http://thehill.com/opinion/judiciary/399205-an-obstruction-case-against-trump-would-be-civil-libertarian-nightmare
The New York Times has reported that, according to three sources, special counsel Robert Mueller is trying to stitch together an obstruction of justice case against President Trump based on his public tweets, TV appearances, conversations with public officials and other entirely lawful acts. If this is true, it suggests that there is no “smoking gun” or fire, not even any kindling. It suggests that all Mueller seems to have is some dry twigs from which he is trying to build a bonfire. The Times’ headline — “Mueller looking for Obstruction in Trump Tweets” — should raise a red flag for all civil libertarians. This is exactly the kind of creative manufacturing of crimes from innocent — indeed, constitutionally protected acts — that endangers the liberties of all Americans.
Just imagine a prosecutor going through all of your tweets, all of your conversations, all of your actions and all of your emails in search of a plausible theory of criminality based on an accordion-like statute such as obstruction of justice. If Mueller manages to cobble together an obstruction of justice case from innocent communications, then this dangerous precedent will lie around like a loaded gun ready to be used by any vindictive prosecutors against any plausible target. That target could be you or someone you love. It could be a Democrat or a Republican. It could be a liberal or a conservative.
In Harvey Silverglate’s brilliant and increasingly relevant book, “Three Felonies a Day,” the experienced attorney and author describes a “game” prosecutors play: One of them names a well-known target, and the others scour the criminal code to find three felonies he or she may have committed. If the New York Times report is accurate, Mueller’s team may be playing this game with a real, live target — namely, President Trump.
I recall a case when the Equal Rights Amendment was pending and the votes of Illinois legislators were essential to secure ratification by that state. A naive young woman approached a legislator and offered a contribution to his campaign in exchange for a commitment that he would do the right thing and vote for equal rights for women. The woman was arrested and charged with attempted bribery under a vague, open-ended statute. Civil libertarians were properly outraged.