Defenders of Mueller will surely argue that it is common for prosecutors to stitch together innocent conduct to manufacture a crime, especially when the target is a suspected drug dealer, a terrorist or gangster. Tragically they are right. There are such cases, but there shouldn’t be. Many wrongs do not make a right.
Moreover, in those cases, the underlying conduct is generally done in secret. Here, Mueller apparently is trying to turn public, open communications — core First Amendment expression — into a crime.
The time has come — indeed, it is long overdue – for all Americans to take a hard look at broad, ambiguous and open-ended statutes, which empower prosecutors to be “creative.” There is a concept in criminal law known as lenity: If there are numerous ways of interpreting a statute, the law requires that it be interpreted in the most reasonably narrow way, so as to avoid empowering prosecutors to target unpopular defendants. Failing to apply this concept to constitutionally protected tweets, messages, emails, etc., should concern every civil libertarian, even those who are anxious to find legal weapons with which to target President Trump.