Facing campaign investigation, AG Josh Stein sues to have law ruled unconstitutional
Attorney General Josh Stein’s 2020 campaign is facing a criminal investigation — but the law it’s based on is outdated and unconstitutional, he argued Thursday in court filings as well as in an interview with The News & Observer.
Stein said the law in question, which governs the content of political ads, is nearly a century old and yet no one had been prosecuted under it. That is, until his 2020 opponent for the attorney general’s office, Forsyth County District Attorney Jim O’Neill, cited it to request the investigation.
The criminal investigation has not been publicly reported before; The N&O had reported that O’Neill had requested an investigation. Stein said he was making it public Thursday and filing a lawsuit because he’s confident that the investigation is based on an unconstitutional law but that O’Neill “refuses to give it up.”
The lawsuit is seeking a ruling, Stein said, “that this outdated, antiquated, unconstitutional statute is in fact unconstitutional.”
The law in question, from the 1930s, makes it a misdemeanor “to publish or cause to be circulated derogatory reports” about a politician that are false or might be false.
Stein said that he stands by the truth of his ad, but that regardless, First Amendment protections for political speech are so strong that the law is clearly unconstitutional in his view. State and federal courts in multiple other states have ruled similar laws unconstitutional, his lawsuit argues.
“The fact that the specter of the statute has forced (Stein’s campaign and those involved in the ad) to engage in with an invasive and expensive investigation for nearly two years shows that the statute serves primarily to chill protected political speech,” the lawsuit says.
O’Neill responded to the lawsuit in a text message to The N&O: “Our attorney general of North Carolina wants to get rid of a law that prohibits politicians from lying to the public. Absurd.”
What’s the investigation about?
It all goes back to a war of words between Democrat Stein and Republican O’Neill in their tightly contested 2020 race — which Stein won with 50.1% of the vote.
Both attacked the other over evidence collected from sexual assault allegations, often called “rape kits,” that had never been tested. North Carolina had the nation’s worst backlog of untested rape kits, Carolina Public Press reported in 2019. There were roughly 15,000 untested rape kits statewide.
Blame for that backlog — and credit for addressing it — have been the subject of numerous political ads in the 2016 and 2020 elections. Complicating matters politically is that part of the backlog has been the fault of local law enforcement agencies, while part of it has been the fault of the State Crime Lab, which the attorney general oversees.
And while there have been plenty of partisan attacks over the issue during elections, there has also been bipartisan commitment after those elections to fix the problem.
Stein and a group of Republican lawmakers worked together in 2019 on a new law that spent $6 million to address the backlog.
Earlier, GOP lawmakers allocated $16 million to build a new forensics lab in western North Carolina that The N&O reported could help cut down on the rape kit backlog, as well as speed up work on drug cases and more. Stein said he has also helped bring in an additional $4 million in outside grants to address the backlog.
But during their 2020 election, O’Neill attacked Stein for not tackling the problem — which led to Stein’s ad attacking O’Neill for not tackling the problem, which now has Stein’s campaign facing a potential misdemeanor based on O’Neill’s complaint.
A criminal ad?
After O’Neill attacked Stein over the backlog, Stein’s campaign cut an ad shooting back. Forsyth County, where O’Neill has been the top prosecutor for over two decades, was one of the worst counties in North Carolina for untested kits, with roughly 10% of the statewide total. The ad assigned blame for that to him, and the investigation hinges on whether that accusation is fair.
In the Stein ad, a woman tells viewers: “As a survivor of sexual assault, that means a lot to me. And when I learned that Jim O’Neill left 1,500 rape kits on a shelf, leaving rapists on the streets, I had to speak out.”
O’Neill said it went too far, and requested an investigation. Such investigations are typically not public, but Stein confirmed Thursday that the N.C. State Board of Elections conducted an investigation, then sent its information to Wake County District Attorney Lorrin Freeman, who started an investigation of her own.
O’Neill’s 2020 complaint said the woman’s claim in the ad “is a direct lie, is insulting and worst of all defamatory.” In a text Thursday, he pointed out that a longtime attorney at the N.C. Department of Justice under Stein resigned in protest over the ad. O’Neill said he stands by his original complaint.
“As I have consistently maintained, Stein blatantly lied to the people of NC by running that ad in a desperate attempt to maintain his power,” O’Neill wrote.
Freeman confirmed Thursday that her office is overseeing an investigation but said she has recused herself from making any decisions on it, “based on longstanding working relationships” with both Stein and O’Neill. Instead, she said, the decisions have all been handled by a veteran prosecutor in her office, David Saacks. In addition to their professional relationships, Freeman also has political ties to both Stein and O’Neill. She is a Democrat, like Stein. And earlier this year, O’Neill’s wife gave Freeman’s campaign $1,000 to help her fend off a primary election challenge.
“I’ve been recused from this matter, until today,” when Stein’s campaign named her as a defendant in the lawsuit, Freeman said Thursday.
Elections board spokesman Pat Gannon said the board did investigate and sent its findings to Freeman’s office, which handles election-related complaints. He wrote in an email that they can’t release any information, as it’s now “the District Attorney’s determination as to whether to proceed with further investigation or formal proceedings.”
Freeman said the investigation “has not yet been sent to a grand jury” and confirmed it revolves around the truthfulness of the claim in Stein’s ad.
Stein said he believes the statement about O’Neill leaving kits untested is true.
While it is the duty of law enforcement to do the tests, he said, district attorneys like O’Neill have a constitutional duty to advise local law enforcement — a power he said O’Neill could’ve used to address the backlog, but didn’t. And since O’Neill had make the rape kit backlog such a big focus of his campaign, Stein said, it was fair game to point it out.
Stein also said that while O’Neill requested an investigation into the Stein campaign over an allegedly false statement, he believes O’Neill also made false claims about him and his record.
“The ad served the purpose of telling the voters about the work we had done, and correcting his misinformation that he had put out there,” Stein said.
O’Neill, however, said that if Stein really thought his claim in the ad was true, he wouldn’t need a civil lawsuit to beat the investigation.
“Why would Stein challenge the constitutionality of a law that prohibits candidates from running false ads to the public, if he claims that he stands by the veracity of his own ad?” he said. “I think the public is smart enough to know the answer to that question.”
For more North Carolina government and politics news, listen to the Under the Dome politics podcast from The News & Observer and the NC Insider. You can find it at https://campsite.bio/underthedome or wherever you get your podcasts.
This story was originally published July 21, 2022 at 2:36 PM.
