  Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify
the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.




       United States Court of Appeals
                  FOR THE DISTRICT OF COLUMBIA CIRCUIT




                         Filed January 6, 2004

                           Division No. 94-1

           IN RE: MADISON GUARANTY SAVINGS & LOAN
                  (LEWINSKY FEE APPLICATION)



                 Division for the Purpose of
             Appointing Independent Counsels
       Ethics in Government Act of 1978, As Amended
                          –————
  Before: SENTELLE, Presiding, FAY and REAVLEY, Senior
Circuit Judges.

                               ORDER
   It is ORDERED by the Court, sua sponte, that the opinion
filed herein on December 30, 2003, be and it hereby is,
amended as follows:
  Page 4, line 24, substitute ‘‘half of the’’ for ‘‘a majority of.’’
                                          PER CURIAM
                                                 For the Court:
                                                 Mark J. Langer, Clerk
                                           By:
                                                 Marilyn R. Sargent
                                                 Chief Deputy Clerk
  Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify
the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.




       United States Court of Appeals
                  FOR THE DISTRICT OF COLUMBIA CIRCUIT

                               –—————
                       Filed December 30, 2003


                           Division No. 94-1

           IN RE: MADISON GUARANTY SAVINGS & LOAN
                  (LEWINSKY FEE APPLICATION)

                               –—————
                  Division for the Purpose of
              Appointing Independent Counsels
        Ethics in Government Act of 1978, As Amended
                               –—————
  Before: SENTELLE, Presiding, FAY and REAVLEY, Senior
Circuit Judges.


                               ORDER
   This matter coming to be heard and being heard before the
Special Division of the Court upon the application of Monica
Lewinsky for reimbursement of attorneys’ fees and costs
pursuant to section 593(f) of the Ethics in Government Act of
1978, as amended, 28 U.S.C. § 591 et seq. (2000), and it
appearing to the court for the reasons set forth more fully in
the opinion filed contemporaneously herewith that the peti-
tion is not well taken, it is hereby
   ORDERED, ADJUDGED, and DECREED that the peti-
tion of Monica Lewinsky for attorneys’ fees that she incurred
                            2

during the investigation by Independent Counsel be denied.
                                     PER CURIAM
                                      For the Court:
                                      Mark J. Langer, Clerk
                                By:
                                      Marilyn R. Sargent
                                      Chief Deputy Clerk
  Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify
the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.




       United States Court of Appeals
                  FOR THE DISTRICT OF COLUMBIA CIRCUIT

                              –————
                       Filed December 30, 2003

                          Division No. 94-1

           IN RE: MADISON GUARANTY SAVINGS & LOAN
                  (LEWINSKY FEE APPLICATION)

                          –————
                 Division for the Purpose of
             Appointing Independent Counsels
       Ethics in Government Act of 1978, As Amended
                          –————
  Before: SENTELLE, Presiding, FAY and REAVLEY, Senior
Circuit Judges.

      ON APPLICATION FOR ATTORNEYS’ FEES
   Opinion of the Special Court filed Per Curiam.
   Per curiam: Monica Lewinsky petitions this court under
§ 593(f) of the Ethics in Government Act of 1978, 28 U.S.C.
§§ 591–599 (2000) (the Act), for reimbursement of attorney
fees that she incurred during and as a result of an investiga-
tion conducted by the Independent Counsel (IC). Because
we conclude that Lewinsky 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.

                       I. Background
  On January 16, 1998, Attorney General Janet Reno applied
for and this court granted an order extending the jurisdiction
of Independent Counsel Kenneth Starr ‘‘to investigate TTT
whether Monica Lewinsky or others suborned perjury, ob-
                               2

structed justice, intimidated witnesses, or otherwise violated
federal law TTT in dealing with witnesses, potential witnesses,
attorneys, or others concerning the civil case Jones v. Clin-
ton.’’ The Jones v. Clinton case referenced in Attorney
General Reno’s application and the court’s order was a civil
suit filed by Paula Jones against then-President William J.
Clinton. Jones alleged that during Clinton’s term as Gover-
nor of Arkansas and while Jones was a state employee, he
had solicited sex from her, that she had declined, and that as
a result, her state employment had been adversely affected,
in violation of her federal civil rights as well as other rights.
   Prior to trial, Jones’s attorneys sought to discover whether
there were other government employees with whom Presi-
dent Clinton had conducted sexual relationships or from
whom he had solicited sexual favors. In December 1997,
Jones’s attorneys subpoenaed Monica Lewinsky, the fee peti-
tioner here, directing her to appear the next month to testify
and to produce certain items, including gifts from President
Clinton. As the investigation ultimately revealed, Lewinsky,
an intern and later employee in the White House, had been
having a sexual relationship with President Clinton since
about 1995. They had agreed, however, that they would deny
the relationship if ever asked about it. In response to the
subpoena, Lewinsky in early January 1998 executed an affida-
vit falsely denying any sexual relationship with the President.
Shortly thereafter, Lewinsky accepted a job in the private
sector which she was able to obtain with the assistance of a
friend to the President, Washington attorney Vernon Jordan.
See In re Madison Guar. Sav. and Loan (Jordan Fee Appli-
cation), 344 F.3d 1250, 1252 (D.C. Cir., Spec. Div., 2003) (per
curiam).
   Attorneys for Jones also subpoenaed Linda Tripp, a friend
of Lewinsky’s. On January 12, 1998, Tripp contacted the
Office of Independent Counsel (OIC) and advised that office
that Lewinsky had told her that she was preparing to file a
false affidavit, had and stated her intent to lie if deposed, and
had urged Tripp to lie in her own deposition. Unbeknownst
to Lewinsky, Tripp had taped conversations between herself
and Lewinsky which corroborated the information she pre-
sented to the IC. On January 13, 1998, the OIC consensually
                               3

monitored a conversation between Tripp and Lewinsky dur-
ing which Lewinsky offered Tripp a one-half interest in a
condominium if Tripp would join her in perjury in the Jones
case. The OIC presented this information to the Attorney
General.
   On January 16, 1998, the Attorney General notified this
court that she had commenced a preliminary investigation
into whether Lewinsky or others had committed violations of
federal criminal law. As a result of that preliminary investi-
gation, she requested an expansion of the jurisdiction of then
Independent Counsel Kenneth W. Starr to investigate further
and determine whether prosecution was warranted. Refer-
ring to the consensually monitored conversation between
Tripp and Lewinsky of January 13, 1998, the Attorney Gener-
al specifically stated to the court ‘‘I have also determined that
the taped conversation establishes that further investigation
of this matter is warranted.’’
   On January 17, 1998, Clinton was deposed in the Jones
case. United States District Judge Susan Webber Wright of
the District of Arkansas had traveled from Little Rock to
Washington, D.C. to preside over the deposition. Despite the
Court’s orders requiring discovery regarding state or federal
employees with whom he had conducted or from whom he had
solicited sexual relations, President Clinton during the deposi-
tion ‘‘by clear and convincing evidence TTT responded to
plaintiff’s questions by giving false, misleading and evasive
answers that were designed to obstruct the judicial process.’’
Jones v. Clinton, 36 F. Supp. 2d 1118, 1127 (E.D. Ark. 1999).
   In the meantime, on January 16, 1998, the OIC had con-
fronted Lewinsky with evidence of her crimes and attempted
to obtain her cooperation in exchange for immunity. Repre-
sented, at that time, by attorney William Ginsburg, whom her
father had retained in California, Lewinsky rejected the
immunity offer.
   The investigation continued. Among other evidence, the
IC obtained a box of gifts given by Clinton to Lewinsky
during the course of their sexual relationship. After receiv-
ing the subpoena, Lewinsky had turned the gifts over to
Betty Curry, Clinton’s personal secretary, who had secreted
the gifts in further obstruction of the Jones litigation.
                               4

   Although Lewinsky had rejected the proffered immunity on
January 16, 1998, Lewinsky’s attorneys, William Ginsburg
and Nathaniel Spates, first attempted to negotiate an immu-
nity agreement then spent months attempting to enforce in
court an immunity agreement that they claimed had been
struck. The District Court for the District of Columbia, then-
Chief Judge Norma Holloway Johnson presiding, rejected
that claim. See In re Sealed Case, 144 F.3d 74 (D.C. Cir.
1998) (per curiam) (dismissing appeal on jurisdictional
grounds). Shortly thereafter, Lewinsky dismissed attorney
Ginsburg, retained Plato Cacheris of Washington, D.C. as her
lead counsel and also added attorney Jacob Stein. Within
two months Lewinsky’s new attorneys were able to negotiate
full transactional immunity for Lewinsky in exchange for her
agreement to cooperate with the investigation. They entered
into an agreement on July 28, 1998. Lewinsky prays fees for
legal services rendered both before and after the entry of the
immunity agreement.
   As a result of the evidence of perjury, subornation of
perjury, and obstruction of justice, the House of Representa-
tives voted to impeach President Clinton on December 19,
1998. On February 12, 1999, following trial on two articles of
impeachment, the Senate voted on whether to remove Clinton
from office. Although half of the Senators voted for
removal, the vote fell short of the two-thirds’ concurrence
necessary for conviction of President Clinton.
   The IC concluded that the basic allegations against Presi-
dent Clinton were substantiated and that sufficient evidence
existed to prosecute him. Final Report of Independent
Counsel at 19–20, 23, 28–29, 32–34, 41–43. However, rather
than seeking an indictment of the President, the IC entered
into an agreement with Clinton whereunder the departing
President admitted his responsibility, accepted professional
discipline from the Arkansas Bar, and agreed not to apply for
any counsel fees in relation to this investigation. Under an
agreement with the Arkansas Bar, Clinton agreed that he
‘‘would accept a five year suspension, pay[ ] a $25,000 fine (as
legal fees for the [Arkansas Committee on Professional Con-
duct’s] outside counsel) and formally acknowledg[e] a viola-
                                 5

tion of one of the Arkansas Rules of Professional Conduct.’’
Letter from David E. Kendall, private counsel to President
Clinton, to Robert W. Ray, Independent Counsel (Jan. 19,
2001) (quoted in Final Report of Independent Counsel at 19).
  Pursuant to the agreements with the IC and the Arkansas
Bar, Clinton admitted:
       A. That he knowingly gave evasive and misleading an-
       swers in violation of Judge Wright’s discovery orders,
       concerning his relationship with Monica Lewinsky, in an
       attempt to conceal from plaintiff Jones’s lawyers the true
       facts about his improper relationship, which had ended
       almost a year earlier.
       B. That by knowingly giving evasive and misleading
       answers, in violation of Judge Wright’s discovery order,
       he engaged in conduct that is prejudicial to the adminis-
       tration of justice in that his discovery responses inter-
       fered with the conduct of the Jones case by causing the
       court and counsel for the parties to expend unnecessary
       time, effort, and resources, setting a poor example for
       other litigants, and causing the court to issue a thirty-two
       page Order civilly sanctioning Mr. Clinton.
Based upon Clinton’s admissions, the Supreme Court of Ar-
kansas ruled that he had committed professional misconduct
and ‘‘engag[ed] in conduct that was prejudicial to the adminis-
tration of justice.’’ Agreed Order of Discipline at 3–4, Neal v.
Clinton, No. Civ. 2000–5677, 2001 WL 34355768 (Cir. Ct. of
Pulaski Co., Ark. Jan. 19, 2001).
  Lewinsky now petitions the court for attorneys’ fees in the
amount of $1,165,390.97 that she states she incurred during
the IC’s investigation of this matter.

                        II. Analysis
  A.     The Requirements of the Act
  Unique in the criminal law structure of the United States,
the Ethics in Government Act provides for reimbursement of
attorneys’ fees expended by subjects in defense against an
                                 6

investigation under       the   Act.   Specifically,   28   U.S.C.
§ 593(f)(1) states:
       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.
   Because the Act ‘‘constitutes a waiver of sovereign immuni-
ty it is to be strictly construed.’’ In re Nofziger, 925 F.2d
428, 438 (D.C. Cir., Spec. Div., 1991) (per curiam). Under the
Act, therefore, we can only order reimbursement for attorney
fees when we determine that: (1) the subject of the IC
investigation, (2) incurred the fees during the investigation,
and (3) would not have incurred them ‘‘but for’’ the require-
ments of the Act. See, e.g., In re Pierce (Kisner Fee Applica-
tion), 178 F.3d 1356, 1358 (D.C. Cir., Spec. Div., 1999) (per
curiam). In addition to these three elements, the fee appli-
cant must also establish that the fees are reasonable. See,
e.g., In re Meese, 907 F.2d 1192, 1201–03 (D.C. Cir., Spec.
Div., 1990) (per curiam). In light of our disposition of the
pending application on the basis of the elements already
listed, we will not herein reach the question of reasonable-
ness.
  B.     The Subject Requirement
   While the whole of Lewinsky’s fees will be disallowed for
failure to meet the ‘‘but for’’ requirement of the Act, we
would not reach that question if she did not qualify under the
subject requirement for at least a portion of those fees. As
we have noted frequently in the past, the Act does not define
‘‘subject,’’ but our precedents establish that for purposes of
the fee reimbursement provision a subject of an IC’s investi-
gation is a person
       whose conduct is within the scope of the independent
       counsel’s investigation and TTT who knew at the time of
                               7

    incurring the fees sought in the petition that his conduct
    was within that scope in such a fashion that the indepen-
    dent counsel might reasonably be expected to point the
    finger of accusation at him.
In re North (Applications of Shields and Gruner), 53 F.3d
1305, 1307 (D.C. Cir., Spec. Div., 1995) (per curiam) (citations
and internal punctuation omitted). Both the IC and the
Attorney General, for whose comments on the Lewinsky
application we are grateful, agree that Lewinsky was a sub-
ject for a part of the time for which she claims fees. That
portion of the time begins with our grant of jurisdiction on
January 16, 1998, and extends through July 28, 1998, the date
on which the OIC granted her transactional immunity.
   Although she claims that she was a subject and entitled to
reimbursement until February 12, 1999, the date on which
President Clinton was acquitted in the impeachment trial, we
disagree. After the grant of transactional immunity, it was
no longer reasonable to expect that the IC might point the
finger of accusation at her. As we have previously stated, ‘‘as
a general proposition TTT an immunized witness will no longer
be a ‘subject.’ ’’ In re North (Dutton Fee Application), 11
F.3d 1075, 1079 (D.C. Cir., Spec. Div., 1993) (per curiam).
  Lewinsky contends that her case falls outside this ‘‘general
proposition.’’ In support of her argument, she relies on our
decision in In re North (Cave Fee Application), 57 F.3d 1117
(D.C. Cir., Spec. Div., 1995) (per curiam), which held that the
fee petitioner therein retained ‘‘subject’’ status even after
being granted use immunity because such immunity did not
protect him from being prosecuted as a result of information
independently derived from other witnesses, id. at 1120.
Lewinsky claims that she too did not lose her subject status
after being granted transactional immunity, arguing that ‘‘she
remained a subject because her immunity was conditional and
she remained under continuous threat of prosecution.’’ In
support of this argument, Lewinsky asserts that regardless of
her immunity, she could still be prosecuted for giving false
testimony or for speaking publicly about the case. She
further claims that the IC threatened to withdraw her immu-
                               8

nity if she did not cooperate with the impeachment proceed-
ings of the House of Representatives. According to Lewin-
sky, her immunity agreement was ‘‘far more demanding,
being conditioned on a set of unusual requirements, and
contained far more dire consequences for Ms. Lewinsky than
the immunity agreement in Cave.’’ She sums up her argu-
ment here by claiming that for her ‘‘there remained a realistic
possibility that she could become a defendant even after the
grant of immunity.’’ We disagree.
   The petitioner in Cave had obtained only a grant of use
immunity pursuant to the Federal Use Immunity Statute, 18
U.S.C. § 6002. Such a grant ‘‘confers immunity only against
the use of testimony compelled under the immunizing order;
‘it does not confer transactional immunity under which
the witness could not be prosecuted at all for the transactions
about which he testifies.’ ’’ Id. at 1120 (quoting Dutton, 11
F.3d at 1078–79). The OIC in this case granted Lewinsky
transactional immunity which prevented the OIC from prose-
cuting her so long as she abided by the terms of her immuni-
ty agreement. Therefore, as of the time she signed the
agreement, her status was that of witness, not potential
defendant. In Dutton, we held that even the grant of use
immunity is generally sufficient to remove the reasonable
likelihood of prosecution. On the special facts of the Cave
application we held that a reasonable possibility of prosecu-
tion remained even in the face of the use immunity. In the
case of transactional immunity it is highly unlikely, if not
impossible, that the recipient, such as Lewinsky, would ever
be prosecuted absent some act totally within her own control
in breach of the immunity agreement.
   Therefore, only the earlier portion of Lewinsky’s fees are
considered for reimbursement. However, for reasons set
forth infra, even those fees do not survive analysis under the
‘‘but for’’ test.
  C.   The ‘‘But For’’ Test.
  As stated, we can award only ‘‘those reasonable attorneys’
fees incurred by [a subject of the investigation] during that
investigation which would not have been incurred but for the
                                9

requirements of’’ the Act. 28 U.S.C. § 593(f)(1). Lewinsky
argues that in cases such as In re Donovan, 877 F.2d 982
(D.C. Cir. 1989) (per curiam), and Dutton, supra, we have
awarded fees where we have found that a professional or
politically appointed prosecutor would not have pursued alle-
gations similar to those investigated by an IC, and that her
case falls within that category. She asserts that perjury
allegations such as those against her would not have been
pursued by the Department of Justice had they not been
‘‘part of a broader inquiry of the President of the United
States’’ and at best ‘‘would have generated a cursory or
summary nonpublic investigation by the Department of Jus-
tice.’’ In other words, she asserts that her claim for fees
meets the ‘‘but for’’ test because there would have been no
investigation of her conduct had it not involved the President.
  The IC in her evaluation of Lewinsky’s fee petition first
takes issue with Lewinsky’s claim that the DOJ does not
investigate perjury and obstruction of justice, stating that in
fact ‘‘the Department routinely prosecutes perjury and ob-
struction cases and is willing to do so for perjury in civil cases
and even when those cases settle.’’ But the IC argues that in
any event it is of no consequence in the ‘‘but for’’ discourse
how rare a certain type of prosecution is ‘‘if it is shown, as it
has been here, that that type of offense would be and has
been prosecuted by the Department of Justice if and when it
occurred.’’
   The IC further argues that Lewinsky’s claim that the
investigation of her was overly thorough and intrusive does
not satisfy her burden of showing that the requirements of
the Act caused her to incur attorneys’ fees. Lewinsky’s
reliance on In re Nofziger is misplaced, according to the IC,
because the court in that case concluded that the fee reim-
bursement provision of the Act was intended for instances in
which covered officials were investigated ‘‘for criminal of-
fenses for which ordinary citizens would not have been inves-
tigated or prosecuted,’’ 925 F.2d at 444, whereas here the
criminal offense investigated was perjury for which ordinary
citizens are routinely investigated and prosecuted.
                               10

   Additionally, the IC argues that Lewinsky’s comparison of
her situation to that of an ‘‘ordinary citizen’’ is not appropri-
ate. The IC cites In re Babbitt (Babbitt Fee Application),
290 F.3d 386, 391 (D.C. Cir., Spec. Div., 2002) (per curiam), in
which the court stated that Babbitt, the Secretary of the
Interior, could not compare the investigation of himself to an
investigation of an ordinary citizen; rather, the comparison
would have to be to an investigation of a cabinet officer. The
IC notes that the allegations here concerned plans by the
President of the United States to commit perjury as well as
his involvement in a scheme to provide Lewinsky with a job in
exchange for false testimony, and that ‘‘[i]t is in the context of
the broader allegations of obstruction at the highest levels of
government that Lewinsky’s situation must be analyzed.’’
   Finally, the IC notes that at the very beginning of the
investigation of her the IC offered Lewinsky transactional
immunity in exchange for her cooperation. She refused and
in the next six months accumulated more than $800,000 in
attorneys’ fees, after which she successfully negotiated an
immunity agreement with the IC. The IC argues that in this
regard Lewinsky ‘‘cannot show that any requirement of the
Act forced these choices upon her.’’
   The DOJ in its evaluation also contradicts Lewinsky’s
argument here by citing numerous cases that it asserts
demonstrate that the DOJ frequently investigates and prose-
cutes the crimes of perjury and obstruction of justice in civil
cases. And the DOJ points out the seriousness of the perjury
allegations involving both President Clinton and Lewinsky.
Relying on In re Nofziger, 925 F.2d at 443–44, the DOJ states
that Lewinsky invokes the wrong legal standard for the ‘‘but
for’’ test: it is not, as she claims, whether there would have
been no investigation of her if her misconduct did not involve
the President, but rather whether there would have been a
similar investigation ‘‘if there had been no Independent Coun-
sel statute but all other circumstances were the same.’’ (Em-
phasis by the DOJ.) After reiterating the allegations of
perjury and subornation of perjury that were leveled against
Lewinsky and President Clinton, the DOJ asserts that in the
absence of the Act it would have conducted a similar investi-
                               11

gation and therefore Lewinsky has not satisfied the ‘‘but for’’
requirement because she ‘‘has failed to meet her burden of
demonstrating that there would have been no investigation of
this matter in the absence of the Independent Counsel Act.’’
   We agree with the OIC and the DOJ. Lewinsky asserts
that her claim for fees meets the ‘‘but for’’ test because there
would have been no investigation of her allegedly criminal
conduct had it not involved the President. In making that
argument, she applies the wrong legal standard. The lan-
guage she draws from our prior decisions concerning the
possibility of investigation of ‘‘private citizens’’ describe spe-
cific applications of the statutory requirement. That statuto-
ry requirement is that the legal fees ‘‘would not have been
incurred by a similarly-situated subject investigated in the
absence of the Act.’’ In re Pierce (Kisner Fee Application),
178 F.3d at 1359. In other words, her burden is to prove that
she would not have incurred these fees if there had been no
IC statute but all other circumstances were the same. See In
re Nofziger, 925 F.2d at 443–44.
   Here, the underlying allegations were that Lewinsky lied
under oath in a pending lawsuit against the President of the
United States; that she was planning to lie again and had
encouraged others to lie; that she had spoken to the Presi-
dent and an associate of the President about the matter; and,
at least implicitly, that the President and his associate may
themselves have been involved in the wrongdoing. See, e.g.,
Final Report at 14–15; Referral Order of January 16, 1998;
Application to Expand the Jurisdiction of the IC 1–2 (January
16, 1998). As noted, the Independent Counsel ultimately
concluded that the basic allegations were substantiated and
that sufficient evidence existed to prosecute the President.
Final Report at 19–20, 23, 28–29, 32–34, 41–43. Lewinsky has
failed to meet her burden of demonstrating that there would
have been no comparable investigation of this matter in the
absence of the Act.
  At most, Lewinsky has established that the investigation
would not have occurred had her fellow subject been someone
other than the President of the United States, not that the
                             12

investigation would have never begun or been aborted early
in the absence of the Act. We doubt whether she has
established even that; but even if she had, it would not be
sufficient. As we stated in Kisner, ‘‘[her] difficulties were
occasioned by [her] being suspected of having done mischief
in high company, not by the identity of the authority investi-
gating the allegation of mischief.’’ 178 F.3d at 1361.
  We have considered and rejected this same claim not only
on parallel facts, as in Kisner, and numerous other cases, but
on the very investigation before us in this petition. In
Jordan Fee Application, Vernon Jordan, an associate of
former President Clinton, made the same argument that
Lewinsky now presents. As we stated in Jordan, when the
Attorney General made the referral, and when the OIC
conducted the investigation generating the fees, each ‘‘had
credible, indeed compelling, evidence that Monica Lewinsky
had committed perjury and was attempting to suborn perjury
of others. This was accompanied by other evidence that the
President of the United States had committed perjury and
had suborned or attempted to suborn others.’’ 344 F.3d at
1255. Like the petitioner in Jordan, Lewinsky ‘‘offers no
reason why any prosecutor in the absence of the Act would
not have investigated these serious allegations of criminal
wrongdoing as thoroughly as did the Independent Counsel.’’
Id. As in Jordan and cases cited therein,
    we cannot hold that the Attorney General and other
    investigative authorities would not have pursued allega-
    tions of corruption as deep and widespread as those
    revealed by the Independent Counsel’s investigation had
    there been no such Act.
Id. (quoting In re Pierce (Olivas Fee Application), 178 F.3d
1350, 1355 (D.C. Cir., Spec. Div., 1999) (per curiam)).
  In short, the question is: would evidence of criminal wrong-
doing by an incumbent President and accomplices of that
President have escaped an investigation of similar scope in
the absence of the Ethics in Government Act? History
                              13

teaches us that the answer is no. The most recent parallel
investigation of an incumbent sitting president before the
enactment of the Ethics in Government Act arose from the
Watergate scandal during the administration of President
Richard Nixon. The thoroughness of that investigation is
legend. We have no reason to believe that the Department of
Justice, the Congress, and other civil authorities would have
been any less diligent in the Clinton administration of the
1990’s than in the Nixon administration of the 1970’s. As in
Jordan, Lewinsky’s petition flounders on the ‘‘but for’’ re-
quirement and we can award no counsel fees.
  We note in passing that in Jordan, Clinton, and other fee
application decisions, we have awarded fees for time spent by
counsel reviewing the Independent Counsel’s Final Report.
See Jordan at 1255; In re Madison Guar. Sav. & Loan
(Clinton Fee Application), 334 F.3d 1119, 1128 (D.C. Cir.,
Spec. Div., 2003) (per curiam). Lewinsky has made no claim
for any such fees and we therefore make no similar award.

                          Conclusion
  For the reasons set forth above, the petition is denied.
