From The Department of Not Moving On

Another one you might have missed, that I noticed I never got around to blogging: in August, the D.C. Circuit rejected most of Bill and Hillary Clinton’s request for reimbursement for their attorneys’ fees incurred in the course of the Whitewater and related investigations (although President Clinton did not seek reimbursement for the Lewinsky investigation, as per his agreement with Robert Ray resolving the charges arising from that case). The Clintons argued that they were statutorily entitled to reimbursement on the theory that the fees “would not have been incurred but for the requirements of” the Independent Counsel statute (the Ethics in Goverment Act) — i.e., that “1) if not for the Act, the case could have been disposed of at an early stage of the investigation; and 2) they were investigated under the Act where private citizens would not have been investigated.”
These arguments, of course, echoed the defense of the Clintons from the beginning: nothing to see here, old news, we were cleared by Arkansas regulators, nobody but Ken Starr would have investigated this stuff, yada yada yada.
The key passage:

Two years before the appointment of Independent Counsel Starr, a criminal referral was submitted by the Resolution Trust Corporation to the U.S. Attorney for the Eastern District of Arkansas alleging illegal activities involving Madison Guaranty Savings and Loan Association, and naming the McDougals as suspects and the Clintons as witnesses. When in early 1994 the Attorney General appointed Robert Fiske as regulatory independent counsel, she gave him broad authority to investigate the Clintons’ relationship with, inter alia, Madison Guaranty and the Whitewater Development Corporation. And when we appointed Kenneth Starr as statutory independent counsel in the summer of 1994, at the request of the Attorney General we granted him investigatory authority almost identical to Fiske’s. The IC’s final report on the Whitewater matter states that “[t]he breadth of the criminality already uncovered by the Fiske investigation in part contributed to the length of time necessary for the statutory Independent Counsel to complete his work.” See Robert W. Ray, Final Report of the Independent Counsel, In Re: Madison Guaranty Savings & Loan Association, Vol. I, 21 (2001). Taking all of the above into consideration, we harbor no doubt that in the absence of the independent counsel statute the allegations surrounding the Clintons, Madison Guaranty, and Whitewater would have been similarly investigated and prosecuted by the Department of Justice.
The Clintons nevertheless argue that the DOJ would have conducted a substantially lesser investigation than that of the IC. The facts would not appear to substantiate this argument. Another independent counsel, albeit regulatory, had been appointed to investigate the matter, and in the short period he was in office he conducted an extensive investigation spending several hundred thousand dollars.