We have previously established that "[a]ll requests for attorneys' fees under the Act must satisfy the 'but for' requirement." . . . And we have repeatedly held 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 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. . .If 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 Department of Justice or other executive authorities rather than the Independent Counsel'--then Congress did not contemplate the award of counsel fees. . .
Since a Special Counsel of the Department of Justice was already investigating the Whitewater matter at Clinton's request prior to the Independent Counsel Act taking effect, in my opinion, he is ineligible for reimbursement of his legal fees.