The ongoing criminal investigation into Attorney General Josh Stein's 2020 political campaign was launched despite a recommendation from state elections officials not to do so, Wake County District Attorney Lorrin Freeman said Friday.
A memo from the N.C. State Elections Board, recommending no further action, was first reported Thursday night by Charlotte news station WBTV. Freeman confirmed WBTV's reporting in an interview with The News & Observer Friday morning. She declined to make the memo itself public, but it was filed in court Friday morning.
Freeman has recused herself from making decisions in the investigation. But she defended the decisions of one of her top deputies to pursue the criminal investigation against the advice of the elections board. She compared it to the U.S. Department of Justice's recent decision to serve a search warrant on former President Donald Trump.
"To some extent, this is no different than what (U.S. Attorney General) Merrick Garland said yesterday," Freeman said. "This is about a prosecutor believing ... that the system needs to apply to all, and without bias."
Unlike in the saga of Trump and the DOJ, all the major parties in this North Carolina investigation are Democrats. Stein and Freeman are both elected Democratic politicians, and the state elections board has a 3-2 Democratic majority chosen by Democratic Gov. Roy Cooper.
Criminalizing political speech?
Stein's campaign, although not Stein himself, is being investigated over breaking an obscure law from the 1930s - which has never before been put to use in North Carolina - that makes it a crime to say false things about politicians.
Stein's Republican opponent in the 2020 election, Forsyth County District Attorney Jim O'Neill, asked for the investigation after claiming that Stein's campaign ran an ad that falsely blamed him for a backlog of untested evidence from sexual assault cases in the Winston-Salem area, where O'Neill has been the top prosecutor for decades.
Stein maintains, however, that the ad is accurate and was furthermore only made in response to false claims by O'Neill about Stein's record on the state's rape kit backlog.
The elections board memo concluded that the ad contained "ambiguity" and wasn't necessarily false. Beyond that, the memo said charging Stein's campaign "might be an unconstitutional application" of the law. Stein's campaign is making the same argument in a federal lawsuit to have the law overturned due to First Amendment concerns.
The judge in that civil lawsuit had initially ruled that the law does appear unconstitutional, and blocked the criminal investigation from continuing to a grand jury, but then reversed herself this week and allowed the investigation to continue.
After that decision the N.C. Democratic Party sent a letter to Freeman, asking her office to also investigate O'Neill for false statements if she was going to investigate Stein.
Freeman said that won't be happening.
No investigation into O'Neill?
Freeman maintained the decision to investigate Stein but not O'Neill is not because she has any political grudge against Stein or wants to stick up for a fellow district attorney in O'Neill.
"Absolutely not," Freeman said. "There's been no favoritism."
She noted she has recused herself from the case to avoid any such perceptions, handing decisions off to a top deputy, David Saacks.
Freeman told The N&O earlier this week that she wouldn't initiate an investigation into O'Neill because the proper first step is not her office but rather the state elections board - a step the Democratic Party skipped. However, the election board's memo on the complaint against Stein flagged several potentially false statements O'Neill made about Stein.
Asked about that seeming contradiction Friday, Freeman said the difference is that while the memo did raise the possibility of O'Neill breaking the same law he accused Stein's campaign of breaking, there was only ever a formal complaint against Stein's campaign, and not against O'Neill or his campaign.
"The bottom line is (the Democratic Party) certainly were well aware, and had the capacity to ask that the matter be investigated," Freeman said. "They for whatever reason opted not to. And it would not be in keeping with standard practice that we would unilaterally initiate such an investigation."
O'Neill did not respond to a text message this week requesting comment.
While the investigation into Stein's campaign has lasted two years with no criminal charges, it's possible that might soon change - unless the campaign succeeds in its federal civil lawsuit to have the law ruled unconstitutional.
The judge in that case has noted that Freeman's office intends to bring its case before a grand jury soon, and ask the jurors to decide whether charges are warranted.
Freeman declined to discuss that aspect of the case, including when a grand jury might convene if allowed by the federal courts, citing confidentiality rules that surround such proceedings.
For more North Carolina government and politics news, listen to the Under the Dome politics podcast from The News & Observer and the NC Insider. You can find it at https://campsite.bio/underthedome or wherever you get your podcasts.