The Appallingly Unconstitutional Case Against Douglas Mackie

On August 15, 2022, Tucker Carlson in his opening monologue reported that a man named “Douglass Mackie” had been arrested for “vote theft.” Here is the monologue in full:

This story sounded too crazy to be true, and I thought it had to be some sort of exaggeration. Tucker Carlson is not above exaggeration. So I looked into it. Strangely, he was not exaggerating. This post is about what I found about the shockingly unconstitutional political persecution of a man named Douglas Mackie.

The Utterly Unbelievable Explanation of the Criminal Case Against Douglas Mackie

For context, here is what Tucker Carlson said in the relevant part:

A week to the day after Joe Biden was inaugurated, the FBI arrested a 31-year-old man from Vermont called Douglass Mackie. According to the subsequently released DOJ press release, Mackie had committed an extremely serious crime. Like Vladmir Putin, he had conspired to subvert the 2016 presidential election.

In a tweet, Mackie had suggested, not explicitly said but suggested – that it was possible to vote for Hillary Clinton by text message. This act, proclaimed acting US Attorney General Seth Ducharm, was a grave felony, a felony punishable by ten years in prison. Mackie’s tween Dusharm said, amounted to disinformation to defraud citizens of their right to vote. Assistant FBI director William Sweeny confirmed that Mackie had in fact committed, quote, “vote theft.”

So, as befitting a criminal of this magnitude, Mackie was handcuffed and hauled before a Federal judge called Bruce Reinhardt. As it turns out, the same magistrate who authorized last week’s raid on Mar-a-lago. Weird. Then Mackie was hauled off to jail.

Now, Mackie’s arrest seemed like a significant story, but at the time, media coverage was relatively scant, and almost uniformly credulous. The reporters who covered it simply clipped quotes from the DOJ press release and moved on to something else. Why? Well, the New York Times set the tone early by calling Mackie a, quote, “far right twitter troll.”

“Far right twitter troll” is not a technical term. It has no agreed upon meaning of any kind. It is slang. Slang is something that serious newspapers never include in news stories. But in this case, the term “far right twitter troll” had a use. It sent an unmistakeable message to the country and particularly the rest of the media, and it was this: “Douglas Mackie is a dangerous person with unspeakably ugly views. He deserves to be locked up.” And so he was. There was no consideration of the merits of the government’s case against Douglas Mackie. But there should have been, because the case was absurd. If Mackie’s tweets were so threatening to our system of government, to our “democracy,” then why did the Department of Justice wait more than four years, until the week Donald Trump left office, to charge him? And if Mackie actually stole the votes of American citizens, as the FBI repeatedly alleged that he did, whose votes were stolen? Who exactly were the victims of Douglas Mackie’s crimes? The media never asked, the Biden Administration never said.

As of tonight, the Justice Department has never identified a single person who was prevented from voting or doing anything else by what Douglas Mackie Tweeted. Because there weren’t any people. Those people didn’t exist. Douglas Mackie was not a criminal mastermind running a conspiracy to commit voter fraud. Douglas Mackie was an internet prankster. His job was to think up funny memes on his laptop in his bedroom. That’s what he did.

Transcript Excerpt from Tucker Carlson Tonight, August 15, 2022 Monologue

As I explained before, this sounded too ridiculous to be true. So, I got online and I googled it. However, sure enough, it was true.

The Utterly Real Criminal Case Against Douglas Mackie

Almost immediately after searching for this case, I found the case Tucker Carlson was talking about. At this link, you can see the DOJ press release that Carlson referenced. From that link, I saw the criminal complaint, which you can read and download here:

Amazingly, that report that I thought was too hyperbolic and ridiculous to be true was not only true, it was downright measured and coy. The complaint itself was more ridiculous than Carlson originally reported. For example, here as an ACTUAL QUOTE from the complaint:

In or about 2016, MACKEY, working with other individuals described in detail below, made coordinated use of social media to spread disinormation relevant to the impending 2016 Presidential Election (“the Election”). The disinformation spread by these individuals often took the form of “memes.” [Footnote: In the context of internet activity, a “meme” refers to “an amusing or interesting item (such as a captioned picture or video) or genre of items that is spread widely online especially through social media.” Meme, Merriam-Webster Dictionary, available at https://www.merriam-webster.com/dictionary/meme.%5D

They said that, presumably, with a straight face. Here is the type of terrible activity that Mackey and his unknown twitter associates were doing:

For example, on or about December 22, 2015, Mackey and his associates exchanged messages in the Fed Free Hatechat relating to memes suggesting that certain voters were hiding their desire to vote for a Presidential candidate from one of the two main political parties (“Candidate 2”). MACKEY stated, using MACKEY Account 1, “It’s actually a great meme to spread, make all these shitlibs think they’re [sic] friends are secretly voting for [Candidate 2].” A participant in the gorup conversation, a Twitter user, described it as “perfect psyops,” [Footnote: MACKEY and his associates periodically described their creation and distribution of political memes as “psyops.” Based on my training, experience and the investigation to date, I believe that “psyops” stands for “Psychological Operations,” and typically refers to military operations meant to influence the psychological state of a target audience.] to which MACKEY later replied, “We’ve hit upon meme magic motherlode.” The next day, MACKEY used MACKEY Account 1 to retweet a tweet that contained on of the discussed memes with the following text: “If you need support, I am here for you. #[Candidate 2] Closet.”

As you can guess, “Candidate 2” was Trump. In other words, this complaint is alleging that the criminal activity involved posting political memes.

That’s not my spin on things to make this sound ridiculous. That’s literally the words of the complaint.

And then, the complaint goes on to describe the actual CRIMINAL activity, not merely the undesirable online activity:

As the Election approached, Mackey, in conjunction with others known and unknown, spread disinformation about the manner by which citizens could and should cast their votes during the Election – conduct that constituted criminal infringement of the right to vote. Specifically, in or about and between September 2016 and November 2016, MACKEY, together with his co-conspirators, formulated, created and disseminated information over social media that claimed, among other things, that supports of a Presidential candidate from one of the two main political parties (the “Candidate”) could and should vote for the Candidate by posting a specific hashtag [Footnote: In the context of internet activity, a “hashtag” is a “word or phrase preceded by the symbol # that classifies or categorizes the accompanying text (such as a tweet).” Hashtag Merriam-Webster Dictionary, available at https://www.merriam-webster.com/dictionary/hashtag.%5D on Twitter or Facebook or by texting the Candidate’s first name to a specific telephone text code (the “Text Code”). MACKEY and his co-conspirators conspired to design and distribute these messages with the intent that supports of the Candidate would believe the fraudulent information contained therein, attempt to cast their votes via social media or text message and, as a result, fail to cast their votes in the Election in a legally valid manner.

Yes, that is it. Mackey and his co-conspirators “formulated, created and disseminated information over social media that claimed, among other things, that voters for Hillary Clinton could vote by spreading a hashtag that Mackey created.

The final piece of this puzzle is the intent of Mackey. Every crime has two elements the actus reus, the bad act, and the mens rea, the requisite intent to commit the act. The mens rea here was that Mackey intended that voters for Hillary Clinton would believe that texting or tweeting would prevent them from voting in real life, therefore depriving them of their right to vote.

That’s literally the complaint. That’s literally why the man has been arrested. This is utterly unbelievable and ridiculous. Reading the complaint makes Tucker Carlson’s monologue sound RESERVED and STOIC, which – knowing Tucker Carlson’s monologues – is quite a feat.

The Utter Unconstitutional Insanity of this Criminal Complaint Against Mackie

The problem with this is OBVIOUS to anyone who has ever had anything close to a civics class in the United States of America. Douglas Mackie is being persecuted for POLITICAL SPEECH. This is the CORE of protected speech in America. Back when I was a little more politically active, I remember going door to door for political candidates, handing out flyers and leaflets, and the joke that we Republicans would always share was “Don’t Forget: Republicans vote on Tuesday; Democrats vote on Wednesday.” The joke being that election day is always on a Tuesday.

I was wondering if there would have been some false financial gain for Mackie explained in this complaint, as that would be extremely significant. For example, if Mackie was accepting donations from supporters of Hillary Clinton (even though he was really using the money for personal gain or to help Donald Trump), then this would be an obvious fraud that “political speech” will not offer protection.

But I looked in the complaint, and there was none. The only thing that Mackie was conspiring to gain was an online following. And as annoying as online advertising is (including how annoying it was in the 2016 election), it is not illegal. The man was engaging in political speech. Sarcastic and annoying political speech, but political speech nonetheless.

And though it is probably beating a dead horse to give these quotes, I’m going to do it anyway, because apparently people are forgetting this in America:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The First Amendment to the United States Constitution

Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such matters relating to political processes. The Constitution specifically selected the press, which includes not only newspapers, books, and magazines, but also humble leaflets and circulars, see to play an important role in the discussion of public affairs.

Mills v. State of Ala., 384 U.S. 214, 218–19, 86 S. Ct. 1434, 1437, 16 L. Ed. 2d 484 (1966)

Precedent guides our review. In Meyer v. Grant, 486 U.S. 414, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988), we struck down Colorado’s prohibition of payment for the circulation of ballot-initiative petitions. Petition circulation, we held, is “core political speech,” because it involves “interactive communication concerning political change.” Id., at 422, 108 S.Ct. 1886 (internal quotation marks omitted). First Amendment protection for such interaction, we agreed, is “at its zenith.” Id., at 425, 108 S.Ct. 1886 (internal quotation marks omitted).

Buckley v. Am. Const. L. Found., Inc., 525 U.S. 182, 186–87, 119 S. Ct. 636, 639–40, 142 L. Ed. 2d 599 (1999)

The Utter Ignorant Deception of the Criminal Complaint Against Mackie

What is ridiculous in the complaint is how great pains are taken to seemingly remove the abundant reality that Mackie was a rabid Trump supporter. The redactions are comically ridiculous. While I understand how criminal complaints that might draw attention to private individuals might be properly redacted, is there ANYONE who sees any reason to redact in this way:

After Co-Conspirator 1 added that it would be more effective to be “coordinated” and “all be on the same target together, spreading these rumors,” MACKEY responded, using MACKEY Account 1, “I really like this idea,” noting that they needed to “outmeme” their opponents. That same day, MACKEY used MACKEY Account 1 to retweet a post by Co-Conspirator 1 containing one of the discussed memes, stating “BREAKING NEWS: [CELEBRITY 1] JOINS THE #[CANDIDATE 2] TRAIN!!”

Seriously? The Candidate-2-Train? Is there anyone who was alive in 2016 who doesn’t know who Candidate 2 is?

Additionally, do you see that the idea of these “co-conspirators” is to “outmeme” the other side, and the “other side” is a different POLITICAL PARTY??? Back when I used to be more political, I remember engaging in a strange activity of going to a busy intersection on or before election day an “waiving signs.” I hated it at the time, but the whole point was to create the illusion of support for the candidate. It was LITERALLY what the FBI describes Mackie doing without the internet.

And apparently, that political speech is now a crime.

The Utter Legal Insanity of the Criminal Complaint Against Mackie

And here is where things get REALLY weird. The claim of the Complaint is that Mackey and other Facebook and twitter users violated “18 U.S. Code § 241 – Conspiracy against rights,” which you can access by clicking here, but which I’ve provided the following text:

If two or more persons conspire 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, or because of his having so exercised the same; or

If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—

They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.

18 USC § 241 – Conspiracy against rights

But read that complaint like I have. Is there any ALLEGATION that Mackie “injured” anyone or “oppressed” anyone or “threatened” any one? Did he “go in disguise on the highway”? Did he go “on the premises of another”? No. Not at all. Instead, this is the criminal photo, described by the complaint:

The humor is subtle, but definitely humor. The small print that claims that “voting by text no available in Guam, Puerto Rico, Alaska or Hawaii” equates voting in the presidential election to the delivery practices of Amazon. In other words, this is a joke.

And if that isn’t convincing to you, you should note that the exact same joke was done by someone of the opposite political party. Click here for proof of that post on the day of the election, November 8, 2016, telling Trump supporters to vote on the next day.

Or just watch the video I made so that this woman cannot erase this evidence of a “federal crime” now that people like Douglas Mackie are being prosecuted for it:

The Utterly Obvious Political Persecution of Douglas Mackie

Now, the law that is being used to oppress Douglas Mackie actually has a real reason for existence. If you want to know how this crime is typically used, a quick legal search gave me a brief overview:

  • In U.S. v. Saylor this statute was used by the federal government to punish a conspiracy by election officers to stuff a ballot box in an election at which a member of Congress was to be elected. United States v. Saylor, 322 U.S. 385, 64 S. Ct. 1101, 88 L. Ed. 1341 (1944)
  • In U.S. v. McDermott, this statute was used by the federal government to punish a conspiracy of individuals who “engaged in throwing and waving objects at black persons, veering cars at and physically chasing black persons out of park, and cross burning” at a park. United States v. McDermott, 29 F.3d 404 (8th Cir. 1994)
  • In United States v. Lee, this statute was used by the federal government to punish a group of men who constructed and burned a cross outside a racially mixed apartment complex. United States v. Lee, 935 F.2d 952 (8th Cir. 1991), opinion vacated in part (Aug. 14, 1991), on reh’g in part, 6 F.3d 1297 (8th Cir. 1993)

In contrast, in this case against Mackie, the statute is being used to arrest and prosecute a man who posted memes on twitter and Facebook. And that’s not me who is saying that. Look at paragraph 19 of the criminal complaint:

The co-conspirators continued their efforts throughout the election season: MACKEY and his co-conspirators used Twitter’s messaging funcitons to discuss and refine memes [*] and used Twitter’s tweet function to spread the memes to other users. In both DMs and Group DMs, MACKEY and his co-conspirators discused techniques for using social media platforms to reach larger audiences, such as “hijack[ing]” popular hastags with memes, “leveraging [MACKEY’s] network” to get a hashtag trending, and using memes to appeal to “normies.” MACKEY appeard to have outsided influence in these efforts due to his significant social media following and his related ability to generate conversations on the internet through is posting activity.[**]

*Footnote: During conversations within the Fed Free Hatechat, MACKEY routinely described creating memes (“I’m editing the pics into a meme right now”), his excitement that his memes were taking hold (“WE ARE THE MEMES WE”VE BEEN WAITING FOR,” “THE MEMES ARE SPREADING,” “I’m starting to believe in Meme Magic”) and his ability to get others to create memes for him (“I love how I can ask for photoshops and get them back in like 1 hour.”). MACKEY and his associates frequently espoused their preference for using memes as their primary means of messaging. For example, in or around January 2016, MACKEY stated in the Fed Free Hatechat: “I aggregate content, troll, meme, and comment. . . . You can collect a really good image meme collection and just respond to high profile characters with the perfect image meme response. Images work better than words. . . . Planted a lot of seeds.” During the same conversation, a Twitter user suggested that the group “collaboratively [sic] work on a guide” to explain their meme methodologies and outline, “step by step, each major aspect of the ideological disruption toolkit.”

**Footnote: In various groups, MACKEY and his associates expressed awareness of MACKEY’s particular ability to convey messages. For example, after tweeting a response critical of a television appearance by a United States senator, a Twitter user stated, “damn ricky your followers really watch your tweets. The activity level when you re-tweet is absurd.” MACKEY responded, “yeah [] I have the most active fans.” In a DM around the same time period, the Associate wrote MACKEY and asked, “Do you have goals? a team? tasks? assignments? Happy to take on something if it’s helpful.” MACKEY responded, “I should right? I have like the most loyal army on Twitter.”

That’s the most coherent description of political speech in a social-media age that I have ever seen. I’m not saying that I LIKED what he was doing (because I was alive in 2016 and I supported Rubio), but it is hard to argue that it was anything but annoying POLITICAL speech.

. . . which apparently is now criminal. And yes, just as Tucker Carlson claimed, it is also true that the judge who signed off on this arrest warrant is also the judge who signed off on the search of Donald Trump’s home: Magistrate Judge Raymond E. Reyes.

CONCLUSION

This is political persecution in its purest form. This case doesn’t even have the facts to support the bonkers interpretation of the law that would be needed to get past the first step of prosecuting Douglas Mackie.

Back in 2016, people like Douglas Mackie really annoyed me. That’s why I wrote the most-read thing I’ve ever written on this blog, a post called “Against Trump.” At the time, I thought Trump represented a strange departure from the foundational norms and values of our country. Oh how the tables have turned.

Six years later, I am shocked to see that the foundational norms of our country are being undermined by those who oppose Trump, and I’m not going to count myself among them. Political speech is not a crime, even if its in the form of memes by Douglas Mackie.

4 Comments Add yours

  1. Brand says:

    Neither tucker nor this blog showed the meme Mackie was sentenced for, a punch-line-less image instructing black voters they could vote by text intentionally spread without context to cause voters not to show up to the poles.
    Tucker and this blog are cowards for the omission

    1. The Jones says:

      Show me a link to the meme, and I’ll update the post.

      1. The Jones says:

        As promised, the post is updated.

Leave a Reply to The Jones Cancel reply