An attorney who has argued more than 100 times before the U.S. Supreme Court will represent N.C. Attorney General Josh Stein in his ongoing fight against a state criminal libel law.
A filing Thursday confirms that Michael Dreeben will argue on Stein’s behalf at the 4th U.S. Circuit Court of Appeals. Oral arguments are scheduled Dec. 6 in Richmond, Virginia.
Dreeben is a partner at O’Melveny and Myers, co-chairing that firm’s White Collar Defense and Corporate Investigations Practice. He is a lecturer on law at Harvard University and worked for more than 30 years in the U.S. Justice Department’s Office of the Solicitor General. He spent “24 years as the Deputy Solicitor General in charge of the government’s criminal docket in the Supreme Court,” according to a Harvard bio.
He argued 105 cases at the U.S. Supreme Court on behalf of the federal government. He offered his 106th argument last November after moving to private practice, Bloomberg Law reported.
Dreeben will face Joseph Zeszotarski during oral arguments in Stein’s case, which is titled Grimmett v. Freeman. Zeszotarski is the Raleigh-based attorney who has represented Wake County District Attorney Lorrin Freeman’s office throughout the legal dispute.
Stein wants federal courts to declare N.C. Gen. Stat. § 163-274(a)(9) unconstitutional. The state law declares it unlawful, as a Class 2 misdemeanor, “For any person to publish or cause to be circulated derogatory reports with reference to any candidate in any primary or election, knowing such report to be false or in reckless disregard of its truth or falsity, when such report is calculated or intended to affect the chances of such candidate for nomination or election.”
A 2-1 ruling from the 4th Circuit on Aug. 23 gave Stein an injunction against the law. The injunction blocked Freeman’s office from pursuing criminal charges against Stein and two colleagues.
The 4th Circuit injunction arrived one day after the Wake grand jury asked the D.A.’s office to present indictments against Stein, chief of staff Seth Dearmin, and 2020 campaign manager Eric Stern.
The statute of limitations in the case was scheduled to run out in October. But an Oct. 11 filing from Freeman’s office states that 4th Circuit judges issued their injunction “upon Plaintiffs’ consent to enter a tolling agreement as to enforcement of the Statute against them.” A tolling agreement would stop the clock on the statute of limitations until the case is resolved.
The controversy stems from Stein’s 2020 re-election campaign. Stein, a Democrat, defeated Republican challenger Jim O’Neill, the Forsyth County district attorney. Stein’s winning margin was just 13,622 votes out of 5.4 million ballots cast.
Stein and O’Neill criticized each other during the campaign over the issue of untested rape kits. After O’Neill accused Stein of allowing thousands of rape kits to remain untested and “sitting on a shelf,” Stein responded with a TV ad titled “Survivor.”
The ad featured Juliette Grimmett, a sexual assault survivor who worked for Stein in the N.C. Justice Department. At one point in the ad, Grimmett said, “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 filed a complaint with the State Board of Elections, calling the ad false and defamatory. O’Neill cited the now-disputed state law, N.C. Gen. Stat. § 163-274(a)(9). A state elections board investigator looked into the case and turned over findings to the Wake D.A. in 2021.
Freeman had recused herself from the case, turning it over to prosecutor David Saacks. Saacks sought a more thorough investigation from the SBI. Based on that work, the Wake D.A.’s office proceeded to the grand jury this summer with possible charges connected to the ad.
Stein initially won a temporary restraining order in the case from U.S. District Judge Catherine Eagles on July 25. But Eagles later reassessed her ruling and refused to grant Stein an injunction.
The ”Survivor” ad aired from August through October 2020. Misdemeanor charges in North Carolina come with a two-year statute of limitations. That means that Freeman’s office faced a pending deadline to proceed with charges stemming from that ad.
Thanks to the tolling agreement, though, the statute of limitations could extend beyond the resolution of the legal dispute.
Stein’s initial 4th Circuit victory came from Judges Toby Heytens, an appointee of President Biden, and Albert Diaz, an Obama appointee. Judge Allison Jones Rushing, a Trump appointee, dissented from the Aug. 23 decision granting Stein’s injunction.
The identity of the three-judge panel hearing the case on Dec. 6 will not be disclosed until that morning, according to the 4th Circuit’s notification of the hearing. Each side will have 20 minutes to make its arguments.