dissenting:
The majority opinion makes no mention of the recommendation by the Department *932of Justice that Ms. Stetson’s attorneys’ fees be paid. The Department submitted a similar recommendation with respect to Secretary Babbitt’s fee petition, and that recommendation quoted the same passage as does the present recommendation, from the Attorney General’s application for appointment of an independent counsel in the Babbitt case. This quotation from the application of the Attorney General referred specifically to the heightened criminal intent requirements that attached to her preliminary investigation. Notwithstanding this statement by the Attorney General, the panel majority in In re Babbitt relied on its version of the “but for” test to deny the major part of the fee request over my dissent. For a more extensive discussion of the “but for” test, and the increasing (and arguably unjustified) rigor of its application in recent years, I refer to my dissent in In re Babbitt (Babbitt Fee Application), 290 F.3d 386, 395-403 (D.C.Cir., Spec. Div., 2002) .(Cudahy, J., dissenting).
It is a fallacy to try to make a “but for” analysis of Ms. Stetson’s fee petition in isolation from the analysis of Secretary Babbitt’s petition. The investigation of Ms. Stetson was merely a part of the investigation of Secretary Babbitt. Had Secretary Babbitt not been investigated, Ms. Stetson would not have been, and the “but for” issue for Ms. Stetson is necessarily the same as for Secretary Babbitt. As my dissent in the case of Secretary Babbitt’s fee petition made clear, the Attorney General would never have referred the Babbitt matter for investigation by an independent counsel unless special provision of the Independent Counsel Act forbade her to decline the reference unless there was clear and convincing evidence that Secretary Babbitt lacked the requisite criminal intent. See 28 U.S.C. § 592(a)(2)(B)(ii). The circumstance that this special statutory provision on criminal intent had no apparent direct impact on Ms. Stetson is of no consequence. The investigation of Ms. Stetson was entirely a by-product of a lengthy and exhaustive independent counsel inquiry into the words and actions of Secretary Babbitt — an investigation that in my judgment went forward on account of-the special criminal intent provision of the Independent Counsel Act. Therefore, for the same reason that I believe Secretary Babbitt’s petition satisfies the “but for” test, I believe Ms. Stetson satisfies this requirement as well.
The fact that part of the inquiry into the activities of Ms. Stetson involved alleged document destruction is also of no consequence. One is not entitled to look into and characterize the details of the investigation if the inquiry as a whole meets the “but for” test as it certainly does here. One need not make the dubious argument that an inquiry into alleged document destruction is somehow unique to an investigation by an independent counsel. As I see it, this is beside the point.
Proper resolution of the present fee petition must turn on the remaining three requirements of the case law, see ante at 932 (citing In re North (Dutton Fee Application), 11 F.3d at 1077-82), which have been overlooked here because the majority found its “but for” analysis dispositive. Although there might be some question about the documentation of reasonableness of hourly rates, I believe that Ms. Stetson’s fee petition meets the other requirements for reimbursement of fees.
I therefore respectfully dissent.