Judge: Criminal investigation into AG Stein’s campaign can continue


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

The judge’s decision overturns her own decision last month, when she temporarily halted the investigation.

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

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

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

Stein, a Democrat, is not personally being investigated for breaking the law. But his campaign is and could face a misdemeanor sentence if charged and then convicted.

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

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

Others agree, even those whose policies do not match Stein’s.

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

But Eagles, a candidate for Democratic President Barack Obama, said Tuesday the law was likely necessary and targeted enough to pass the constitutional milestone.

“Malicious libelous false speech can be ‘used as an effective political tool to overthrow the public servant or even overthrow an administration,'” Eagles wrote, citing a 1964 U.S. Supreme Court decision on a similar topic. “…(It) can lead to volatile, unstable, and even violent outcomes ‘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 did not immediately respond to the order, with a spokeswoman saying they were still reviewing it. But this is not necessarily the end of the legal fight, which has not yet led to a trial, nor to possible appeals.

Context of the legal battle

Stein and his 2020 opponent, Republican challenger Jim O’Neill, had fallen out 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 Forsyth County’s top elected prosecutor, went further by filing a complaint with the North Carolina State Board of Elections. He accused Stein’s campaign of violating the little-known law that criminalizes false claims about politicians.

Election officials compiled a report — which they have since declined to show the N&O, saying they lacked the authority to release it — then sent those findings to Wake County District Attorney Lorrin Freeman, whose the bureau handles many election-related crimes. Freeman recused herself because of her professional relationships with Stein and O’Neill, she told The N&O last month. One of his principal assistants, David Saacks, continued the investigation.

While the election committee’s report on the Stein campaign announcement remains under wraps, the Charlotte news station WBTV reported that in a heavily redacted memo from 2019 following similar complaints about false advertising during a 2018 congressional race, an Elections Commission attorney concluded the law “may be” unconstitutional and advised against prosecution.

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

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

However, the following year, the complaint against Stein still led to a criminal investigation. After two more years, that investigation has yet to result in any charges — though that could potentially change now, since Freeman’s office is no longer barred by court order.

It’s possible, Eagles said in Tuesday’s order, that the law could be hijacked by prosecutors targeting their political enemies. It could also prevent people from talking about those in power.

But she dismissed those concerns as unlikely.

“In assessing whether the law provides sufficient leeway, consideration should be given to the potential for government officials to misuse (the law) to prosecute political opponents, which could chill freedom of expression,” he said. she writes. “But this risk is not sufficient to invalidate the status facially. There are institutional safeguards against such prosecutorial abuses.

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Will Doran reports on North Carolina politics, particularly the state legislature. In 2016 he started PolitiFact NC, and before that he reported on local issues in several cities and towns. Contact him at [email protected] or (919) 836-2858.


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