A federal appeals court has stayed the seven-month prison sentence of Twitter influencer and meme-maker Douglass Mackey pending the outcome of his appeal. Mackey gained fame, or notoriety, depending upon how American you are, for memes he produced during the 2016 election that mock Hillary Clinton and her supporters.

Mackey, creating Twitter memes under the name Ricky Vaughn, was convicted by a Brooklyn, NY jury in March 2023 of "conspiracy to interfere with potential voters’ right to vote in the 2016 election for the Office of the President of the United States." See About Wild Thing's (Ricky Vaughn) Involvement in a Conspiracy to Commit Criminal Memes -- "You Want to File What?" – RedState and Trump Meme-Maker Douglass Mackey May Get Ten Years in Prison for Making Fun of Hillary Clinton and Her Campaign – RedState. The charge revolved around this meme, sent to "Ricky Vaughn's" 58,000 Twitter followers, encouraging Black Americans to vote for Hillary by text and "avoid the line."

In October, he was sentenced to seven months in federal prison. He was scheduled to report on January 9, 2024. See Elon Tears Apart Disgusting Sentence for Man Convicted of Posting Hillary Clinton Memes – RedState.

For reasons that have never been explained, Mackey was tried in the same jurisdiction as Hillary Clinton's campaign headquarters despite Mackey doing all of his work in Florida. The government claimed that everyone who texted the "59925" number was prevented from voting without producing a single human who admitted to being punked by an internet meme. Finally, although Mackey was not a flight risk, the judge ordered him jailed while his appeal was filed. The short period of incarceration guaranteed that Mackey would serve his entire sentence before his appeal was declared moot. 

To many, this seemed like a targeted political prosecution and a vindictive judge playing to the home crowd, as well as a violation of First Amendment rights. That perception increased in the 2020 election when failed comedienne Kristina Wong did precisely the same thing as Mackey, and all we heard from the Department of Justice was crickets.

Hey 🇺🇸Trump Supporters🇺🇸! Skip poll lines at #Election2016 and TEXT in your vote! Text votes are legit. Or vote tomorrow on Super Wednesday! pic.twitter.com/ES34HV0yad

— Kristina Wong 🍆 (@mskristinawong) November 8, 2016

Monday, a unanimous panel of the Second Circuit Court of Appeals granted Mackey's request to remain free until his appeal is decided.

Case Name: United States of America v. Mackey

Case Number: 23-7577

Docket Text: MOTION ORDER, granting motion for release pending appeal, at docket entry 16 Mackey’s surrender date is stayed. The District Court is ordered to determine the appropriate terms of release, without prejudice to the government’s making a future request for detention, on behalf of Appellant Douglass Mackey, It is further ordered that this appeal is expedited. Mackey’s initial brief will be due on or before January 5, 2024. The government’s response will be due on or before February 5, 2024. Mackey’s reply brief will be due on or before February 20, 2024. The Clerk is directed to calendar this appeal as soon as practicable after February 20, 2024, GEL, MHP, OAW*, *Judge Omar A. Williams, of the United States District Court for the District of Connecticut, sitting by designation, FILED. [Entered: 12/04/2023 02:41 PM]

I think this is bad news for the Department of Justice. The appellate court had to overrule the sentencing judge on a trivial matter like bond pending appeal. The Department of Justice had argued that a lower court had reviewed all of Mackey's objections, so there was nothing left to examine, and he needed to go to jail.

Under this framework, there is a "presumption in favor of detention." United States V. Abuhamra, 389 F.3d 309, 319 (2d Cir. 2004). Once a person has been convicted and sentenced to jail, there is absolutely no reason for the law to favor release pending appeal or even permit it [absent] exceptional circumstances." United States V. Miller, 753 F. 2d 19, 22 (8d Cir. 1985) (internal quotation marks omitted).

All of this indicates the Second Circuit is uncomfortable with something, and my guess is they are a lot less concerned about Mackey going to jail than they are about this case becoming law.