In this case it is draw by crayon libertarian Declan McCullagh with an assist by Greg Sandoval, who have decided that the way to write a story about the suit against apple Apple and the publishers who colluded with them was to show that Apple was going to win this suit by consulting with law profs who have been paid by right wing think tanks or have a long history of opposing anti-trust law.

They quote Geoffrey Manne, who works for the Hoover institute, Dominick Armentano, whose Independent Institute is funded by the Olins, the Kochs, and served as a “straw buyer” for Microsoft for the purchase of ads regarding that antitrust litigation, and Richard Epstein, who is the godfather of libertarian legal theory.

In the process, they ignore the facts of the case, as Time Magazine (of all people) documents:

So the publishers worked urgently to hatch a scheme to raise e-book prices before $9.99 became an “entrenched consumer expectation,” according to the lawsuit. Publishing executives are said to have plotted, cloak-and-dagger-style, during meetings at upscale Manhattan restaurants, and tried to conceal their communications “to avoid leaving a paper trail.” A favorite meeting spot was the Chef’s Wine Cellar, a private room at Picholene, just off Central Park West. It’s clear from the complaint that the Department of Justice went so far as to obtain the mobile-phone records of major-publishing-house CEOs.

Meanwhile, Apple was debating business models as it planned to storm onto the e-book market with the iPad. At one point, according to the lawsuit, Apple “contemplated illegally dividing the digital content world with Amazon,” with audio-video going to Apple and e-books to Amazon. Instead, Apple, led by content honcho Eddy Cue, reached out to the publishers to propose that the industry shift from a wholesale model, in which retailers set the price, to an agency model, in which the publishers set the price and Apple, as the “agent,” would receive a 30% commission.

Apple’s then CEO Steve Jobs described the talks in a now infamous quote that appeared in Walter Isaacson’s Jobs biography: “We told the publishers, ‘We’ll go to the agency model, where you set the price, and we get our 30%, and yes, the customer pays a little more, but that’s what you want anyway.’” Apple played a special role in the plot, according to the government, acting as the “spoke” of a wheel of conspiracy by playing the major publishers off one another to ensure they all participated.

Even if Apple were not engaging in an illegal act on its own, it is engaging in an illegal conspiracy to fix prices, but the draw by crayon libertarian cannot extend his Rolodex beyond the usual suspects.

If the DoJ wanted to go RICO on their asses, it would get really ugly, but if you are a dedicated Randroid, you consult the usual suspects, and create the illusion that there is no “there” there.