti-
tioner is the ‘‘subject’’ of the independent counsel’s investiga-
tion, incurred the fees ‘‘during’’ that investigation, and would
not have incurred them ‘‘but for’’ the requirements of the Act.
The petitioner ‘‘bears the burden of establishing all elements
of his entitlement.’’ In re North (Reagan Fee Application),
94 F.3d 685, 690 (D.C. Cir., Spec. Div., 1996) (per curiam).
We conclude that the Clintons have not met the ‘‘but for’’
requirement.
5
As we have held, ‘‘[a]ll requests for attorneys’ fees under
the Act must satisfy the ’but for‘ requirement of’’ the Act. In
re Sealed Case, 890 F.2d 451, 452 (D.C. Cir., Spec. Div., 1989)
(per curiam). The purpose of awarding only fees that would
not have been incurred ‘‘but for’’ the Act is to ensure that
‘‘officials who are investigated by independent counsels will
be subject only to paying those attorneys’ fees that would
normally be paid by private citizens being investigated for the
same offense by’’ federal executive officials such as the Unit-
ed States Attorney. Id. at 452–53 (citing S. REP. NO. 97–496,
97th Cong., 2d Sess. 18 (1982), reprinted in 1982
U.S.C.C.A.N. 3537, 3554 (referring to ‘‘fees [that] would not
have been incurred in the absence of the special prosecutor
[independent counsel] law’’)).
As we have stated, ‘‘[t]he most difficult element for a fee
applicant to establish under the Act is that the fees ‘would not
have been incurred but for the requirements of [the Act].’ ’’
In re North (Bush Fee Application), 59 F.3d 184, 188 (D.C.
Cir., Spec. Div., 1995) (per curiam) (quoting In re North
(Dutton Fee Application), 11 F.3d 1075, 1079 (D.C. Cir., Spec.
Div., 1993) (per curiam)). In part this is so because the
element requires a petitioner to prove a negative and one
with a high component of speculation. In part, though, it is
difficult because the law contemplates that it should be diffi-
cult; that such fees will not be a common thing. In re Olson,
884 F.2d 1415, 1420 (D.C. Cir., Spec. Div., 1989) (per curiam)
(‘‘The Court is admonished to award reimbursement for
attorneys’ fees ‘in only rare instances’ for ‘extraordinary
expenses,’ ‘sparingly’ ’’) (quoting S. REP. NO. 97–496, 97th
Cong., 2d Sess. 19 (1982)). As we stated above, the contem-
plation of the legislation is not that subjects of independent
counsel investigations will be reimbursed for all legal fees,
but only that they will be reimbursed for those legal fees that
would not have been incurred by a similarly-situated subject
investigated in the absence of the Act.
The Clintons argue that they satisfy the ‘‘but for’’ require-
ment under two separate theories: 1) if not for the Act, the
case could have been disposed of at an early stage of the
investigation; and 2) they were investigated under the Act
6
where private citizens would not have been investigated. For
the reasons stated below, we do not find these arguments
persuasive.
Case could have been disposed of earlier. First, the
Clintons argue that the ‘‘but for’’ requirement is satisfied in
this case because the Act caused ‘‘delays due to the necessity
of preparing a final report and to jurisdictional challenges to
the Independent Counsel.’’ Section 594(h)(1)(B) of the Act
provides that an independent counsel shall ‘‘file a final report
TTT setting forth fully and completely a description of the
work of the independent counsel, including the disposition of
all cases brought.’’ The Clintons claim that this provision
significantly increased the time and breadth of the IC’s
investigation because each of the numerous allegations pre-
sented to the IC had to be looked into at length in order ‘‘to
enable the Independent Counsel to provide conclusive an-
swers in the [final] report.’’ The Clintons assert that a
regular prosecutor, in contrast, having determined that there
was not enough evidence to go forward on particular issues,
would have been free to ignore them. Consequently, they
argue that ‘‘[u]ncharged subjects merit reimbursement for
the increased burden of defense that results from the report-
driven investigation of such issues.’’ They sum up this argu-
ment by stating that ‘‘the Court should exercise its discretion
to award an appropriate portion of the Clintons’ total fees and
expenses that were incurred as a result of the Act’s reporting
requirements.’’
The Clintons further claim that the uncertainty of the scope
of the Independent Counsel’s jurisdiction led to numerous
jurisdictional challenges, and that this ancillary litigation
caused delays in the investigation. The result, they argue, is
that the IC was less able than a DOJ prosecutor to handle the
investigation efficiently, ‘‘causing the Clintons to incur legal
costs and fees which would not have been incurred by persons
subject to an ordinary Department of Justice or United
States Attorney-run investigation.’’
In her evaluation of the Clintons’ fee application, pursuant
to 28 U.S.C. § 593(f)(2), the IC argues that the Clintons fail
7
to show exactly which fees extend to these delays. Regard-
ing the Clintons’ argument that the need for a final report
significantly extends the IC’s investigation, the IC notes that,
although this is true, it cannot be the basis for an award of
fees because if it were then ‘‘all unindicted subjects of every
independent counsel investigation would automatically be en-
titled to reimbursement of all their fees.’’ Regarding the
Clintons’ argument concerning fees incurred because of de-
lays caused by jurisdictional disputes, the IC states that ‘‘the
Clintons do not attempt to show how these delays even
caused them to incur increased fees, let alone how they could
support an award of their fees.’’ (Emphasis in original.)
The DOJ addresses the Clintons’ argument in a similar
fashion, stating that if the Clintons’ contention were accepted,
then every unindicted subject of an IC’s investigation would
be entitled to fees. With respect to the Clintons’ argument
that jurisdictional disputes caused delay and thus prolonged
the IC’s investigation, the DOJ again states that this limita-
tion is present in every independent counsel investigation and
therefore cannot be the basis for an award of fees. In any
event, the DOJ asserts that ‘‘the application has not sought to
identify how or to what extent the delay may have caused
them to incur additional fees.’’
We note that in In re Nofziger the fee applicant made an
argument similar to the Clintons, claiming that the Act’s
limits on the investigatory authority of the Attorney General
per se satisfied the ‘‘but for’’ requirement. In rejecting that
argument we noted that ‘‘[i]f the law on that point were as
Nofziger contends, attorneys’ fees would be awarded in every
independent counsel investigation TTT because the same stat-
utory restrictions on the investigative authority of the Attor-
ney General apply in every [independent counsel] investiga-
tion.’’ 925 F.2d at 441. And we explained in an earlier
discussion in that case that ‘‘Congress TTT never intended
that attorneys’ fees should be awarded in every independent
counsel case.’’ Id. at 437 (emphasis in original). As both the
IC and the DOJ point out, the same reasoning would apply to
the Clintons’ arguments that the provision for a final report
lengthened and deepened the IC’s investigation and that
8
jurisdictional disputes caused delays. Such situations occur
in every independent counsel investigation, and therefore
cannot be bases for satisfying the ‘‘but for’’ requirement.
Investigated where private citizens would not have been.
The Clintons further assert that they are entitled to reim-
bursement because they were investigated under the Act in
circumstances where private citizens would not have been.
They note that the IC’s investigation cost over 70 million
dollars and lasted for more than seven years, and therefore
argue that ‘‘if there was ever a case where the subjects of an
OIC investigation incurred costs far above and beyond what
private citizens incurred in a similar DOJ investigation, this is
the case.’’ The Clintons note that an investigation of the
Whitewater matter had previously been conducted and com-
pleted by the United States Attorney’s office but only re-
opened as a consequence of newspaper reporting in connec-
tion with the 1992 presidential election campaign. They
claim, therefore, that because of their public roles (President
and First Lady) they were subjected to an investigation that
was more intense and thorough than a normal investigation of
private citizens, stating that ‘‘the DOJ would [not] have
expended such enormous resources investigating a small Ar-
kansas land deal involving private citizens and the failure of a
moderately-sized Arkansas S&L.’’
The Clintons state that although more recent Special Divi-
sion cases have held that the proper inquiry in the context of
the ‘‘but for’’ requirement is whether a high government
official would, in the absence of the Act, still have been
investigated as a high government official, see, e.g., In re
Espy (Kearney Fee Application), 319 F.3d 526, 531 (D.C.
Cir., Spec. Div., 2003) (per curiam); In re Babbitt (Babbitt
Fee Application), 290 F.3d 386, 390–91 (D.C. Cir., Spec. Div.,
2002) (per curiam), ‘‘those cases involved the investigation of
a high government official for misconduct committed in his or
her official capacity.’’ (Emphasis in original.) But this
investigation, assert the Clintons, ‘‘was based upon a land
deal dating from 1978 and legal work done for Madison
Guaranty in 1985–86,’’ before Clinton was elected President.
Therefore, they claim that under our decisions in In re
9
Nofziger, 925 F.2d at 442–44, and In re Sealed Case, 890 F.2d
at 453–54, the ‘‘proper inquiry TTT is whether the Clintons
were subjected to a ‘more rigorous application of the criminal
law’ than would have been applied to private, ordinary citi-
zens.’’
The IC challenges this argument by the Clintons by first
noting that unless it can be shown that an investigative
agency such as the DOJ would not have conducted a similar
investigation in the absence of the Act, then the ‘‘but for’’
requirement is not fulfilled. See In re Babbitt (Babbitt Fee
Application), 290 F.3d at 391. The IC points out that many
of the offenses that were ultimately investigated by the IC in
this matter were investigated initially by the U.S. Attorney’s
office in Little Rock, then by the Fraud Section of the DOJ,
and then by regulatory independent counsel Fiske. There-
fore, argues the IC, the Court does not need to ask what
would have happened in the absence of the Act because the
answer is already known, i.e., ‘‘an extensive investigation was
conducted under the jurisdiction of the Department of Jus-
tice.’’
Next, the IC states that the Clintons’ argument comparing
the investigation of them to an investigation of private citi-
zens is wholly without merit. First, the IC notes that the
amount of money and length of time spent on the IC’s
investigation, and referred to by the Clintons as evidence of
harsher treatment of them, encompassed considerably more
people than just the Clintons. Furthermore, the IC argues
that in the absence of the Act regulatory independent counsel
Fiske handled the investigations and prosecutions in a similar
fashion to the IC, and so ‘‘[h]owever differently [the Clintons]
may have been treated because of their high position, that
different treatment did not result from any requirement of
the Act.’’
In its evaluation, the DOJ begins by declaring that it would
have conducted an investigation of the underlying matters
even without the independent counsel statute. Like the IC,
the DOJ points out that it investigated this matter in the
absence of the Act through the Eastern District of Arkansas
U.S. Attorney’s Office, the Criminal Division, and regulatory
10
independent counsel Fiske. Furthermore, the DOJ notes
that the investigation led to numerous convictions, including
with respect to the Whitewater real estate project in which
the Clintons were involved.
The DOJ then states that the Clintons’ claim that they
were subjected to a harsher treatment of the criminal law
than private citizens is misguided. Citing to In re Pierce
(Kisner Fee Application), 178 F.3d 1356 (D.C. Cir., Spec.
Div., 1999) (per curiam), and In re Babbitt (Babbitt Fee
Application), the DOJ asserts that the test is not a compari-
son of the investigation of the fee applicant to an investigation
of a private citizen, but rather whether the DOJ would have
investigated the applicant in his or her capacity as a high
government official. The DOJ states that ‘‘[t]he Clintons’ fee
application does not show that a regular prosecutor, faced
with similar allegations involving a sitting President and First
Lady, would not have looked into this matter.’’
We agree with the IC and the DOJ that this argument by
the Clintons does not satisfy the ‘‘but for’’ requirement. The
Clintons claim that the ‘‘but for’’ test is whether there would
have been a similar investigation of private citizens, and that
in any event the DOJ would not have conducted such a
massive investigation of them. First, under our prior deci-
sions, the test is not, as the Clintons argue, what would have
happened if the Clintons were private citizens, but rather
what would have happened if there had been no independent
counsel statute. See In re Babbitt (Babbitt Fee Application),
290 F.3d at 391; In re Nofziger, 925 F.2d at 443. The
Clintons’ reliance on In re Sealed Case and In re Nofziger in
support of their argument here is misplaced.
In In re Sealed Case the fee applicant had been subjected
to an independent counsel investigation involving his federal
tax obligations. In holding that the ‘‘but for’’ requirement
was satisfied, the Court noted the Attorney General’s refer-
ence in his application to the Court for appointment of the
independent counsel that the Act’s restrictions had interfered
with his ability to conduct an adequate preliminary investiga-
tion, and the Court further noted that if the Attorney General
11
had not been so restricted then the applicant might have
either been exonerated or subjected to a lesser investigation.
Furthermore, the Court noted that although the independent
counsel’s jurisdiction encompassed the tax years 1981, 1982,
and 1984, the government official’s tax returns were actually
examined for the tax years 1976 to 1984. The Court stated:
[R]elying partially upon the Attorney General’s reference
to the limitations placed upon him by the Act, and
additionally upon the alleged offenses investigated by the
Independent Counsel pursuant to his defined jurisdiction,
we conclude that the subsequent investigation subjected
applicant to a ‘‘more rigorous application of the criminal
law than is applied to other litigants’’ under suspicion for
committing the same offenses.
890 F.2d at 453. In the absence of the Act, then, the fee
applicant would in all likelihood have been subjected to either
no investigation or a substantially lesser one. That is not the
situation here, however, as neither of the conditions relied on
by the Court in that case is present in this one.
In In re Nofziger we addressed the argument that the
appropriate comparison is between public officials and private
citizens, i.e., that the ‘‘but for’’ requirement is satisfied when a
subject of an independent counsel investigation incurs fees
that would not have been incurred by a private citizen in an
investigation of the same allegations. We noted there that
that comparison was being made in reference to situations
similar to that in In re Jordan, 745 F.2d 1574 (D.C. Cir.,
Spec. Div., 1984), where government officials were investigat-
ed by an independent counsel for crimes – possession and use
of a minimal amount of cocaine – that for policy reasons the
DOJ rarely prosecuted against private citizens. 925 F.2d at
442–43, see also In re Segal, 151 F.3d 1085, 1088–89 (D.C.
Cir., Spec. Div., 1998) (per curiam). In Nofziger’s case we
observed that the allegations – illegal lobbying – were of
substantially greater culpability, and that the DOJ had no
policy against prosecuting such crimes. Id. at 448. We held
that ‘‘the appropriate inquiry in Nofziger’s case’’ was wheth-
er ‘‘Nofziger, absent the statute, [would] have been similarly
12
investigated and prosecuted by the Department of Justice
following receipt of evidence that he [engaged in illegal
lobbying].’’ Id. at 444 (emphasis in original). That inquiry
led us to the conclusion that Nofziger ‘‘was not subjected to
an investigation that he would not have been subjected to in
the absence of the Act.’’ Id. at 446.
We make the same inquiry and conclusion concerning the
Clintons here. Two years before the appointment of Inde-
pendent Counsel Starr, a criminal referral was submitted by
the Resolution Trust Corporation to the U.S. Attorney for the
Eastern District of Arkansas alleging illegal activities involv-
ing Madison Guaranty Savings and Loan Association, and
naming the McDougals as suspects and the Clintons as
witnesses. When in early 1994 the Attorney General appoint-
ed Robert Fiske as regulatory independent counsel, she gave
him broad authority to investigate the Clintons’ relationship
with, inter alia, Madison Guaranty and the Whitewater De-
velopment Corporation. And when we appointed Kenneth
Starr as statutory independent counsel in the summer of
1994, at the request of the Attorney General we granted him
investigatory authority almost identical to Fiske’s. The IC’s
final report on the Whitewater matter states that ‘‘[t]he
breadth of the criminality already uncovered by the Fiske
investigation in part contributed to the length of time neces-
sary for the statutory Independent Counsel to complete his
work.’’ See ROBERT W. RAY, FINAL REPORT OF THE INDEPENDENT
COUNSEL, IN RE: MADISON GUARANTY SAVINGS & LOAN ASSOCIA-
TION, VOL. I, 21 (2001). Taking all of the above into consider-
ation, we harbor no doubt that in the absence of the indepen-
dent counsel statute the allegations surrounding the Clintons,
Madison Guaranty, and Whitewater would have been similar-
ly investigated and prosecuted by the Department of Justice.
The Clintons nevertheless argue that the DOJ would have
conducted a substantially lesser investigation than that of the
IC. The facts would not appear to substantiate this argu-
ment. Another independent counsel, albeit regulatory, had
been appointed to investigate the matter, and in the short
period he was in office he conducted an extensive investiga-
tion spending several hundred thousand dollars. But in any
13
event, the size of the independent counsel’s investigation is
not a controlling factor in deciding whether or not the ‘‘but
for’’ test is satisfied. In In re North (Garrett Fee Applica-
tion), 46 F.3d 1192, 1194 (D.C. Cir., Spec. Div., 1995) (per
curiam), the fee petitioner also claimed that he was eligible
for reimbursement of attorneys’ fees because he argued that
he was caught in an independent counsel investigation, Iran–
Contra, that was ‘‘unprecedented both in terms of its scope
and intensity.’’ We stated that we could not ‘‘accept this as a
basis for awarding attorneys’ fees. The purpose of the Act is
to promote a vigorous and thorough investigation of criminal
allegations by the independent counsel.’’ Id. See also In re
Espy (Kearney Fee Application), 319 F.3d at 530–31. Simi-
larly, in In re Nofziger we stated that ‘‘[i]nvestigations by
independent counsel should go to considerable lengths and
‘leave no stone unturned’ to inculpate or exculpate a subject,’’
and that ‘‘[t]horough compliance’’ by an independent counsel
with his duty to investigate high-government officials ‘‘does
not operate to satisfy the statutory requirements for an
award of attorneys’ fees.’’ 925 F.2d at 437. And we further
stated in Nofziger that a vigorous and thorough investigation
may indeed increase the costs to subjects of independent
counsel investigations in contrast to the costs that would have
been incurred in a similar investigation conducted outside the
Act, but that Congress had not made allowance for reim-
bursement of such inherent costs of independent counsel
investigations. Id. at 445.
But although the Clintons were not investigated by the IC
differently than they would have been otherwise, in the
absence of the Act they would not have incurred fees for
review and response to the IC’s final report. Section 594 of
the Act requires that the independent counsel ‘‘file a final
report with the division of the court, setting forth fully and
completely a description of the work of the independent
counselTTTT’’ 28 U.S.C. § 594(h)(1)(B). Absent the Act,
federal ‘‘prosecutors do not issue reports.’’ In re North, 16
F.3d 1234, 1238 (D.C. Cir., Spec. Div., 1994) (per curiam).
Indeed, as we have observed before, ‘‘[t]he filing of reports by
14
Independent Counsels is ‘a complete departure from the
authority of a United States Attorney’ and is ‘contrary to the
practice in federal grand jury investigations.’ ’’ Id. (quoting
In re Sealed Motion, 880 F.2d 1367, 1369–70 (D.C. Cir., Spec.
Div., 1989) (per curiam)). Therefore, we hold that the
amount of $85,312.01 in reasonable attorneys’ fees that the
Clintons incurred for reviewing and responding to the IC’s
final reports is reimbursable.
CONCLUSION
For the reasons set forth above, we allow in part the
petition of William Jefferson Clinton and Hillary Rodham
Clinton to the extent of ordering reimbursement for attor-
neys’ fees in the amount of $85,312.01. We deny the balance
of the petition as not meeting the ‘‘but for’’ requirement of
the Act, 28 U.S.C. § 593(f)(1).