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In its latest filings, the DOJ reveals that one of the group chats it is currently using as evidence against Mackey contained aperson who is now working with the FBI as a federal informant. According to the government, the “Confidential Witness” (or CW) was a pro-Trump, “alt right” leader who pleaded guilty to the same conspiracy to deprive civil rights charges that Mackey faces, and is now collaborating with the government.
In its filings, the government declines to say what CW’s current role with the government is, except that he is “presently engaged in proactive investigations, working with the Federal Bureau of Investigation (“FBI”), and may engage in additional investigations in the future.” Based on that statement, the government is asking that CW’s identity be kept secret, and that Mackey’s defense team be barred from asking any questions about CW’s current work.
This is a much bolder request than it might seem to the legally uninitiated.The Sixth Amendment of the Bill of Rights guaranteesthe right of any criminal defendant to “be confronted with the witnesses against him.” Like most constitutional rights, this law is not absolute, but limitations to it have historically been very limited.
Courts havelong disallowed anonymous witnesses due to the Sixth Amendment, except in extreme circumstancesinvolving violent, organized criminal organizations with the capacity to retaliate against witnesses and their families. And even then, courts have restricted the right to testify anonymously. For instance, in 2014, the U.S. 10th Circuit said this, about the possible danger of retaliation from the ruthless Salvadoran street gang MS-13.
“…a generalized statement about danger — such as anyone who testifies against one of [MS 13’s] members faces danger from [MS-13] — would be insufficient to show that a threat against a witness was actual and not a result of conjecture.” [United States v. Gutierrez de Lopez, 761 F.3d 1123, 1140 (10th Cir. 2014)]
But now, in the Mackey case, the Biden DOJ asserts that its witness’s identity must be hidden, because if not, he might face, wait for it… harassment on the Internet!
CW through the CW’s internet moniker(s) occupied a prominent position within the online, alt-right community. In that capacity, the CW participated in, among other things, the online harassment of individuals with whom the CW maintained political disagreements, including by encouraging the CW’s followers on Twitter and other social media to amplify the harassment. In this case, the government anticipates that the CW will provide inculpatory evidence against the defendant and other individuals who, like the CW, had engaged in such harassing behavior. As such, the government anticipates that, if the CW’s true identity were to become known, then those with whom the CW associated online would likely engage in such behavior towards the CW.Revealing the CW’s true identity would also likely lead to the public exposure of the CW’s physical whereabouts. This could in turn subject the CW to more than simply online harassment and could very easily jeopardize the CW’s safety.
Mackey has never been convicted or even accused of a single violent crime, or of threatening violence online. There is no evidence at all of any kind of organized or predictable effort by the online “alt right” to physically target witnesses. Yet now, the government claims that Mackey’s Sixth Amendment rights can be nullified because of the vague possibility a witness against him might face “harassing behavior.” In essence, Mackey loses his constitutional rights, because if he benefited from them, it might result in “stochastic witness intimidation.” To bolster its argument, the government cites the example of an FBI agent on the case, who was publicly identified and subsequently… contacted by a journalist, while facing no other threats!
At the time of the defendant’s arrest, the name of the FBI’s lead case agent on the investigation became public. In the wake of the arrest, the agent’s picture, hometown, high school, and other personal details were posted online in right-wing blogs, which sought to portray the agent as part of a liberal conspiracy that included other law enforcement professionals (who were also named publicly as associates of the agent). The agent was also contacted by a person purporting to be a journalist, who reached out to the agent via the agent’s personal email address and cellphone number, neither of which is public. The FBI took these developments very seriously, conducting a formal threat assessment (no credible threat of violence was identified during the monitoring period),and the agent continues to take certain precautionary measures designed to ensure her safety…
https://www.revolver.news/2023/03/biden-doj-crusade-to-jail-young-man-for-anti-hillary-memes-just-got-much-uglier/