Billmon:

Yet, looking at the charges actually brought in Scooter’s indictment, we see this is not, in fact, true. Yes, Cooper and Miller helped pin down the fact that Libby lied on the stand when he said he had told them he heard about Plame’s CIA affliation from other reporters and didn’t know if those rumors were true or false. But Fitzgerald already had copious evidence of Scooter’s perjury — from Tim Russert, from witnesses inside the White House, at State and at the CIA, from documents faxed to Libby by the CIA, and from Libby’s own notes. Fitzgerald didn’t need Cooper’s testimony to prove it, and once he had Cooper’s he certainly didn’t need Miller’s.

What Fitzgerald did need them both for — Miller in particular — was to prove that Scooter illegally leaked classified information to those not authorized to know it. Other government officials couldn’t give him that, nor could Russert — Meathead says he and Scooter never talked about Plame at all.

Matt Cooper’s testimony might have been sufficient, but according to Cooper (and the indictment) Libby simply told him “without elaboration or qualification” that he had heard Plame was involved in Wilson’s trip to Africa. That was a leak, but a much more ambiguous one than the conversations detailed in Judy Miller’s notes. Those disclosures — combined with the fact that Scooter knew, or should have known, that Plame was a covert agent — would seem to be more than enough to nail him under the Espionage Act, and probably the IIPA as well.

My point is that if Fitzgerald was gunning for Scooter on perjury/obstruction charges, it wasn’t absolutely essential to fight Time magazine, the New York Times and the other grand poo-bahs of the Fourth Estate in order to do it. If, on the other hand, he was determined to prove the underlying allegation of an illegal leak, he really didn’t have any other choice. He fought the battle, but then declined to reap the benefits of his victory? Why?

I know I’m starting to sound monomaniacal — or just maniacal — on this subject, but the more I think about it the more important it seems. By not charging Libby for crimes that are clearly documented in the indictment, Fitzgerald has handed a fairly significant propaganda victory to the Cheney administration and its partisan defenders. Already, the usual GOP hacks are braying about the lack of a “real” crime, much less a White House conspiracy to retaliate against Joe Wilson. And yet the indictment itself is full of evidence of just such a conspiracy — to the point where you start to wonder which senior administration officials were not actively involved in it.

I realize it isn’t Patrick Fitzgerald’s job to knock down GOP propaganda points, but his excuse for why he didn’t hit Scooter with a leak charge — “if you find a violation, it doesn’t really, in the end, matter what statute you use” — doesn’t strike me as being very consistent with his previous zeal in the pursuit of Matt Cooper and Judy Miller.

It may be, as Jane Hamsher argues, that Fitzgerald was speaking in the present tense, not the past, when he complained that Libby’s perjury had make it impossible to get the evidence he needed to charge Scooter for the leak itself. In other words, the few loose ends he’s still tying up may include squeezing Libby until he coughs up the whole hairball of the conspiracy, including the vice president’s role in it. Right now, though, it doesn’t look like justice has been well served, or even fully baked.