Jul 27, 2022 - News

NC law at the heart of Stein lawsuit "may be" unconstitutional

Photo illustration of North Carolina Attorney General, Josh Stein, with lines radiating from him.
Photo illustration: Allie Carl/Axios. Photo: Jeff Hahne/Getty Images

This story was produced in partnership with Axios reporting partner WBTV.

The law at the center of a bizarre legal battle between Wake County District Attorney Lorrin Freeman's office and North Carolina Attorney General Josh Stein was deemed virtually unenforceable several years ago by the state board of elections.

What's happening: In a 2019 memo obtained through a public records request by Axios' news reporting partner WBTV, a state board of elections lawyer discounted the same law in a similar case, telling the board it "may be" unconstitutional.

  • "If the State Board is going to make a referral for criminal prosecution based on arguments made by one candidate about another in the rough-and-tumble of a political campaign, the case should be a strong one," a board attorney wrote in the memo.
  • Though the law is "likely constitutional on its face," the attorney continued, "applying it to statements whose falsity is at all ambiguous may be an unconstitutional application of the statute."

Catch up quick: Freeman's office has been investigating Stein's campaign for a potential violation of a century-old law that makes it a crime to lie in a campaign ad.

  • In response, Stein filed a lawsuit in federal court late last week asking a judge to declare the law unconstitutional and put a stop to the investigation.
  • A federal judge granted that request Monday when she issued a temporary restraining order, blocking Freeman's office from prosecuting Stein in the case.

Between the lines: The case has effectively pitted two powerful Democrats against each other, unsettling many in the party. And it appears it could have been avoided altogether.

The intrigue: As the second most powerful Democrat in the state, Stein is the party’s likely choice to succeed Gov. Roy Cooper in 2024.

  • Freeman — arguably the most powerful prosecutor in the state — is also a Democrat and well-positioned to make a run at Stein’s office after he vacates it.
  • Still, Freeman's office launched an unprecedented investigation into Stein's campaign with an eye toward indicting the sitting attorney general, who is the state's top law enforcement officer.

The bottom line: Had the judge not stopped the investigation on Monday, Freeman's office was set to take its case to a grand jury, according to sources and court records obtained by Axios and WBTV.

  • The judge's order stopping the proceeding was issued at 1:30 pm Monday. The grand jury was set to hear the case at 2:00.

Worth noting: In an interview with Axios, Freeman underscored that she has recused herself from the case and it's instead being handled by Assistant District Attorney David Saacks.

  • "Unfortunately, while this continues to be a matter that is under review in which there may be a potential prosecution, the rules of professional conduct prevent me from setting forth for you the evidentiary arguments or constitutional arguments that, if a prosecution was to ensue, Mr. Saacks would have intended to make."

The other side: Freeman said Stein’s case needed to move forward "as it would for any defendant," despite the board's 2019 opinion.

  • "The constitutionality [of the law] — if it is determined to be unconstitutional — that certainly could be raised as a defense in the scope of the case," Freeman said.
  • She also pointed to the election board's filing in Stein's case opposing his motion for a temporary restraining order.

Context: The investigation stemmed from a complaint by Forsyth County District Attorney Jim O'Neill, Stein's opponent in the 2020 election for North Carolina AG. O’Neill accused Stein's campaign of violating a century-old law that prohibits anyone from publishing or circulating knowingly false, derogatory information about candidates.

  • The board of elections then opened an investigation into O’Neill’s complaint and forwarded its conclusion to Freeman’s office.
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