N.C. Attorney General Josh Stein tried to work out a deal with the Wake County district attorney’s office that could have delayed grand jury action connected to a disputed state law.
That detail emerges from Stein’s latest filing with the 4th U.S. Circuit Court of Appeals. The attorney general is asking the court to block the Wake D.A. from presenting a criminal case connected to a 2020 Stein television campaign ad.
Stein has asked the 4th Circuit to issue a decision Friday. Without a ruling in his favor, the Wake D.A. could take a case to the grand jury next week.
The attorney general filed a federal lawsuit July 21. It asks for federal courts to declare N.C. Gen. Stat. § 163-274(a)(9) unconstitutional. The law creates a Class 2 misdemeanor crime for lying about political candidates.
Part of Stein’s suit involves blocking Wake D.A. Lorrin Freeman’s office from moving forward with any criminal charges connected to the disputed law.
U.S. District Judge Catherine Eagles rejected Stein’s request for a preliminary injunction on Aug. 9. Six days later, Eagles turned down Stein’s request to block her own ruling while the attorney general pursues appeals.
Freeman’s office has objected to Stein’s requests. Part of the Wake D.A.’s argument involves an approaching deadline for pursuing criminal charges. The controversial ad stopped airing in October 2020, so the state’s two-year statute of limitations runs out soon.
But Stein’s latest filing Friday blames the Wake D.A.’s office for legal delays.
“[T]he attempt to blame Plaintiffs for any timing issues created by the statute of limitations is disingenuous,” wrote Pressly Millen, the attorney representing Stein’s campaign and two other plaintiffs connected to the TV ad. “The District Attorney claims that the ‘record below establishes’ that Plaintiffs ‘waited until just days before the grand jury presentment to file this lawsuit.’ That is false.”
“In fact, the district court reached no such conclusion,” Millen added. “And the record below establishes the opposite. To the extent the events underlying this case have been marked by delays, those delays lie with the District Attorney.”
Stein’s brief cites “repetitive investigations” by the State Board of Elections and State Bureau of Investigation, a “months-long delay” of a final SBI report, and “months of deliberation” from Freeman’s office.
“Importantly, the District Attorney did not decide to move forward with a presentment to the grand jury until July 7, 2022,” Millen wrote. “Within a week, Plaintiffs’ counsel sought to schedule a meeting with the senior prosecutor to discuss a number of issues related to the grand jury’s review of a presentment and, on July 15, 2022, the senior prosecutor agreed to a meeting on July 19, 2022.”
Freeman recused herself from the investigation involving Stein’s campaign ad. Prosecutor David Saacks, who has worked for the Wake D.A.’s office since 2010, has been handling the case.
At the July 19 meeting, “Plaintiffs offered to seek a declaratory judgment on the issue of the constitutionality of the Statute before the initiation of any grand jury review, as well as a tolling agreement,” Millen wrote. A tolling agreement would have extended the statute of limitations in the case.
“The very next day, on July 20, 2022, the senior prosecutor informed Plaintiffs that the District Attorney would not agree to this proposal but instead insisted on proceeding to the grand jury on Monday, July 25, 2022,” Millen wrote. “This action was filed the very next day, on July 21, 2022, less than 24 hours after that discussion.”
The dispute arose from North Carolina’s 2020 election for attorney general. Stein, the incumbent Democrat, faced a challenge from Republican Jim O’Neill, the Forsyth County District Attorney.
The two clashed during the campaign over rape kits used to help identify and prosecute offenders. Stein and O’Neill blamed each other for a backlog of untested kits.
Stein ran a TV ad, titled “Survivor,” featuring Juliette Grimmett, a sexual assault survivor who worked for Stein at the N.C. Department of Justice. At one point in the 30-second ad, Grimett criticized O’Neill.
“When I learned that Jim O’Neill left 1,500 rape kits on a shelf leaving rapists on the streets, I had to speak out,” Grimmett said in the ad. She is one of the plaintiffs in the federal case, along with the Stein campaign and the company that prepared the campaign ad.
O’Neill lodged a complaint to the N.C. State Board of Elections. He cited N.C. Gen. Stat. § 163-274(a)(9), which declares it unlawful, as a Class 2 misdemeanor, “For any person to publish or cause to be circulated derogatory reports with reference to any candidate in any primary or election, knowing such report to be false or in reckless disregard of its truth or falsity, when such report is calculated or intended to affect the chances of such candidate for nomination or election.”