Judge Ann Donnelly of New York's Eastern District sentenced Douglas Mackey, a Florida resident, to seven months in prison on the charge of election interference. Mackey will appeal on First Amendment and other grounds, his attorneys said.
Mackey operated a pro-Donald Trump social media account under the handle "Ricky Vaughn" in 2016 when he posted a meme (above) encouraging people to "text their vote" to Hillary Clinton's campaign phone number.
Four years later, following Trump's failed reelection bid, agents from the FBI and other government branches arrested Mackey six days after Joe Biden's inauguration. He was charged with a felony – a 10-year maximum sentence – for what the government claimed was an effort to spread disinformation relative to the 2016 election on social media.
If the satire in "text your vote" wasn't clear enough, Mackey's post also said Clinton, if president, would have U.S. daughters drafted alongside sons, and both would fight in wars overseas.
Former Department of Justice official John Daukus said on Washington Watch the ruling and sentence present issues of both free speech and the weaponization of the Justice Department. The charge was prosecuted under the Ku Klux Klan Act of 1871, a law that was intended to protect former slaves from harm in exercising their civil rights.
"What's happened here is we've got the Biden Justice Department – and people who frankly are 2016 election deniers, who don't want to admit that President Trump won that election – casting about to try to criminalize what has always been, frankly, part of the rough and tumble of politics," Daukus told show host Jody Hice.
The complaint states that "at least 4,900 unique telephone numbers" messaged Clinton's name to the posted number "on or about and before Election Day" in 2016.
"The government presented no evidence that any person was denied the right to vote or was taken in by this," Daukus stated. "There were people who tried texting the line, but there is no evidence whatsoever that anyone failed to vote because of this meme."
Worst kind of forum shopping
In addition to the case itself, it's important not to overlook the "forum shopping" that took place, Daukus said.
"The government brought this criminal trial in Brooklyn, which is a heavily Democratic district. Their position is they can bring criminal charges against people in any district where a meme was viewed," he explained.
"So, are we going to have Democrats dragging people from, oh, say Florida, and indicting them in San Francisco because they think they posted a meme, and that's a better place for the lawsuit? And Republicans doing the same to people who are from New York City and trying them down in Texas?
"It's the worst kind of forum shopping to pick a location that's very unfavorable to a defendant," Daukus said.
