In Re: Alexis M. Herman ( 2002 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed August 6, 2002
Division No. 98-2
In Re: Alexis M. Herman
(Herman Fee Application)
Division for the Purpose of
Appointing Independent Counsels
Ethics in Government Act of 1978, As Amended
---------
Before: Sentelle, Presiding, Fay and Cudahy, Senior
Circuit Judges.
O R D E R
This matter coming to be heard and being heard before the
Special Division of the Court upon the petition of Alexis M.
Herman for reimbursement of attorneys' fees and costs pur-
suant to section 593(f) of the Ethics in Government Act of
1978, as amended, 28 U.S.C. s 591 et seq. (1994), and it
appearing to the court that the application is allowable only to
the extent reflected in the opinion issued contemporaneously
herewith*, it is hereby
ORDERED, ADJUDGED, and DECREED that the Unit-
ed States reimburse Alexis M. Herman for attorneys' fees
__________
* Separate opinion concurring in the judgment filed by Senior
Circuit Judge Cudahy.
and expenses she incurred during the investigation by Inde-
pendent Counsel Ralph I. Lancaster in the amount of
$12,625.75.
Per curiam
For the Court:
Mark J. Langer, Clerk
by Marilyn R. Sargent, Chief Deputy Clerk
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed August 6, 2002
Division No. 98-2
In Re: Alexis M. Herman
(Herman Fee Application)
Division for the Purpose of
Appointing Independent Counsels
Ethics in Government Act of 1978, As Amended
---------
Before: Sentelle, Presiding, Fay and Cudahy, Senior
Circuit Judges.
ON APPLICATION FOR ATTORNEYS' FEES
Opinion of the Special Court filed PER CURIAM.
Separate opinion concurring in the judgment filed by Sen-
ior Circuit Judge Cudahy.
PER CURIAM: Alexis M. Herman petitions this court
under section 593(f) of the Ethics in Government Act of 1978,
as amended, 28 U.S.C. s 591 et seq. (1994) (the "Act"), for
reimbursement of attorneys' fees in the amount of $335,919.52
that she incurred during and as a result of the investigation
conducted by Independent Counsel ("IC" or "OIC") Ralph I.
Lancaster, Jr. Because we conclude that Herman has not
carried her burden of showing that the fees would not have
been incurred but for the requirements of the Act, we deny
the petition except for those fees incurred for review and
response to the IC's final report.
Background
In 1997 the U.S. Department of Justice ("DOJ") received
information that then-Secretary of Labor Alexis M. Herman,
while she was Special Assistant to the President in 1996, had
engaged in possible illegal activity. The pertinent facts sur-
rounding these allegations are as follows: In 1994 Vanessa J.
Weaver, a close friend of Herman's, formed a partnership,
International Investment for Business Development ("IIBD"),
with Laurent J. Yene. In 1996 Singaporean Abdul Rahman
entered into a retainer agreement with IIBD to promote a
business of his in Africa. Weaver's partnership with Yene
apparently ended soon thereafter, at which point Yene began
making allegations of criminal conduct on the part of Weaver
and Herman. In particular, Yene claimed that Herman,
while Special Assistant to the President, had agreed to facili-
tate business for IIBD and another company co-owned by
Weaver in exchange for a certain percentage of the profits
made by the companies as a result of Herman's efforts.
Additionally, Yene claimed that Herman improperly directed
Weaver to solicit campaign contributions for the Democratic
National Committee from clients of IIBD, including Abdul
Rahman.
Thereafter, the Attorney General (hereinafter referred to
as "AG" or "DOJ"), pursuant to section 592(a) of the Act,
conducted a preliminary investigation to determine whether
further investigation was warranted into whether Herman
accepted the illegal payments or directed the solicitation of
the illegal campaign contributions. On May 11, 1998, at the
conclusion of the preliminary investigation, the AG, having
determined that further investigation was warranted, submit-
ted her application to us for the appointment of an indepen-
dent counsel to look into the matter (hereinafter referred to
as "Application").
On May 26, 1998, we appointed Ralph I. Lancaster, Jr. as
independent counsel to further investigate the allegations.
The investigation lasted almost two years and included nu-
merous interviews, extensive document review, and substan-
tial grand jury activity. No charges were brought against
Herman. Abdul Rahman, however, was indicted on multiple
counts of making illegal campaign contributions. Pursuant to
the statute, the IC submitted a final report to this court on
April 7, 2000. 28 U.S.C. s 594(h)(1)(B).
Herman, pursuant to section 593(f)(1) of the Act, has
petitioned this court for reimbursement of the attorneys' fees
that she incurred during the IC's investigation. As directed
by section 593(f)(2) of the Act, we forwarded copies of Her-
man's 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.
Analysis
The Independent Counsel statute provides:
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.
28 U.S.C. s 593(f)(1). Accordingly, in order to obtain an
attorneys' fees award under the statute, a petitioner must
show that all of the following requirements are met: 1) the
petitioner is a "subject" of the investigation; 2) the fees were
incurred "during" the investigation; 3) the fees would not
have been incurred "but for" the requirements of the Act;
and, 4) the fees are "reasonable." See In re North (Dutton
Fee Application), 11 F.3d 1075, 1077-82 (D.C. Cir., Spec.
Div., 1993) (per curiam). The petitioner "bears the burden of
establishing all elements of [her] entitlement." In re North
(Reagan Fee Application), 94 F.3d 685, 690 (D.C. Cir., Spec.
Div., 1996) (per curiam). There appears to be little dispute
that Herman was a "subject," that her fees were incurred
during the IC's investigation, and that, for the most part, her
fees are reasonable. We will therefore limit our discussion to
the third requirement, known as the "but for" test.
* * * * * * * * * *
We have previously held that "[a]ll requests for attorneys'
fees under the Act must satisfy the 'but for' requirement."
In re Sealed Case, 890 F.2d 451, 452 (D.C. Cir., Spec. Div.,
1989) (per curiam). And we have repeatedly observed that
"[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 Dutton, 11 F.3d at 1079). In
order to establish eligibility for an award, the fee applicant
must show that the amounts claimed are only those fees and
expenses above and beyond those she would have incurred as
a result of an investigation by the DOJ. In re Sealed Case,
890 F.2d at 452-53. As we stated in In Re Pierce (Olivas Fee
Application), 178 F.3d 1350 (D.C. Cir., Spec. Div., 1999) (per
curiam), "[i]f the investigative act generating the defensive
costs would, in the absence of the Act, have been pursued by
other authorities--'had the case been handled by the Depart-
ment of Justice or other executive authorities rather than the
Independent Counsel'--then Congress did not contemplate
the award of counsel fees." Id. at 1355 (quoting Dutton, 11
F.3d at 1080).
Herman argues that she satisfies the "but for" requirement
under two separate theories.
Duplication of preliminary investigation. We have in the
past awarded fees when the independent counsel's investiga-
tion constituted a substantial duplication of the preliminary
investigation of the DOJ, thus satisfying the "but for" re-
quirement. See In re Olson, 884 F.2d 1415, 1420 (D.C. Cir.,
Spec. Div., 1989) (per curiam) (IC's investigation "necessarily
duplicated ground that had been covered by the preliminary
investigation of the Department of Justice") (emphasis in
original); In re Olson (Perry Fee Application), 892 F.2d
1073, 1074 (D.C. Cir., Spec. Div., 1990) (per curiam) (fee
applicant "was being subjected to expenses for a duplicative
investigation that he would not have been subjected to in the
absence of the Ethics in Government Act"). Herman, relying
on In re Olson, argues that her case falls into this category
because the IC's investigation of this matter was duplicative
of the DOJ's preliminary investigation. She claims that the
preliminary investigation by the DOJ, as described in the
AG's application for the appointment of an IC, and the
investigation by the IC as described in his final report,
confirm this duplication. She claims that further confirma-
tion of this duplication can be seen in the similarities between
the two areas of inquiry in the AG's recommended statement
of jurisdiction and the two primary areas of the IC's investi-
gation as set forth in the final report.
In his evaluation of Herman's fee petition, the IC disputes
her claim that she satisfies the "but for" requirement. The
IC argues that since pursuant to the Act the AG conducts a
preliminary investigation to determine whether further inves-
tigation is warranted, then necessarily an independent coun-
sel's investigation is going to address the same issues. Her-
man's reliance on In re Olson is misplaced, the IC claims,
because in that case the independent counsel's investigation
duplicated ground covered by the preliminary investigation,
whereas in this case "the actual scope, depth, and conduct of
the two investigations" show that the IC's investigation com-
pleted the preliminary investigation.
We note that the process of an independent counsel investi-
gation set up by the Act will by its very nature necessarily
replow some of the same ground already tilled by the DOJ.
Section 592(a)(1) directs the Attorney General to conduct a
preliminary investigation "in order to make a determination
... on whether further investigation is warranted, with re-
spect to each potential violation, or allegation of a violation, of
criminal law." 28 U.S.C. s 592(a)(1) (emphasis added). Con-
sequently, the matters under investigation by an independent
counsel are generally going to be the same as those investi-
gated during the preliminary investigation. The question we
need to answer is whether the investigation by the IC merely
duplicates that of the DOJ. Duplication by definition does
not occur if the IC's investigation extends significantly be-
yond that of the DOJ's preliminary investigation. See In re
Olson, 884 F.2d at 1420 ("but for" requirement satisfied
where "[t]he greater portion of [the IC's] investigation" dupli-
cated that of the DOJ) (emphasis added). In In re Pierce
(Kisner Fee Application), 178 F.3d 1356 (D.C. Cir., Spec.
Div., 1999) (per curiam), we stated that the fee applicant
could not satisfy the "but for" requirement by claiming that
the Independent Counsel's investigation duplicated that of the
DOJ because "the Independent Counsel's investigation
ranged far beyond the preliminary investigation not only in
depth but breadth. The matters investigated as to Kisner
are far beyond anything in the preliminary investigation."
Id. at 1360. We find similar circumstances here. Under the
Act the AG was limited to 150 days within which to complete
her preliminary investigation, and while conducting it she was
not allowed, inter alia, to convene grand juries or grant
immunity. 28 U.S.C. s 592(a). According to the IC, the
DOJ in conducting the preliminary investigation gathered
9500 pages of documents from 15 persons and conducted 100
interviews of 89 persons. In contrast, the IC conducted his
investigation of the allegations surrounding Herman over a
period of almost two years, during which time he obtained
over 250,000 pages of documents, interviewed 168 witnesses
in a series of 203 interviews, questioned 57 persons before the
grand jury of whom 43 had not been questioned as part of the
preliminary investigation, and granted immunity to 12 per-
sons. Additionally, the IC obtained an indictment of Abdul
Rahman on multiple counts of making illegal campaign contri-
butions through Vanessa Weaver, in violation of U.S. election
laws. Therefore, the IC's investigation cannot in any rele-
vant sense be considered duplicative of the DOJ's preliminary
investigation.
The Act hampered the AG's preliminary investigation.
Herman further argues that she satisfies the "but for" ele-
ment because the statutory requirements of the Act ham-
pered the preliminary investigation conducted by the AG, and
if the AG had not been so hampered then Herman would have
been subjected to either a much more limited investigation or
perhaps no investigation. See In re Sealed Case, 890 F.2d at
453; In re Donovan, 877 F.2d 982, 987 (D.C. Cir., Spec. Div.,
1989) (per curiam). Specifically, Herman contends that "the
credibility of Mr. Yene was central to the Attorney General's
decision to seek an appointment of an independent counsel,"
and that the Act's restrictions prevented the AG from resolv-
ing Yene's credibility. She quotes from the AG's Application
that during the preliminary investigation the AG was "unable
to conclude that [Yene] is not credible. This, coupled with
the strictures and limited investigative tools available under
the Act, have led me to conclude that there are reasonable
grounds to believe that further investigation is warranted."
According to Herman, had the Act's restrictions not ham-
pered the AG then the AG could have resolved Yene's credi-
bility and "there most likely would never have been an
independent counsel in this matter."
For authority, Herman cites to both Donovan and In re
Sealed Case. She argues that in Donovan the Attorney
General had noted in his application for appointment of an
independent counsel that the limitations of the Act had ham-
pered his ability to resolve the issue of the credibility of the
one witness upon whom the case rested, and therefore an
independent counsel would not have been appointed but for
the requirements of the Act. See Donovan, 877 F.2d at 990.
Herman claims that her case also revolved around the credi-
bility of one witness, Yene, and that "had Attorney General
Reno had the same tools available to her that Independent
Counsel Lancaster had at his disposal, she would have been
able to resolve this issue quickly with little if any expense to
Secretary Herman." We disagree. As the IC points out,
Donovan is not analogous to the situation here. In that case,
we found the "but for" requirement satisfied because there
was a single witness of dubious credibility who would not
cooperate during the preliminary investigation. If the AG's
office had been able to use normal prosecutorial means to
assess the witness's credibility, then there would have been
no need for the appointment of an independent counsel.
Here, in contrast, Yene did cooperate during the preliminary
investigation, and the allegations against Herman did not rise
and fall simply on his credibility: in requesting the appoint-
ment of an independent counsel, the AG in her Application
cited to "inconsistent and evolving explanations by other
critical witnesses." We therefore agree with the IC "that if
the Attorney General had had all of the standard prosecutori-
al tools available to her, the scope, depth and thoroughness of
her investigation would have been similar, if not identical, to
that of the Independent Counsel."
Herman likewise argues that in In re Sealed Case the
Attorney General made a representation, similar to that made
in Donovan, that he was unable to use compulsory process
during the preliminary investigation, and that the subsequent
independent counsel inquiry of a government official's tax
returns for a period of nine years was far more probing than
an ordinary taxpayer would have undergone. Consequently,
the "but for" requirement was satisfied. See In re Sealed
Case, 890 F.2d at 453-54. Similarly, Herman asserts that her
own tax returns, financial records, and personal finances were
subjected to intense scrutiny and that therefore she was
"subjected to a more probing and thorough investigation than
that to which a normal citizen would have been subjected."
We do not find this assertion persuasive. As the IC points
out, any prosecutor investigating allegations of illegal pay-
ments as in this case "would be remiss if he did not obtain
and analyze the subject's financial and tax records as those
records form the best evidence as to existence of illegal
payments."
* * * * * * * * * *
In sum, we agree with both the Department of Justice and
the Independent Counsel that the principal allegations sur-
rounding this matter, i.e., a senior White House official
receiving payments for using her influence to further the
interests of business clients of a friend and her participation
in a conduit scheme to solicit campaign contributions from a
foreign national, would have been thoroughly investigated by
the DOJ in the absence of the Act. Herman has not satisfied
the "but for" requirement under either of the theories that
she relies upon because she "was not subjected to an investi-
gation that [she] would not have been subjected to in the
absence of the Act." In re Nofziger, 925 F.2d 428, 446 (D.C.
Cir., Spec. Div., 1991) (per curiam).
But although Herman was not investigated by the IC
differently than she would have been otherwise, in the ab-
sence of the Act she 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 counsel...." 28
U.S.C. s 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 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
$12,625.75 in attorneys' fees that Herman incurred for re-
viewing and responding to the IC's final report is reimbursa-
ble.
Conclusion
For the reasons set forth above, we allow in part the
petition of Alexis M. Herman to the extent of ordering
reimbursement for attorneys' fees in the amount of
$12,625.75. We deny the balance of the petition as not
meeting the "but for" requirement of the Act, 28 U.S.C.
s 593(f)(1).
Richard D. Cudahy, Circuit Judge, concurring in the judg-
ment:
I fully concur in the allowance of fees incurred to respond
to the Independent Counsel's final report--an expense which
clearly would not have been incurred absent the unique
requirements of the Ethics in Government Act calling for
submission of a final report.
As to the denial by the majority of the remainder of
Secretary Herman's fee claims, although these might be
debatable as a matter of first impression, they seem foreclos-
ed by the recent precedents--though not necessarily by older,
and established, authority--of this court. As the majority
indicates, Secretary Herman makes two arguments: first,
that the independent counsel's investigation here is largely
duplicative of the preliminary investigation by the Depart-
ment of Justice; and second, that the Act has imposed
limitations of prosecutorial means on the Attorney General's
preliminary investigation, which otherwise might have nar-
rowed or obviated the independent counsel's inquiry.
With respect to the first argument--that the independent
counsel's investigation is largely duplicative of the Attorney
General's preliminary investigation--Herman relies on In re
Olson, 884 F.2d 1415, 1420 (D.C.Cir., Spec. Div., 1990) (per
curiam). Independent Counsel Lancaster, in his evaluation
of Herman's fee request, argues that the present case can be
distinguished from In re Olson on the ground that here the
"scope and depth" of the preliminary investigation were dif-
ferent from Lancaster's investigation, and that the "conduct"
of the two investigations was different. The majority accepts
this argument in denying Secretary Herman her fees.
The reality is that preliminary investigations examine the
same issues as investigations by the independent counsel, and
there is necessarily a distinct similarity between the two
procedures. The analytical distinction that must somehow be
attempted, however, is between (a) the preliminary investiga-
tion, which is conducted for the limited purpose of determin-
ing whether a further inquiry is needed, and (b) the subse-
quent independent counsel investigation, which is the further
inquiry itself. In recent years, our cases have
increasingly emphasized the differences
between the two procedures rather than the similarities.
In re Olson was the first case to recognize and invoke the
duplication theory to award attorneys' fees,1 though we have
seldom invoked it since then.2 That case contained only a
brief discussion of duplication as a basis for attorneys' fees,
but that discussion (favoring the payment of fees) was prem-
ised on a snippet of legislative history that accompanied the
passage of s 593(f). Id. at 1420 (noting that "duplication" by
the independent counsel of actions taken by the Attorney
General during the preliminary investigation "is given as one
instance where '[r]eimbursement may be warranted' " (quot-
ing S. Rep. No. 97-496 (1982), reprinted in 1982 U.S.C.C.A.N.
3537, 3555) (alterations in original)). In re Olson argues
against the result today by failing to include an explicit
comparison of the "scope and breadth" of the preliminary
__________
1 The court in In re Olson analyzed the issue of attorneys' fees in
four distinct stages of the litigation, including a constitutional
challenge to the Ethics in Government Act, which the Supreme
Court rejected in Morrison v. Olson, 487 U.S. 654 (1988). The
duplication theory was relied upon to satisfy the "but for" test only
for the first phase of the litigation. See 884 F.2d at 1420.
2 Apparently, the last case to successfully invoke this exception
was In re Olson (Perry Fee Application), 892 F.2d 1073 (D.C. Cir.,
Spec. Div., 1990), which held that the "but for" requirement had
been satisfied because 34[t]he Public Integrity Section of the Depart-
ment of Justice and its decision not to recommend prosecution, provides
ample support for the conclusion that, in the investigation conduct-
ed by the Independent Counsel, Perry was being subjected to
expenses for a duplicative investigation that he would not have been
subjected to in the absence of the Ethics in Government Act." Id.at 1074 (citing In re Olson, 884 F.2d at 1420). However, the matters
investigated in In re Olson predated the 1987 amendment to the
Act that constricted the ability of the Attorney General to not
recommend an independent counsel investigation. See Independent
Counsel Reauthorization Act of 1987, Pub. L. 100-191, s 2, 101 Stat.
1293, 1295 (1987) (amending 28 U.S.C. s 592(a) to limit the state of
mind evidence as a basis for non-referral "unless there is clear and
convincing evidence that the person lacked such state of mind"). In theory,
this change in the law should have resulted in more, rather than less,
duplication of investigation by the independet counsel.
investigation with the "scope and breadth" of the subsequent
independent counsel investigation authorized by it. But, after
granting an award of attorneys' fees, In re Olson goes on to
quote further a somewhat contrary passage from the legisla-
tive history that "admonished [the court] to award reimburse-
ment for attorneys' fees 'in only rare circumstances' for
'extraordinary expenses.' " 884 F.2d at 1420 (quoting S. Rep.
No. 97-496).
In reality, there is duplication in almost every case, al-
though in most it is less than total. As a result, In re Olson
is not an easy case to distinguish. But rather than address
this tension, our subsequent cases have invoked the somewhat
contradictory admonishments of a Senate committee report to
consistently reject "duplication"arguments as a basis for re-
covery.3 See, e.g., In re Babbitt, 290 F.3d 386, 393-94 (D.C.
Cir., Spec. Div., 2002) (rejecting duplication argument and
stating that "[d]uplication by definition does not occur if the
IC's investigation extends significantly beyond that of the
DOJ's preliminary investigation" (citing In re Olson, 884 F.2d
at 1420)); In re Pierce (Sanders Fee Application), 198 F.3d
899, 904 (D.C. Cir., Spec. Div., 1999) (rejecting fee application
because the petitioner failed to "put forward evidence that the
IC's investigation duplicated the preliminary investigation
conducted by the Attorney General"); In re Pierce (Olivas
Fee Application), 178 F.3d 1350, 1354 (D.C. Cir., Spec. Div.,
1999) (stating that there can be no "serious argument" that
duplication occurred because "the Independent Counsel's in-
vestigation ranged far beyond the preliminary investigation
not only in depth but breadth"); In re Pierce (Kisner Fee
Application), 178 F.3d 1356, 1360 (D.C. Cir., Spec. Div., 1999)
(same); In re Nofziger, 939 F.2d 1397, 1404 (D.C. Cir., Spec.
Div., 1991) (holding that only those fees resulting from a
"substantial duplication of prior investigations" are reimburs-
__________
3 For a discussion of the conflicting themes that have been drawn
from the Act's legislative history and, in turn, relied upon by this
court, see In re Babbitt, 290 F.3d 386, 395-96 & nn.1-2 (D.C. Cir.,
Spec. Div., 2002) (Cudahy, J., dissenting) (collecting and comparing
cases that have cited S. Rep. No. 97-496 to either approve or deny
attorneys' fees).
able under s 593(f) and distinguishing In re Olson). Whether
this blanket approach, which leaves In re Olson in almost
solitary preeminence, would be validated if a rigorous, case-
by-case analysis were employed is questionable.
On the second point, that the Act hampered the Attorney
General's preliminary investigation, and therefore created the
conditions for a more onerous independent counsel inquiry
than would otherwise have been required, see In re Donovan,
877 F.2d 982, 987 (D.C. Cir., Spec. Div., 1989) (per curiam),
there is also room for doubt. Both Independent Counsel
Lancaster in his evaluation and the majority attempt to
distinguish Donovan on the theory that the Attorney General
in that case purportedly lacked the prosecutorial means to
resolve an issue of credibility of a single witness, and this was
the point on which the whole case turned. But it is not clear
to me why in principle the denial of important prosecutorial
methods should be a "but for" cause of an independent
counsel's investigations if the prosecutorial challenge is sim-
ple (as was purportedly the case in Donovan) but not if the
case is complicated by the testimony of "other critical wit-
nesses," as the majority says is the case here. In any event,
when the majority agrees with the Independent Counsel "that
if the Attorney General had had all of the standard prosecuto-
rial tools available to her, the scope, depth and thoroughness
of her investigation would have been similar, if not identical,
to that of the Independent Counsel, ..." it may be unwitting-
ly making an entirely different point than it seems to be
contemplating. For the point being made by the Indepen-
dent Counsel's evaluation is that, if the Attorney General had
all the "standard prosecutorial tools," the preliminary investi-
gation would become as onerous as the resulting independent
counsel investigation and would be fully as expensive, al-
though by statute non-reimbursable.
In any event, the allegations against Secretary Herman is
suggested a type of generic wrongdoing that
is quite distinguishable from the investigation charges, for example,
against Secretary Babbitt (, in whose case I dissented from the denial of the
bulk of the fees). See In re Babbitt, 290 F.3d 386, 395 (D.C. Cir., Spec.
Div., 2002) (Cudahy, J., concurring/dissenting). In Babbitt, the
investigation proceeded only
because the Attorney General could not abort it unless she
found lack of criminal intent by clear and convincing evidence.
See 28 U.S.C. s 592(a)(2)(b)(ii). In addition, despite the extensive
marshaling of investigative resources, Babbitt failed to result in a
single criminal indictment.
In contrast, the Herman investigation was much narrower in
scope, yet it eventually resulted in the indictment of Abdul Rahman,
a foreign national, based on preliminary evidence that Rahman
transferred a large sum of money to Vanessa Weaver, a friend of
Secretary Herman, at the same time that Weaver made donations
totaling the same amount to various political organizations. These
allegations are suggestive of the type of generic corruption that
would likely have been taken quite seriously by the Dpartment of
Justice. The Department's evaluation of Secretary Herman's fee
petition takes this position:
Ms. Herman cannot plausiby argue that absent the Inde-
pendent Counsel law the matter Rahman's campaign
contributions -- a matter involving allegedly unlawful
political donations by a foreign national with ties to a
high-level member of the White House staff -- would
not have been investigated. Nor can Ms. Herman
plausibly argue that Ms. Weaver's involvement in the
matter would not have been looked into, given the alle-
gation, ultimately reflected in the explicit terms of the
grand jury's indictment, that Ms. Weaver and/or her
companies served as the conduit for the illegal funds.
From an objective standpoint, it seems clear that this
matter, including the question of Ms.Weaver's involve-
ment, would have been investigated even absent
an Independent Counsel statute.
DOJ Evaluation, at 9; cf. In re Pierce (Pierce Fee Application),
213 F.3d 713, 718 (D.C. Cir., Spec. Div., 2000) (34The convol-
uted 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 an independent counsel.34 (quotations omitted)).
Because Olson and Donovan are among the handful of
cases that have resulted in an award of attorney's fees, they are
relied upon in virtually every fee petition that comes before this
court. As noted in my Babbitt dissent, our approach to s 593(f)
attorneys' fee requests has become quite rigid in recent years. See
290 F.3d at 396 & n.4 (discussing an 34undeniable drift in our juris-
prudence34). However, based on the nature of the allegations in the
Herman investigation and the DOJ preliminary findings, there
is really no need to distiguish Olson and Donovan, and we should
curtail what has become a tiresome and legalistic exercise in favor
of a judgment whether the allegations are of generic or common sort,
really inviting investigation in normal course by existing prosecutors.