Criminal investigation into AG Josh Stein’s campaign can go on, federal judge rules

Chris Seward/The News & Observer

A criminal investigation into a 2020 ad by North Carolina Attorney General Josh Stein’s campaign team can move forward, a federal judge ruled Tuesday.

The judge’s decision reverses her own ruling from last month, when she had temporarily halted the investigation.

Catherine Eagles, a federal judge for the United States District Court for the Middle District of North Carolina, initially ruled that the law the state is basing its investigation on appeared to be unconstitutional.

But Eagles’ order Tuesday says that, after hearing further arguments from both sides in the case, she now believes the law is reasonable and she will no longer block the investigation.

At question is an obscure state law, written in the 1930s but never once used — until now. It makes it a crime to knowingly spread false information about a politician.

Stein, a Democrat, is not personally under investigation for violating the law. But his campaign is, and could face a misdemeanor punishment if charged and then found guilty.

Stein first publicly announced the existence of the criminal investigation in an interview with The News & Observer last month, just before his campaign filed the civil lawsuit seeking to end the investigation by having the law ruled unconstitutional.

Political speech has particularly strong protections under the First Amendment, and Stein and his campaign had argued that numerous other states with similar laws had seen their versions of the law struck down as unconstitutional.

Others agree, even those whose politics don’t line up with Stein’s.

“I think that law is clearly unconstitutional,” David Keating, a longtime conservative activist who is now the president of the Institute for Free Speech, wrote in an email.

But Eagles, a nominee of Democratic President Barack Obama, said Tuesday the law is likely necessary enough, and narrowly focused enough, to pass constitutional muster.

“False malicious defamatory speech can be ‘used as an effective political tool to unseat the public servant or even topple an administration,’” Eagles wrote, citing a 1964 U.S. Supreme Court ruling on a similar topic. “...(It) can lead to volatile, unstable, and even violent results ‘at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected.’”

Stein’s campaign didn’t immediately react to the order, with a spokeswoman saying they’re still reviewing it. But this isn’t necessarily the end of the legal fight, which has not yet gone to trial, nor through any potential appeals.

Background of the legal battle

Stein and his 2020 opponent, Republican challenger Jim O’Neill, had sparred during the election over the issue of untested DNA evidence from sexual assault cases. Each blamed the other for the problem, then accused the other of making false accusations.

O’Neill, who is the top elected prosecutor for Forsyth County, took it a step further by filing a complaint with the N.C. State Board of Elections. He accused Stein’s campaign of violating the little-known law that criminalizes false statements about politicians.

Elections officials compiled a report — which they have since declined to show to The N&O, saying they lack the authority to make it public — and then sent those findings to Wake County District Attorney Lorrin Freeman, whose office handles many election-related crimes. Freeman recused herself due to her professional relationships with both Stein and O’Neill, she told The N&O last month. One of her top deputies, David Saacks, has kept the investigation going.

While the election board’s report on the Stein campaign ad remains secret, Charlotte news station WBTV reported that in a heavily redacted 2019 memo over similar complaints of a false ad in a 2018 Congressional race, a lawyer for the elections board concluded that the law “may be” unconstitutional and advised not pursuing charges.

There were also more practical concerns, in addition to the legal ones.

“It is not possible for the State Board to become ‘fact-checkers’ for political campaigns,” the memo said.

However, the next year, the complaint against Stein still led to a criminal investigation. After two more years, that investigation has not yet led to any charges — although that could potentially change now, since Freeman’s office is no longer barred by judicial order.

There is a possibility, Eagles said in Tuesday’s order, that the law could be abused by prosecutors targeting their political enemies. It could also inhibit people from talking about those in power.

But she dismissed such concerns as unlikely.

“In evaluating whether the statute provides sufficient breathing room, it is appropriate to account for the possibility that government officials might misuse (the law) to prosecute political opponents, which could chill protected speech,” she wrote. “But this risk is not enough to facially invalidate the statute. There are institutional protections from such prosecutorial abuses.”