Douglass Mackey: A Case Study in Lawfare

Interview with Douglass Mackey

Hans Mahncke:

Douglass Mackey, it’s great to be here with you today. Ten years ago, I was a fan of your Twitter account, the one that ultimately got you into all this trouble. Of course, I had no idea who you were. It was an anonymous account.

I don’t even remember whether I saw the specific tweet at the time. You essentially sent out a meme saying, “Text Hillary,” or, “Stay at home. You don’t need to queue up to vote. Text Hillary.” It was a joke. Anyone with a functioning brain would have known, “That’s a meme. That’s funny.”

It wasn’t even your meme. It had been going around the internet. But I was a fan of your account. I thought it had very good analysis and insight into the 2016 election. Then I guess I forgot about it, and you probably forgot about that meme.

Four or five years later, you got dragged into this lawfare. I think what they did to you over that meme is probably one of the most complete examples of lawfare because it has all the elements.

First of all, there was the delay. They waited until Donald Trump was out of office, which tells you something about the political dimension. But it was also, in a sense, a uniparty effort because some Trump appointees started the process and then the Biden people carried it forward.

There was forum shopping. You were in Florida, yet suddenly they charged you in Brooklyn. Then there was the law they used. There really was no law designed for this, so they went back to 1870 and used a Ku Klux Klan-era statute to charge you.

And, of course, there was no evidence of a conspiracy, as the appeals court ultimately found.

So in many ways, I’ve always thought your case was the epitome of lawfare because everything is there.

Let’s go back to 2016. You’re tweeting under the Ricky Vaughn account. Ricky Vaughn, of course, is Charlie Sheen’s character from Major League, a kind of anti-authoritarian guy. I remember thinking whoever was behind the account was probably a bit anti-authoritarian, and I liked that.

You sometimes changed the name to Tacitus or Publius Gaius. I remember thinking, “This must be an interesting guy tweeting.”

So you’re there, you send out this meme. Did you have any idea any of this would happen to you later?

Douglass Mackey:

I had absolutely no idea. Everything I tweeted was protected free speech, satire, commentary, humor. Anyone who saw the meme in the context of an account posting those kinds of things would never think, “This is a crime. This is an attempt to disenfranchise voters.”

So when I was arrested in 2021, I had no idea why they were arresting me.

I knew about lawfare, of course, because we knew about Russiagate and everything they had done to Trump.

The FBI had actually knocked on my door in an obscure part of Florida in 2018 and asked me if I knew somebody. I told them I wasn’t interested in talking to them and that they would have to speak to my lawyer.

I never heard from them again until seven days after Joe Biden’s inauguration, when they came knocking on my door. It came completely out of left field.

Hans Mahncke:

When they came to you in 2018, did they use the approach of saying, “We don’t want to talk about you. We want to talk about this other person”?

You had no indication that it was about you or the meme?

Douglass Mackey:

Exactly. I knew the FBI could lie or mislead and I suspected there was always a possibility that I was the real reason they wanted to talk, although I didn’t seriously think so.

I called a lawyer and told the FBI to speak to him.

The strange thing was that I never heard anything more about it because this lawyer, who had been a legendary criminal defense attorney in the Palm Beach County area, was elderly at that point and had dementia. He actually forgot about the entire thing. We didn’t discover that until we received pretrial discovery.

He passed away a few years later.

Hans Mahncke:

Given what ultimately happened, it doesn’t sound as though the matter would simply have gone away anyway.

Douglass Mackey:

No, I don’t think so. Not unless something happened that caused them to conclude they didn’t have enough evidence.

Of course, they didn’t have the evidence. It was a completely inferential, circumstantial case. The theory was essentially, “This guy must not like Democrats, therefore he must have been trying to disenfranchise them.”

They never seriously considered that maybe it was simply humor. They never seriously considered that these memes were flying around the internet and that there was no underlying conspiracy in which people got together and decided they were going to trick Democrats out of voting.

Hans Mahncke:

What makes it even worse is the possibility that they understood all of that and brought the case anyway because they wanted to punish a Trump supporter.

That is what makes the case so egregious from a lawfare perspective.

The case was initially investigated or prepared in the Eastern District of New York under Seth DuCharme. He had been a William Barr protégé, so you might have assumed, “That’s a Trump appointee. This must be fine.”

But nothing happened with the case until Trump was gone.

That fact alone says a great deal about its political nature.

Did you ever get any indication of what was happening internally with DuCharme or why they were pursuing you?

Douglass Mackey:

If we can believe the reporting, there were basically two news articles that tried to explain how the case came about, one from The New York Times and one from Reuters, so take that for what it’s worth.

What we know is that because this was such a novel and political case, it would have had to go to Main Justice.

The case was brought to the attention of Main Justice by FBI agents out of New York. One of them was Megan Rees. We suspected she was one of these FBI agents who had been aggressively investigating Trump supporters.

The Eastern District of New York is known for pursuing big cases that attract media attention. They can also be very creative about venue.

The case went to the Public Integrity Section at Main Justice. That was the group that later worked with Jack Smith against President Trump and that the Trump DOJ ultimately disbanded.

The Trump appointees at DOJ looked at the case and said, essentially, “Number one, this appears to implicate free speech. Number two, where is the evidence? How are you going to prove there was a conspiracy? How are you going to prove intent? How are you going to prove that he wasn’t simply joking?”

There was a debate inside DOJ, and Bill Barr or one of his deputies ultimately said, “We’re not going to prosecute this case.”

It went back on the shelf.

As soon as Bill Barr resigned, the case came off the shelf. You can’t even necessarily blame Biden appointees because Biden hadn’t taken office yet. It was career people and acting officials.

The acting attorney general signed off on the case after Barr resigned.

Then it went to DuCharme. He was an acting U.S. attorney at that point. For whatever reason, he signed off on it. Maybe he didn’t think it was worth fighting internally, or maybe he believed in the prosecution.

Since then, we’ve seen plenty of commentary from him, and he seems very anti-Trump.

Hans Mahncke:

He now works at an elite law firm and regularly gives quotes to the media criticizing Trump and the Trump administration.

In my view, a lot of people in government are probably thinking somewhere in the back of their minds, “I don’t want to rock the boat because I want that golden ticket to one of these jobs.”

Douglass Mackey:

Absolutely. Imagine if he had put his foot down and said, “We are not prosecuting this case.”

That probably wouldn’t have helped his future job prospects.

Hans Mahncke:

One thing that always bothered me was the statement they issued when you were indicted on January 27, 2021, only a week after Biden took office.

It was extremely nasty. It talked about spreading misinformation and teaching people a lesson.

The worst part may actually have been something William Sweeney, a senior FBI official in New York, said. He essentially said this should teach people a lesson because now your name would forever be besmirched on the internet.

How is it the government’s role to besmirch somebody so that he is forever tainted online?

And this was before any trial.

Douglass Mackey:

Before any court hearing, before any judge, before anything. These were just charges.

They said something along the lines of, “He used to have a lot of influence and followers, but now if you Google his name…”

It was nasty. It was completely ridiculous and completely uncalled for.

I think it showed the contempt these people had not just for Trump supporters, but for anonymity on the internet and for free speech.

Hans Mahncke:

That statement alone almost epitomizes the lawfare.

This was not, “We’re going to apply the law equally, bring the evidence to a judge and jury, and see what happens.”

They prejudged the entire case. They essentially told the public from the beginning, “We’re doing this so this guy will forever have a bad name on the internet.”

That tells you what the purpose was.

So they came to your house. Did they actually arrest you there?

Douglass Mackey:

Yes. I had been living in Manhattan in 2016 when I posted the meme, but by then I had moved to Florida.

At about 7:00 a.m., seven days after Biden’s inauguration, they knocked on my door. There were two FBI agents from New York, two local agents, and multiple local police officers.

It was quite a scene.

They told me I was under arrest.

I said, “For what?”

They said, “We have a warrant for your arrest.”

I said again, “For what?”

I genuinely had no idea.

They even tried to get me to talk after they put me in the vehicle. Megan Rees, the New York FBI agent I mentioned earlier, asked me, “Are you ready to talk?”

I said, “No. I’m not going to talk to you.”

I knew you should never talk to the FBI or law enforcement without an attorney.

Then they took me away in handcuffs to the federal courthouse in West Palm Beach.

Hans Mahncke:

How long did they keep you there?

Douglass Mackey:

Because of COVID, there were delays. They put you in a mask, and you couldn’t even physically appear in front of the judge. You were talking to the judge on Zoom and talking to your public defender on Zoom.

I was in the holding cell for about two hours before seeing the judge. Then I was released on a signature bond.

Hans Mahncke:

Then you go home and suddenly your entire life has changed. What did you do?

Douglass Mackey:

I went home and started calling friends and interviewing lawyers.

I needed to raise a lot of money. Fortunately, I had a lot of goodwill and a lot of people willing to help me, but I personally had basically no money to fight a multimillion-dollar federal case.

So we got to work raising money, interviewing attorneys, and fighting the case.

The government wasn’t in any rush. They were still trying to develop evidence and witnesses, which didn’t work out very well for them because they didn’t really have anything.

That didn’t stop them from obtaining enormous amounts of data: email accounts, direct messages, credit card statements, financial statements.

They were even investigating whether I was being paid by Russia or something like that. Really crazy stuff.

They interviewed witnesses. The trial became a farce. They put something like 16 or 17 witnesses on the stand, some essentially just to say, “I was his roommate. I saw him using the internet.”

It was background designed to create the appearance of a large case.

Almost none of the witnesses had anything to say about the supposed conspiracy.

They got one guy on the stand and pressured him into testifying that we had been involved in a conspiracy together. I had never seen this guy in person and had never spoken to him directly. We simply happened to be in the same internet DM group.

Ultimately, that lack of evidence is why the appellate court threw out the conviction.

Hans Mahncke:

It’s worth zooming out again and remembering what actually happened.

You sent a meme. A little image saying something like, “Stay home. Vote Hillary by text.”

That’s it.

You didn’t make the meme. You didn’t design it or create it. It was circulating on 4chan, Reddit, and elsewhere. Hundreds or probably thousands of people shared it in some form.

You happened to post it on Twitter.

And your account at that point wasn’t even especially large by today’s standards. How many followers did it have?

Douglass Mackey:

My first account had about 62,000 followers and was suspended by Jack Dorsey.

The second account, which was the one where I posted the meme, had only about 14,000 followers. Very few people saw the meme. It was clearly an inside joke among friends.

There were two versions. One was in Spanish and showed a Hispanic woman. Another was in English and showed a Black woman.

The government tried to argue that this demonstrated racist or sexist animus against Black people, women, or Hispanic people. They wanted to bring in anything they could to suggest I didn’t want these groups to vote.

This was despite the fact that I hadn’t even created the meme.

People were posting it on Facebook and all over the internet.

If somebody were seriously trying to prevent people from voting using a meme, this was not a very serious way to do it.

I posted it on Twitter, where primarily right-wing followers would see it and get a chuckle. It was obviously satire, a joke, and a troll. Maybe somebody on the other side would see it and get angry. That was the trolling aspect of it.

Hans Mahncke:

And there would have been very few Hillary Clinton voters following your account in the first place.

There was also apparently a Democratic comedian who posted the counterpart to your meme telling Trump voters to vote by text.

Nothing happened to her.

More importantly, nothing happened to all the other people who shared the same meme you did.

You mentioned conspiracy. I think that is important because they obviously looked for a way to charge you simply for posting the meme and realized they couldn’t do that because of the First Amendment.

So they needed a back door. They had to find some way around the free speech problem.

They went all the way back to an 1870 conspiracy-against-rights statute, a Ku Klux Klan-era law, and decided to apply it to you.

That itself is a major feature of lawfare. You have a chosen target, and then you go searching for a law, however novel or inapplicable, that you can try to squeeze the target into.

Their theory was that you had conspired with other people to deny people their voting rights.

Even if you had discussed the meme with other people, I would still think applying that statute was ridiculous.

But what makes the case even more extraordinary is that there was no evidence you had conspired with anybody.

You were simply in a chat group, as many of us are, that might contain dozens or hundreds of people. People add you to groups and sometimes you don’t even know you’re in them.

People in one of these groups apparently discussed the meme. There was no evidence you read those messages, participated in that discussion, or coordinated with those people.

Do you remember being in that group or reading those messages?

Douglass Mackey:

I was in several groups that the government tried to portray as part of the conspiracy or the background of the conspiracy.

There were some groups I was active in. For example, we posted a meme called “Draft Our Daughters,” making fun of Hillary Clinton’s positions. The joke was that she was a feminist who supported equality and wanted confrontation with Russia, so we would have equality by drafting women to fight Russia.

So there were groups I actively participated in.

But this particular group was called the War Room, and it was completely spammed. There were 600 to 700 messages a day.

I actually testified at trial, which is unusual because lawyers generally don’t want their clients to testify. But we knew I had done nothing wrong, and I was the only person who could testify directly about what I had or had not seen.

I never read the messages where this meme was supposedly being discussed.

I found the meme independently on 4chan.

We made that point at trial. It wasn’t as though the only place on the internet where the meme existed was this one chat group.

There were also different variations of the meme. The versions discussed in the group were different from the version I found.

I testified that I found it independently, floating around the internet like so many memes do.

The government’s theory was essentially, “You posted this meme, these other people were talking about a similar meme in a group you belonged to, therefore you must have been part of their discussion.”

They brought a conspiracy case without evidence of a conspiracy. It was astonishing.

Hans Mahncke:

And the appeals court ultimately said there was no evidence. That is an extraordinary result.

In the federal system, once you have been convicted, getting that conviction overturned on the ground that the evidence itself was insufficient is extremely difficult.

It certainly wasn’t easy for you. You had to spend millions of dollars and go through hell to get there.

But legally, the appellate judges agreed there simply wasn’t enough evidence.

What do you think happened with the Brooklyn jury? How could they look at a record where there was no evidence you coordinated with these people and still convict?

Did you ever find out what they were thinking?

Douglass Mackey:

We actually did learn something about what they were thinking because my attorney contacted some of them afterward. They were very friendly and, in many ways, sympathetic.

So then you ask, “How did they reach a unanimous guilty verdict?”

With juries, prosecutors and defense lawyers know you often have two or three leadership personalities, and then the rest of the jury can follow those people.

We know the jurors went over the evidence repeatedly. Initially, I think five wanted to acquit, three wanted to convict, and the rest were somewhere in between.

You also have to remember that this was Brooklyn, New York.

It is a very left-leaning place, although that obviously doesn’t mean every juror was left-leaning.

We also had a very diverse jury with several people who had not been born in the United States and whose first language was not English.

In a case built around internet memes, satire, and humor, that matters. Some of the jurors simply didn’t understand memes or the kind of humor involved.

There were three jurors who apparently thought I was guilty from the beginning and were not going to change their minds.

Other jurors were much more thoughtful and would have acquitted me.

But eventually people want to go home. They don’t necessarily understand that if they cannot agree, the jury can hang. They think they may be stuck there indefinitely.

Eventually, on a Friday afternoon before the weekend, they returned a unanimous verdict.

When some jurors were later asked what specifically convinced them of guilt, they couldn’t really identify anything. They essentially said everyone had different views and eventually they all agreed.

That’s how these things can happen.

Hans Mahncke:

The judge also pushed the process toward a verdict, in my view, through an Allen charge.

The jury was hopelessly deadlocked. This wasn’t even an 11-to-1 split. As you said, it was all over the place.

An Allen instruction essentially tells the jurors, “Go back in there and try again.”

What did you think when that happened?

Douglass Mackey:

I thought the Allen charge was crazy.

When the judge read it, the jurors looked like they were the ones on trial. They were squirming in their seats as if they had done something wrong.

The instruction basically says, “Don’t necessarily abandon your deeply held convictions, but everyone has spent all this time and money on the trial, so go back and give it another shot.”

The Supreme Court says Allen charges are constitutional, and they are fairly standard in criminal cases. But I think it is another way the federal system can be stacked against defendants.

In a political case like mine, that becomes particularly dangerous.

Hans Mahncke:

There is also the whole question of a jury of your peers.

That is something I think we need to revisit as a concept because in highly political cases it often no longer works.

You have red and blue jurisdictions. Washington, D.C., is the most obvious example. If the government can charge you there, the jury pool is overwhelmingly politically one-sided. That is simply a demographic fact.

And the people in Brooklyn weren’t really your peers either.

Where were you physically when you sent the tweet?

Douglass Mackey:

Manhattan.

Hans Mahncke:

So you weren’t even in the Eastern District of New York.

Douglass Mackey:

Correct. Manhattan is the Southern District of New York.

They brought the case in the Eastern District of New York.

These prosecutors wanted the case. They wanted the publicity.

Either the Southern District declined it or the government never seriously took it there. We don’t know exactly what happened internally.

Hans Mahncke:

The sheer size of the government effort also affects juries.

If the government has spent millions of dollars and puts witness after witness on the stand, an ordinary juror may naturally think, “There must be something here.”

One of the things the government did was trace the text messages sent to the number on the meme. I believe they found roughly 5,000 texts.

But the meme was circulating all over the internet, so there was no way to establish that those people had seen your particular tweet.

Then the FBI actually went out and interviewed people who had texted the number.

They were looking for one person who would say, “Yes, I thought I was voting, and because I texted this number I didn’t actually vote.”

And they couldn’t find one.

Douglass Mackey:

They couldn’t find a single one.

We specifically demanded that the government turn over the FBI 302 reports from interviews with people who had texted the number.

The responses were things like, “I don’t remember that,” or, “Of course I didn’t think it was real. Do you think I’m stupid?”

They couldn’t find a single witness to put on the stand who would say he or she had actually been fooled.

That also created a venue problem for the government. If they had found somebody in the Eastern District of New York who had seen my specific tweet and somehow been affected by it, they could have made a stronger venue argument.

But they couldn’t prove any of these people had even seen my tweet.

The Second Circuit ultimately didn’t have to decide the venue issue or the constitutional question about applying this statute to speech because it found there wasn’t enough evidence to begin with.

The court simply ordered an acquittal.

That is extremely rare.

The legal standard is essentially that no rational jury could have convicted based on the evidence.

It is particularly extraordinary coming from the Second Circuit, which is hardly known for casually throwing out federal convictions.

Hans Mahncke:

It is extraordinary, and it raises a broader question about the system.

We know it is possible to manipulate juries, especially people who are not versed in law. Prosecutors know how to build a presentation. They know how to bring in additional evidence, stack up witnesses, and create an overall impression.

It is a craft.

That makes the stage before trial incredibly important.

Prosecutors are supposed to separate the wheat from the chaff and say, “Yes, maybe I could persuade a particular jury to convict this person, but I should not bring this case because the case itself is ridiculous.”

That is supposed to be part of prosecutorial judgment.

With lawfare, the opposite happens. The machinery of the system is used precisely because it can inflict political damage.

That seems to be the fundamental point of failure here.

Bill Barr or the people around him apparently looked at the case and said, “No, we’re not bringing this.”

Then, as soon as he was gone, the case was brought.

Douglass Mackey:

Exactly.

Prosecutors are supposed to act in the interests of justice.

When you bring a case this weak, it becomes a political tool.

Maybe you can force the defendant into a plea agreement. I was never going to take one.

If you can’t do that, you can still force the person to spend millions of dollars or go millions of dollars into debt. You can tarnish his name.

That itself becomes the punishment.

We saw the same basic concept with Jack Smith and President Trump. Instead of starting with evidence of a crime and asking whether prosecution is appropriate, you start with the person you want to prosecute and ask, “What statute can we find that we might be able to apply to him?”

That is a fundamental feature of lawfare.

Hans Mahncke:

Why do you think they chose you?

So many people had posted this same meme.

Did you ever figure out why they singled you out?

Douglass Mackey:

It appears to have started with the Hillary Clinton campaign complaining about this.

The matter was brought to the attention of people at the FBI and DOJ.

There were also several supposed co-conspirators in my case who were never indicted.

Why did they prosecute me?

Because they thought I was the most impactful or influential person associated with this activity during the election.

There had been a study of Twitter around March 2016, some type of network-effect study, that ranked the account among the most influential accounts on Twitter during the election.

The government actually introduced that kind of material as evidence.

The point was, “This guy was influential. He had a big voice.”

They wanted to make an example of an influential Trump supporter.

Hans Mahncke:

In other words, “This is what happens if you support President Trump. This is what happens if you joke about Hillary Clinton on the internet.”

That is really the essence of lawfare.

You then went through absolute hell.

What was it like during the week when the jury was deliberating?

Douglass Mackey:

Horrible.

You really can’t leave the courthouse. It’s an extremely cold, uncomfortable place. You’re just sitting there waiting.

You can go outside and use your cellphone, maybe read the newspaper, but it was the middle of winter and completely miserable.

As the deliberations got longer, we began feeling more optimistic about a hung jury.

I never expected to be outright acquitted by a jury in Brooklyn, New York. I didn’t think there was much chance of that.

So once we heard they had reached a verdict, that was a bad feeling.

They had deliberated for four and a half days over a single count.

You might expect that in a giant organized-crime case with a hundred counts, but this was one count.

My attorney even asked the prosecutor what the government planned to do if the jury hung. Would they really try the case again?

The government had offered a conditional plea under which I could plead guilty while preserving certain appellate rights.

We were never going to agree to any guilty plea.

The trial was bad enough, but the jury deliberations were particularly painful.

Then they came back and said, “Guilty.”

It’s that feeling of having a rock drop into your stomach.

It was horrible.

But we knew we were going to fight the case on appeal.

At sentencing, after the judge imposed the sentence, my attorney immediately moved for bond pending appeal because there were substantial constitutional and legal issues.

There are legal standards for bond pending appeal that I believed I clearly met, but the judge rejected it and gave me a date in January to report to prison.

So now we had to fight just to remain free while the appeal was pending.

Hans Mahncke:

When you were originally arrested, you spent a couple of hours in a holding cell, but beyond that you had remained out of custody.

Then between sentencing and your January report date, you were able to obtain an appellate bond?

Douglass Mackey:

Exactly.

We were very fortunate to retain Jones Day and an excellent constitutional and criminal appellate attorney, Jacob Roth. He had previously worked in the Trump DOJ and had been involved in cases such as Bridgegate.

The Jones Day team applied directly to the circuit court for bond pending appeal.

That was really the first point at which the government was put back on its heels. Instead of simply prosecuting me, it now had to defend the conviction under serious appellate scrutiny.

The panel included a senior judge who had previously worked as a defense attorney and had experience with venue issues.

We won the appeal bond.

That was, in some ways, the beginning of the end of the government’s case because the appellate court was finally applying serious scrutiny to what had happened.

I didn’t think I was ultimately going to prison, but I had to prepare for the possibility that we could lose the bond motion. Anything can happen.

Hans Mahncke:

What happened at sentencing itself?

Douglass Mackey:

The sentencing was horrible.

My wife was around seven and a half or eight months pregnant.

I flew to New York for sentencing while she was dealing with a difficult pregnancy.

After I landed in New York, my wife or my mother called me and told me that the doctors had scheduled an emergency C-section for around 8:00 that evening.

So there I was in New York at five or six in the evening. I couldn’t get back home for the birth because I had to appear in court.

We went to the hearing the next day.

The judge offered to postpone it, but by then we said, “We’re already here. The baby has already been born.”

So we went ahead.

The sentencing range was around six to twelve months.

The probation office actually recommended computer monitoring as part of my sentence. This was a free-speech case involving a meme. There was no computer fraud or anything remotely like that.

Even the prosecution and the judge apparently thought that recommendation was ridiculous, so computer monitoring went nowhere.

But the judge sentenced me to seven months in federal prison, a $15,000 fine, and two years of supervised release.

I would have spent two years on supervised release after serving a federal prison sentence over a meme.

The judge said things like, “This was an attack on the election. This was an attempt to disenfranchise voters.”

I thought it was all nonsense.

The trial itself is adversarial. The government accuses you, you defend yourself, and the jury hears both sides.

Sentencing felt different. You simply have to sit there while the judge tells you, “You did this. You did that.”

That was actually harder to sit through than much of the trial.

A defendant has an opportunity to address the court. A lot of people stand up and say, “I’m so sorry. I did the wrong thing,” even when they privately think they are innocent.

I wasn’t going to do that.

I didn’t give any statement at all because I was not going to apologize to the court for something I believed I was completely innocent of.

So I sat there listening to the judge lecture me like a schoolteacher.

That was one of the hardest parts.

Hans Mahncke:

And all of this was happening while your wife was in the hospital having your baby and you couldn’t be there.

The effect of lawfare on families is something that isn’t discussed nearly enough.

Almost everyone I’ve spoken to who has been through this emphasizes both how vicious the process is for the entire family and, at the same time, how important family support is in getting through it.

People who don’t have that support can suffer even more.

You mentioned that Charlie Kirk helped you during this period. Tell me about that.

Douglass Mackey:

Charlie Kirk was a great man, and he took a real interest in my case from the beginning.

He talked about it on his show.

Before sentencing, I didn’t do media because you don’t want to do something that might hurt you at sentencing.

After sentencing, I went on Charlie’s show multiple times.

We know Charlie was very involved with the transition into the second Trump administration. A day or two after the 2024 election, Charlie said, “Douglass Mackey should be the first pardon for President Trump.”

I was extremely flattered and honored.

Charlie understood the nature of the case and understood lawfare very well.

But we effectively had to say, “We are incredibly grateful for the support, but we are going to wait for the appeal.”

By then, the appeal had already been argued. All the briefs were in. Oral argument had taken place. There was nothing left to do except wait for the judges to issue their decision.

We still had a chance to win outright.

And accepting a pardon carries legal complications. For purposes of the criminal case, it can be treated as an implicit acknowledgment of guilt. It also would have ended the appeal.

That wasn’t the kind of complete vindication we wanted.

We actually weren’t expecting the court to order an acquittal based on insufficient evidence. We thought we had a better chance of winning on a different argument.

We hoped the court would rule that the government simply could not apply this statute to publishing a meme or to protected speech in this way.

The statute was designed for conduct. Imagine somebody going to a polling place and the KKK physically stopping him, beating him, killing him, stealing ballots, or threatening him not to exercise his rights.

That is conduct. That is intimidation.

This meme was speech.

The government tried to argue that the meme itself constituted an injury to somebody’s voting rights. I thought that was an absurd formulation.

Hans Mahncke:

I would argue that anyone who actually fell for the meme probably shouldn’t have been voting in the first place because it was such an obvious joke.

But fortunately, the FBI went looking for people who had supposedly believed it and couldn’t find a single one.

What I find particularly remarkable is what happened after Charlie offered that support.

You had been through roughly four years of hell and were effectively presented with an opportunity to make the whole thing disappear.

You said no because you wanted the legal principle vindicated.

Then you had to wait another nine months for the decision.

Most people, myself included, might have said, “I’m done. I want my life back.”

That took an extraordinary amount of resolve.

After everything you went through, what do you say to somebody who looks at the final outcome and says, “Well, the system worked. Your conviction was overturned. Everything turned out fine”?

Douglass Mackey:

The system did ultimately work, but look at the massive cost.

Look at the chilling effect on free speech and the chilling effect on being a Trump supporter.

There need to be real consequences for people who bring cases like this, and we are working toward that.

It is a slow process. We have been dealing with settlement discussions with the government.

I don’t want to comment too much on those discussions, but there are mechanisms for compensating someone who went into debt or spent millions of dollars defending himself, endured the negative publicity and defamation, and suffered the effects on his family, his mental health, his emotional health, and every other part of his life.

We hope that process is resolved.

Then we intend to pursue accountability within the DOJ and FBI for what happened.

Hans Mahncke:

Without Congress passing a new law, what mechanisms for accountability are realistically available?

Douglass Mackey:

So far, nobody has been held accountable.

William Sweeney, whom we discussed earlier, has retired. So he may never be held accountable.

But there are still people associated with the case inside the government.

DuCharme left government for private practice.

We believe FBI agents involved in the case are still at the Bureau. As far as we know, some of the AUSAs involved are also still working at DOJ.

We intend to pursue accountability where we can.

We are also asking DOJ to turn over any evidence of misconduct.

I’m not claiming that such evidence necessarily exists or that something is definitely going to turn up. People operating in these environments can be very careful. They don’t necessarily put things into an email that shouldn’t be in an email.

But if evidence of misconduct exists, we want to pursue individual accountability.

We will see what can be done within the Bureau and DOJ.

Hans Mahncke:

You mentioned that you still have debts from the case.

How much did the whole thing cost?

Douglass Mackey:

We were fortunate to raise money and had a lot of people helping us, but we didn’t raise the entire amount.

I still owe money to law firms from the case.

When we totaled everything, it had cost more than $2 million.

Hans Mahncke:

More than $2 million over a meme. That is incredible.

One last thing I’m curious about. You are remarkably calm.

I don’t just mean sitting here today. You seem to have been calm throughout this process.

I think I would be angry for the rest of my life after going through something like this.

Is that simply your personality?

Douglass Mackey:

I guess so.

Maybe it’s my New England demeanor or New England background.

I tend to present a very calm surface, but I also like to play the long game.

I remember sitting through hearings after I was indicted, dealing with prosecutors over Zoom in the early period because of COVID, and thinking that I just had to bide my time.

I believed I would eventually have my day and that there would eventually be an opportunity to go after the people responsible.

You just have to be patient.

So I present a calm exterior. I’m very slow to anger. But once I set my mind to something, that’s different.

You probably need that sort of demeanor to fight a case like this for so long.

Waiting for the appellate decision was excruciating. As the days and weeks go by, you start thinking, “Maybe that pardon sounds pretty good right now.”

I might appear calm, but there is a lot going on internally when you are dealing with a prosecution like this.

I try to maintain a stoic, calm demeanor.

It isn’t always easy.

Hans Mahncke:

You are an absolute free-speech hero.

Thank you for exposing what happened to you, and thank you for talking to us about the lawfare behind it.

Douglass Mackey:

Thank you.