John, just to be clear, while I think the Times story today demonstrates that the case on Scooter Libby is more serious than many people have assumed, I am not saying I believe he will be indicted based on what we now know. If I were a betting man — and I’m not — I would bet against it. I think it comes down to four considerations:

On the agent identity act – the law that got this whole thing rolling – I don’t see the case against Libby as materially better today than it was before. Even if we assume, based on the revelations that administration officials were digging into Wilson’s background, that Libby knew Plame had a covert tie to CIA, it does not appear that he ever told that to Miller – and it is anything but clear that CIA was making adequate efforts to keep that tie a secret.

On the espionage act, a lot depends on whether what Libby did tell Miller – i.e., that Plame’s specific job in CIA was as a member of the Winpac Unit that deals with weapons intelligence, non-proliferation and arms control – was classified. I’m assuming it was not. If I am right about that, it would not be a violation of the espionage act to have told it to Miller. Indeed, Novak’s famous July 14, 2003 column asserts: “The CIA says its counterproliferation officials selected Wilson [for the Niger trip] and asked his wife to contact him.” Thus, it appears that what Libby told Miller is not different in any meaningful way from what the CIA itself told Novak.

On obstruction of justice, the article indicates that Libby communicated (through his lawyer) some of what he had told the grand jury, and put in a letter to Miller that “the public report of every other reporter’s testimony makes clear that they did not discuss Ms. Plame’s name or identity with me.” It is not a crime for witnesses to tell each other what they testified about. It is only obstruction when someone CORRUPTLY tries to influence a potential witness’s testimony. Even, for argument’s sake, taking what Libby did as an effort to influence Miller’s testimony, it would not be exerting corrupt influence unless you could infer, beyond a reasonable doubt, that Libby knew he had told Miller Plame’s name and covert identity and was trying to signal to Miller that she should testify falsely. Since it does not appear that Libby revealed to Miller either Plame’s precise name or her covert tie to the CIA, it’s hard to see how this was an effort to exert corrupt influence.

Finally, as far as perjury and other obstruction go, we simply don’t know. A lot will depend on how forthright Libby was about the efforts some in the administration were obviously making to dig into the background of Wilson (and, derivatively, Plame). It is worth stressing here: there is nothing illegal or inappropriate about conducting research about your opponents – and Wilson was clearly an enemy of the President’s policy. It is important to be able to inform the public about why someone like Wilson might not be credible. But if you do it, and you get asked about it later by investigators, you have to be truthful about what you did. I am assuming (and, candidly, hoping) that Libby and others were truthful.