In RE: BRUCE EDWARD BABBITT (Babbitt Fee Application)

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

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