There is no doubt that Douglass Mackey, the man behind the 2016 election-era alt-right “Ricky Vaughn” Twitter troll account, is a miscreant. He spewed anti-Semitic and otherwise abhorrent bile from his pseudonymous perch, contributing to a hostile Twittersphere climate.
Nevertheless, the Biden Department of Justice (DOJ) is legally wrong—and engaging in petty harassment of a political enemy—to expend limited prosecutorial resources to target Mackey, whose Twitter account has long been suspended, for alleged conspiracy to deprive others of their constitutional rights.
DOJ’s press release summarizes Mackey’s legally relevant underlying conduct: “As alleged in the complaint, between September 2016 and November 2016, in the lead up to the November 8, 2016, U.S. presidential election, Mackey conspired with others to use social media platforms, including Twitter, to disseminate fraudulent messages designed to encourage supporters of one of the presidential candidates…to ‘vote’ via text message or social media, a legally invalid method of voting.” The DOJ complaint specifies that the law Mackey is charged with violating is 18 U.S.C. § 241, which covers, in relevant part: “two or more persons conspir[ing] to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.”
Hold aside the point that voting in the United States constitutional order is, contrary to what myriad progressive Supreme Court justices have mused, better understood not as a “right” but as a state-regulated privilege subject only to federal oversight via circumscribing constitutional (namely, the 15th, 19th, 24th, and 26th Amendments) and statutory (namely, the Voting Rights Act of 1965) provisions. Prosecutors in the Eastern District of New York (EDNY) still have to prove an actively coordinated, multi-party conspiracy, and that such a conspiracy did not merely produce fraudulent tweets, but that those tweets actually had the effect of oppressing, threatening, or intimidating Hillary Clinton supporters who intended to vote for their preferred candidate. That is, in short, highly dubious—this case isn’t going anywhere. Moreover, who would have guessed that the Biden DOJ took such a dim view of Clinton voters, believing them to be so easily manipulated?
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