I sure don't defend Libby. But given the fact circumstance of the Libby indictment, I wouldn't want to attempt a malicious prosecution defense.
That being said, I think a malicious prosecution case could be brought with a straight face and within ethical boundaries.
3) Would it be ethical for Fitzgerald to have continued investigating a crime which he knew did not occur?
No. Once he has infomation that "closes the case," it is unethical to continue.
2) If Plame was not covert under the Identities Act, what was Fitzgerald's legal authority to continue his investigation?
The legal authority to investigate operates independently from the facts found. The legal authority is "find the facts, and if the facts indicate breaking the law, indict."
1) Is it in your mind plausible that Fitzgerald didn't know whether Plame was or wasn't covert under the Identities Act within the first week of his investigation?
About as plausible as President Bush adding gravitas to the investigation by similar utterances.
1) Is it in your mind plausible that Fitzgerald didn't know whether Plame was or wasn't covert under the Identities Act within the first week of his investigation?
About as plausible as President Bush adding gravitas to the investigation by similar utterances.
Now you see, that's an evasion. Fitzgerald was working from the Counterintelligence office at DoJ, which is very specifically charged with investigating and prosecuting intelligence cases (e.g. Ames).
Fitzgerald was tasked to answer the question: was the disclosure of Plame's CIA status a violation of the law. If so, who did it?
Hence, Fitzgerald's first duty would be to determine Plame's actual status. For all he knew, she could have been a receptionist or a secretary.
It defies common sense to assert that Fitzgerald would take one further step in his investigation without determining (a) Plame's status and (b) whether any law applied to her specific "outing".
Based on the paucity of indictments, Fitzgerald's verbal evasions, the widespread Beltway knowledge that Plame was CIA, her domestic assignment with CIA, the age of her children, etc., it seems very unlikely that Plame could meet the legal standard for "covert".
And Fitzgerald would have known this from the outset. The Identities Act is very clear and very specific. CIA management would know whether she met the terms of the Identities Act, and would certainly have disclosed that information to the DoJ Counterintelligence office.
Surely you don't assert that Fitzgerald had a legal mission to identify perjurers inside the Beltway, and this is the reason he continued his investigation despite knowing that his original case was no case at all?
The only other scenario here is that CIA management mislead and duped Fitzgerald as to Plame's status.