RALEIGH, N.C. — Wake County District Attorney Lorrin Freeman announced Thursday her office has closed its investigation into North Carolina Attorney General Josh Stein, over an allegedly false campaign ad for which her office was preparing to indict the high-profile Democratic official last year.
Freeman’s announcement came a day after a federal appeals court issued a ruling in favor of Stein’s campaign, which has argued since July that the 1931 state law his campaign supposedly violated runs afoul of the First Amendment’s protections for political speech, and should be found unconstitutional.
A three-judge panel of the 4th U.S. Circuit Court of Appeals said in a unanimous ruling Wednesday that the obscure statute was likely unconstitutional. The ruling keeps in place a temporary injunction granted by the appellate court in August, and means that for the time being, prosecutors are still blocked from charging Stein with violating the law.
On Thursday evening, Freeman’s office said it was dropping the investigation because the court’s decision prevented prosecutors “from moving forward” with the case within the “prescribed statutory statute of limitations” of two years.
“Understanding that the case was one of intense public interest, it has been the assigned prosecutor’s intent to exercise due diligence and to evaluate the evidence and apply the law without partiality from the beginning of this matter,” Freeman, also a Democrat, said in a statement. “As prosecutors, we respect the role of the court in determining the constitutionality of a duly enacted state law.”
The announcement from Freeman’s office is a major victory for Stein, who was rumored to want to run for governor in 2024, and who formally launched his campaign to succeed Gov. Roy Cooper last month. The prospect of being charged with breaking the law, even if it was a low-level misdemeanor, presented Stein with a significant political headache.
“The ad was true, and we are gratified that the 4th Circuit put an end to this nonsense,” Stein’s campaign said in a statement.
Campaign ad about untested rape kits
The investigation, which became public in July when Stein’s campaign learned that prosecutors were preparing to charge him, and sued to have the probe stopped, focused on a campaign ad about untested sexual assault kits Stein’s campaign ran in 2020, when he was in the middle of a heated battle for reelection.
That race saw Stein, running for a second term as attorney general, face off against Republican challenger Forsyth County District Attorney Jim O’Neill.
A backlog of thousands of untested rape kits became a key line of attack for both candidates, as Stein and O’Neill criticized each other for not doing more at the local and state level to reduce the number of untested kits and make progress on unsolved criminal cases.
O’Neill said Stein’s campaign took things too far when it released an ad blaming him for a large set of untested rape kits in Forsyth County, which O’Neill said was primarily the responsibility of local law enforcement officials. Stein has disputed that and continues to claim his ad was factually accurate.
After O’Neill requested an investigation, the State Board of Elections looked into the issue. The elections board would later send its information to Freeman and recommend she close the case, The News & Observer previously reported, but Wake County prosecutors decided to launch an investigation of their own.
When Stein publicly revealed the investigation in July, Freeman said she had recused herself from the case due to her longstanding relationships with both Stein and O’Neill. She said she was recused from the case until Stein’s campaign named her as a defendant in a lawsuit, seeking to have the probe stopped on the basis that the law in question was an obvious violation of the First Amendment.
In her statement Thursday, Freeman weighed in on the issue of untested rape kits, noting that despite the Survivor’s Act, a 2019 law intended to cut down on the backlog, delays in trying to test outstanding kits persist.
“Many of those kits continue to go untested because of significant backlogs at the State Crime Lab. As recently as the end of this past year, the time from submission to final analysis of a sexual assault kit was nineteen months,” Freeman said. “It would be my hope that the General Assembly and the Attorney General would take steps to fix these delays so that the promises of the Survivor’s Act become a reality.”
A state law criminalizing false claims
Under the state law Stein’s campaign was accused of breaking, publishing or spreading a “derogatory” claim about a politician or political candidate, while knowing the claim is false or might be false, is a low-level misdemeanor.
Prosecutors with Freeman’s office were preparing to indict Stein and two of his top aides over the ad in August 2022, when the federal appeals court granted Stein’s campaign a temporary injunction, stopping the district attorney’s office from taking any further steps until federal courts could determine the constitutionality of the law against derogatory political claims.
That ruling came just 24 hours after a grand jury convened by prosecutors in Wake County indicated that it wanted to charge Stein, asking the district attorney’s office to present it with an indictment to consider.
In Wednesday’s ruling, the three-judge bench said it disagreed with a federal district court judge’s earlier ruling that the Stein’s campaign’s argument was not likely to succeed.
“Not only have plaintiffs shown a likelihood of success, ‘it is difficult to imagine them losing,’” Judge Toby Heytens wrote in the court’s opinion.
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