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The procedural abuses in the trial of Douglass Mackey recall the worst excesses of the American colonial courts
If you’re familiar with the case of Douglass Mackey, you know that he was the man behind the famous pro-Trump account “Ricky Vaughn,” which was influential in the 2016 election. Mere days after Biden took office, he was charged by the DOJ with the crime of “election interference” for sharing memes online.
His case caught the attention of the nation with public comments from Donald Trump Jr., Joe Rogan, Tucker Carlson, and Elon Musk. It might go down in history as the defining First Amendment case of our time, setting the foundations for a breathtaking expansion of the Federal government’s power to police speech on public forums.
In March he went to trial. After one week of deliberation and three days of deadlock, the jury returned a conviction. To those who are familiar with the workings of the Eastern District of New York, the verdict comes as no surprise. The case was built over the course of years, ever since Hillary Clinton’s campaign team reached out to the FBI. As we know now from the Trump indictments, when powerful people in the Democrat party want to secure a conviction, they usually find a way to get it.
Now, new documents from Mackey’s appeal filings shed light on exactly how this process worked.
Follow along with us as we track the manifest abuses that occurred in this case which resulted in a conviction for a young man who did nothing but share popular memes on a public forum.
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A Review of Abuses in the Mackey Case
The prosecution misrepresented or withheld important information about their key witness, “Mr. Microchip”
For the prosecution, everything was riding on their key witness, known as “Mr. Microchip.” Under 18 U.S.C. § 241, a statute written to criminalize violent voter intimidation (which has never been extended to speech before) the prosecution merely needed to establish that a “conspiracy” occurred, and that Doug Mackey was involved in it.
There was actually a great deal of secrecy surrounding this individual. In a highly unusual move, the judge granted that the witnesses’ identity be withheld under seal. Given that the prosecution’s theory of the case hinged entirely on demonstrating an association between Mackey and Microchip, it would stand to reason that Mackey’s defense team should have the benefit of complete knowledge surrounding this individual in order to make an effective defense (indeed, the right to face one’s accuser openly is enshrined in the 6th Amendment). This information was not divulged. Only in the final days before the trial did the prosecution finally begin releasing disclosures about Mr. Microchip, his supposed association with the defendant, and the full extent of the government’s involvement in bringing him to trial.
In a series of reports which had not previously been disclosed to the defense or even the judge, the prosecution revealed that Mr. Microchip had been a previous drug user, had been in contact with the FBI since 2018 (shortly after the investigation into Douglass Mackey was opened), and most astonishingly, had initially told the FBI there was not any “grand plan” to stop people from voting. Furthermore, “contrary to the government’s representation that Mr. Microchip ‘had communications with the defendant . . . discussing the creation and dissemination of deceptive images concerning the time, place, and manner by which voters could cast a vote in the 2016 presidential election’ [Docket No. 66 at 2-3]; there were no such communications.”
Under so-called “Brady disclosure” the government is legally required to disclose evidence or information that would help prove the innocence of the defendant or call into question the credibility of a government witness. These failures on the part of the prosecution to share important information regarding the witness are potentially serious Brady violations.
The prosecution withheld key evidence from the Clinton Campaign that would have aided the defense
But the deliberate trickle of information related to Microchip was just the start of the prosecution’s failures to disclose pertinent evidence:
Mackey’s defense centered on the fact that using “online tactics such as provocation, derision, distraction … to get the attention of mainstream journalists” are all common practices for social media commentators around elections, and that these practices are commonly understood for what they are: mere attempts at provocation. If there was somehow evidence that no one, not even the targets of such tactics, took such memes seriously, this would greatly strengthen the defense’s argument.
Despite being notified that this would form a key part of the defense’s argument, the prosecution failed to provide reports from Clinton staffers that showed they were aware of this pervasive online activity, were aware of its intended effects, and “did not consider memes replicating Clinton graphics to be of sufficient concern to take decisive action.”
Disturbingly, these reports did not actually surface until after the trial was underway, when their possible existence was discovered by defense attorneys during cross-examination, at which point they were finally handed over after being requested during a lunch recess.
The prosecution’s own evidence contradicts the accusation that Mackey was involved in a conspiracy
Here are three amazing facts at the center of the case:
Contrary to what the prosecution told the judge during filings, Microchip never actually discussed any alleged scheme to trick voters with Mackey.
By the prosecution’s own admission, Mackey was never even present in the group chats when purported co-conspirators discussed and made the memes in question.
The memes which Mackey was specifically accused of sharing didn’t even originate from the group chats used by the prosecution as evidence of conspiracy. They originated from 4chan, with the exception of one retweet (retweeting is such a common behavior on twitter that it is ludicrous to believe that a retweet could constitute evidence of conspiracy)
So if there was no evidence of agreement between any parties, and no evidence of knowledge of conspiracy (elements required to establish conspiracy) and Mackey wasn’t even present when the alleged conspiracy was being discussed, and didn’t directly share any material with the alleged conspirators, then what evidence or arguments did the prosecution offer to make this crucial link?
The prosecution actually argued, in a way that recalls the “spectral evidence” admitted in the Salem witch trials, that a “silent agreement” existed between Mackey and various strangers on the internet. Their evidence? Microchip’s testimony, in which his interactions with Mackey were not even discussed. The same Microchip who initially told the FBI that there was no conspiracy, then changed his tune after being charged and offered leniency in exchange for his testimony in the Mackey case. The same Microchip, who, in the opinion of one court watcher, was a “groomed witness that would spin a beach ball on his nose if the Feds asked him to.”
The prosecution even admits in their rebuttal that the evidence against Mackey is “circumstantial”
After Mackey’s defense team filed for acquittal in May, the prosecution responded with a counter-filing which revealed their own acknowledgement of the weakness of the evidence they presented.
In response to the defense’s assertion that the evidence was legally insufficient, instead of defending their evidence, the prosecution brazenly argued, citing United States v. Rosa, that in the question of overturning a verdict; ““[d]irect evidence is not required” and that “the government is entitled to prove its case solely through circumstantial evidence.” Imagine if they had made this admission to the jury during the trial!
The judge in this case gave improper jury instructions which radically expanded the applicability of the law in question
Mackey’s sole charge in this trial was a violation of 18 U.S.C. § 241, a 100-year old law written to prosecute the KKK for violence which has never been extended before to speech. The plain text of the law bans any conspiracy “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.” However, as Eugene Volokh, the eminent First Amendment legal scholar noted, “It’s not obvious that deceiving someone into voting in an invalid way qualifies as ‘injur[ing]’ or ‘oppress[ing].’” (Indeed the prosecution in this case did not afttempt to demonstrate evidence of any particular harms done to any individual).
For such an ambiguous law, which has never been applied to the situation of speech, one might expect the Court to adopt a principle of conservatism. This was not the case. Jury instructions instead “adopted the government’s overbroad reading of Section 241, defining its scope to forbid anything that may ‘hamper,’ ‘frustrate,’ ‘slow,’ or ‘prevent’ (among other things) one’s full ability to vote.” Needless to say, this new interpretation has serious implications for the scope of the Federal Government’s power to regulate speech in the United States.
A catalog of abuses, and echoes of history
To review, we have an individual charged under a novel interpretation of a law, convicted by circumstantial evidence from a highly unreliable witness whose testimony was produced through likely coercion. The trial itself was characterized by secrecy and procedural abuses from beginning to end. The prosecution systematically withheld information from the defense, and even the judge. They used every trick in the book to stack the jury. They covered for the weakness of their highly specious evidence by biasing the jury against Mackey, focusing heavily on prejudicial material that had no bearing whatsoever on the elements of actual criminal charge in question. With regards to the secret nature of the proceedings, it is supremely ironic that while the real identity of “Mr. Microchip” was withheld due to fears of “harassment,” it was actually Mr. Mackey’s expert witness who withdrew from the case after a “watchdog group” obtained his private emails, thereby threatening to get him fired. When the jury refused to convict for three days, the judge released an Allen charge. Even the venue was hand-picked for favorability to the prosecution: they argued that although Mr. Mackey was not a resident of the Eastern District of New York, and no actions related to the case took place in that district, nor was anyone harmed there, because the fiber optic cables “passed through” Brooklyn en-route to Twitter servers, that this constituted an appropriate justification for establishing venue, a standard which, needless to say, due to the interconnectedness of the internet, could see anyone charged in any just about any U.S. jurisdiction for any internet crime whatsoever, including (now that precedent has been established) “speech crimes” based on “silent agreements” which establish evidence of “conspiracy.”
The whole thing seems like a totalitarian nightmare, not the kind of thing that should happen in the United States. Indeed, these manifest abuses, and the willingness of the court to stretch the interpretation of the law to secure a conviction for speech in a public forum, and on such tenuous and obviously unreliable evidence call to mind the old royal courts of pre-Revolutionary America. It just so happens there was such a case: the Zenger trial. In 1735 a printer was charged in New York with libel for criticizing the royal governor. In this case as well, the judge, prosecution, and much of the jury were political compatriots, all being friends of the governor. The judge gave biased jury instructions, telling the jurors the only relevant fact was whether Zenger had printed the critiques in question or not, effectively criminalizing his speech. Happily for free speech in America, Andrew Hamilton came to his defense and finally convinced the jury to acquit, therefore setting a historic precedent for the freedom of the people to criticize and even lampoon the government in our young nation.
Similarly, given the involvement of Hillary Clinton, and her particular interest in taking revenge for her loss in 2016, one wonders if lese majeste against her august person is not the actual crime that is being prosecuted here. We ask ourselves, already knowing the answer, would the legal apparatus including the Biden DOJ, FBI, the prosecution, and the courts of the Eastern District of New York, where her campaign headquarters was located, have extended themselves so arduously for the sake of any other politician? We think not. These abuses must be addressed, and Douglass Mackey must be acquitted immediately if we wish to preserve freedom of speech in America. His case now goes to appeals court in August. It’s not too late for the courts to act. Douglass Mackey’s freedom, and ours, depends on it.
Mr. Mackey faces 10 years in prison for sharing memes on Twitter. You can support his appeal process regarding this very important First Amendment case by donating to his defense efforts: