That would have been the reaction of any of the professional supervisors I worked for in my 22 years with DOJ.
But yesterday the Biden Justice Department issued a press release announcing the arrest of Douglass Mackey, aka “Ricky Vaughn” based on a criminal complaint filed against him by prosecutors in the Eastern District of New York.
This Ricky Vaughn?? pic.twitter.com/zMxWVu0OQl
— shipwreckedcrew (@shipwreckedcrew) January 28, 2021
No, not that Ricky Vaughn.
But the nature of the charges is such that referencing a “comedy” is pretty much the appropriate response.
The complaint claims that Mackey and unnamed co-conspirators agreed to violate a federal statute protecting citizens in the exercise of their civil rights. Specifically, Mackey and the others are alleged to have propagated intentionally dishonest “memes” on social media in the days and weeks leading up to the 2016 election. Specifically, Mackey and others are alleged to have encouraged “unenlightened” (my word) voters to cast their vote in the 2016 Presidential election by Twitter, Facebook, or “text” to a specific number they posted on social media.
Let’s point out a few objective facts about the documents that have been filed,
First, this is a criminal complaint based on an affidavit filed by an FBI Agent with only 3 years of experience. The conduct described in the affidavit took place more than 4 years ago. Ummm… okay.
Second, there have been months/years worth of time for this case to have been presented to a federal grand jury in the EDNY and an indictment obtained but that hasn’t happened.
Third, the date of the Agent’s signature on the affidavit is January 22, 2021 — around 48 hours after Joe Biden was sworn in and likely only one day after new “leadership” took over various components of DOJ.
Fourth, in addition to the prosecutors from EDNY, the press release identifies one Trial Lawyer from the Public Integrity Section of Main Justice as working on the case.
Fifth, the case was “announced” by the Acting Assistant Attorney General for the Criminal Division of Main Justice, Nicholas McQuaid, last seen in government as a member of the White House Counsel’s Office during the last four years of the Obama Administration. He now will serve as the Principal Associate Deputy Attorney General — once a Deputy Attorney General is nominated.
Here is the “beauty” of this kind of DOJ grift (really loving the use of that word — lots of opportunities in Democrat-run government): NOTHING written in a criminal complaint affidavit ever has to be proved by admissible evidence in a court of law.
A criminal complaint affidavit — like the one filed yesterday — can be stuffed full with all kinds of stupid and irrelevant inanities that make for great newspaper headlines and breathless coverage by a sycophantic press, but none of that will ever be included in a “jury instruction” explaining the facts a jury must find beyond a reasonable doubt.
What DOJ did yesterday is “prosecution” by “press release.” The only actual “crime” alleged by the affiant is a “conspiracy” which is an “agreement” by two or more people to commit a crime. The “crime” that was agreed to is alleged to have been a violation of 18 U.S.C. Section 241, which reads:
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.
Death?? By “meme”?? Is that really what this statute applies to??
Section 241 is the current version of a statute first passed by Congress following the end of the Civil War, and along with companion statute Sec. 242, they were designed to create criminal penalties for any conduct meant to deprive the newly freed slaves of their civil rights as guaranteed by the 13th, 14th, and 15th Amendments.
The “reach” of this statute has expanded as the nature of “rights” protected by federal law has expanded with various “civil rights” statutes passed by Congress going back to the 1960s. Each such expansion of “rights” has increased the potential for “criminal” conduct by citizens alleged to “conspire” to infringe on those rights — but with a significant caveat: The statute only applies to a conspiracy to engage in conduct that involves an intent to “injure, oppress, threaten, or intimidate” any person…. in the free exercise or enjoyment o any right…”
The legal “rub” here — which typically does not attend an FBI Agent’s Affidavit — is accurately presenting to the grand jury the law on what is meant by the terms “injure”, “oppress”, “threaten”, or “intimidate” in the context of the statute. There isn’t any meaningful offering by the FBI agent as to why — legally — posting misinformation on Twitter “injures”, “oppresses,” “threatens” or “intimidates” any person in exercising their right to vote.
But the prosecutors will be obligated to provide an accurate description of the existing law on this statute — what it applies to and where its “reach” ends.
The only “evidence” offered up by the Affidavit on this issue is in the final numbered paragraph, which reads in its entirety as follows:
36. According to iVisionMobile, the company that owned the Text Code listed in the two Deceptive Images distributed by MACKEY, at least 4900 unique telephone numbers texted “[Candidate’s first name]” or some derivative to the Text Code on or about and before Election Day, including many belonging to individuals located in the Eastern District of New York. Of approximately 4900 numbers that corresponded with the Text Code, approximately 4860, or 99%, sent their texts after MACKEY first tweeted a Deceptive Image from MACKEY Account 2.
The Agent tells us only that 4900 people texted the number that was put out via social media by Mackey and the others. She does not tell us if any of those individuals failed to vote in reliance on the misrepresentation that they could cast their ballot in 2016 by text message (or Facebook). So it is possible — the information is not disclosed — that no one who actually intended to cast a lawful ballot had their right to do so compromised by the social media misinformation.
As a legal matter, a “conspiracy” charge does not require that the intended victims actually be victimized, nor does it require that the criminal acts — beyond the agreement to commit them — take place. As such, it would not be necessary to sustain a conviction for the government to prove with evidence that any voters did, in fact, have their right to vote “injured”, “oppressed”, “threatened” or “intimidated”.
But the problem that will exist for the government at trial on a simple conspiracy charge is proving that it was the intention of Mackey and the others to “injure”, “oppress”, “threaten” or “intimidate” other persons’ right to vote.
In this regard, a particular phrase was not used — the statute doesn’t include any form of “catch-all” provision in the form of something like “or otherwise interfere”.
Nor does the first provision concerning “conspiring” use the much broader term “hinder” that is used in the second provision about going onto highways “in disguise.” That’s not so curious when you understand the history of this statute.
The history of the statute is relatively clear that it was intended to address physical acts of violence or intimidation directed at voters — acts that were not reached by the companion statute, Sec. 242, which applies to deprivation of rights “under color of law.” That phrase means Sec. 242 applies only to actions taken by governmental actors.
So what was the genesis of Section 241? The historical record is clear that it was directed at the concerted actions of private citizens designed and intended to deprive others of their civil rights, and one specific target at the time were racists groups like the Ku Klux Klan – a group originally founded in 1865 by private citizens who conspired to use force or violence to deprive freed slaves of rights given to them by the Emancipation Proclamation and legal statutes in the aftermath of the Civil War.
Now the Biden Justice Department is suggesting it will use this statute to punish a meme maker who is alleged to have targeted a class of voters on the basis of their political preference, specifically that a Trump supporter is going to be prosecuted because he is alleged to have published on social media a misrepresentation about a particular method of voting that might have cost Hillary Clinton a few votes.
Let me show why the Biden Justice Department chose to charge by way of a criminal complaint with the FBI Agent’s Affidavit attached. Had this case been charged by indictment, it is likely that the necessary charging language could have been set forth as follows:
COUNT 1: Beginning on a date uncertain, but not later than on or about October 17, 2016, and continuing to on or about November 2, 2016, in the Eastern District of New York and elsewhere, Defendant Douglass MACKEY, also known as “Ricky Vaughn”, “Veg Head”, and “The Wild Thing”, and others known and unknown to this Grand Jury, did agree with, by, and between each other to violate Title 18 U.S.C. Section 241, to wit: They agreed to publish misinformation on social media platforms regarding what they claimed were now “lawful” methods of voting, which were not, in fact, lawful, with the intent to injure, oppress, threaten or intimidate others in the free exercise of their right to vote.”
If I was actually writing such an indictment — which I never would — I would “tune” this language up to make it precisely track the statute. But it’s been a while since I had to do so, and I’m too lazy at this moment to go track it down. But what I’ve set forth is pretty much all that would need to be alleged in an indictment to support a prosecution on a violation of Sec. 242.
If the Biden Justice Department had gone this route, it would not have been able to publish that press release and the FBI Agent’s Affidavit with 24 pages detailing the horror story of a few knuckleheads on social media doing stupid memes which would only influence stupid people. By putting it all in the Affidavit which is a publicly filed document, DOJ allowed the media to run with it in covering this matter of utmost national significance — that Twitter users thought Hillary Clinton supporters were stupid enough to believe that the law had been changed so that they could vote for Hillary by sending her name via Text Message to some unnamed destination.
Let’s hear again about the politicization of the Justice Department under Donald Trump — I’m up for a good laugh on a Friday.