concurring in the judgment:
I agree that for the reasons noted in the majority opinion, Ms. Thornberry has not established that she was a “subject” of the investigation primarily directed at Secretary Babbitt. Therefore, she is not entitled to fees.
However, I do not agree that her application fails to meet the “but for” test. Like the investigation of Catherine Baker Stetson, the investigation involving Ms. Thornberry was merely a part of the Babbitt investigation, and its status with respect to the “but for” test must be the same as that assigned to Secretary Babbitt’s request for fees. Ms. Thornberry was involved only peripherally and would not have been involved at all absent the inquiry into Secretary Babbitt’s affairs. Since I have taken the position that the Secretary has passed the “but for” test with flying colors (since he would not have incurred fees “but for” the special provisions of the Independent Counsel Act regarding proof of criminal intent), other parties involved in his investigation for the same reason would have incurred attorneys’ fees “but for” the Act. See In Re: Bruce Edward Babbitt (Stetson Fee Application), 292 F.3d 928.
The Department of Justice, in its evaluation of Ms. Thornberry’s application for attorneys’ fees reached the same conclusion with respect to her satisfaction of the “but for” test and supports my analysis.