Below is my column in the Daily Beast on the second federal indictment of former president Donald Trump. I remain deeply concerned over the implications of free speech from this prosecution. Indeed, the general dismissal of these concerns by legal experts shows how our current rage politics can blind us to dangers even to our own fundamental rights.
In The Picture of Dorian Gray, Oscar Wilde wrote “the only way to get rid of a temptation is to yield to it.” In the second federal indictment against former President Donald Trump, Special Counsel Jack Smith seems to follow that advice in bringing a prosecution that pursues the president at any cost, even the First Amendment.
While the Wilde quote is well known, few ever include the second line: “Resist it, and your soul grows sick with longing for the things it has forbidden to itself, with desire for what its monstrous laws have made monstrous and unlawful.”
Smith resolved this struggle by yielding and not worrying about the thing “forbidden to itself.” Specifically, he jettisoned First Amendment protections to try to bag the former president for alleged crimes connected to Jan. 6.
While the indictment recognizes that politicians are protected in making false statements in elections, it proceeds to charge Trump for doing precisely that in claiming that the 2020 election was stolen. Smith simply charged that Trump did not really believe it, therefore it is fraud.
The implications of the filing were captured on CNN, where host Kaitlan Collins explained that “the First Amendment does not allow the President of the United States to go and claim there was fraud when he was told there was not fraud…”
That is, of course, entirely wrong. Just because you are told something does not mean that you have to believe it, or that you cannot publicly contradict what you have been told.
However, Collins did accurately describe Smith’s theory: you are allowed to say false things unless you should have believed what the rest of us were saying….