In RE: BRUCE EDWARD BABBITT (Babbitt Fee Application)

RICHARD D. CUDAHY, Circuit Judge,

concurring in part and dissenting in part:

The comparison of a real-life investigation to a hypothetical investigation — which is what the “but for” test is all about — is necessarily conjectural. We can really only guess what kind of an inquiry Secretary Babbitt would have been subjected to had there been no Independent Counsel Act.

The majority concedes that Secretary Babbitt is entitled to fees incurred in responding to the final report of the independent counsel. I agree with this unarguable concession as to an expense which could not possibly have been incurred but for the independent counsel’s investigation. But I cannot agree that this relatively minor item exhausts the compensation to which the Secretary is legitimately entitled.

In exploring Secretary Babbitt’s full entitlement to fees, I intend to make some general observations about our difficulties in attempting to compare an independent counsel’s investigation with a hypothetical investigation of the same subject by someone else. Then I will demonstrate that the independent counsel’s investigation of Secretary Babbitt fits squarely within the statutory language and precedents that authorize this court to award attorneys’ fees.

I.

The legislative history of the Independent Counsel Act contains language which has been cited in a number of our opinions to justify a parsimonious policy on the allowance of attorneys’ fees.1 The Senate Report has language like “attorneys’ fees would be warranted, if at all, in only rare instances” and “the court should award attorneys’ fees sparingly, and ... reimbursement should not become a routine event.” S.Rep. No. 97-496, at 19 (1982), reprinted in 1982 U.S.C.C.A.N. 3537, 3555. But the same report quotes attorney Lloyd Cutler with approval as follows:

So no matter what the outcome, it’s clear to me, at least, that the appointment of an independent counsel increases the cost to the individual and that since that was done primarily for the benefit of the public, the public ought to bear that additional cost at least in the circumstance where no indictment is brought in the end.

Id. The report, therefore, seems to be saying, “Yes, independent counsel investigations cost the targets more than do oth*396ers and the taxpayers ought to cover the increase, but don’t approve too many reimbursements.” This is clearly schizophrenic — perhaps a chronic failing of legislative history — and we have to make our way between the conflicting goals as best we can.2

The fact is that there is a lot of guesswork in comparing an actual with a hypothetical investigation. Cf. In re Nofziger, 925 F.2d 428, 433 (D.C.Cir., Spec. Div., 1991) (“To determine [for purposes of an attorneys’ fee award] whether the subject of an independent counsel investigation has been subjected to a more rigorous application of the criminal law, the court must compare the investigation of the subject of the independent counsel investigation with an investigation into possible violations of the same statute conducted in the absence of the Independent Counsel Act.” (emphasis in original)). Our court has tried to make the guesswork less perplexing by creating, in practical effect, a sort of implicit presumption that all investigations of a given subject — whoever conducts them — are fungible. Thus, with a few narrow exceptions,3 if an investigation is made under the very special — indeed unique — provisions of the independent counsel statute, it may be presumed that the very same investigation, placing the very same financial burden on the subject, would have been carried out, for example, by the Department of Justice in the absence of the statute. It would follow from the indulgence of this implicit presumption that a subject would incur no additional fees on account of the investigation by the Independent Counsel, and therefore the overwhelming majority of fee requests would be rejected in full. As this implicit presumption has progressed and become more controlling in the last several years, that is exactly what has taken place: very few requests for fees have been granted.4

Many observers might think that this more recent wholesale denial of fee peti*397tions was clearly in the public interest and merely represented a sturdy defense of the public físc. And, as noted, it is not difficult to find snippets of legislative history leaning the same way. I would remind those who might be of this opinion, however, that the only persons entitled to fees are those who were in fact targets of an investigation by an independent counsel and who were not indicted for a crime. In effect, these are people in the center of the prosecutor’s bull’s-eye, who were not indicted — who were exonerated. In providing such people with an opportunity to recover fees, Congress expressed the hope that, if they escaped punishment by the courts, they should not incur perhaps the worse punishment of crippling attorneys’ fees. High as these fees were, however, in relation to the resources of the subjects— here Secretary Babbitt’s fees are more that a year’s salary — the requested fees are almost trivial in comparison with the formidable cost to the taxpayers of conducting the investigation. Thus, through September 30, 2001, the total expense reported by the Independent Counsel for investigating Secretary Babbitt amounted to $6,348,777, which is over thirty times the sum Babbitt has been forced to expend in his own defense. In truth, the only place where stringent standards of economy have been applied in the current investigation is in evaluating Secretary Babbitt’s petition for fees.

But, if the majority has applied the “but for” test here with excessive zeal, what is a proper standard for estimating the scope of the investigation that would have looked into Secretary Babbitt’s conduct in the absence of the Independent Counsel Act? As the discussion so far has suggested, this is not an easy question, and it has no easy answer. The majority seems to have taken a simple, if not simplistic, approach in indulging an implicit presumption that any alternative investigation of Mr. Babbitt would cover exactly -the same ground to exactly the same depth as the independent counsel’s inquiry (and, I suppose, reach the same conclusion).

I am certainly willing to accept an inquiry by the Department of Justice as a reasonable alternative under the statute for application of the “but for” test. It is not unreasonable to posit that the DOJ would have conducted an inquiry into the somewhat discrepant accounts, as recalled two years later, of a hurried conversation between Secretary Babbitt and Mr. Eck-stein on July 14, 1995. But what kind of an investigation would it have conducted? Would it have taken 21 months and involved (as did the independent counsel’s probe) the review of 630,000 documents, the conducting of 460 interviews, the issuance of 160 subpoenas, the calling of 58 witnesses before the grand jury and the preparation and issuance of a 484-page final report detailing every aspect of an incredibly thorough investigation?

I think an overwhelming inference may be drawn from all the circumstances involved that the DOJ would never have conducted such an inquiry. One of the better pieces of evidence for this conclusion is the very judgment that the DOJ reached in submitting its evaluation of Secretary Babbitt’s fee petition. In this document, the DOJ clearly stated that the Secretary’s request passed the “but for” test. Apparently, the Department did not see itself conducting an independent counsel-type inquiry in the case of Secretary Babbitt. And we have noted in an earlier case the kind of investigation (in the case of another cabinet officer) that is expected of an independent counsel: “[ejxtraordinary thoroughness of investigation is to be expected in some independent counsel investigations because of the institution of the independent counsel, and the extensive nature of the investigation and the report *398required by Congress.” In re Meese, 907 F.2d 1192, 1201 n. 16 (D.C.Cir., Spec. Div., 1990) (awarding reimbursement of fees).

II.

A.

Turning now to the merits of Secretary Babbitt’s fee petition, § 593(f)(1) of the Independent Counsel Act provides that an individual who has been subject to an investigation that did not result in an indictment is eligible for an “award of reasonable attorneys’ fees incurred by that individual during that investigation that would not have incurred but for the requirements of this chapter.” Secretary Babbitt argues that one of the requirements of the Act, 28 U.S.C. § 592(a) (2) (b) (ii), which deals with evidence of criminal intent, resulted in a more expansive investigation, and thus higher burdens on him to defend. The majority never squarely addresses this argument, instead making the conclusory assertion that “the high profile identity of those involved would have resulted in an investigation of similar length and breadth if it had been undertaken by the Department of Justice in the absence of the Independent Counsel Act.” Ante at 392.

The thrust of Babbitt’s argument can be summarized as follows: 28 U.S.C. § 592 prescribes the procedures that the Attorney General must follow when conducting the required 90-day preliminary investigation. In making her determination whether “reasonable grounds exist to warrant further investigation,” the Independent Counsel Act generally requires that the Attorney General “comply with the written or other established policies of the Department of Justice with respect to the conduct of criminal investigations.” § 592(c)(1). However, the subsection relied on by Secretary Babbitt provides an exception to this general rule; it substantially constrains the Attorney General’s ability to focus on an accused person’s state of mind in determining the need for further investigation:

The Attorney General shall not base a determination under this chapter that there are no reasonable grounds to believe that further investigation is warranted, upon a determination that such person lacked the state of mind required for the violation of the criminal law involved, unless there is clear and convincing evidence that the person lacked such a state of mind.

28 U.S.C. § 592(a)(2)(B)(ii).

Although this court has never before considered this provision in the context of the “but for” requirement for attorneys’ fees,5 commentators have sharply criticized this § 592(a)(2)(B)(ii) as a dramatic departure from ordinary criminal procedure. For example, Professor Gormley has noted that the “clear and convincing” provision necessarily requires a referral to an independent counsel except in the unusual case *399where evidence of innocence is particularly strong:

[T]he key question normally assessed by a prosecutor in a criminal matter before exercising his or her discretion to prosecute — i.e. whether the conduct was inadvertent or negligent rather than knowing and intentional — cannot be considered by the Attorney General. This provision should be deleted entirely, since it further hamstrings the Attorney General and prevents her from conducting meaningful preliminary investigations to separate serious cases from minor, politically mischievous matters.

Ken Gormley, An Original Model of the Independent Counsel Statute, 97 Mich. L.Rev. 601, 649 (1998) (footnote omitted); see also Philip B. Heymann, Four Unresolved Questions About the Responsibilities of an Independent Counsel, 86 Geo. L. J. 2119, 2123 n. 13 (1998) (noting that in making recommendation for further investigation, “the Attorney General is precluded from finding that a person lacked the state of mind required to violate the criminal law, unless there is clear and convincing evidence of the absence of the requisite criminal intent — reversing the burden of proof applicable at trial” (emphasis added)). A review of the legislative history on this “clear and convincing” requirement, which was added to the Act in 1987, reveals that this provision was specifically designed to curtail the ability of the Attorney General to close a case based on lack of criminal intent. See S.Rep. No. 100-123, at 18 (1987), reprinted in 1987 U.S.C.C.A.N. 2150, 2167. Apparently, Congress had become' dissatisfied with several investigations that had been terminated on this basis. See id. (discussing Attorney General Meese’s decision to terminate the Schmults investigation on criminal intent grounds, and noting that the new provision “requires that, in such cases, the Attorney General must leave that issue to an independent counsel”). The effect of this provision is that most issues of criminal intent that might otherwise result in the termination of an investigation by the Attorney General must instead be resolved by the independent counsel.

In the case before us, the Attorney General specifically acknowledged the limitations that the Independent Counsel Act imposed on her discretionary authority:

The question of whether the potentially false statements at issue are material enough to warrant criminal prosecution is a prosecutive judgment that I am not permitted to make under the Independent Counsel Act. Nor am I permitted under the Act to decline to seek an appointment of an Independent Counsel based on the subject’s lack of criminal intent unless I have clear and convincing evidence that he lacked the requisite state of mind. In this case, although there is evidence suggesting that Secretary Babbitt lacked criminal intent, I am unable to conclude at this juncture that such evidence is clear and convincing.

Appointment Application at 7. Moreover, the Attorney General also noted that “our preliminary investigation uncovered no evidence of criminal misconduct by Secretary Babbitt in the underlying matter [regarding the proposed Hudson casino].” Id. Both of these passages are quoted by the Department of Justice as the basis of its determination that Secretary Babbitt had indeed satisfied the elusive “but for” element of § 593(f)(1). Therefore, the issue before us is whether, but for the “clear and convincing” requirement ' of § 592(a)(2)(B)(ii), the investigation of Secretary Babbitt would likely have assumed the same scope, had the same duration and therefore demanded the same level of expenditures for a legal defense.

*400To my mind, a careful examination of the fees question in Babbitt’s case necessarily gives rise to an overwhelming inference that but for the “clear and convincing” requirement of § 592(a)(2)(B)(ii), the investigation of Secretary Babbitt would have ended at a much earlier date. In cases where this court has awarded attorneys’ fees based on a more rigorous application of the criminal law, the Attorney General’s application for appointment of an independent counsel has frequently mentioned a shortcoming or disability in the preliminary investigation that is directly attributable to the requirements of the Act. See, e.g., In re Sealed Case, 890 F.2d at 453 (noting that Attorney General application cited “the Department’s inability to use compulsory process” under § 592(a)(2)(A) as limiting the scope of its preliminary investigation); In re Donovan, 877 F.2d at 988 (noting that Attorney General’s application stated that preliminary investigation was “hampered” by the limitations of § 592(a)(2)(A), which precluded the use of plea bargaining, immunity, grand juries, or subpoenas). In this case, Attorney General Reno specifically referred to the limitations placed on her prosecutorial discretion by the clear and convincing standard, notwithstanding the existence of “evidence suggesting that Secretary Babbitt lacked criminal intent.” Appointment Application at 7. When such a case is allowed to proceed without any prosecutorial fruits (e.g., indictments and plea bargains in exchange for testimony) despite massive investment of resources by the independent counsel, the subject of the probe has surely been on the receiving end of “a ‘more rigorous application of the criminal law than is applied to other citizens.’ ” In re Meese, 907 F.2d at 1201 (quoting S.Rep. No. 97-496, 1982 U.S.C.C.A.N. at 3555).

As our earlier precedents suggest, the existence of prosecutorial fruits has sometimes helped to fortify the “but for” requirement of the attorneys’ fees provision. For example, in In re Pierce (Pierce Fee Application), 213 F.3d 713 (D.C.Cir., Spec. Div., 2000), which also dealt with a long and expanding investigation, this court determined that:

the expansion occurred because the investigation itself revealed further evidence of fundamental corruption of a federal housing program and such crimes as perjury, bribery, and obstruction of justice. We are convinced that this matter would have been investigated for a significant period of time by any professional or politically appointed public prosecutor. Pierce was not, therefore, subjected to a more rigorous application of the criminal law than would have been applied to ordinary citizens.

Id. at 718 (emphasis added). The court then went on to conclude that Pierce failed the “but for” requirement and was therefore not entitled to his attorneys’ fees. Id. at 719.

Because both the Babbitt investigation and Pierce involved alleged wrongdoing among high-profile officials, the majority relies on Pierce to assert here that the Department of Justice would have undoubtedly conducted “an investigation of ... length and breadth [similar to Pierce] ... in the absence of the Independent Counsel Act.” Ante at 392. Although the majority is correct in asserting that both Pierce and the instant case involved allegations of various species of “corruption” on the part of prominent suspects, ante at 392, the intermediate and final outcomes of these two investigations could not stand in greater contrast to one another. The parallels drawn by the majority are therefore completely unjustified. In Pierce, there were dozens of indictments that ultimately resulted in the successful prosecutions of seventeen subjects. See 213 F.3d at 716. *401The apparently more plausible nature of the allegations resulting in those jury verdicts would certainly have motivated the DOJ to conduct from the start a much more thorough-going inquiry there than here, where no one was either indicted or convicted — an outcome that might have been foreseen by knowledgeable prosecutors. Even if we are not for some reason entitled to endow these hypothetical prosecutors with foresight as to how things would turn out, I see no reason why Secretary Babbitt is not entitled to the benefit of hindsight.

Although the majority has placed heavy reliance on In re Pierce, perhaps a better precedent to consider is In re Meese, which also involved an investigation of a cabinet official. In Meese, this court commented on the length and breadth of an investigation that included six additional matters beyond the initial referral and concluded, “It thus clearly appears that the basis upon which the referral was made and the extreme expansion of the resulting investigation subjected Meese to a ‘more rigorous application of the criminal law than is applied to other citizens.’ ” Id. at 1201 (quoting S.Rep. No. 97-496, 1982 U.S.C.C.A.N. at 3555) (emphasis added). Meese was subsequently awarded his attorneys’ fees. In the case before us, Babbitt points out that the independent counsel investigation went well beyond the Babbitt-Eckstein conversation on July 14, 1995 and the underlying Hudson casino dispute, to include an examination of the decision-making process in eleven other matters involving Indian gaming, each of them concerning a different tribe located in another part of the country. The Independent Counsel ultimately found “insufficient evidence to warrant criminal prosecution of anyone for conduct related to the Hudson casino proposal, including Secretary Babbitt for his testimony about the Hudson matter before Congress.” Final RepoRt at 415 (emphasis added). Like Meese, the expansion of an independent counsel investigation far beyond its initial scope suggests that Babbitt has been subjected to a more rigorous application of criminal law.

As the forgoing discussion demonstrates, the Independent Counsel Act requires that when lack of evidence on criminal intent might otherwise result in the termination of the Attorney General’s investigation, the investigation commenced by the Attorney General can only be completed through an inquiry by an independent counsel. See 28 U.S.C. § 592(a)(2)(B)(ii). In trying to establish the difference between the known independent counsel’s investigation and a hypothetical probe by the DOJ — and thus the difference in defense costs incurred by their respective subjects — one must acknowledge key structural features that distinguish these two modes of criminal prosecution.

On Several recent occasions, this court has announced a new insight that the Independent Counsel Act does not contemplate the payment of' 'attorneys’ fees for the inherently higher costs of defending against an independent counsel investigation. See,e.g., In re Nofziger (Bragg Fee Application), 956 F.2d 287, 294 (D.C.Cir., Spec. Div., 1992) (ruling that “these inherent costs are not reimbursable. Otherwise, fees would be paid in every case— but Congress indicated reimbursement of fees should only occur in ‘rare circumstances.’ ” (quoting S.Rep. No. 97-496)); In re Nofziger, 925 F.2d at 445 (same). Instead, according to recent decisions, the Act provides for reimbursement “only of those attorneys’ fees that ‘would not have been incurred but for the requirements of [the Act].’ ” In re Nofziger, 925 F.2d at 445 (quoting 28 U.S.C. § 593(f)(1)) (emphasis in original). Essentially, this is a nar*402row interpretation of “requirements” to mean special demands imposed by the unique features of the Act rather than the general mandate laid down by the statute as a whole. Along these lines, the “requirement” most commonly found in these cases is the proscription of grand juries, subpoenas, immunity, and plea bargaining during a preliminary investigation, see note 7 (citing cases awarding attorneys’ fees due to limitations imposed by § 592(a)(2)(A)), but the “clear and convincing” standard has, of course, the identical effect. The relevant point is that an unfruitful investigation conducted by the DOJ is likely to wrap up much faster than the same investigation conducted by an independent counsel; thus, a specific requirement of the Act subjected Secretary Babbitt to these higher “inherent costs.”

As commentators have frequently noted, the differences in responsibilities and allocation of resources between regular prosecutors and the independent counsel could not stand in greater contrast. See, e.g., Cass R. Sunstein, Bad Incentives and Bad Institutions, 86 Geo. L. J. 2267, 2279 (1998) (commenting that the Independent Counsel Act “creates an incentive toward zealotry. An independent counsel who uncovers nothing is likely to look as if he has more or less wasted his time, or done nothing, whereas an independent counsel who brings a prosecution, or several prosecutions, is likely to look, in at least some circles, like another Archibald Cox, a kind of hero of democratic ideals.”). Prosecutors in general have a variety of matters competing for their attention and must allocate the resources available to them to the situations most deserving — for various reasons — of their attention. The independent counsel, on the other hand, has a defined target to whom he must devote all his attention and dedicate all his resources — no matter what the attractions of that target may be in comparison with others.

Thus, a regular prosecutor with limited resources and a variety of places to employ them is likely to pursue the most easily convicted target; a cost-benefit analysis would certainly suggest that strong tendency. Judged by the outcome (which is the only test available to us), the Pierce inquiry, with its many convictions, in comparison with Babbitt would have attracted the most interest and attention from regular prosecutors. They might well have committed resources on the same scale as the independent counsel. On the other hand, the diminished prospects for success in Babbitt would almost inevitably have called forth from regular prosecutors a lesser effort than from the independent counsel. This may very well be one of the reasons that the DOJ concluded that Secretary Babbitt’s request for fees passed the “but for” test.

But there is another, perhaps less obvious, reason that I cannot agree with the parallel drawn by the majority between Pierce and the instant case. Pierce might be characterized as a “garden-variety” corruption case. There were allegations of favoritism and mismanagement and of the use of the “revolving door” in dealings with the government. As a result, contractors with the government were allegedly in a position to line their pockets in exchange for benefits and favors conferred on government officials. This is exactly the sort of typical corruption case that a prosecutor in the Department of Justice would like to get his or her hands on. It did not raise larger political questions, like whether officials in the White House were dictating HUD policy outside regular deci-sional channels, nor whether operatives in a national party headquarters were seeking to manipulate HUD decisions in the interest of big contributors.

In the Babbitt investigation, on the other hand, there were no charges of pocket-*403lining graft as it is commonly understood. Instead, this inquiry gained its heft from the larger political issues of improper interventions by White House agents and possible dictation by national committee officers to executive department officials on behalf of big contributors. Alleged abuse of power was very much in the picture. The immediate spark giving rise to the call for an independent counsel was a small discrepancy in two men’s recollection of a brief conversation that took place more than two years before either man testified about it. The charges of perjury and false statement arising from this exchange would not have called for a very far-reaching inquiry by the DOJ or anyone else. It was only the political ramifications of how the Hudson casino decision was made that gave ostensible weight to the situation. And this was a matter that could most comfortably be handled by an independent counsel. It is difficult to imagine its being handled effectively by anyone else.6 This is therefore a classic example of an investigation that would not have taken place in anything like the form that it actually assumed without the intrusion of the Independent Counsel Act. And in the end, to farther chill the ardor of an ordinary prosecutor, no one was indicted or prosecuted. Here, the demands of the “but for” test were literally fulfilled — as the Department of Justice itself concluded.

It seems to me that the special provisions of the Independent Counsel Act on mens rea fit perfectly into the narrow category of subjection to a more rigorous application of the criminal law. Secretary Babbitt should therefore be awarded his full attorneys’ fees. Hence, I respectfully DISSENT from the rejection of this major conclusion.7

. See, e.g, In re Nofziger, 938 F.2d 1397, 1401 (D.C.Cir., Spec. Div., 1991) (quoting S.Rep. No. 97-496 for the proposition that attorneys' fee should be awarded "only in rare instances,” and ruling that inherently higher costs of defending against independent counsel investigation do not justify fees); In re Nofziger, 925 F.2d 428, 437 (D.C.Cir., Spec. Div., 1991) (quoting same passage from S.Rep. No. 97-496 and making same determination).

. Interestingly enough, the same legislative history that has been used to deny attorneys’ fees has also been used to award them. Compare note 1 (cases relying on S.Rep. No. 97-496 to deny fees), with In re North (Dutton Fee Application), 11 F.3d 1075, 1080 (D.C.Cir., Spec. Div., 1993) (citing S.Rep. No. 97-496 for proposition that fee provision is meant to offset costs that would not have been incurred by a private citizen defending himself against a normal DOJ investigation, and thus awarding fees to petitioner), and In re Olson, 884 F.2d 1415, 1420 (D.C.Cir., Spec. Div., 1989) (quoting S.Rep. No. 97-496 for the proposition that attorneys’ fee should be awarded "only in rare instances," such as when actions by the independent counsel duplicate actions by the Attorney General, but awarding fees for duplication, for an unsuccessful constitutional challenge and for expenses related to the final report).

. In In re Pierce (Kisner Application), 178 F.3d 1356, 1359 (D.C.Cir., Spec. Div., 1999), we set forth four categories in which the "but for" test is satisfied. However, we also noted that "these categories are not exhaustive, and probably could not be, given the 'fact-specific nature of each independent counsel undertaking.’ ” Id. (quoting In re North (Dutton Fee Application), 11 F.3d at 1080). A review of our recent precedents, however, suggests a marked unwillingness to go beyond these four restrictive fact patterns.

.A careful examination of the case law reveals an undeniable drift in our jurisprudence. For example, in In re Donovan, 877 F.2d 982 (D.C.Cir., Spec. Div., 1989), this court granted attorneys’ fees to former Secretary of Labor Donovan despite the fact that the evaluation of the fee petition by the Department of Justice found it "facially deficient in demonstrating that the fees would not have been incurred but for the Act." Id. at 986. In the case before us, on the other hand, the Department of Justice acknowledged the limitations imposed on the preliminary investigation by 28 U.S.C. § 592(a)(2)(B)(ii), the paucity of incriminating evidence and the subsequent breadth of the independent counsel investigation to conclude that the "but for" requirement had been satisfied. DOJ Evaluation at 11-12.

. In contrast, this court has occasionally awarded fees when it has determined that the Attorney General could have disposed of the case at a earlier stage of investigation but for other limitations on the investigatory process imposed by the Act. See, e.g., In re Sealed Case, 890 F.2d at 453 (granting attorneys’ fees in case where strictures of § 592(a)(2)(A), which preclude the use of grand juries, subpoenas, etc., limited the ability of the Attorney General to conduct an adequate preliminary investigation); In re Donovan, 877 F.2d at 990 (granting attorneys’ fee to former Secretary of Labor Donovan because, pursuant to § 592(a)(2)(A), the Deputy Attorney General was unable “to convene grand juries, plea bargain, grant immunity, or issue subpoenas,” and thus “was deprived of his normal means of determining credibility and other relevant facts”).

. Some of our earlier precedents relied on the political dimensions of an independent counsel inquiry to determine that the "but for” requirement of § 593(f)(1) had been satisfied. See, e.g, In re North (Reagan Fee Application), 94 F.3d 685, 690 (D.C.Cir., Spec. Div., 1996) (ruling that the “but for” requirement is satisfied because "a politically appointed Attorney General would not subject attempts to circumvent the Boland Amendments to criminal prosecution” and thus the Iran/Contra investigation would never have occurred); In re North (Regan Fee Application), 72 F.3d 891, 895 (D.C.Cir., Spec. Div., 1995) (same); In re North (Bush Fee Application), 59 F.3d 184, 188 (D.C.Cir., Spec. Div., 1995) (same); In re North (Dutton Fee Application), 11 F.3d 1075, 1080 (D.C.Cir., Spec. Div., 1993) (providing same rationale and noting that "Dutton’s facts do not fit neatly into any box created by a prior opinion”).

. As I have earlier indicated, I certainly agree with the majority’s determination that Secretary Babbitt is entitled to be made whole for fees incurred in reviewing and responding to the final report of the independent counsel — a phase of the investigation having no counterpart in alternative prosecutorial inquiries.