The criminal investigation against Attorney General Josh Stein over a political ad from his 2020 campaign will have a chilling effect on free speech if it goes ahead, Governor Roy Cooper told The News & Observer on Tuesday.
“The idea that the government can criminally prosecute a person for expressing a legitimate political opinion runs counter to the First Amendment and threatens anyone who wants to criticize a public official,” Cooper said in a written statement.
Cooper is a Democrat, like Stein. So does Wake County District Attorney Lorrin Freeman, whose office is prosecuting the charges.
On Monday, Freeman’s office sent an SBI agent before a grand jury to present the case for accusing Stein and two top aides of violating an obscure and potentially unconstitutional law that makes it a crime to say false things about politicians.
The law does not appear to have been used in the nearly 100 years since it was passed in the 1930s, and now that it is being proposed, Stein’s campaign is suing a federal court to have it declared unconstitutional. Similar laws were found to be unconstitutional in several other states.
“This is an unprecedented crackdown on free speech that should upset everyone,” Cooper said.
However, before the 4th Circuit Court of Appeals issued a ruling on Stein’s campaign request to bar criminal charges from being brought while the civil suit is pending, Freeman’s office moved forward with the grand jury. On Monday, the grand jury returned a gift, The N&O reported, which is essentially a request for prosecutors to tell the grand jury to officially file charges.
With that presentation now shelved, Freeman said in an interview, Stein and his aides could be charged as early as next month.
While the misrepresentation charge in itself is only a low-level misdemeanor, the state’s top law enforcement officer being charged with any crime would send shockwaves through the state’s political landscape — particularly since there is widespread speculation about whether Stein will run for governor in two years, as Cooper has a limited term and cannot run again.
However, so far Stein has not spoken about his plans for the upcoming election, telling The N&O last year that “2024 is a political eternity from now on.”
Cooper was attorney general before Stein and even hired him as an attorney for the North Carolina Department of Justice. After Cooper chose not to run for re-election in 2016 and sought the governorship, Stein — who had previously been elected to a state Senate seat representing Cary — ran for attorney general to replace Cooper. He won in 2016 and again in 2020.
How the investigation got here
Stein’s investigation was a controversial case from the start, even when it was still classified. A recently leaked memo showed that the North Carolina State Board of Elections – where this type of investigation begins – formally recommended to Freeman that she close the case, but that she go ahead against their advice.
The election board memo to Freeman also noted that Stein’s accuser — his 2020 Republican challenger Jim O’Neill, Forsyth County’s top prosecutor — had been accused of making false statements about Stein, which may have been a violation. of the same law he accused Stein of breaking.
However, Freeman only proceeded with an investigation into Stein. She told The N&O that while the electoral board noted that both candidates accused each other of making false statements, only O’Neill filed a formal complaint.
After the investigation into Stein became public this summer, the North Carolina Democratic Party sent a letter to Freeman asking her to investigate O’Neill as well, if she were to investigate Stein. She declined, saying they didn’t go through the proper channels to place the order.
The N&O reported in July that Freeman received a $1,000 campaign contribution in the first quarter of 2022, while the investigation was ongoing, from O’Neill’s wife. A more recent campaign report shows that O’Neill’s wife, Oona, gave Freeman another $1,000 in the second quarter. News website Axios reported this month that donors linked to O’Neill gave Freeman nearly $3,000 in total.
Although Freeman continued to serve as the primary media officer in this case, she said that she refused from the start to make any decisions about the investigation, due to her professional relationships with Stein and O’Neill. One of her top deputies, David Saacks, has been leading the case.
In an email Monday night, she said she will remain unwilling to make decisions on the case — such as telling the grand jury to file charges the next time it meets.
“There are those who continue to try to create political pressure in the hope that I will interfere in this case,” Freeman wrote. “Eight years ago, when I ran for district attorney in this county, I vowed to keep politics out of court. I remain committed to that promise.”
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