Stein asks judge to block ruling, cites state elections board’s investigation

Screen shot from N.C. Attorney General Josh Stein's 2020 "Survivor" campaign ad
  • N.C. Attorney General Josh Stein cites newly unveiled evidence while asking a federal judge to block her own order against Stein.
  • A May 2021 document shows the N.C. State Board of Elections recommended no legal action against Stein in connection with a disputed 2020 campaign television ad.
  • Wake County District Attorney Lorrin Freeman's lawyer accused Stein of mischaracterizing the report, which was based on "incomplete information."

N.C. Attorney General Josh Stein has asked a federal judge to block her own ruling against Stein in his challenge of a state law against campaign lies. The attorney general cites newly released evidence from a state elections board investigation of his 2020 campaign.

Wake County District Attorney Lorrin Freeman opposes Stein’s request. In her latest court filing, Freeman accused Stein of mischaracterizing that new evidence.

Stein filed a federal suit on July 21 to have the criminal libel law declared unconstitutional. He had learned two weeks earlier that the Wake County district attorney’s office planned to take criminal charges to a grand jury in connection with a Stein television ad from his 2020 re-election campaign.

U.S. District Judge Catherine Eagles refused on Tuesday to grant Stein a preliminary injunction against the Wake D.A.

But Stein has filed an emergency motion for an injunction as he pursues an appeal at the 4th U.S. Circuit Court in Richmond. The attorney general’s latest filing highlights evidence that the N.C. State Board of Elections recommended in 2021 that an investigation into Stein’s ad should end.

“[T]his Court stated that ‘[b]y July 2021, the Board [of Elections] completed its investigation and presented its findings and recommendation to the Wake County District Attorney’s
Office,” wrote attorney Pressly Millen, who represents the Stein campaign and two other plaintiffs. “Implicit in that account is that the Board’s recommendation was to move forward.”

“We now know … that, in fact, the Board’s recommendation was that ‘the NCSBE recommends that this investigation be closed,’” Millen wrote. “That recommendation, moreover, was based on conclusions that the allegedly false political speech at issue reflected ‘ambiguity’ and therefore was ‘inconclusive to determine a clear violation of N.C.G.S. Sec. 163-274(a)(9) occurred.’ In addition, the recommendation stated that ‘the NCSBE is concerned that if a violation is found, this might be an unconstitutional application of the statute.’”

Stein’s latest filings include a copy of a May 28, 2021, report recommending that the state investigation be closed.

N.C.G.S. Sec. 163-274(a)(9) is the law Stein challenges in his lawsuit. It creates a Class 2 misdemeanor for those who make false derogatory statements about election candidates.

Misdemeanor statutes carry a two-year statute of limitations. The Stein TV ad that started the current legal dispute stopped airing in October 2020. Time is running out for any legal action against Stein or other plaintiffs.

“This new information, deliberately withheld by Defendant and the NCSBE in the face of Plaintiffs’ subpoena in this case, counsels further in favor of an injunction pending appeal,” Millen wrote. “To whatever degree North Carolina law can be said to have provided ‘institutional protections’ from ‘prosecutorial abuses,’ those institutions failed here.”

Freeman responded to Stein’s accusations.

“This morning, Plaintiffs filed a copy of a confidential N.C. Board of Elections report that has apparently been leaked by someone to the press, which Plaintiffs mischaracterize as showing that the NCSBE and Defendant ‘themselves disagree concerning the constitutionality of the statute. This is patently incorrect,'” wrote Joseph Zeszotarskim, who represents Freeman. “A cursory review of the NCSBE memo shows that the Board has concluded that the statute at issue is ‘likely constitutional on its face.’ The issue before the Court involves facial constitutionality.”

The state elections board had based its conclusions on “incomplete information,” Zeszotarski wrote. “The SBI conducted a second investigation, given the brevity of the NCSBE investigation, wherein additional witnesses were interviewed and additional information was gathered, which had not been examined by the NCSBE,” he explained. “Accordingly, Plaintiffs’ broad conclusions based on the NCSBE report ignore the entirety of the evidence gathered in the SBI investigation.”

Before the latest round of competing briefs, Zeszotarski had explained Freeman’s objection to an injunction.

“Plaintiffs’ motion for preliminary injunction has been denied for failure to establish a likelihood of success on the merits,” he wrote. “Despite this result, Plaintiffs now ask this Court to issue the same now-denied injunction against Defendant while they pursue an appeal — a ruling that would effectively give Plaintiffs and those associated with them a back-door win on the merits, given the looming expiration of the relevant criminal statute of limitations. Plaintiffs cannot meet the standard for this extraordinary relief, and the motion should be denied.”

In 2020 the incumbent N.C. Attorney General Stein, a Democrat, faced a challenge from Forsyth County District Attorney Jim O’Neill, a Republican.

The two clashed during the campaign over rape kits used to help identify and prosecute offenders. Stein and O’Neill blamed each other for a backlog of untested kits.

Stein ran a TV ad, titled “Survivor,” featuring Juliette Grimmett, a sexual assault survivor who worked for Stein at the N.C. Department of Justice. At one point in the 30-second ad, Grimett criticized O’Neill.

“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,” Grimmett said in the ad. She is one of the plaintiffs in the federal case, along with the Stein campaign and the company that prepared the campaign ad.

O’Neill cited the state criminal libel law in a complaint to the N.C. State Board of Elections. The board investigated O’Neill’s complaints and turned over its findings to Freeman’s office in July 2021. The SBI also launched an investigation.

On July 7 this year, Freeman’s office alerted the Stein campaign that it planned to present a charge connected to the criminal libel law to the grand jury. Stein filed his suit two weeks later. Published reports suggest the attorney general secured his restraining order against Freeman less than an hour before the Wake grand jury could have heard the charge.

Editor’s note: This article was updated at 1:30 p.m.