The Ricky Vaughn Witch Hunt
Meme shared by Ricky Vaughn that the federal government argues was illegal.
Douglass Mackey inherited an ordinary upbringing in the small town of Waterbury, Vermont, home to some 5,000 souls. It’s even the site of Ben & Jerry’s first factory, built in 1985.
After graduating from Harwood Union High School, he attended nearby Middlebury College, a longtime beacon of progressive teaching and learning. Mackey left the elite school in 2011 with an economics degree and put verdant Vermont in rearview for Brooklyn’s concrete jungle, where he took a job in 2012 at John Dunham & Associates, an economic research firm.
Nine years later, authorities would arrest Mackey in West Palm Beach, Florida, on federal charges of election interference.
The Department of Justice alleges he unlawfully used social media to deprive individuals of their right to vote through a disinformation campaign during the 2016 election. The complaint charges Mackey under Section 241 of Title 18, the civil rights conspiracy statute. Specifically, federal prosecutors accuse Mackey and unnamed co-conspirators of using memes to create confusion about the voting process, by claiming Hillary Clinton supporters could vote by posting on Facebook or Twitter or texting a number.
Somewhere between Vermont and New York, Mackey picked up the pseudonymous persona of “Ricky Vaughn” and put a self-styled alt-right twist on Charlie Sheen’s character from “Major League.” As “Vaughn,” Mackey transformed from a mild-mannered cosmopolitan consultant into a Twitter provocateur. In the lead-up to the 2016 election, he was part of a group that created viral memes like “Draft our Daughters,” which suggested Clinton would start a war and make women eligible for the draft. Mackey amassed a large following on Twitter despite repeated bans.
The MIT Media Lab ranked “Ricky Vaughn” as a more important influence on the 2016 election than NBC News or Stephen Colbert—which arguably says more about them and their content than him. At any rate, Mackey managed to remain anonymous until 2018.
Though much ado has been made of his political views, they are immaterial to the crime Mackey has been accused of committing. On the other hand, it’s somewhat ironic that Mackey was outed by Paul Nehlen, an alt-right former congressional candidate, amid an intra-movement dispute.
As a kind of moderate within the movement, Mackey opposed the use of real-world confrontational or violent methods, unlike fellow travelers like Christopher Cantwell. Andrew “weev” Auernheimer, another member of the alt-right, accused Cantwell of being a federal informant during the spat. Cantwell, in turn, accused Auernheimer and Mackey of conspiring to undermine the movement. Apparently frustrated with Mackey’s criticisms and calls for moderation, Nehlen revealed his identity.
On April 5, 2018, the Huffington Post’s Luke O’Brien published the first detailed profile of Mackey following the dox, connecting the dots between “Ricky Vaughn” and the Middlebury grad behind the avatar. Though O’Brien mentioned the Cantwell-Auernheimer-Mackey dispute, he did not note that Cantwell had already confessed to being a federal informant before the Mackey exposé went live.
Sometime after the disastrous 2017 Unite the Right rally in Charlottesville, Virginia, Cantwell began talking with federal investigators. “As for speaking to the FBI, I have hinted at this publicly, but I discussed those details to Weev in confidence,” Cantwell wrote in late March, more than a week before O’Brien published his story. “His plastering our private conversation on a forum should speak to his reputation.” Cantwell appears to have been accusing Auernheimer and Mackey of subverting the alt-right, pushing for the extreme “vanguardists” over more moderate “mainstreamers,” while also being in contact with federal authorities.
After Nehlen revealed the real identity of “Ricky Vaughn,” Cantwell posted a more recent picture of Mackey “that wasn’t readily available online,” as O’Brien put it, on the social media site Gab and helped O’Brien confirm Mackey’s identity. Gab subsequently banned Nehlen for doxing Mackey. Gab ultimately banned Cantwell as well.
It is likely that Mackey first appeared on the federal government’s radar in 2018, but, for some reason, investigators did not charge him for something he did in 2016 until 2021. Further, in 2019, the FBI investigated former foreign affairs officer Matthew Q. Gebert for his ties to the alt-right—and Gebert, like Cantwell, accused Mackey of being insufficiently radical and had a running debate with him. As “Coach Finstock,” Gebert created a thread in 2018 on The Right Stuff forum called: “Ricky Vaughn is a N*****f—– who has no place in [The Right Stuff].” Given Cantwell and Gebert’s connections to Mackey, it is hard to see how the FBI or Department of Justice wouldn’t have noticed him well before 2021.
The formal investigation into Mackey appears to have begun last fall with interviews of Nehlen and Loren Feldman, a filmmaker briefly acquainted with Mackey. His indictment began with and received approval from former President Donald Trump’s Justice Department.
“In October 2020, as now, the Brooklyn US Attorney was Seth DuCharme,” noted Marcy Wheeler on January 28. Wheeler is an independent journalist writing about national security and civil liberties; Mackey was charged by criminal complaint in the Eastern District of New York.
“While DuCharme spent his career in [United States District Court for the Eastern District of New York], he was a key aide to Bill Barr, both as Counselor and then [Principal Associate Deputy Attorney General],” Wheeler wrote. In July, she added, “Barr effectively swapped DuCharme back into EDNY and moved the then US Attorney, Richard Donoghue, to PADAG.”
DuCharme issued a pointed statement about Mackey’s case. “There is no place in public discourse for lies and misinformation to defraud citizens of their right to vote,” he said. “With Mackey’s arrest, we serve notice that those who would subvert the democratic process in this manner cannot rely on the cloak of Internet anonymity to evade responsibility for their crimes.”
“They will be investigated, caught and prosecuted to the full extent of the law.”
Esteemed law professor Eugene Volokh isn’t as confident as DuCharme about the legal aspects surrounding the case and published a thoughtful review of Mackey’s indictment. The main question he raises is whether the kinds of lies Mackey told can be punished by the government or whether the First Amendment protects them.
Volokh considers U.S. v. Tobin, where the government prosecuted a party official for “a scheme to jam telephone lines for ride-to-the-polls services offered by the opposing political party” and their allies. “The object of the conspiracy was to impede certain voters from getting to the polls in order to influence what was perceived to have been a very close United States Senate contest.” He notes a federal trial judge held that Section 241— the civil rights conspiracy statute under which Mackey is charged—would cover such conduct. But in Tobin, the decision “didn’t consider a First Amendment argument, since the government was prosecuting Tobin for his conduct (jamming the lines) rather than for speech.”
Therefore, not even Tobin is the strongest precedent for what the government is doing now. “And to the extent it is a precedent, the breadth of the Mackey indictment is disquieting,” Volokh writes.
Volokh worries about the implications of adhering to the trial court’s reasoning in Mackey’s case that Section 241 bans conspiracies “with the specific intent to impede or prevent qualified persons from exercising the right to vote.” Say a candidate is corrupt. Things like nonviolent, nonthreatening picketing outside a party’s headquarters or protesting against a get-out-the-vote effort would be crimes. Moreover, broadly construing the language of the statute about conspiring to “oppress, threaten, or intimidate any person … in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States” would apply to things like shutting down public speeches—as left-wing activists are wont to do.
Volokh is right in principle, of course, but there’s little chance, in practice, any of this would apply to those on the left—or at least they would be spared the brunt of it. Indeed, many have noted that Mackey wasn’t the only one sharing inaccurate voter information leading up to the 2016 election.
“Skip poll lines at #Election2016 and TEXT in your vote!” tweeted left-wing influencer Kristina Wong on November 8, explicitly addressing Trump supporters. “Text votes are legit. Or vote tomorrow on Super Wednesday!” Wong attached a video to the tweet in which she wore a “Make America Great Again Hat” and declared her support for then-candidate Trump. “I just want to remind all my fellow Chinese-Americans for Trump, people of color for Trump, to vote, vote for Trump on Wednesday, November 9,” she said, seemingly in earnest.
That Wong is walking free today suggests DuCharme should have qualified his statement: one will be investigated, caught, and prosecuted to the full extent of the law—if they are right-wing.
The timing of Wong’s tweet is interesting because it came six days after Buzzfeed News reported that Twitter had banned Mackey for the tweets about voting via text or posting. “Yesterday, Robert McNees, a physics professor at Loyola University, was curiously scanning through the popular alt-right account @TheRickyVaughn when he came across a number of tweets apparently designed to spread misinformation about voting among African-American and Spanish-speaking citizens,” Buzzfeed’s Charlie Warzel reported on November 2. Below the first graf of the story is a large image, allegedly one of the memes Mackey used reading: “Text ‘Hillary’ to 59925.”
Buzzfeed is a massive publication. In October 2016 alone, it attracted 77.4 million readers. And after Buzzfeed broke the story, attn:, a media company that boasted 2 billion monthly impressions and over 500 million monthly video views in 2018, also ran its own feature on November 2 with screenshots and information on how to text the number Mackey shared. On November 3, Forbes ran its own story, linking to Buzzfeed’s original report.
The combined reach of just these three outlets is gargantuan. Could they have inadvertently directed eyes and texts to Mackey’s memes by showcasing them?
Justice’s complaint notes that Mackey’s campaign received about 4,900 responses. According to iVisionMobile, the company that owned the text code listed in the memes distributed by Mackey, of the approximately 4,900 numbers that corresponded with the text code, around 4,850, or 99 percent, sent their texts after Mackey first shared the images in question. The complaint states that “on or about November 1, 2016, and November 2, 2016,” was when Mackey shared the images. In other words, it is possible that the media almost immediately increased their reach. Could this have contributed to interactions with Mackey’s memes?
A representative of iVision told me that although it would be difficult to precisely determine the impact, it is very well possible media reports drove people to interact with the memes who otherwise would not have seen them. iVision mobile was unaware of Mackey’s activities at the time.
It’s easy to miss here that McNees appears to have gone out of his way to visit the page of an alt-right influencer whose tweets were otherwise contained to an ecosystem of like-minded accounts—also known as an echo chamber. “For both scientific information and conspiracy theories, the more active a user is within an echo chamber, the more that user will interact with others with similar beliefs,” wrote social scientists Walter Quattrociocchi, Antonio Scala, and Cass Sunstein in a draft paper called “Echo Chambers on Facebook.” Published in June 2016, the article was among the earliest studies of the social media phenomenon. “The spreading of information tends to be confined to communities of like-minded people,” the authors found.
How many interactions came from curious readers of Buzzfeed, Forbes, and other reporting outlets? How many were sent by and within journalists’ circles? The attn: story features a screenshot of a text apparently sent by the reporter who wrote the article. How many of those texts were sent by Mackey’s followers just for fun? The government makes no effort to answer or even ask these questions. Indeed, Andrew McCarthy, a senior fellow at National Review Institute, notes also that “the government’s complaint makes no effort to sort out how many of those 4,900 people texted as a lark, how many were eligible to vote, or how many did not vote — much less did not vote because of Mackey’s tweets.” McCarthy, moreover, catches DuCharme in a slip.
McCarthy highlights that DuCharme claimed in his public statement that Mackey attempted to “defraud citizens.” But Mackey isn’t charged with fraud. Real fraud crimes, McCarthy notes, pointing to Skilling v. United States, are those “in which the accused has an actual fiduciary responsibility and betrays it for the clear, corrupt purpose of enriching himself.” Though it was certainly deceptive, he writes, what Mackey did “was not actionable fraud because he had no fiduciary duty to people who read his social-media posts and he was not trying to enrich himself (i.e., whatever emotional lift he stood to get out of Clinton’s defeat, he was not trying to obtain property as fraud law construes that concept).”
“So while prosecutor DuCharme slipped and called it ‘fraud’ in his press release, he could not charge it as fraud in the complaint,” he adds. With Volokh, McCarthy argues Section 241’s “patent aim is to criminalize putting people in fear of physical harm for exercising their rights”—not criminalizing sharing memes, no matter how unethical. “DuCharme’s aforementioned slip gives the game away because it shows the Justice Department knows that what Mackey did was in the nature of non-chargeable deception, not actionable intimidation, the latter of which being what the civil-rights law targets.” Nor is Mackey being charged with “vote theft.” Thus, McCarthy writes, Mackey is effectively facing the “prosecutorial creation of a crime Congress has not prescribed.”
So the prosecution has draped a crime around Mackey’s neck that Congress has not prescribed and the precedent his conviction would set is disquietingly vast in its implications. And yet, the legal and evidentiary beam from which the noose hangs is remarkably frail and thin. That probably explains, in part, why the media’s focus has been on Mackey’s alt-right views, which, no matter how much one may disagree with or find them distasteful, do not constitute a crime—though it seems to be the aim of this high-tech lynching to rectify that.
Pedro L. Gonzalez is an assistant editor at American Greatness. Follow him on Twitter @emeriticus.
Published at Wed, 14 Apr 2021 04:01:56 +0000