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This complaint should not survive a pre-trial motion to dismiss. Even accepting the alleged facts are true, that he made false claims about the election and "deprive[d] individuals" of their right to vote--he didn't violate 18 USC 241. https://twitter.com/akarl_smith/status/1354476342662852614
The charging statute criminalizes conspiracies to "injure, oppress, threaten, or intimidate" people "in the free exercise or enjoyment" of their federal Constitutional/legal rights. It does not cover deceiving people into not exercising their right to vote.
Going through each of the actions in the statute, you can see that none are implicated. No person was intimidated or threatened by the meme; there was no implied or explicit negative consequence associated with texting a vote.
There was no plan to come to people's houses and harm them if they didn't text vote, nor fire them from their jobs, initiate a vexatious lawsuit etc etc. 'Injure' is the broadest term in the statute, but that's no implicated either.
First, you ought to understand 'injure' in the light of the surrounding words (noscitur/ejusdem), but also distinct from them (surplusage). Therefore the conspired for injury cannot merely be deprivation of the right to vote. It has to be injury akin to intimidation/threats.
The rule of lenity, stating that ambiguous terms in criminal statutes are to be construed favorably for defendants, would also prohibit an interpretation of 'injury' that encompassed a simple a deprivation of rights.
A cursory review of the case law on §241 shows what the law actually intends to prohibit. US v. Casey (5th Cir. 1999) involved a police officer who murdered someone for filing a police brutality complaint.
US v. Guest (1966) involved private individuals conspiring to (among other things) file false police reports to get black citizens arrested in order to deprive them of their civil rights.
US v. Price (1966) involved a plan to release inmates from jail then beat and kill them, thereby depriving them of their federal rights. These are just some notable cases, and perhaps there are others that could show that I'm wrong.
What these cases show is pairing of violence/ damage/ harm or the threat of violence / harm/ damage with a conspiracy to deprive someone of their right. This indictment lacks and threatened or actual violence or harm.
The rest of the statute makes this even more clear by raising the penalty if the conspiracy results in death, kidnapping, sexual assault, or an attempt to kill.
What the government really wants to prosecute is a violation of the immediately following section 18 USC 242. This section criminalizes a deprivation of rights under color of law. The first sentence of the press release even talks about "depriv[ation]"
The complaint states that "MACKEY ... conspired to design and distribute these messages with the intent that supporters ... would believe the fraudulent information ...and, as a result fail to cast" legal, valid votes. Nothing about injury, oppression or threats.
It would be a lot easier for the government to prove that at least 1 person did not exercise their right to vote that they otherwise would have based on the deceptive meme than that anyone conspired to injure, oppress, threaten or intimidate.
Section 242 doesn't require any injury, oppression, threat, or intimidation or any conspiracy to do so (although if that sort of harm occurs that does increase the gravity of the offense). The deprivation itself is sufficient harm.
So why not argue that? Because the key element "under color of law" is so obviously missing--the defendant is not an official of any government--that the government hasn't even bothered to charge under it.
If Mackey had been a government official and charged under §242 the case for conviction might be stronger. But §§241 and 242 are two separate statutes, with distinct elements. The complaint totally ignores this difference and tries to smuggle 242 into 241.
Since the government doesn't have a case and doesn't even advance any allegations about a conspiracy to injure, oppress, threaten or intimidate, what to make of this? 1) they've bought into the media-driven hype about mis/dis-information, fake news, threats to democracy,
2) they want to use fear of prosecution to suppress legal speech and 3) they want to provide further cover for tech company censorship and media mania through the appearance that the law is in alignment with their objectives.
To be clear, I condemn what this guy did. It's unethical, deceptive, and incredibly risky in the current climate. This is not legal advice. My practical advice would be: don't do anything similar to this. Even if this leads to a dismissal the consequences will be devastating.
