An axiom for defense lawyers goes something like: "If you can argue the law, argue the law; if you can't argue the law, argue the facts; if you can do neither, try to change the law." It is this last, usually desperate tack that has been taken by the journalists' defense, which is urging the creation of a new absolute federal privilege against journalists being forced to reveal their sources. An appeals court has already unanimously nixed this idea. A much simpler, more obvious argument is available to the defense -- that the Intelligence Identities Protection Act that was supposedly violated in this case wasn't. The act establishes an extremely high standard for a criminal violation -- the agent in question has to be undercover (Plame wasn't), and the leaker has to know she was undercover and be intentionally trying to undermine U.S. intelligence (very, very unlikely).
But the Miller/Cooper defense hasn't made this argument, probably because it would be so embarrassing. You mean to say, after months of chest-beating, the Bush administration's crime of the century wasn't even a crime? It was just a Washington flap played for all it was worth by the same news organizations now about to watch their employees go to prison over it? That's the truth that the media will go to any length to avoid. If Miller and Cooper go to jail -- I hope they don't -- they will have plenty of time to think about the hypocrisy and ridiculousness of their caterwauling colleagues.