ATTORNEYS' FEES REIMBURSEMENT UNDER THE INDEPENDENT COUNSEL LAW
CRS Report for Congress
Attorneys’ Fees Reimbursement Under the
Independent Counsel Law
March 9, 2000
American Law Division
Congressional Research Service ˜ The Library of Congress
Although the Independent Counsel law expired on June 30, 1999, the provisions of the law
remain in effect for those investigations which were still ongoing at the time of the law’s
expiration. Under the provisions of law which had governed the selection, duties, and
responsibilities of an “independent counsel,” an individual who was a “subject” of an
independent counsel investigation, and who was not indicted, could seek from the Government
the reimbursement of “reasonable” attorneys’ fees incurred by the individual “during” that
investigation which he or she would not have incurred “but for” the provisions of the
independent counsel law.
Attorney Fees Reimbursement Under the Independent
Although the Independent Counsel law expired on June 30, 1999, the provisions
of the law remain in effect for those investigations which were still ongoing at the time
of the law’s expiration. Under the provisions of the law which had governed the
selection, duties, and responsibilities of an “independent counsel,” an individual who
was a “subject” of an independent counsel investigation, and who was not indicted,
could seek from the Government the reimbursement of “reasonable” attorneys’ fees
incurred by the individual “during” that investigation which he or she would not have
incurred “but for” the provisions of the independent counsel law. Under such
provision it may be possible, for example, for President Clinton, if he remains
unindicted, to seek reimbursement from the court for reasonable attorneys’ fees,
incurred because of and during the independent counsel’s investigation, that he would
not have incurred “but for” the provisions of the independent counsel law. It may be
noted that both President Reagan and President Bush, who were found to be
“subjects” of the independent counsel investigation in the so-called “Iran-Contra”
matter, sought and received reimbursement from the Government for some of their
private attorneys’ fees in that matter.
Attorneys’ Fees Reimbursement Under the
Independent Counsel Law
While the provisions of the independent counsel law expired on June 30, 1999
(such that no independent counsels could be appointed for new matters by the special
three-judge panel upon the request of the Attorney General), the provisions of the
entire law continued to remain in effect for those “pending matters before an
independent counsel.”1 One of those provisions of the independent counsel law
allows for the reimbursement from the Government of “reasonable” attorneys’ fees
sought by an individual who was a “subject” of an independent counsel investigation
if that individual is not indicted, and if such expenses “would not have been incurred
but for the requirements of this chapter.”2 While the independent counsel statute does
not expressly state a precise time when the statute should be deemed to be no longer
in force with respect to any particular investigation that was on-going when the
statute had lapsed, it is assumed, particularly since the independent counsel has
express statutory duties with respect to the evaluation of attorneys’ fees requests, that
this portion of the law would be continued (that is, is one of those “pending matters
before an independent counsel”) until all such matters (including the final report, and
appeals of convictions and other judicial decisions arising from the investigation) have
been finally resolved.
The text of the attorneys’ fees provision states as follows:
(f) Attorneys' Fees. -
(1) Award of fees. - 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. The
division of the court shall notify the independent counsel who conducted the
investigation and Attorney General of any request for attorneys' fees under this
1 28 U.S.C. § 599 provides:
This chapter shall cease to be effective five years after the date of enactment
of the Independent Counsel Reauthorization Act of 1994, except that this chapter
shall continue in effect with respect to then pending matters before an independent
counsel that in the judgment of such counsel require such continuation until that
independent counsel determines such matters have been completed.
2 28 U.S.C. § 593(f)(1).
(2) Evaluation of fees. - The division of the court shall direct such
independent counsel and the Attorney General to file a written evaluation of any
request for attorneys' fees under this subsection, addressing -
(A) the sufficiency of the documentation;
(B) the need or justification for the underlying item;
(C) whether the underlying item would have been incurred but for
the requirements of this chapter; and
(D) the reasonableness of the amount of money requested.
The statutory provisions setting out the mechanisms for the appointment of an
independent counsel (originally called a “special prosecutor”) were enacted by3
Congress as part of the Ethics in Government Act of 1978. There were, in the
original 1978 legislation, no provisions for the reimbursement of attorneys’ fees
incurred by subjects of independent counsel/special prosecutor investigations. In
1982, however, the permission to seek attorneys’ fees was added in the
reauthorization of the independent counsel provisions, to reduce what were
considered additional and unfair financial burdens upon a public official subject to the4
independent counsel law. The amended provisions of the Ethics in Government Act,
concerning reimbursement for attorneys’ fees, applied when the official was not
indicted and when such official had incurred attorneys’ fees that would not normally
have been incurred by private citizens (or by other public officials not subject to the
independent counsel provisions) in investigations of allegations of a similar nature.
An explanation of the new provision was provided in the Senate Report on the Ethics
in Government Act Reauthorization of 1982:
An officer who is subjected to a special prosecutor investigation incurs
expensive burdens both financially and professionally. When a special prosecutor
is appointed, the subject of the investigation often bears staggering legal expenses
and potentially devastating publicity, even if the special prosecutor ultimately
decides to forego prosecution. For example, Hamilton Jordan incurred legal fees
“exceeding six figures” despite the fact that the special prosecutor concluded that
no indictment was warranted.
In order to reduce this burden, section 5 of the bill gives the court discretion
to award attorneys’ fees to the subject of a special prosecutor investigation if no
indictment is brought and if the court determines that the fees would not have been
incurred by a private citizen in an investigation of the same allegations. The court
should award only that portion of the fees, if any, which it determines would not
have been incurred in the absence of the special prosecutor law. The bill does not
authorize reimbursement for expenses incurred during the preliminary
investigation, as these expenses would most probably be incurred by ordinary5
During hearings held the previous year, in May of 1981, by the Subcommittee
on Oversight of Government Management of the Senate Committee on Governmental
3 P.L. 95-521, title VI, October 26, 1978.
4 Ethics in Government Act Amendments of 1982, P.L. 97-409, January 3, 1983.
5 S.Rept. 97-496, 97th Cong., 2d Sess., 18 (1982).
Affairs, the recommendation concerning the permission to seek reimbursement of
attorneys’ fees was made. The report of the Subcommittee explained, in a similar
manner as the full Committee report, that the intent of the provision was to reimburse
an official of the Government who had incurred attorneys’ fees that, because of the
application to the official of the independent counsel/special prosecutor law, a private
citizen would not have incurred given the similar circumstances:
The Subcommittee recommends reimbursement of attorneys’ fees to the
subjects of a special prosecutor investigation. This recommendation received
near-unanimous support at the hearing.
As the purpose of this amendment is to compensate for the extraordinary
costs caused exclusively by this statute, the Subcommittee finds that
reimbursement should not cover costs which would have been incurred in a similar
investigation of a private citizen.
To accomplish this goal, the Subcommittee recommends that the subject of
a special prosecutor investigation be authorized to apply to the court for attorneys
fees. In making its determination, the court should consider to what extent the fees
incurred were caused by the special provisions, i.e., whether such fees would have
been incurred by a private citizen in a private investigation of the same allegations.
The court should award only those fees, if any, which it determined would not have6
been incurred in the absence of the special prosecutor laws.
In addition to adding the attorneys’ fees provision in 1982, Congress amended
the special prosecutor/independent counsel statute to address the concern that the law
created "unfairness by applying a higher standard of criminal law" for those under the
independent counsel provisions than for the general public, and that the “legitimate
discretion and prosecutive authority" of the Attorney General and the Department of
Justice were being undermined.7 The 1982 amendments thus adjusted the so-called
“triggering” mechanism of the special prosecutor/independent counsel provisions to
allow for more discretion on the part of the Attorney General to not ask for an
independent counsel. In the first instance, the standard for further investigation, and
thus the standard for seeking the appointment of an independent counsel, was
changed from requiring the Attorney General to seek the appointment of an
independent counsel in the face of allegations unless the allegations were “so
unsubstantiated” that no further investigation was warranted,8 to requiring the
Attorney General to find “reasonable grounds to believe” that further investigation is
warranted.9 Secondly, in deciding whether to seek an independent counsel, the
Attorney General was expressly instructed to follow written or other established
policies of the Department of Justice as to the enforcement and potential prosecution
6 Subcommittee on Oversight of Government Management, Senate Governmental Affairs
Committee, 97th Cong., 1st Sess., Special Prosecutor Provisions of the Ethics in Government
Act of 1978, 27-28 (Committee Print 1981).
7 S.Rept. 97-496, supra at 3.
8 28 U.S.C. § 592(b)(1), 197? Code edition.
9 28 U.S.C. § 592(c)(1) (1982), see current standard at 28 U.S.C. §§ 592(c)(1)(A),
593(c)(2)(B) and (C) (1994). Note discussion in In re Meese, 907 F.2d 1192, 1196-1197
of a particular offense.10 That is, one of the factors for the Attorney General to
consider in determining whether the matter warrants further investigation is the
consideration of Justice Department policy concerning enforcement of the particular
statute and prosecution of the conduct in question. This consideration was added to
the law in 1982 to deal expressly with the triggering of the "special prosecutor"
provisions during the Carter administration for allegations about certain presidential
aides and social cocaine use which, even if true, would not normally have been
prosecuted by the United States Attorney’s office exercising its prosecutorial
discretion within the district in which the allegations arose.11 The Senate report on
the matter explained:
In determining whether "reasonable grounds" exist, the bill directs the Attorney
General to comply with the written or other established policies of the Department
of Justice with respect to the enforcement of criminal laws. The Attorney General
must justify his decision that a special prosecutor should not be appointed upon
a showing to the court that the Department of Justice does not, as a matter of
established practice, prosecute the alleged violation of federal criminal law.
Alternatively, he may state to the court that it is the practice of U.S. Attorneys for
the district in which the violation was alleged to have occurred not to prosecute
Since, in theory, an independent counsel under the amended statute would not
be appointed to investigate or prosecute a matter regarding a public official, that
would not also be treated in a similar manner with respect to a private citizen, the
drafters of the provision regarding attorneys’ fees believed that on only “rare
occasions” should the subject of an independent counsel investigation be able to
show, under the “but for” standard, that attorneys’ fees should be reimbursed by the
Government. The provision was placed in the law, however, as a “safeguard” in those
rare instances when an independent counsel investigation did occur even when a
similar investigation of a private citizen, in similar circumstances, would not have
gone forward. As explained in the Senate report in 1982:
The changes S. 2059 makes in the standards which trigger a preliminary
investigation and an appointment of a special prosecutor are designed to ensure
that covered officials will not be subjected to a more rigorous application of the
criminal law than is applied to other citizens. Thus, the Committee believes that
reimbursement of attorneys’ fees would be warranted, if at all, in only rare
instances. This amendment is included, however, as a safeguard to compensate
officials in the event that they do incur extraordinary expenses during a special
prosecutor investigation which eventually absolves them of any wrongdoing.
Reimbursement may be warranted, for example, in instances where the special
prosecutor duplicates actions which have been taken by the Attorney General
during the preliminary investigation. The Committee stresses, however, that the
10 28 U.S.C. § 592(c).
11 S.Rept. 97-496, supra at 3, 14-15.
12 S.Rept. 97-496, supra at 15.
court should award attorneys’ fees sparingly, and that reimbursement should not13
become a routine event.
When the independent counsel provisions of law were again reauthorized in
1987, there were concerns expressed that the allowance for attorneys’ fees was
becoming too routine, and overly costly. The Senate had proposed capping the fees
payable to private attorneys to an hourly rate comparable to what Government
attorneys received.14 This provision, however, was not accepted in conference, and
the attorneys’ fees allowance continued in the independent counsel provisions with
a clarification that such fees are limited to “reasonable” fees, and that the Justice
Department is to be notified and provided an opportunity to evaluate for the court any
attorneys’ fees request.15 The conference report again emphasized that Congress had
intended to allow the reimbursement of attorneys’ fees only when officials were
“subjected to harsher standards than ordinary citizens” and thus incurred legal
expenses they would not have incurred “but for” the provisions of the independent
The independent counsel provisions, and the provision for reimbursement of
attorneys’ fees, were reauthorized for the last time in 1994.17 The attorneys’ fees
provisions were again modified slightly at this time by providing for required
notification by the court to the independent counsel (as well as to the Attorney
General) concerning a subject’s request for reimbursement of attorneys’ fees, and by
adding a requirement for the independent counsel and the Attorney General to provide
a written evaluation to the court of such a request.18 Furthermore, the specific criteria
and factors for the independent counsel and the Attorney General to consider and
address in the evaluation of the attorneys’ fees request were set out in the law.19
Congress again, in the legislative history of the revised attorneys’ fees provision,
emphasized that the court had been too generous and routine in awarding attorneys’
fees requests, and reiterated that the attorneys’ fees provision should be construed
“narrowly” since such an award “is warranted, if at all, in only rare instances” and
“should not become a routine event.”20 Although not willing to put such a standard
in the statutory language itself (since, it was stated in the Conference Report, it is not
necessary), the Conference Report noted that attorneys’ fees should not be awarded
in instances of independent counsel investigations of matters where, “were it not for
the existence of the independent counsel statute, the Department of Justice may well
13 Id. at 19.
14 S.Rept. 100-123, 100th Cong., 1st Sess., 21 (1987).
15 P.L. 100-191,
16 H.Rept. 100-452, 100th Cong., 1st Sess. 31 (1987).
17 The statute had "lapsed" due to its five-year sunset provision and the absence of
congressional reauthorization by the end of 1992, and was not reauthorized again until June
of 1994. P.L. 103-270, June 30, 1994.
18 P.L. 103-270, Section 3(n), 108 Stat. 736, amending 28 U.S.C. § 593(f)(1) and (2).
19 See now 28 U.S.C. §593(f)(2)(A) through (D).
20 H.Rept. 103-511, 103d Cong., 2d Sess. 14 (1994).
have investigated these same matters.”21 In conference, Congress was also unwilling
to place a specific “cap” on what would be considered “reasonable” attorneys’ fees
in an independent counsel investigation to be reimbursed, but expressly criticized the
court award of attorneys’ fees in the amount of $370 an hour. The Conference
Report explained that reasonableness should be construed not only in reference to
what high-priced private attorneys could charge wealthy clients in private practice, but
also with respect to what attorneys are paid or reimbursed from tax dollars in other
... Congress did not intend that properly recoverable attorney fees under this
statute be construed to be what the market will bear in the private sector. Rather,
Congress intends that the reasonableness of attorney fee requests under the
independent counsel law be judged, not solely with reference to the rates
commanded by expensive legal counsel, but also with reference to what cost is
reasonable for the taxpayers to bear.
Three statutes provide the special court with the guidance it seeks in
evaluating the reasonableness of attorney fees requested by defense counsel under
the independent counsel statute. First, by law, the independent counsel is
compensated at the per diem rate equal to the annual rate of basic pay for level IV
of the Executive Schedule which is currently ... approximately $55 per hour.
Second, the Equal Access to Justice Act, Public Law 96-481, which allows
Federal courts to award attorney fees to private parties in suits against the United
States, limits the amount of attorney fee recovery to “$75 per hour unless ... a
special factor ... justifies a higher fee.” 28 U.S.C. 2412(d)(2)(A). Third, fees to
private defense counsel who are paid by the United States pursuant to the criminal
Justice Act of 1984, Public Law 88-455, to represent indigent defendants in
Federal criminal cases, are currently limited to “$60 per hour for time expended
in court or before a United States magistrate and $40 per hour for time reasonably
expended out of court, unless the Judicial Conference determines that a higher rate
of not in excess of $75 per hour is justified ....” 18 U.S.C. 3006A(d)(1).
These three statutes identify hourly rates, ranging from $40 to $75 per hour,
which Congress has determined are reasonable and may be fully reimbursed with
taxpayer dollars. Although by design the independent counsel law does not impose
a specific ceiling on the hourly rates payable to defense counsel, hourly rates of
$300 and $400 generally so far exceed other statutorily approved rates that they
should not be fully recoverable under the independent counsel law. While
individuals remain free, of course, to employ any defense counsel they choose, they
should be on notice that the independent counsel law may not authorize payment22
of taxpayer dollars to reimburse fully all of the fees they incur.
There has been a substantial amount of litigation and judicial interpretation of the
provision for reimbursement of attorneys’ fees under the independent counsel law.
The general requirements and elements of the provision were explained by the court
to require that an unindicted individual in an independent counsel investigation show
21 H.Rept. 103-511, supra at 14.
22 H.Rept. 103-511, supra at 14-15.
(1) he is a subject of such investigation; (2) the fees were incurred “during” the
investigation; (3) the fees would not have been incurred “but for” the requirements23
of the Act; and (4) the fees are reasonable.
Subjects of Investigation. Witnesses in an independent counsel investigation are
generally distinguished from “subjects” of that investigation,24 but witnesses may at
some point also become “subjects.” The courts have found, based on the factual
premises of a particular investigation, that when an individual’s conduct comes within
the scope of an investigation such that the individual could “reasonably believe,”25
“reasonably expect[ ],”26 or where there is a “realistic possibility,”27 that he or she
would become a criminal defendant or that an independent counsel might “reasonably
be expected to point the finger of accusation at him,”28 then such person may be
considered a “subject” of the independent counsel investigation at the time of
incurring the relevant attorneys’ fees. While the court may rely, and has relied in
many cases on the formal notification from the prosecutor that one is a “target” or
subject of the investigation, an absence of such notification is not necessarily
dispositive of the issue.29
Fees Incurred During Investigation. Reimbursable fees must have been
incurred “during” an independent counsel’s investigation, and thus could not be
received for legal services rendered prior to the time the independent counsel was30
appointed, nor for those services subsequent to the time that the independent
counsel had filed his final report and the response to that final report had been
submitted on behalf of the subject of the investigation.31 While a subject of an
investigation could recover attorneys’ fees up to the time the independent counsel
notified her that charges would not be sought against her (thus indicating that she was
no longer a “subject” of the investigation), and then for the time during the period in
which comments could be filed by individuals in response to the independent counsel’s
final report, it was found that the subject could not recover attorneys’ fees for
23 In re Mullins (Tamposi Fee Application), 84 F.3d 1439, 1441 (D.C.Cir.1996); In re Pierce
(Olivas Fee Application),102 F.3d 1264,1265 (D.C.Cir.1996); In re North (Cave Fee
Application), 57 F.3d 1117, 1119 (D.C.Cir.1995).
24 In re Olson, 884 F.2d 1415,1427 (D.C. Cir.1989); In re North (Bush Fee Application), 59
F.3d 184, 187 (D.C. Cir.1995)
25 In re North (Regan Fee Application), 72 F.3d 891, 894 (D.C.Cir.1995).
26 In re North (Teicher Fee Application), 48 F.3d 1267, 1268-1269 (D.C.Cir.1995).
27 In re North (Dutton Fee Application), 11 F.3d 1075, 1079 (D.C.Cir.1993); Bush, supra,
28 Dutton, supra , 11 F.3d at1078; In re North (Shultz Fee Application), 8 F.3d 847, 850
(D.C.Cir.1993); Bush, supra, 59 F.3d at 188; In re North (Haskell Fee Application), 74 F.
29 Regan, supra, 72 F.3d at 894.
30 Dutton, supra, 11 F. 3d at 1079; In re Nofziger, 938 F.2d 1397, 1403 (D.C.Cir.1991).
31 In re North (Reagan Fee Application), 94 F.3d 685, 689 (D.C.Cir.1996).
activities during the period between the notice that charges would not be sought and
the beginning of the comment period.32
“But For” Requirement. The most difficult showing in an attorneys’ fees
request may be the requirement that the subject of the investigation requesting
reimbursement demonstrate that he or she would not have incurred those attorneys’
fees “but for” the provisions of the independent counsel law. The court has noted that
the adoption of the reimbursement provision by Congress -
was motivated by a congressional “intent `to correct an unequal application of the
“criminal law,” when high public officials were investigated under the Act in
circumstances where private citizens would not be investigated.’”33
The “but for” requirement may thus necessitate a showing, for example, that the
standards employed by the Attorney General in requesting an independent counsel,
and/or the decisions and the actions of an independent counsel, resulted in the
application of different criteria and standards of procedure, proof or prosecutorial
discretion than those normally applied by federal prosecutors in the Department of
Justice concerning persons not covered by the independent counsel law, such as
private citizens or lower level Government officials investigated for the same offense.
The court has found, concerning the Attorney General’s request for or referral
to an independent counsel, for example, that the “but for” provision was satisfied in
Independent Counsel McKay’s investigation of former Attorney General Edwin
Meese, since the standard in referring the matter to the already existing independent
counsel by the Attorney General did not meet the “reasonable grounds” standard of
the statute, or the “probable cause” standard for furthering a criminal investigation
normally followed in the Department of Justice with respect to criminal investigations
of private citizens, which policy was intended by Congress to be observed and
followed by the Attorney General in deciding whether or not to apply for an34
independent counsel to further a criminal investigation. The court found that even
good public policy reasons, such as “public confidence in the administration of
justice,” or an appearance standard, because of Mr. Meese’s past associations, did not
32 In re Mullins (Tutwiler Fee Application), 87 F.3d 1372, 1376 (D.C.Cir.1996).
33 Bush, supra, 59 F.3d at 188, quoting Dutton, supra, 11 F.3rd at 1080, and In re Nofziger,
34 See 28 U.S.C. § 592(c)(1), requiring Attorney General to follow Department of Justice
guidelines and policy. The court noted: “Joining the `reasonable grounds’ standard of the
1982 Act, with the Departmental policy of `probable cause’ as the standard that must be
satisfied before considering whether to `request or conduct [a] further [criminal]
investigation,’ according to the latest interpretation of probable cause by the Supreme Court,
requires a determination that `reasonable grounds’ exist to believe that there is a `fair
probability ... or substantial chance of criminal activity....’ [citations omitted] The `reasonable
grounds’ ... cannot be based on mere association, casual rumor, speculation or mere
suspicion.” In re Meese, supra, 907 F.2d at 1197.
rise to the level of `reasonable grounds’ to investigate, as there lacked any specificity
of any information of criminal conduct on the part of Mr. Meese.35
In In re Nofziger,36 where the court denied the request for reimbursement of
attorneys’ fees, the court described the types of cases in which the reimbursement had
been granted up until that time:
First, the court has awarded fees in cases in which the subject is prejudiced by the
Department of Justice’s failure to comply with the substantial protective features
of the Act. See, e.g., In re Meese, 907 F.2d 1192 (D.C.Cir. 1990)....
Second, fees have been awarded because independent counsel’s investigation
constituted a substantial duplication of prior investigations. See, e.g., In re Olson
884 F.2d 1415 (D.C.Cir. 1989)(independent counsel’s investigation massively
duplicated House Judiciary Committee and Department of Justice
Third, the court has awarded fees in two cases in which if the requirements of Act,
restricting the Attorney General’s preliminary investigation, did not exist, 28
U.S.C. § 592(a)(2), the case could have been disposed of at an early stage of the
investigation, without seeking appointment of independent counsel. See, e.g., In
re Donovan, 877 F.2d 982 (D.C.Cir.) (Attorney General’s inability to subpoena
the key witness to determine his credibility, upon which the entire allegation rested,
resulted in appointment of independent counsel and subsequent fruitless
investigation) .... 37
Cases subsequent to Nofziger, particularly the fee requests arising from various
subjects of the Iran-Contra investigation, demonstrated that subjects of independent
counsel investigations may also satisfy the “but for” requirement by showing that the
independent counsel was pursuing a theory of criminal law violation in their cases that
would not normally be pursued by the Department of Justice or the United States
Attorneys. In several of the In re North fee application cases the court noted that the
“but for” requirement was met because the independent counsel was pursuing a
prosecutorial theory of “conspiracy to circumvent the Boland Amendments, which
35 In re Meese, supra, 907 F.2d at 1199-1200.
36 925 F.2d 428 (D.C. Cir.1991).
37 In re Nofziger, supra, 925 F.2d at 438-439. The third type of “but for” case was found in
In re Segal, 151 F.3d 1085, 1089 (D.C.Cir.1998), where the Attorney General expressly
noted that although “the Department of Justice would in all likelihood exercise its discretion
to decline to prosecute this case as a criminal matter ... I am nonetheless compelled by the
terms of the Independent Counsel Act to apply for the appointment of an Independent
Counsel.” All three reasons for reimbursement under the “but for” standard outlined in
Nofziger were found in the case of the Clinton passport search regarding Janet Mullins, in In
re Mullins (Mullins Fee Application), 84 F.3d 459, 465 (D.C.Cir.1996), where the imminent
expiration of the independent counsel law led to a truncated preliminary investigation by the
Attorney General, and a duplication of an investigation by the State Department.
executive branch officials would not have considered a violation of criminal law.”38
In applying the “but for” test in this way in some of the fee application cases
concerning the Iran-Contra investigation, however, the court, it has been argued,
seemed to diverge from past formulations of determining whether a federal prosecutor
would have pursued a similar matter with respect to private citizens39 (or to others not
covered by the independent counsel law), and instead specifically looked to determine
if “a politically appointed Attorney General as the representative of the Executive40
would ... [have] subjected such attempts to criminal prosecution.” This seems to be
a different formulation of the “but for” requirement, it may be argued, because it
appears to take into consideration certain “political realities” of Justice Department
prosecutions of high level executive branch officials directed by the Attorney General,
such as the political factors of loyalty to the President and the Administration by a
“politically appointed Attorney General,” rather than merely considering the concept
of the even-handed application of the criminal laws.
Reasonableness of Fees. The court will direct reimbursement only of
“reasonable” attorneys’ fees, which has meant reasonable both in the rates charged
by attorneys and others, such as paralegals, and in the time that one’s attorneys had41
expended on the various legal matters within the case. All requests from a subject
seeking reimbursement must be adequately documented and detailed, and the burden
of proof to establish all of the elements of reasonableness is on the subject seeking
reimbursement.42 The rates that have been deemed reasonable in the past have taken
into consideration whether they “comport with the prevailing community standards”
for attorneys of similar experience and skill dealing with a legal matter of comparable
complexity and importance, and the amount that the lawyers charge other clients in
comparable matters.43 As noted above in the legislative history of the attorneys’ fees
provision, however, Congress in the last reauthorization of the independent counsel
law expressly criticized the award by the court of attorneys’ fees of $300 - $400 an
hour, and stated in the Conference Report that the court should compare the
“reasonableness” of the rates not only to the highest price private counsels in the
community, but also compare the rates to what the Government has agreed to
38 Teicher, supra, 48 F.3d at 1270; Dutton, supra, 11 F.3d at 1080; In re North (Gadd Fee
Application), 12 F.3d 252,256 (D.C.Cir.1994); Regan, supra, 72 F.3d at 895-896; Shultz,
supra, 8 F.3d at 851; Bush, supra, 59 F.3rd at 188.
39 “The purpose of limiting fee awards to fees that would not have been incurred “but for” the
Act is to ensure that “officials ... who are investigated by independent counsels will be subject
only to paying those attorneys’ fees that would normally be paid by private citizens being
investigated for the same offense by” federal executive officials such as the United States
Attorney.” In re Segal, supra, 151 F.3d at 1088, quoting In re Sealed Case, 890 F.2d 451,
40 Dutton, supra, 11 F. 3d at 1080; Reagan, supra, 94 F.3rd at 689-690; Regan, supra, 72
F.3d at 895-896.
41 In re North (Gardner Fee Application), 30 F.3d 143, 146 (D.C.Cir.1994); Tutwiler, supra,
42 Schultz, supra, 8 F.3d at 850; Tutwiler, supra,, 87 F.3d at 1377.
43 Tutwiler, supra, 87 F.3d at 1377; Bush, supra, 59 F.3d at 189; Shultz, supra, 8 F.3d at
reimburse out of taxpayer dollars for other private parties in other statutes allowing
for reimbursement of attorneys’ fees.44 Despite this language in the legislative history,
the court in assessing the “reasonableness” of rates charged by attorneys in
independent counsel investigations, found that the language of the law had not been
changed by Congress in the 1994 reauthorization, thus ignoring the suggestions in the
legislative history, and applying the same formulas and guidelines based on the skill,
experience, and reputation of the private counsels employed by the subject, and the45
comparable fees charged in the community and by those counsels to other clients.
In addition to weighing the reasonableness of the rates charged and the time
spent on matters, the court will look to the reasonableness of a particular activity and
its connection or necessity to the subject’s legal defense against criminal charges. The
court has noted that reimbursement will only be made for attorneys’ fees “rendered
in asserting the merits of the subject’s defense against the criminal charges being
investigated.”46 Certain expenses have thus been found not to be reimbursable as not
reasonably related to one’s legal defense, such as media expenses of the attorneys
representing the President.47 The issue of necessity also arose in the questions
concerning reimbursement for travel by attorneys, where the court has found that the
travel expenses of out-of-town attorneys would not be approved unless the subject48
could show that comparable competent counsel could not have been retained locally;
while other expenses have been disapproved because they were for a “duplication of
effort,”49 for legal maneuvers which the court did not deem reasonable,50 or where
billing times or other expenses claimed were not adequately detailed and51
44 H.Rept. 103-511, supra at 14-15.
45 In re North (Armitage Fee Application), 50 F.3d 42, 44-45 (D.C.Cir.1995).
46 Bush, supra, 59 F.3d at 194; In re Meese, supra, 907 F.2d at 1203.
47 Reagan, supra, 94 F.3d at 690-691; In re Donovan 877 F.2d 982, 994 (D.C.Cir.1989).
48 In re Segal (Segal Fee Application), 145 F.3d 1348, 1353 (D.C.Cir.1998); Bush, supra,
49 Reagan, supra, 94 F.3d at 691; Bush, supra, 59 F.3d at 190.
50 Tutwiler, supra, 87 F.3d at 1377. (Challenge to subpoena for telephone records).
51 Gardner, supra, 30 F.3d at 147-148; Bush, supra, 59 F.3d at 189-190.
Attorneys’ Fees Reimbursed for Presidents Reagan and Bush. The attorneys’
fees and expenses approved by the court for the defense of former President Reagan
totaled $562,111.08, of which $546,267 (out of $754,449.50 sought) was for
attorneys’ fees, and the rest was for expenses.52 The court awarded in the case of
former President Bush, a total award of $272,352.51, of which $260,518.61 (out of
$439,201.50 billed ) was for professional services.53
52 Reagan, supra, 94 F.3d at 692.
53 Bush, supra, 59 F.3d at 195-196.