Why the United States Court of Appeals for the Second Circuit reversed the conviction of pro-Trump Twitter personality Douglass Mackey.

The United States Court of Appeals for the Second Circuit has reversed the conviction of alt-right pro-Trump Twitter personality Douglass Mackey, known on the platform as “Ricky Vaughn” (a pseudonym chosen in honor of Charlie Sheen’s “Wild Thing” character in the movie Major League). The opinion, which was unanimous among two George W. Bush appointees and a Biden appointee, did not deal with the issue of how far the law can go to criminalize misleading speech about elections, nor did it address issues of selective prosecution. The case against Mackey fell down on the more prosaic ground that the prosecution suffered from a failure of evidence.

In 2016, Mackey and his Twitter allies circulated memes urging Hillary Clinton supporters to vote by text, as if this was a legal method of voting. This was obvious trolling, but trolling of a malicious nature. Mackey argued that it’s not a crime to use memes to mock and make fools of political opponents. The Justice Department, which investigated Mackey and indicted him two days after Joe Biden’s inauguration in the feverish post–January 6 atmosphere, took the position that it’s a crime to lie to people about the time, place, and manner of voting in elections, which can mislead legal voters into not casting legal ballots and not having their votes counted. It indicted Mackey for conspiring to “injure, oppress, threaten and intimidate persons in the free exercise and enjoyment of . . . the right to vote” in violation of 18 U.S.C. Section 241, one of the statutes that Jack Smith later used to charge Donald Trump.

At the level of constitutional theory, DOJ had a point: there shouldn’t be, and likely isn’t, a First Amendment problem with criminalizing the very narrow species of lies about how and when to vote. But charging people over misleading election memes would also open a Pandora’s box because that theory can get very elastic very quickly if not strictly limited by statutory text — which Section 241 does not do.

In the end, none of it mattered. As the appeals court pointedly noted, instead of limiting the nature of the crimes, “Congress expressly limited Section 241’s reach to conspiracies. There are several reasons why Congress may have done so . . . But the critical point is that Congress made this choice — one it has declined to deviate from in the more than 150 years since Section 241’s enactment.” The Second Circuit found that the government simply hadn’t provided evidence that Mackey conspired with other members of a Twitter mob, absent any proof of him reading and responding to their private messages:

At trial, the government’s evidence consisted predominately of tweets and messages distributed on Twitter. Although the government called 19 witnesses to the stand, it was, in the government’s words, “fundamentally a document case.” . . . These documents established, in addition to the facts discussed above, that Mackey was an influential player in the pro-Trump social media space, that he was aware and proud of his influence and popularity, that he professed racist and misogynistic views around the time he posted the text-to-vote memes, that he expected the election to be close, and that he thought minority voter turnout might prove decisive. The evidence also established that members of the direct message groups in which Mackey at times participated shared many of his views and objectives.

One of Mackey’s alleged co-conspirators, Microchip, pled guilty to violating Section 241 and testified pursuant to a cooperation agreement. Microchip, who did not claim to have ever met or spoken to Mackey, admitted that he himself had posted tweets containing false information about how to vote with the “hope . . . that Hillary Clinton voters [would] see [his tweets] and then vote incorrectly,” and that he did so pursuant to “kind of like a silent agreement” with other members of the War Room. . . . Microchip also testified about the War Room’s purpose and methods, characterizing the online group as a “strategy room,” and claiming that its members would share ideas and then go to websites like 4chan to look for similar content to distribute. . . . Microchip, however, disclaimed the existence of any “expressly stated agreement” to post the tweets.

Mackey testified in his own defense. In addition to claiming, as discussed above, that he did not view the relevant War Room posts, he denied having shared the memes with the intent to “threaten,” “intimidate,” “oppress,” or “injure anyone’s right to vote.” [Citations omitted]

That just wasn’t enough because Mackey didn’t leave a paper trail or electronic trail, and nobody testified that they’d talked to him about the conspiracy:

The government presented no evidence that Mackey participated in the conspiracy’s formation. The government put forth extensive evidence that other members of the War Room, as well as members of Micro Chat and Madman #2, distributed and discussed memes suggesting citizens could vote by tweet or text in the lead-up to the election. But notably absent from this evidence was a single message from Mackey in any of these direct message groups related to the scheme. Indeed, Mackey was not even a member of Madman #2 or Micro Chat from approximately October 5, 2016 through the election. And the record contains no evidence that Mackey posted any messages in the War Room in the two weeks before he tweeted the text-to-vote memes. The evidence of Mackey’s involvement in the conspiracy thus stands in stark contrast to that of other group members’ involvement. . . .

To be sure, nothing is amiss in the government’s theory as to how it proved its case. For many conspiracies — whether formed in person or online — the defendant’s conduct itself, considered in light of the surrounding circumstances, is highly probative of his knowing participation in the unlawful enterprise. . . . But the reasonableness of the inference of knowing agreement from the government’s circumstantial proof depends on the nature of that proof. . . . Here, the conduct at issue — posting text-to-vote memes similar to others circulating publicly online — does not in isolation show awareness of, much less knowing participation in, a conspiracy. The government does not contest that Mackey downloaded the memes from 4chan but argues that the inspiration to do so came from discussion in the War Room. This is possibly true. But the inference is speculative and the government relies largely on conjecture to rule out the alternative scenario: that Mackey’s conduct was independent of any knowledge of the War Room discussions. Mackey did not send any messages in the War Room in the two weeks before his text-to-vote tweets, despite having actively participated in the group in the past. Moreover, there were “over 600 messages coming in per day in the War Room” and only 12 posts related to the alleged conspiracy, two of which were sent within one minute of each other and the other 10 within a 20-minute period.

Sometimes, criminal cases collapse for reasons that really are that simple. The opinion leaves plenty of room for the possibility that Mackey was guilty. It just found that the prosecution hadn’t proven that with evidence.