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"Inventing new legal theories" is an inherent part of the common law system. Let's take a fairly straightforward case: Smith agrees to by a cow off of Jones for $100, with no terms regarding the order of performance. Several weeks go by and the transaction is not consummated. Each sues the other for breach of contract. This situation vexed judges for literally hundreds of years, until one brilliant judge finally ruled that, to the extent practical, in the absence of any contrary terms both parties are to perform simultaneously. This ruling seems obvious in retrospect, but it was a new idea when it came out. This obviously doesn't involve a lawyer arguing that, since he'd be admitting that the other party hadn't breached the deal, but lawyers use "novel" legal theories all the time. The law as it exists doesn't cover every exact situation, and when you feel that your client has been wronged, or has been unfairly sued, or even that certain evidence should or shouldn't be admitted, you're probably making a novel legal argument.
Typically, inventing new legal theories as part of the ordinary process of law is a bit suspect when they’re being invented specifically to prosecute the candidate for the opposing political party.
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All of the laws Trump is being prosecuted under are codified statute, ie. not common law in the strictest sense.
Strictly speaking they aren't, but that isn't really a concern as a practical matter. I practice an area of tort law that's mostly common law but has been somewhat modified by statute. If I'm arguing before a judge the standards aren't any different whether I'm arguing common law or statute, and most of the statutory argument is indistinguishable anyway because it's still based on judicial interpretation. I don't go into an argument thinking "Well, this is statute so I have to do this differently" or anything like that.
How much of the law you practice is judge made, versus prosecutor made?
None of it is prosecutor made because, first, I'm a civil lawyer, so there are no prosecutors involved, and, second, because prosecutors don't make laws. They can propose theories of liability and it's up to the judge to decide whether they are persuasive or not. It's all judge made, unless it's statutory.
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Unless I'm misunderstanding, he practices civil law. So no prosecutors, just plaintiffs.
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