RALEIGH — At least in the near future, a grand jury may not bring charges against Attorney General Josh Stein over an allegedly false campaign ad, a federal appeals court ruled Tuesday.
The court order came just 24 hours after Wake County prosecutors convened a grand jury to hear their case and the jurors responded that they wanted to indict Stein and two top aides. The indictments could’ve come down the next time the grand jury was scheduled to meet, in less than a month — until the new court order shut that down, at least temporarily.
Tuesday’s order halts any further action in the criminal investigation until the federal courts can decide whether North Carolina’s law criminalizing false statements about politicians is a violation of the First Amendment.
The court’s ruling was 2-1. Judge Allison Rushing, who was nominated to the court by former Republican President Donald Trump, said she would’ve let the charges against Stein move forward. The judges in the majority were Toby Heytens, a nominee of Democratic President Joe Biden, and Albert Diaz, a nominee of former Democratic President Barack Obama.
“This law is 90 years old, has never been used against any candidate, and undermines free speech in our state,” Stein’s campaign said in a statement. “We are pleased that the Court has ordered this stay against (Wake County District Attorney) Lorrin Freeman and believes that we are ‘likely to succeed on the merits.’”
The ruling was the second piece of good news for Stein the day after Monday’s bombshell from the grand jury. His former boss and fellow Democratic politician Gov. Roy Cooper also chimed in with a strong condemnation of the criminal investigation, calling it “an unprecedented repression of free speech.”
The judges wrote that Stein’s campaign has a strong case for the law being unconstitutional; similar laws in multiple other states have been ruled unconstitutional.
It’s unclear if North Carolina’s version has ever before been challenged. Stein’s campaign said this is the first time in nearly a century since the law was written that a prosecutor has attempted to charge anyone with breaking it.
In 2020, Stein and his 2020 Republican opponent, Forsyth County District Attorney Jim O’Neill, had engaged in a back-and-forth over the state’s backlog of untested evidence kits from rape and other sexual assault cases. Each blamed the other for inaction, and accused the other of making false accusations.
But unlike Stein, O’Neill requested criminal charges be brought over their public spat on the rape kit backlog.
After the investigation dragged on in secret for over a year, handled by the State Bureau of Investigation and the Wake County district attorney’s office, Stein’s campaign filed this federal lawsuit in July, seeking to have the law ruled unconstitutional. That also made the investigation public for the first time.
Wake County District Attorney Lorrin Freeman had wanted the court to let her office push ahead with the investigation and potential charges, noting in a court filing last week that the statute of limitations will expire soon. The judges were dismissive, however, calling it a problem of her own making.
“It appears that any such injury is, at least to some extent, self-inflicted, because the district attorney has not adequately explained why it was necessary to wait so long to bring charges in a case where the alleged crime was broadcast on television nearly two years ago,” they wrote.
The judges also accepted the Stein team’s argument that if Freeman’s office is allowed to pursue charges, anyone charged would suffer “irreparable harm,” regardless of whether they’re ultimately convicted, should the law be struck down as unconstitutional.
Stein’s campaign had asked the judges to issue this ruling last week. So their delay meant that the grand jury was able to publicly say Monday it wanted to bring charges. But Tuesday’s order stopped those charges from being made official, at least while the appeal is pending.
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