If Trump Wins, He Should Arrest And Prosecute Jimmy Kimmel

The law is the law, and Jimmy Kimmel broke it. Or at least, he broke the law as it has been outrageously interpreted according to President Joe Biden’s Justice Department, which prosecuted and jailed Douglass Mackey for making an almost identical joke to the one Kimmel made on Wednesday night.

During his monologue, Kimmel said, “If you want to vote for Trump, vote late. Vote very late. Do your voting on Thursday or maybe Friday.”

Get it? He’s joking about how he hopes Trump voters don’t vote in time. But is it a harmless joke or a case of “election disinformation” that violates federal law and carries serious jailtime?

Depends on who you are and which party you support. For Mackey, the man behind the erstwhile Twitter persona Ricky Vaughn, precisely this kind of joke was a crime for which he served seven months in federal prison.

What exactly did Mackey do? He posted joke memes on Twitter ahead of the 2016 election about how Hillary Clinton supporters should text in their vote for Hillary, or vote by posting the word “Hillary” on Facebook and Twitter next to the hashtag #PresidentialElection.

The memes, which you can see for yourself, are obviously jokes. A bit on the nose, maybe, but jokes nonetheless. Indeed, federal prosecutors were unable to find a single person who was deceived by them. It didn’t matter. The deep state came after Mackey, subpoenaed his financial records, pay stubs, email accounts, everything. In the end, they tried him in the Eastern District of New York, and a Brooklyn jury pool that voted four to one for Biden convicted him of “conspiracy against rights” in violation of a Reconstruction Era law meant to counter the Ku Klux Klan’s violent voter suppression tactics.

It was an outlandish reading of the federal statue, the true purpose of which was to create a precedent for its application against Trump himself in the January 6 case brought last year by special counsel Jack Smith. It was also a prosecution obviously motivated by politics. The Justice Department didn’t go after Mackey until two days after the inauguration of Joe Biden in January 2021, more than four years after he posted the offending memes.

The danger with this sort of thing is that once you criminalize internet memes, you can criminalize almost any speech the state wants to suppress. As Jonathan Keeperman wrote in these pages last year (then under the pseudonym Lomez), “The precedent set in the Mackey case eschews any limiting principle on how the law can be applied. Any ‘disinformation’ — that is, any untrue statement, even crude jokes, like jesting that Michelle Obama is a man, or that [insert politician] is really an alien lizard in a human skinsuit — so long as it might deter someone from voting, is a potential crime.”

Which brings us to the Kimmel joke. Conservatives of an earlier era would have balked at the idea that we should apply to Kimmel the standard that Democrats applied to Mackey. But those conservatives were wrong (not least because their brand of conservatism didn’t conserve anything). They thought you could win by pretending to be above the fray, by sticking to principles of neutrality and fair play. What they didn’t realize is that there was never any neutral ground to begin with, that the left has no principles and was never going to restrain itself once in power. Most of us on the right have figured that out by now, and we are adjusting accordingly.

What that adjustment entails, among other things, is this: the only way to fight the left and win is to make them feel the consequences of their own horrible standards and policies. So although in principle I’m opposed to jailing people based on contorted readings of federal statues, in practice that’s what’s actually happening, but only to one side.

Therefore if the Justice Department under Biden is going to prosecute internet meme-makers on the right for joking about Clinton, the Justice Department under Trump should do the same to jokesters on the left. I say this because the left isn’t just going to stop. They must be stopped. How do we do that? We persuade them that they really don’t want to live in a country where who goes to jail is determined by who wins the next election. And the best way to convince them is to do to them as they have done to the rest of us. I’m afraid that means Jimmy Kimmel must go to jail.

It should never have gotten to this point, but it has, and we have to be honest about that. Examples are legion, but one stands out vis-à-vis Kimmel’s little joke. Recall that seven members of a film crew for another late night host, Stephen Colbert, were arrested in June 2022 while filming a comedy segment at the U.S. Capitol. Police said they “observed seven individuals, unescorted and without Congressional ID, in a sixth-floor hallway” in the Longworth House Office Building on Capitol Hill in Washington. They were arrested and charged with unlawful entry in what was described at the time as “an active criminal investigation” that “may result in additional criminal charges after consultation with the U.S. Attorney.”

But Biden’s Justice Department would later drop the charges against the film crew. As many commentators on the right noted at the time, the Colbert crew was treated much differently than peaceful Jan. 6 protesters, many of whom were sent to prison for far less.

The blunt truth is the Democrats have no qualms about sending their political opponents to prison. Just this week, Steve Bannon was released from federal prison, having been convicted on bogus charges of defying a subpoena from the improperly constituted Jan. 6 Committee, which should never have had subpoena power to begin with. Never mind that the Obama administration defied properly authorized congressional subpoenas on many occasions, most infamously when then-Attorney General Eric Holder refused to comply with an investigation into the Obama DOJ’s botched Operation Fast and Furious.

And of course the ongoing lawfare against former President Donald Trump is a case study in novel, sometimes nonsensical, applications of the law to carry out politically-motivated prosecutions. 

One could fill a book with more examples, but all of them illustrate what should by now be obvious: Democrats have one set of rules for themselves and another set for their political opponents. Until Republicans start jailing Democrats and giving a taste of their own medicine, this lawlessness and anarchy will continue. And make no mistake, if Harris and the Democrats win it will get much worse. 

John Daniel Davidson is a senior editor at The Federalist. His writing has appeared in the Wall Street Journal, the Claremont Review of Books, The New York Post, and elsewhere. He is the author of Pagan America: the Decline of Christianity and the Dark Age to Come. Follow him on Twitter, @johnddavidson.