Judge again refuses to block use of law in NC AG probe

August 15, 2022 GMT
FILE - North Carolina Attorney General Josh Stein speaks during a news conference outside the Durham County Courthouse in Durham, N.C., June 28, 2021. North Carolina's Democratic attorney general declined Thursday, July 21, 2022, to meet Republican legislative leaders' demand that he ask a federal court to lift an injunction on a state law banning nearly all abortions after 20 weeks of pregnancy. (Julia Wall/The News & Observer via AP, File)
FILE - North Carolina Attorney General Josh Stein speaks during a news conference outside the Durham County Courthouse in Durham, N.C., June 28, 2021. North Carolina's Democratic attorney general declined Thursday, July 21, 2022, to meet Republican legislative leaders' demand that he ask a federal court to lift an injunction on a state law banning nearly all abortions after 20 weeks of pregnancy. (Julia Wall/The News & Observer via AP, File)
FILE - North Carolina Attorney General Josh Stein speaks during a news conference outside the Durham County Courthouse in Durham, N.C., June 28, 2021. North Carolina's Democratic attorney general declined Thursday, July 21, 2022, to meet Republican legislative leaders' demand that he ask a federal court to lift an injunction on a state law banning nearly all abortions after 20 weeks of pregnancy. (Julia Wall/The News & Observer via AP, File)
FILE - North Carolina Attorney General Josh Stein speaks during a news conference outside the Durham County Courthouse in Durham, N.C., June 28, 2021. North Carolina's Democratic attorney general declined Thursday, July 21, 2022, to meet Republican legislative leaders' demand that he ask a federal court to lift an injunction on a state law banning nearly all abortions after 20 weeks of pregnancy. (Julia Wall/The News & Observer via AP, File)
FILE - North Carolina Attorney General Josh Stein speaks during a news conference outside the Durham County Courthouse in Durham, N.C., June 28, 2021. North Carolina's Democratic attorney general declined Thursday, July 21, 2022, to meet Republican legislative leaders' demand that he ask a federal court to lift an injunction on a state law banning nearly all abortions after 20 weeks of pregnancy. (Julia Wall/The News & Observer via AP, File)

RALEIGH, N.C. (AP) — A federal judge on Monday again refused to block a North Carolina district attorney from pursuing charges using a specific state law about a 2020 television commercial run by state Attorney General Josh Stein’s campaign.

Campaign lawyers for Stein, a Democrat, have argued that a law targeting allegedly false ads violates free speech rights and is inherently unconstitutional.

But U.S. District Judge Catherine Eagles on Monday declined to temporarily prevent that law from being enforced while the campaign committee and others related to Stein’s campaign file an appeal at the 4th U.S. Circuit Court of Appeals.

Eagles last week already rejected a request by the campaign and other plaintiffs in a lawsuit to set aside the law while they seek to have the criminal statute struck down.

In a reversal from a July decision, the judge ruled Aug. 9 that Stein’s campaign committee was unlikely to be successful on legal claims that the law addressing false statements against political candidates is unconstitutional on its face.

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The lawsuit was filed days before Wake County District Attorney Lorrin Freeman’s office had planned to take the results of an investigation over the ad to a grand jury, according to legal briefs.

Eagles said Monday that while lawyers for Stein’s campaign have made a “good argument” in the case, there are other factors that weigh against an injunction.

There’s no guarantee that the 4th Circuit will resolve the matter before a two-year window allowed for Freeman to pursue charges expires in October, Eagles wrote. And it’s uncertain whether a grand jury will charge anyone with a crime.

“If and when it does, the charged person can raise these constitutional defenses in state court,” she wrote.

Eagles’ rulings put additional legal pressure upon Stein, a potential 2024 governor’s contender, to prevent a situation where people — whether it be Stein or anyone else — face misdemeanor criminal charges. The lawsuit has Stein fighting enforcement of a law, when one of his chief duties as attorney general is to defend state laws in court.

The law, which dates to at least 1931, makes it illegal to knowingly circulate false “derogatory” reports about candidates to harm them at the ballot box.

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The district attorney’s investigation stems from a September 2020 State Board of Elections complaint filed against Stein’s committee by his then-challenger, Republican Jim O’Neill.

The ad talks about untested rape kits held by local law enforcement agencies, and a woman appearing in the commercial asserts that O’Neill “left 1,500 rape kits sitting on a shelf” in Forsyth County, where he’s been district attorney since 2009.

O’Neill’s campaign argued that the ad was false and subject to the law since police agencies, and not prosecutors, are responsible for testing the kits. Stein narrowly defeated O’Neill in the November 2020 election.

Freeman’s office has pursued prosecution even though the State Board of Elections in May 2021 recommended that the investigation related to the complaint from O’Neill’s committee be closed. The report’s author wrote that “ambiguity” in the ad’s language made it “inconclusive” to determine whether a violation of the law occurred.

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Stein’s attorneys filed the investigation report with Eagles on Friday after WBTV obtained a copy, saying it was “new information, deliberately withheld” by Freeman and the elections board.

Freeman, a Democrat who has recused herself from the case because of a close working relationship with Stein and O’Neill, defended the decision by a top deputy handling the probe to pursue the investigation despite the board’s suggestion.

That deputy, David Saacks, determined additional investigation was needed after the board completed its work, Freeman told the station. The State Bureau of Investigation was brought in to assist.

The state Democratic Party called on Freeman last week to promptly investigate statements that O’Neill made publicly during the 2020 campaign and it says were false. Similar allegations were made by Stein’s former campaign manager to the state board.

Freeman told The Associated Press last week that her office wouldn’t consider the Democratic Party’s demand because they hadn’t followed normal procedures and filed its own complaint with the board.