During his October 28 press conference following the indictment of I. Lewis “Scooter” Libby for perjury, obstruction of justice, and false statements, special counsel Patrick J. Fitzgerald noted that, had witnesses testified “when the subpoenas were issued in August 2004,” indictments would have come “in October 2004 instead of October 2005.”

Fitzgerald's mention of subpoenas issued in August 2004 is a clear reference to New York Times reporter Judith Miller, who was subpoenaed that month but didn't testify until October 2005, after spending 85 days in jail for violating a court order instructing her to testify. In referring to “witnesses,” Fitzgerald also seems to have had Time magazine reporter Matthew Cooper in mind. Cooper was subpoenaed in May 2004 but was held in contempt in August 2004 and refused to testify until July 2005.

Fitzgerald's statement that the Libby indictment would have come in October 2004 had witnesses -- presumably Miller and Cooper -- testified in August 2004 didn't include one detail that would seem to be of great political, even if little legal, importance: An indictment of Libby in October 2004 could have had a determinative impact on the presidential election held just one month later. Moreover, evidence of the involvement of White House senior adviser Karl Rove in outing Plame did not come out until July 2005, after Cooper's last legal avenue for avoiding jail closed and Time released Cooper's notes, which included an email from Cooper to Time Washington bureau chief Michael Duffy naming Rove as Cooper's source on the Plame matter. Rove is widely credited with Bush's re-election, and indeed his entire political career; the disclosure just before the election that he outed a CIA operative would presumably have further alerted voters to serious ethical lapses in an administration that pledged to clean up the White House. It would also have reminded voters of the administration's pledge -- now altered beyond recognition -- to fire anyone involved in the leak.

In effect, whether intentional or not, Miller and Cooper may have played key roles in determining the outcome of the 2004 presidential election by refusing to testify before the grand jury until after the election.

Miller and Cooper both claimed that they could not testify unless their sources waived confidentiality agreements. But both ultimately testified long after the 2004 election based on waivers that were not substantively different from waivers they possessed prior to the election.

In Cooper's case, he claimed in July 2005 that he had finally agreed to testify “solely because of a waiver I received from my source.” But Cooper received the purportedly new waiver only after he reached out to Rove for it, and, according to Rove's lawyer, the “waiver” was merely an affirmation of a previous waiver. The Washington Post reported that Rove's attorney, Robert Luskin, “has said that he merely reaffirmed the blanket waiver by Rove, who is the president's deputy chief of staff, and that the assurance would have been available at any time.” Indeed, given that Cooper reached out to Rove for affirmation of the waiver in July 2005, it seems he could easily have done so in August 2004.

As for Miller, she testified only after a conversation with Libby in which Libby assured her that he had already granted her a waiver in 2004. The Washington Post reported that Libby's lawyer “has said repeatedly -- and underscored in yesterday's letter -- that Libby cleared Miller to talk to Fitzgerald a year ago and that the waiver of Miller's confidentiality promise was completely voluntary.”

Both Cooper and Miller, it appears, held waivers in 2004 that were substantively identical to the waivers upon which they claim they based their decision to testify in 2005.

An August 25 Los Angeles Times article appears to be the first mention in the media that Cooper's failure to reach out to Rove before the election reflected a view at Time that the magazine should avoid involvement in the issue before the election: “Cooper did not ask Rove for a waiver, in part because his lawyer advised against it. In addition, Time editors were concerned about becoming part of such an explosive story in an election year.” In a “War Room” entry that same day, the online magazine Salon.com noted the significance of this tidbit in the Los Angeles Times story:

Translated, as John Aravosis explains at AMERICAblog today, that means that Time's editors didn't want Cooper to reveal information that could be damaging to Bush's reelections [sic] hopes until after the election was over. “It's one thing for Time to do its job and ignore the effects of its reporting and overall work on US elections,” Aravosis writes. “It's quite another for Time to make decisions based on whether they'll influence US elections.”

In a way, it may be even worse than that. By not seeking a waiver from Rove -- by not reporting what its reporter knew to be true -- Time allowed Americans to go the polls believing that which the magazine knew to be false.

Some columnists have now picked up on this and begun to note the possibility that the delay in Fitzgerald's investigation affected the 2004 election, including Washington Post columnist E.J. Dionne, Los Angeles Times columnist Robert Scheer, and Boston Globe columnist Thomas Oliphant.

Dionne wrote in a November 1 Post column:

Has anyone noticed that the coverup worked?

In his impressive presentation of the indictment of Lewis “Scooter” Libby last week, Patrick Fitzgerald expressed the wish that witnesses had testified when subpoenas were issued in August 2004, and “we would have been here in October 2004 instead of October 2005.”

Note the significance of the two dates: October 2004, before President Bush was reelected, and October 2005, after the president was reelected. Those dates make clear why Libby threw sand in the eyes of prosecutors, in the special counsel's apt metaphor, and helped drag out the investigation.

As long as Bush still faced the voters, the White House wanted Americans to think that officials such as Libby, Karl Rove and Vice President Cheney had nothing to do with the leak campaign to discredit its arch-critic on Iraq, former ambassador Joseph Wilson.

And Libby, the good soldier, pursued a brilliant strategy to slow the inquiry down. As long as he was claiming that journalists were responsible for spreading around the name and past CIA employment of Wilson's wife, Valerie Plame, Libby knew that at least some news organizations would resist having reporters testify. The journalistic “shield” was converted into a shield for the Bush administration's coverup.

Scheer added in his November 1 Times column:

The most intriguing revelation of Special Prosecutor Patrick J. Fitzgerald's news conference last week was his assertion that he would have presented his indictment of I. Lewis “Scooter” Libby a year ago if not for the intransigence of reporters who refused to testify before the grand jury. He said that without that delay, “we would have been here in October 2004 instead of October 2005.”

Had that been the case, John Kerry probably would be president of the United States today.

Surely a sufficient number of swing voters in the very tight race would have been outraged to learn weeks before the 2004 election that, according to this indictment, Vice President Dick Cheney's chief of staff -- a key member of the White House team that made the fraudulent case for invading Iraq -- “did knowingly and corruptly endeavor to influence, obstruct and impede the due administration of justice.”

Globe columnist Oliphant wrote on November 1:

No one really noticed, but Patrick Fitzgerald made an unassailable point last week about the timing of the indictment that his CIA leak investigation has produced so far.

''I would have wanted nothing better," he said, ''that when the subpoenas were issued in August of 2004, witnesses testified then, and we would have been here in October of 2004 instead of October of 2005."

Give or take a nuance and some garbled syntax, the prosecutor was in effect showing that the quixotic pursuit of a nonexistent right or privilege by some news organizations is one reason President Bush was reelected last year.

Also citing the Los Angeles Times story and the Salon.com analysis, Media Matters for America noted that, intentionally or not, Cooper and Time essentially took sides in the 2004 election by actively misleading readers by “reporting” without contradiction the White House's denials of Rove's involvement in the Plame leak -- denials that Cooper knew to be untrue:

Time magazine published an article co-written by Washington bureau chief Michael Duffy and reporter Matt Cooper in October 2003 that strongly suggested that Karl Rove had nothing to do with outing Valerie Plame, and quoted White House press secretary Scott McClellan flatly denying Rove's involvement.

There was only one problem: Cooper and Duffy knew that was false. They knew that Karl Rove was involved; knew that the article they co-wrote misled readers and presented without contradiction a McClellan quote they knew to be inaccurate. They knew this because Cooper himself learned from Karl Rove in July 2003 that Plame worked for the CIA.

While Time did everything they could to protect Karl Rove, the magazine did nothing to protect its readers; instead, it actively misled them. Defenders of Cooper and New York Times reporter Judith Miller frequently talk of the duty a reporter has to protect his or her sources, but shouldn't protecting their readers -- by not penning articles they know to be misleading -- be their first priority?

And yet, according to the Los Angeles Times, Time didn't seek a waiver from Rove allowing Cooper to testify to the grand jury, in part, because “Time editors were concerned about becoming part of such an explosive story in an election year.” But Time was part of the story -- and they took sides in it. By choosing to protect Rove, and by extension Bush, and by choosing to mislead readers in order to do so, Time took sides. Intentionally or not, the magazine took Bush's side in the election; it took Rove's side over its readers' -- and it took the side of lies and deception over truth.

But Cooper and Miller weren't the only journalists whose silence about a matter relating to pre-war intelligence may have helped shape the outcome of the 2004 presidential election.

In September 2004, CBS News abruptly cancelled plans to air a prepared segment questioning one of the Bush administration's primary rationales for the Iraq war. As CJR Daily explained at the time:

A CBS spokeswoman said only that “it would be inappropriate to air the report so close to the election.”

Campaign Desk is confused by the word “inappropriate” here. The story in question apparently details how the administration relied on false documents (there's that word “documents” again) when it said that Iraq had tried to buy yellowcake uranium from Niger last year. Either the report is thoroughly researched and holds up -- or not. If it doesn't, kill it; if it does, air it.

Noting the network's statement that it spiked the story because it was “so close to the election,” San Diego Union-Tribune columnist Robert Lawrence wrote in an October 1, 2004, column:

Well, that's odd. In most journalism schools, the professors teach you that a potentially major story that could have impact on an election should be published as soon as it's confirmed, so the voters can take it into account, think it over and make their decisions. Otherwise, what's the point of publishing or broadcasting it at all?

As reported in The New York Times and on the Newsweek Web site, CBS was ready to say that President Bush was relying on false documents when he told the world that Iraq tried to buy uranium from Niger and used the claim as one of his reasons for launching the war.

Fairness and Accuracy in Reporting (FAIR) has reported that, in October 2004, The New York Times killed a planned article about the mysterious “bulge” underneath President Bush's jacket during a presidential debate. According to FAIR, a “Times journalist ... claims the senior editors felt Thursday [October 28, 2004] was 'too close' to the election to run such a piece.”