Notice Fitzgerald didn't say he would have difficulty proving Libby's criminal intent but that he didn't know what Libby's intent was. That's a significant distinction because it's the difference between Libby having committed a crime that is difficult to prove, and not having committed it at all.
Also note that the United States Supreme Court held that in order to be guilty of violating the Espionage Act, the accused must not only have intent or reason to believe the leaked information could be used to injure the United States or benefit a foreign country. He must also have acted in "bad faith."
So, popular legal opinion aside, it seems it would have been quite difficult for Fitzgerald to make a case against Libby under the Espionage Act as well. And this is where the legal becomes relevant to the political.
Democrats have been saying from the outset that Bush evildoers conspired to disclose Plame's "covert" identity to exact revenge on her husband Joe Wilson for undermining their claim that Saddam Hussein had tried to acquire uranium "yellowcake" from Niger.
But no amount of posturing and yelling will make true their false charge that the Bush administration "outed" Valerie Plame to hurt its political enemies, to the detriment of national security. It's not just unprovable; it's false. Democrats are going to have come to come up with a better plan to criminalize the war.
Nevertheless, under no circumstances will I minimize the alleged crimes of obstruction of justice, perjury and false statements, even if the "underlying crimes" were not committed. But I have difficulty understanding what motive Mr. Libby, reputed to be of stellar character, would have had to commit those crimes.
At the end of the day, Democrats are left with the Pyrrhic victory of a Libby indictment on the legal front, but absolutely nothing on the political front. Just a short week ago, they thought they had stumbled into a twofold political bonanza with the Miers withdrawal and the Plame indictment about to drop.
But the indictment -- politically speaking -- has fizzled, and President Bush has just belted a grand slam with his nomination of Judge Samuel Alito. Things are looking up again.