Case over ad for AG Josh Stein advances after review by Wake grand jury
Wake County prosecutors are one step closer to potentially bringing charges against the state’s top law enforcement official, who is alleged to have violated an obscure and untested election law that prohibits politicians from making false statements about each other.
A grand jury on Monday returned a presentment to the Wake County district attorney’s office, a move that allows prosecutors to pursue a possible indictment against Attorney General Josh Stein and his campaign over statements made in a 2020 television ad.
The case has drawn considerable intrigue in part because Wake District Attorney Lorrin Freeman, like Stein, is a Democrat. Stein is expected to run for governor in 2024. And the DA office’s pursuit of the case has been scrutinized because of its novelty.
And on Monday, tension between the two intensified. In the moments after the grand jury’s action, Freeman and representatives of Stein lobbed accusations in an extraordinary exchange. Stein’s campaign called the case “nonsense.” Freeman, who has recused herself in the case, alleged that Stein’s allies have applied political pressure in hopes of influencing decisions about the case.
At the heart of the case is a television ad by Stein’s campaign in which a supporter claimed that his opponent in that race, Jim O’Neill, “left 1,500 rape kits sitting on a shelf, leaving rapists on the streets.”
O’Neill, the Forsyth County District Attorney, alleged that the ad is defamatory because local law enforcement agencies such as city police departments and county sheriffs departments typically maintain custodial control of rape kits.
O’Neill filed a complaint with the state elections board alleging that Stein’s campaign circulated false and derogatory information about him—potentially violating a 90-year-old law that carries a fine of up to $1,000 and up to 60 days in jail.
Stein’s campaign has said the ad is fair because O’Neill, in his capacity as a district attorney, has influence over whether sexual assault cases are prosecuted and that, by extension, he has some influence over whether rape kits are tested.
Stein’s campaign has also argued more broadly that the ad isn’t any more misleading than ads aired by O’Neill and other political candidates.
Monday’s decision follows investigations by the North Carolina State Board of Elections and the North Carolina State Bureau of Investigation over the past two years.
So far, nobody has been charged in the case. But if Stein or his campaign are indicted, he would likely be the first candidate to be charged under the law. The state elections board and Freeman say they’re unaware of any time a candidate’s claims warranted criminal charges.
Because Freeman has recused herself, the case is in the hands of senior Wake prosecutor David Saacks.
The rarity of charges brought under the election law has prompted speculation among political observers that Freeman or her staff might have personal motivations for targeting Stein.
Vanessa Watson, a spokesperson for the Stein campaign, issued a statement Monday.
“District Attorney Freeman continues to pursue her nonsense investigation over a campaign ad that is true from an election that is long since passed, using a 91-year-old statute that has never been used against any other candidate,” the statement said. “While the Attorney General is disappointed by this ongoing distraction, he continues to focus on his work to test sexual assault kits and get justice for survivors of sexual assault.”
Freeman on Monday accused Stein’s allies of applying political pressure on her office to try to influence its decision-making. “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,” Freeman said in a statement.
The statement made a reference to Saacks, saying that he – not she – was in charge of the case. “A senior prosecutor with over 25 years [of] experience, who is considering the evidence and the law and doing his job regardless of the politics, decided to present the case before a grand jury for their consideration,” Freeman said, referring to Saacks. “The grand jury, made up of citizens of Wake County, heard evidence in this case and has rendered its decision requesting indictments be sent for their consideration.
“It would not be appropriate under the rules of professional responsibility for me to comment on the evidence.”
