‘Unprecedented repression of free speech’: Cooper slams investigation of Josh Stein
The criminal investigation targeting Attorney General Josh Stein over a political ad from his 2020 campaign will have a chilling effect on free speech if it moves forward, Gov. Roy Cooper told The News & Observer on Tuesday.
“The idea that the government can criminally prosecute a person for expressing a legitimate political opinion runs counter to the First Amendment and threatens anyone who wants to criticize a public official,” Cooper said in a written statement.
Cooper is a Democrat, like Stein. So is Wake County District Attorney Lorrin Freeman, whose office is pursing the charges.
On Monday, Freeman’s office sent an agent from the State Bureau of Investigation before a grand jury to lay out the case for charging Stein and two top aides with violating an obscure and potentially unconstitutional law that makes it a crime to say false things about politicians.
The law does not appear to have ever been used in the nearly 100 years since it was passed in the 1930s, and now that it is being proposed, Stein’s campaign is suing in federal court to have it ruled unconstitutional. Similar laws have been ruled unconstitutional in multiple other states.
“This is an unprecedented repression of free speech that should trouble everyone,” Cooper said.
However, before the 4th Circuit Court of Appeals issued a ruling on the Stein campaign’s request to block criminal charges from being filed while that civil lawsuit is pending, Freeman’s office moved forward with the grand jury. On Monday the grand jury returned a presentment, The N&O reported, which is essentially a request that prosecutors tell the grand jury to officially bring charges.
With that presentment now filed, Freeman said in an interview, Stein and his advisors could be charged as soon as next month.
While the false statements charge itself is only a low-level misdemeanor, the state’s top law enforcement officer being charged with any crime would send shockwaves through the state’s political landscape — particularly since there has been widespread speculation about whether Stein will run for governor in two years, since Cooper is term-limited and can’t run again.
However, so far Stein has been mum about his plans for the next election, telling The N&O last year that “2024 is a political eternity from now.”
Cooper was attorney general before Stein, and even employed him as an attorney for the N.C. Department of Justice. After Cooper chose not to run for reelection in 2016 and sought the governor’s office instead, Stein — who had since been elected to a state Senate seat representing Cary — ran for attorney general to replace Cooper. He won in 2016 and again in 2020.
Berger says there ‘ought to be some accountability’
Senate leader Phil Berger, an Eden Republican, said if someone runs a political ad that they know is false, “there ought to be some accountability.”
He told reporters Tuesday that the Stein ad “rises to a level that folks have not seen before, and we’ve seen some really rough political ads. But apparently this one, in terms of matching up with facts, did not match up.”
Asked about the law’s constitutionality, Berger told reporters he thinks Stein is trying to protect his political career.
How the investigation got here
The Stein investigation has been a controversial case from the beginning, even while it was still confidential. A recently leaked memo showed that the N.C. State Board of Elections — where these sorts of investigations begin — formally recommended to Freeman that she close the case, but that she moved forward against their advice.
The elections board memo to Freeman also noted that Stein’s accuser — his 2020 Republican challenger Jim O’Neill, the top prosecutor in Forsyth County — had been accused himself of making false statements about Stein, which may have been a violation of the same law he accused Stein of breaking.
However, Freeman only pursued an investigation into Stein. She told The N&O that while the elections board did note that both candidates accused each other of making false statements, only O’Neill filed a formal complaint.
After the investigation into Stein became public this summer, the N.C. Democratic Party sent a letter to Freeman asking her to investigate O’Neill, too, if she was going to investigate Stein. She declined, saying they didn’t go through proper channels to make the request.
Berger said Tuesday the case “points out the fallacy, or the problems we have in North Carolina with a partisan board of elections.” Cooper appoints the elections board.
He commended Freeman for allowing the case to “be dealt with by following the facts, and we’ll see what happens.”
Freeman recused herself
The N&O reported in July that Freeman received a campaign contribution of $1,000 in the first quarter of 2022, while the investigation was ongoing, from O’Neill’s wife. A newer campaign report shows O’Neill’s wife, Oona, gave Freeman another $1,000 in the second quarter. The news site Axios reported this month that donors tied to O’Neill gave Freeman nearly $3,000 in all.
While Freeman has continued serving as the point-person for the media in this case, she has said that she recused herself early on from making any decisions about the investigation, due to her professional relationships with both Stein and O’Neill. One of her top deputies, David Saacks, has been leading the case instead.
In an email Monday night, she said she will remain recused from making decisions about the case — like whether to tell the grand jury to bring charges the next time it convenes.
“There are those that continue to try and create political pressure in hopes that I will interfere with this case,” Freeman wrote. “Eight years ago when I ran for district attorney in this county, I pledged to keep politics out of the courthouse. I remain committed to that promise.”
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