Criminal Justice & the Rule of Law Cybersecurity & Tech Democracy & Elections

The Justice Department is Prosecuting an American for Election Interference—in 2016

Quinta Jurecic
Saturday, January 30, 2021, 9:00 AM

“Ricky Vaughn” was among the most prolific far-right Twitter users working to spread disinformation during the 2016 election cycle. Why is he only now facing criminal charges for his attempt to suppress votes?

A screenshot of the @Ricky_Vaughn99 account from summer 2016, captured on the Wayback Machine.

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“Ricky Vaughn” was among the most prolific far-right Twitter users working to spread disinformation during the 2016 election cycle. He posted racist and anti-Semitic photos and memes and routinely retweeted the @TEN_GOP account, which purported to belong to the Tennessee Republican party but, Special Counsel Robert Mueller revealed two years later, was actually run from St. Petersburg by the Internet Research Agency troll farm. In the MIT Media Lab’s ranking of top political influencers in 2016, Vaughn came in at #107—above NBC and CBS.

Vaughn has now been arrested—and, as it turns out, his name isn't Ricky Vaughn after all.

On Jan. 27, the Justice Department announced the charges against Vaughn, whose real name is Douglass Mackey. The criminal complaint alleges that some of Mackey’s 2016 tweets crossed the line into illegal voter suppression, what the Justice Department describes as “misinformation designed to deprive individuals of their constitutional right to vote.” The case is interesting for a number of reasons, among them the decision to use a civil rights statute to hold Mackey responsible for spreading disinformation.

Particularly puzzling, though, is why Mackey is being held responsible now. Election disinformation didn’t end in 2016, as anyone who has been paying attention to President Trump’s comments about the 2020 election knows. But the conduct for which Mackey is charged all took place between September and November 2016. So why is the Justice Department only prosecuting him four years later?

Reading the Mackey complaint gives a reader a strong sense of deja vu. It’s a portal back to an uneasy time when right-wing trolls were giddy with their newfound power over national discourse—“tfw you haphazardly post a /pol/ meme and it winds up on [cable news],” the complaint quotes Mackey as tweeting—and excited over the supposed ability of “meme magic” to boost Donald Trump into office. Mackey’s scheme, as alleged in the complaint, was simple enough. He and a group of other Twitter users allegedly workshopped hashtags and images to dissuade “normies” from voting for a candidate for president—unnamed in the complaint, but clearly Hillary Clinton—and, later, to trick Clinton supporters into believing they could cast their ballots by sending a text message or posting on Facebook or Twitter. The New York Times reports that among the unnamed co-conspirators listed in the complaint is Anthime Gionet, a far-right social media personality known as “Baked Alaska,” who was recently charged in connection with the Capitol riot.

Mackey wasn’t shy about his intentions in 2016, the complaint notes. “Obviously, we can win Pennsylvania,” he tweeted on Nov. 2. “The key is to drive up turnout with non-college whites, and limit black turnout.” The day before, he had tweeted an image of a Black woman overlaid with text reading, “Avoid the line. Vote from home. Text ‘Hillary’ to 59925.” The scheme worked, at least to some degree: According to the complaint, at least 4,900 people texted the number. There’s no way to know how many of those people did so instead of voting.

The department charged Mackey under 18 USC § 241, which criminalizes “conspir[ing] 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.” The statute originated in the Enforcement Act of 1870, also known as the Ku Klux Klan Act—Reconstruction-era legislation passed in response to a campaign of Klan violence aimed at keeping Black Americans from the polls. Deuel Ross, senior counsel at the NAACP Legal Defense Fund, explained that Mackey’s prosecution under § 241 is a “natural outgrowth of the original intent of these criminal statutes.” But, he said, this may well be the first instance in which the Justice Department has brought criminal civil rights charges for the distribution of voting disinformation over social media, whether under § 241 or Section 11 of the Voting Rights Act.

The story of how the FBI found Mackey seems to begin in 2018, when Paul Nehlen—a white nationalist who was then challenging Rep. Paul Ryan’s congressional seat—announced on the social network Gab that Mackey was “Ricky Vaughn.” (Nehlen appears to have outed Mackey as a result of an opaque business dispute between them.) With the help of that lead, the Huffington Post quickly uncovered the details of Mackey’s identity.

The complaint cites Nehlen’s Gab post and the Huffington Post article. (While the complaint refers only to Gab posts by a “Congressional Candidate,” the Huffington Post reports that the candidate in question is Nehlen.) But the story the charging document tells then jumps straight from April 2018 to October 2020, when FBI agents apparently “conducted a voluntary interview with the Congressional Candidate”—who confirmed that “Vaughn” was Mackey. Other FBI interviews listed in the complaint were conducted through November 2020. The investigation culminated on Jan. 22, when the complaint against Mackey was filed under seal in the U.S. District Court for the Eastern District of New York.

Depending on whether the clock starts ticking with Mackey’s 2016 Twitter posts or his outing in 2018, there is either a two-year or a four-year gap between the relevant portion of Mackey’s story and the FBI’s arrest of him. The Washington Post writes that, according to an unnamed “person with knowledge of the case,” this is because the Mackey probe was “a complex investigation,” “one that did not begin until it was discovered that Mackey was behind the Ricky Vaughn persona.” This may well be true. But given that the Huffington Post published Mackey’s identity in 2018, why did it take the Justice Department two more years to charge him?

It’s not like Mackey’s disinformation campaign flew under the radar in 2016: a BuzzFeed News article on the “text to vote” scheme resulted in Twitter suspending the Ricky Vaughn account in the days before the 2016 election. The next year, in October 2017, the Senate Judiciary Committee highlighted Mackey’s tweets in a hearing on the role of social media platforms in enabling election interference. In 2018, the posts gained attention again in the surge of interest in election interference that followed Mueller’s indictment of the Internet Research Agency troll farm. In the wake of the Mueller indictment, the House Intelligence Committee identified Mackey’s work as examples of “voter suppression content” provided by Twitter. “There is no indication that this particular activity had links to the Russian influence campaign,” the committee wrote, “but we believe it is vitally important for the public to understand and view nefarious online activity meant to weaken our democratic process.”

Mackey’s posts, in other words, wouldn’t have been difficult to find for Justice Department officials interested in uncovering and prosecuting election interference coming from within the U.S. as well as from abroad. They were all but decked out in neon lights.

One possibility is that officials were aware of Mackey’s activity earlier but for some reason didn’t make a move until now. Mueller’s team was obviously interested in election disinformation, though the special counsel’s office had a mandate that only covered social media operations from Russia. But Mueller’s office could well have had access to the Twitter data on Mackey’s posts during its investigation. Mueller prosecutor Andrew Weissmann writes in his book that the special counsel’s office began receiving data from tech platforms on social media disinformation in the late summer and fall of 2017—around the same time that, according to the House Intelligence Committee, Twitter shared Mackey’s posts with Congress as potentially suspicious. So Twitter could certainly have shared information on Mackey with Mueller as well. In fact, since Twitter seems to have been unsure whether or not Mackey’s posts traced back to Russia— "we have not found accounts associated with this activity to have obvious Russian origin," the company wrote in 2017—and because Mackey’s accounts interacted so frequently with accounts that were run by the IRA, it seems likely that Mueller would have been aware of Mackey’s activity.

The question, then, is what Mueller’s office might have done with that information. Domestic election disinformation would have fallen outside Mueller’s mandate, which tasked the office with looking into Russian election interference and domestic efforts in collaboration with it. It is possible the special counsel’s office either chose to set Mackey’s posts aside or let them slip through the cracks while it focused on Russia’s campaign. It’s also possible that Mueller referred this material the evidence back to the Justice Department—as he did with other material, like information relevant to counterintelligence concerns, that he chose not to pursue—only for the department to set it aside, either inadvertently, out of a desire to not antagonize Trump or for some other reason.

There is also the question of what happened in October 2020 to turn the department’s interest back to Mackey, and why Mackey was then only charged months later, on Jan. 22. Additionally complicating the story is the fact that Mackey was charged by criminal complaint, rather than indictment—a move prosecutors typically make when they need to move quickly. Mackey’s connection to Gionet could possibly explain this: perhaps Gionet’s recent arrest following the Capitol riot helped the FBI obtain enough additional evidence against Mackey to put the case over the top.

Of course, Jan. 22 also happens to have been the second full day of Joe Biden’s presidency. Whatever the reason that Mackey’s prosecution was delayed until now, the fact is that the Justice Department kept quiet about it as long as an administration remained in office that was keen to undercut investigations into 2016 election inference and that later fired officials for debunking election disinformation in 2020. This doesn’t explain why the FBI picked up the thread again in early October, but the context—that the Justice Department filed a long-belated 2016 information operations case immediately after Trump left office—is hard to ignore.

Though Mackey’s alleged conduct is factually unrelated to the violence in the Capitol, there’s a thematic link between his prosecution and those of the Capitol rioters seeking to overturn Biden’s election. As Ross pointed out in an interview, “The attack on the Capitol was to disenfranchise voters who didn’t vote in a particular way, and it was organized largely online”—an echo of Mackey’s tweets. And the use of a Reconstruction-era statute to prosecute Mackey also recalls the conversation around the potential use of seditious conspiracy statutes—first passed in 1861in response to the outbreak of the Civil War—to prosecute those in the Capitol mob.

From 2016 to 2020, the discussion around disinformation has shifted from a focus on false and misleading information from abroad to the lies that come from within the U.S. itself. The Capitol riot, and the months of lies by Trump about election integrity that led up to it, accelerated that shift. In a sense, the delay in charging Mackey reflects this change too. The federal government has moved from prosecuting Russian trolls for trying to suppress voting, and discourage Black voters in particular, to prosecuting an American for trying to do the same thing. But the fact that Mackey’s alleged conduct took place four years ago, and is only being charged now, is also a reminder that disinformation from within—and, along with it, an increasing disconnection from truth and increasing radicalization on the part of the American right—has always been the core of the problem, even if it’s only now being recognized as such.

That problem is not going away. The day that Mackey was charged, Fox News host Tucker Carlson featured Mackey’s case on his 9 p.m. show, arguing that “Joe Biden’s Justice Department” was unfairly persecuting Mackey for his political beliefs. Mackey, Carlson said, was just a “conservative journalist”; he had done nothing wrong. Carlson warned his viewers about the danger of jackbooted thugs silencing dissent under the Biden administration. “Arresting people for memes,” he said, “banning whole social media sites—a crackdown like this cannot help but create domestic extremism.”

Quinta Jurecic is a fellow in Governance Studies at the Brookings Institution and a senior editor at Lawfare. She previously served as Lawfare's managing editor and as an editorial writer for the Washington Post.

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