Law & the Courts

The Justice Department’s Ridiculous Voter ‘Disinformation’ Prosecution

The U.S. Department of Justice Building in Washington, D.C., December 15, 2020 (Al Drago/Reuters)
If this is what the Bureau is going to spend its time on in the Biden years, maybe it should go back to ferreting out Collusion! under every borscht bowl.

On Wednesday, the FBI arrested a man in Florida on a conspiracy charge, punishable by up to ten years’ imprisonment, for the “crime” of peddling disinformation about voting on social-media platforms. It’s a three-fer: the prosecutorial creation of a crime Congress has not prescribed, the trivialization of civil-rights law, and the intrusion of government as a monitor of political speech.

The charge is based on a complaint filed by the U.S. attorney’s office in Brooklyn (the Eastern District of New York). In conjunction with EDNY and the Bureau, the prosecution was announced by DOJ’s acting Criminal Division chief Nicholas McQuaid, a former associate White House counsel in the Obama administration who was installed in his new post when President Biden was inaugurated on January 20.

This is another presidential-election case . . . except this time, it’s the 2016 election.

In a nutshell, in the final two months of the 2016 campaign, Douglass Mackey, the defendant, disseminated nonsense on social media — what the government’s breathless press release describes as a “disinformation campaign.” Mackey, as described by the New York Post, is a pro-Trump, alt-right Twitter troller who goes by the name of “Ricky Vaughn.” He is said to have collaborated with likeminded jackasses, styling themselves the “Madman Group” and the “War Room.” An illustrative example of their diabolical . . . er . . . tradecraft: A week before the election, Mackey is alleged to have urged in a tweet that voters should “avoid the Line. Vote from Home. Text ‘Hillary’ to 59925. Vote for Hillary and be a part of history.”

If this is what the Bureau is going to spend its time on in the Biden years, maybe it should go back to ferreting out Collusion! under every borscht bowl.

Mackey and the other “madmen” repeatedly claimed that “voting just became easier” because Clinton supporters could supposedly just post the name of favored candidates “on your Facebook or Twitter account on November 8th, 2016 to cast your vote. That’s it.” They had a good laugh over that one, and at the prospect that “dopey sh*tlibs will fall for it too.”

The geniuses were allegedly inspired by false imaging floating around the Internet that had claimed British voters could simply post “Vote Remain” on their Facebook or Twitter accounts, falsely assuring that this would count in the Brexit referendum as a vote against leaving the EU. Unlike the government, Twitter is permitted to regulate even political speech on its platform, and it apparently suspended Mackey’s account a number of times. Nevertheless, the Justice Department dolefully alleges, Mackey’s false tweets were often retweeted, and sometimes even — gasp! — “favorited.”

Running the numbers uncovered by its intensive investigation, the FBI reports that as many as 4,900 people (“unique telephone numbers”) may have followed Mackey’s texting instructions. (In New York, where the case against Mackey is filed, Hillary Clinton defeated Donald Trump by about 1.8 million votes.) Not that it matters, but the government’s complaint makes no effort to sort out how many of those 4,900 people texted as a lark, how many were eligible to vote, or how many did not vote — much less did not vote because of Mackey’s tweets. Also unmentioned is the common knowledge that there is no legal process to vote by text message (at least for now . . . but give the Democrats time).

This is a ridiculous prosecution. One way you can tell that is this bold pronouncement by Seth DuCharme, the EDNY’s acting U.S. attorney: “There is no place in public discourse for lies and misinformation to defraud citizens of their right to vote.” I italicize this proclamation to highlight the inconvenient fact that Mackey is not charged with fraud.

Federal law does not define fraud, which understandably leads courts and defense counsel to be on the lookout for prosecutorial mischief that stretches the vague concept beyond its basic meaning. Frauds, as Justice Scalia explained in his concurring opinion in Skilling v. United States (2010), are “deceptive schemes to obtain property.”

Scalia wrote his concurrence because, in the fraud statute at issue in Skilling, Congress tried to impose a hopelessly mushy obligation on the American people to deal honestly with each other (you know, like the way Congress deals with us). Lawmakers described this duty as “the intangible right to honest services.” Very nice as an aspiration, but unworkable overkill as a criminal law-enforcement matter. That is why the Skilling majority effectively rewrote the statute, holding that the mush could criminalize only bribery and kickback schemes — meaning: real fraud crimes, in which the accused has an actual fiduciary responsibility and betrays it for the clear, corrupt purpose of enriching himself. (While he agreed that Jeffrey Skilling’s honest-services fraud conviction had to be thrown out, Scalia’s well-taken objection was that it was not the Court’s job to rewrite an unconstitutionally vague statute, just to refuse to give it effect.)

Obviously, what Mackey did was deceptive. But it was not actionable fraud because he had no fiduciary duty to people who read his social-media posts and he was not trying to enrich himself (i.e., whatever emotional lift he stood to get out of Clinton’s defeat, he was not trying to obtain property as fraud law construes that concept). So while prosecutor DuCharme slipped and called it “fraud” in his press release, he could not charge it as fraud in the complaint.

In a sane world, Mackey’s sleazy conduct would be shrugged off as a political dirty trick — unethical and dishonest, but not a federal crime. Leave it to DOJ’s would-be legislator-lawyers, though, to try to turn it into one. To make this frivolous case, they distort a civil-rights law that was enacted to address a serious societal problem: Americans — usually black Americans — being impeded by violence and threats of force from exercising their right to vote.

Mackey is charged under Section 241 of the penal code, which states in pertinent part:

If two or more persons conspire to injure, oppress, threaten, or intimidate any person . . . in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same . . .  they shall be fined under this title or imprisoned for not more than ten years, or both[.]”

This statute has nothing to do with posting flimflam on social media. Its patent aim is to criminalize putting people in fear of physical harm for exercising their rights.

DuCharme’s aforementioned slip gives the game away because it shows the Justice Department knows that what Mackey did was in the nature of non-chargeable deception, not actionable intimidation, the latter of which being what the civil-rights law targets. The other government officials were more carefully disingenuous — you might even say, fraudulent — in their comments.

The FBI, for example, chimed in that Mackey “interfere[d]” in the election in a manner that amounted to “nothing short of vote theft.” But of course, Mackey did no such thing. That’s why he is not charged with “vote theft,” just like he is not charged with fraud. DOJ’s McQuaid intoned that Mackey had “infringe[d] one of the most basic and sacred rights guaranteed by the Constitution,” and that DOJ was committed to “investigating and prosecuting those who would undermine citizens’ voting rights.” But again, it is not a crime to, in some ambiguous manner, “infringe on” or “undermine” people’s exercise of the franchise. The civil-rights law the government invoked prohibits coercion.

Not a single government official, in announcing this prosecution, suggested that Mackey had coerced anyone. To have done so would have been absurd. Indeed, for all the hyperbole about “vote theft,” none of the officials had the temerity to claim that Mackey actually prevented people from casting their ballots, let alone put them in fear of harm if they tried to cast a ballot. No official had the audacity to say aloud what this prosecution implies: Government’s criminal-law enforcers must remain ever vigilant because the average American is too ignorant to know the lawful ways to vote. (I would ask why we would want people who think you can vote by text to decide our elections, but that’s a question for another day.)

While ridiculous, Mackey’s prosecution is also dangerous. It’s government’s toe in the water. The distance is very short from claiming the power to police misinformation about how to vote, to policing information about whom to vote for, to assuming the role of campaign-messaging monitor. Once the government starts using criminal-law enforcement — 10-year felony charges — to regulate political speech, there will be far less political speech, which will be a boon for the incumbent. One hopes that Judge Merrick Garland, when he is soon confirmed as attorney general, will be alarmed by the implications of this prosecution (to say nothing of the distortions on which it rests). But the last administration President Biden helped run used the FBI and the Justice Department to monitor its political rivals in hopes of making far-fetched criminal cases against them. So Biden does not get the benefit of the doubt on this.

The government’s law-enforcement officers and regulators must police against the intimidation of voters. That is their duty under civil-rights law. But they have no business policing political speech, no matter how false it is. That is not what the criminal law is for — see Amendment, First.

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