If people begin to think that the criminal law is being used to harass political enemies, that will erode confidence in the judicial system.
If people begin to think that the criminal law is being used to harass political enemies, that will erode confidence in the judicial system.
M ost American prosecutors have admirably resisted using the criminal law to intimidate political opponents. Recent prosecutions of Donald Trump and those viewed as sympathetic to him raise doubts that this ethos persists. The Second Circuit hears an appeal in one such case in a few weeks.
Prior to the 2016 election, Douglass Mackey, using the pseudonym “Ricky Vaughan,” posted memes on Twitter encouraging Hillary Clinton’s supporters to “avoid the line” and text their votes. In 2021, two days after President Biden took office, the Justice Department charged Mackey with conspiring to violate the Enforcement Act of 1870, 18 U.S.C. § 241. A Brooklyn jury found Mackey guilty in December 2023, and he was sentenced to seven months in prison.
Mackey, a self-described internet “troll,” had achieved a modest following on social media. Although political opponents are subject to criminal laws, concerns arise when they are prosecuted under novel theories, in strategically selected locations, and without clear proof that anyone was harmed. Mackey’s prosecution checks every box as politically motivated.
Enacted in response to Ku Klux Klan violence, the Enforcement Act makes it a felony to “injure, oppress, threaten, or intimidate any person . . . in the free exercise” of a constitutional right. The law’s purpose is evident from its text and history. Congressional investigators at the time catalogued instances of Klan members “scourging, whipping, hanging, and maltreating” newly enfranchised freedmen to prevent them from voting.
In subsequent decades, prosecutors and courts interpreted the word “injure” to extend to physical acts of ballot destruction and manipulation. It has never, however, been understood to encompass misleading statements that were designed to inveigle someone into not voting. This is noteworthy given the ubiquity of such misinformation every election season.
In response to the perceived problem, Senator Barack Obama in 2006 proposed the Deceptive Practices and Voter Intimidation Prevention Act, which would have made it a crime to “knowingly deceive” another about the “time, place, or manner” of an election. Arguing in favor of the bill, Senator Charles Schumer said that “it is not a federal crime to disenfranchise voters by deception.” Similar bills have been reintroduced several times, most recently in 2021, but never enacted.
With no legislative mandate, the Justice Department retrofitted the law to criminalize misleading statements, which, it now argues, would “injure” the constitutional right to vote. This is a first. Never, in over 150 years, has the government charged someone with violating Section 241 for false speech intended to deceive someone into not casting a ballot. At a post-trial hearing, the government acknowledged that Mackey’s prosecution is “novel in the sense that scenes of this sort we have not seen in the case law.”
The New York Times originally reported that people at “4,900 unique phone numbers texted the number” in Mackey’s tweets “in a futile effort to cast votes for Mrs. Clinton.” In fact, the government failed to produce a single eligible voter who did not vote because of Mackey’s tweets. And this was not for lack of effort. FBI agents contacted at least a dozen New York City residents who had texted the number Mackey had posted, but none said they had been deceived.
Furthermore, the prosecution contends that crimes committed on social media establish venue anywhere in the United States. The judge instructed the jury that it could convict Mackey if his tweets were “viewed in the Eastern District” of New York. Under that theory, the Justice Department could presumably have filed charges in Texas or Florida, for example, but it chose to do so where the jury pool is among the most lopsidedly Democratic in the nation.
Although many observers have recognized the novelty of the prosecution’s theory, this ingenuity is now treated as a cause for celebration rather than concern. Requiring fair notice to citizens about what the criminal law prohibits is a long-honored and constitutionally required principle. The Justice Department’s interpretation of Section 241 could criminalize any falsehood that conceivably discourages someone from exercising a constitutional right, such as misrepresenting the dangers of gun ownership, homeschooling, or birth control. It is hard not to notice that the Justice Department has deployed this newly discovered power in a politically targeted manner.
Political prosecutions are contrary to the spirit of the law. Prosecutors exercise vast and generally unreviewable discretion. If people begin to think that the criminal law is being used to harass political enemies, that will erode confidence in the judicial system. And it will invite tit-for-tat prosecutions from the opposite side of the political aisle, at other times and in other places. The judge who sentenced Mackey branded him the mastermind of a conspiracy that was “nothing short of an assault on our democracy.” Apart from the fact that such hyperbole has little connection to Mackey’s conduct, prosecutions such as the one the judge condoned will unravel American democracy more effectively than Mackey’s tweets.
Prosecutors in New York City may forget that they live in a large, ideologically diverse country. One hopes that the court of appeals remembers it and dismisses the political prosecution of Douglass Mackey.