concurring in judgment.
The majority’s disposition of this application is on all fours with its treatment of the petition for attorneys’ fees for Alexis Herman. Similarly to former Secretary Herman, Vanessa Weaver has attempted to justify payment of her attorneys’ fees based on our earlier opinions in In re Olson, 884 F.2d 1415 (D.C.Cir., Spec.Div., 1990) (per curiam) and In re Donovan, 877 F.2d 982, 987 (D.C.Cir., Spec.Div., 1989). Both opinions granted the requested attorneys’ fees. In Olson, we ruled that the “but for” test was satisfied because the independent counsel investigation was held to be largely duplicative of the Attorney *655General’s preliminary investigation. 884 F.2d at 1420. In Donovan, this test was satisfied because the restrictive provisions of the Ethics in Government Act limited the ability of the Attorney General to conduct an adequate preliminary investigation. 877 F.2d at 987.
For the reasons discussed in my separate opinion in In re Herman, 297 F.3d 1095, 1102-1105 (D.C.Cir., Spec.Div., 2002) (Cudahy, J., concurring), I believe that Olson and Donovan would be very difficult to distinguish as a matter of first impression. But Weaver is now part of a long list of unsuccessful fee petitioners, as to whom Olson and Donovan have been consistently distinguished in a number of cases of relatively recent vintage. See, e.g., In re Babbitt, 290 F.3d 386, 393-94 (D.C.Cir., Spec.Div., 2002) (distinguishing Olson); In re Pierce (Sanders Fee Application), 198 F.3d 899, 904 (D.C.Cir., Spec. Div., 1999) (distinguishing Olson and Donovan); In re Pierce (Kisner Fee Application), 178 F.3d 1356, 1360-61 (D.C.Cir., Spec.Div., 1999) (same); In re Pierce (Olivas Fee Application), 178 F.3d 1350, 1354 (D.C.Cir., Spec.Div., 1999) (distinguishing Olson); In re Nofziger, 938 F.2d 1397, 1404 (D.C.Cir., Spec.Div., 1991) (same); In re Nofziger, 925 F.2d 428, 439-50 (D.C.Cir., Spec.Div., 1991) (distinguishing Donovan). But with respect, I do not believe attempts to distinguish Olson and Donovan get to the heart of the matter.
To my mind, the “but for” test has not been satisfied here for the simple reason that the allegations involved a generic or common sort of wrongdoing crying out for investigation by existing agencies. The case eventually resulted in the indictment of Abdul Rahman, a foreign national, on multiple counts of illegal campaign contributions, and the indictment specifically alleged that Weaver served as the conduit for these illegal payments. As noted by the Department of Justice in evaluating Weaver’s petition, “from an objective standpoint, we do not think that it can plausibly be contended that investigation of this kind of conduct would not have been pursued in the absence of the requirements of the Independent Counsel statute.” DOJ Evaluation, at 10; cf. In re Pierce (Pierce Fee Application), 213 F.3d 713, 718 (D.C.Cir., Spec.Div., 2000) (“The convoluted nature of the corruption involved and the high profile identity of the suspects and defendants would no doubt have resulted in a complex and lengthy investigation with or without the appointment of an independent counsel.” (quotations omitted)). Thus, the “but for” test has not been satisfied.