Appeals court overturns right-wing influencer’s conviction for spreading 2016 election falsehoods

NEW YORK (AP) — A federal appeals court on Wednesday overturned a self-styled right-wing propagandist’s conviction for spreading falsehoods on social media in an effort to suppress Democratic turnout in the 2016 presidential election.

The 2nd U.S. Circuit Court of Appeals in Manhattan ordered a lower court to enter a judgment of acquittal for Douglass Mackey, finding that trial evidence failed to prove the government’s claim that the Florida man conspired with others to influence the election.

Mackey, 36, was convicted in March 2023 in federal court in Brooklyn on a charge of conspiracy against rights after posting false memes that said supporters of Democratic candidate Hillary Clinton could vote for her by text message or social media post.

He was sentenced to seven months in federal prison.

“HALLELUJAH!” Mackey wrote on X after the 2nd Circuit’s decision was posted Wednesday. In follow up messages, he thanked God, his family, wife, lawyers and supporters, and threatened legal action over his conviction.

One of Mackey’s lawyers on his appeal was Yaakov Roth, who is now principal deputy assistant U.S. attorney general in charge of the Justice Department’s Civil Division.

The federal prosecutors' office in Brooklyn that brought the case declined to comment.

In charging Mackey, prosecutors alleged that he conspired with others between September and November of 2016 to post memes, such as a photo of a woman standing in front of an “African Americans for Hillary” sign. “Avoid the Line. Vote from Home,” the tweet said. “Text ‘Hillary’ to 59925.”

About 5,000 people followed the meme’s instructions, according to trial testimony. Nearly all of them received an automated response indicating that the social media posts were not associated with the Clinton campaign, and there was “no evidence at trial that Mackey’s tweets tricked anyone into failing properly to vote,” the 2nd Circuit found.

Mackey, who had 58,000 followers at the time, posted under the alias Ricky Vaughn, the name of Charlie Sheen’s character in the movie “Major League.”

In overturning Mackey's conviction, a three-judge 2nd Circuit panel wrote, “the mere fact" that he "posted the memes, even assuming that he did so with the intent to injure other citizens in the exercise of their right to vote, is not enough, standing alone, to prove a violation” of the conspiracy law.

“The government was obligated to show that Mackey knowingly entered into an agreement with other people to pursue that objective,” Chief Judge Debra Ann Livingston and Judges Reena Raggi and Beth Robinson wrote. “This the government failed to do.”

Livingston and Raggi were appointed by President George W. Bush, a Republican. Robinson was appointed by President Joe Biden, a Democrat.

At Mackey's sentencing, the trial judge, Ann M. Donnelly, said that he had been “one of the leading members” of a conspiracy that was “nothing short of an assault on our democracy.”

The 2nd Circuit disagreed, ruling that the prosecution’s primary evidence of a conspiracy was flimsy at best.

At Mackey's trial, prosecutors showed messages exchanged in private Twitter groups that they said proved an intent to interfere with people exercising their right to vote. However, the three-judge panel ruled that prosecutors “failed to offer sufficient evidence that Mackey even viewed — let alone participated in — any of these exchanges.”

“In the absence of such evidence, the government’s remaining circumstantial evidence cannot alone establish Mackey’s knowing agreement,” the judges wrote.

FILE - President Joe Biden, right, presents the Presidential Medal of Freedom, the Nation's highest civilian honor, to former Secretary of State Hillary Clinton, in the East Room of the White House, Jan. 4, 2025, in Washington. (AP Photo/Manuel Balce Ceneta, File)

FILE - This photo from Tuesday May 3, 2011, shows the Thurgood Marshall U.S. Courthouse where the Second Circuit Court of Appeals is located in New York's lower Manhattan. (AP Photo/Mary Altaffer, File)

TRENTON, N.J. (AP) — Richard “Dick” Codey, a former acting governor of New Jersey and the longest serving legislator in the state's history, died Sunday. He was 79.

Codey’s wife, Mary Jo Codey, confirmed her husband’s death to The Associated Press.

“Gov. Richard J. Codey passed away peacefully this morning at home, surrounded by family, after a brief illness,” Codey's family wrote in a Facebook post on Codey's official page.

"Our family has lost a beloved husband, father and grandfather -- and New Jersey lost a remarkable public servant who touched the lives of all who knew him," the family said.

Known for his feisty, regular-guy persona, Codey was a staunch advocate of mental health awareness and care issues. The Democrat also championed legislation to ban smoking from indoor areas and sought more money for stem cell research.

Codey, the son of a northern New Jersey funeral home owner, entered the state Assembly in 1974 and served there until he was elected to the state Senate in 1982. He served as Senate president from 2002 to 2010.

Codey first served as acting governor for a brief time in 2002, after Christine Todd Whitman’s resignation to join President George W. Bush’s administration. He held the post again for 14 months after Gov. Jim McGreevey resigned in 2004.

At that time, New Jersey law mandated that the Senate president assume the governor’s role if a vacancy occurred, and that person would serve until the next election.

Codey routinely drew strong praise from residents in polls, and he gave serious consideration to seeking the Democratic nomination for governor in 2005. But he ultimately chose not to run when party leaders opted to back wealthy Wall Street executive Jon Corzine, who went on to win the office.

Codey would again become acting governor after Corzine was incapacitated in April 2007 due to serious injuries he suffered in a car accident. He held the post for nearly a month before Corzine resumed his duties.

After leaving the governor’s office, Codey returned to the Senate and also published a memoir that detailed his decades of public service, along with stories about his personal and family life.

“He lived his life with humility, compassion and a deep sense of responsibility to others,” his family wrote. “He made friends as easily with Presidents as he did with strangers in all-night diners.”

Codey and his wife often spoke candidly about her past struggles with postpartum depression, and that led to controversy in early 2005, when a talk radio host jokingly criticized Mary Jo and her mental health on the air.

Codey, who was at the radio station for something else, confronted the host and said he told him that he wished he could “take him outside.” But the host claimed Codey actually threatened to “take him out,” which Codey denied.

His wife told The Associated Press that Codey was willing to support her speaking out about postpartum depression, even if it cost him elected office.

“He was a really, really good guy,” Mary Jo Codey said. “He said, ‘If you want to do it, I don’t care if I get elected again.’”

Jack Brook contributed reporting from New Orleans.

FILE - New Jersey State Sen. and former Democratic Gov. Richard Codey is seen before New Jersey Gov. Phil Murphy delivers his State of the State address to a joint session of the Legislature at the statehouse, in Trenton, N.J., Tuesday, Jan. 10, 2023. (AP Photo/Matt Rourke, File)