Prosecution of NC Attorney General proceeded despite recommendation from investigators

CHARLOTTE, N.C. (WBTV) - The Wake County District Attorney’s office pursued a criminal investigation into North Carolina Attorney General Josh Stein despite a recommendation that the case be closed, according to a memo obtained by WBTV.

The memo, written by a North Carolina State Board of Elections attorney, is the latest revelation in an unprecedented case involving the sitting attorney general over a 2020 campaign ad.

Though the agency determined the ad was not a “clear violation” of the law, the DA’s office, led by Democrat Lorrin Freeman, took the extraordinary step of investigating and ultimately pursuing an indictment against the state’s sitting attorney general anyway.

Freeman’s office was minutes from asking a grand jury to bring criminal charges against Stein when a federal judge blocked her from doing so last month, WBTV previously reported.

Earlier this week, that judge lifted her order, ruling the century-old law at the center of Stein’s case is constitutional. That move could give the DA’s office the ability to once again pursue an indictment of Stein or anyone else involved in the ad.

The memo recommending the investigation into Stein be closed says otherwise, saying the nearly century-old law at the center of Stein’s case makes it illegal to do so.

Previous: Wake prosecutor was minutes away from taking NC Attorney General to a grand jury. Then a judge stopped it.

Stein’s Republican opponent for attorney general in 2020, Forsyth County District Attorney Jim O’Neill, filed a complaint with the NCSBE in October 2020 alleging Stein had violated the law by running a campaign ad that claimed O’Neill had failed to test 1,500 rape kits.

In the memo obtained by WBTV, the NCSBE attorney recommends the investigation stemming from O’Neill’s complaint be closed because it was not clear that Stein’s ad was knowingly false.

“The falsity of the statement draws ambiguity and therefore, it is inconclusive to determine a clear violation of N.C.G.S 163-274(a)(9) occurred,” the memo said.

“Additionally, the NCSBE is concerned that if a violation is found, this might be an unconstitutional application of the statute.”

While discussing the findings of its investigation related to the truth of Stein’s statements, the memo also refers to three statements made by O’Neill that a top aide to Stein claimed were false.

“The NCSBE investigation revealed additional information that is not a part of this original complaint but could be considered for additional investigation of a possible violation against O’Neill,” the NCSBE attorney wrote.

The memo summarized an interview with Seth Dearmin, Stein’s chief of staff who authorized the campaign ad, in which Dearmin claimed O’Neill made multiple knowingly false statements about Stein.

Document: Click hear to read the full NCSBE memo recommending the Stein investigation be closed

“In our interviews with Dearmin, it was alleged that O’Neill publicly made false statements on at least three separate occasions against Stein in his capacity as the Attorney General that are similarly worded in context to the claims made in this complaint,” the memo said.

On Wednesday, an attorney for the N.C. Democratic Party wrote Freeman to request her office open an investigation into O’Neill for the allegedly false statements he made during the 2020 campaign.

But Freeman shot down the possibility of opening an investigation into O’Neill in comments made to the Associated Press in response to the NCPD’s request.

Freeman’s refusal to investigate O’Neill drew a strong rebuke from John Wallace, a lawyer for the NCDP, in a letter sent Thursday afternoon.

“We are of the view that you have both the authority and the duty to promptly commence an investigation and to initiate prosecution as we have requested,” Wallace wrote.

“Your failure to do so will suggest bias or favoritism. Such uneven treatment in the consideration and investigation of these matters and, more importantly, such uneven treatment in connection with the prosecution of these matters is simply inappropriate.”

In an emailed statement Thursday, Freeman defended the decision by her office to move forward with prosecuting Stein despite a recommendation to the contrary from the NCSBE.

“Throughout the North Carolina Board of Elections investigation, they communicated with senior prosecutor David Saacks who requested specific investigative steps be taken that were not. At the conclusion of their work, he determined further investigation was needed and the State Bureau of Investigation began its work,” Freeman said.

But a spokesman for the NCSBE refuted Freeman’s suggestion that the board failed to conduct its investigation as requested.

“This agency consulted with the Wake County DA and her deputy early on and throughout our investigation. We sent our report and heard nothing back from them requesting additional investigative steps,” spokesman Pat Gannon said.

“We explained to the DA’s office that the matter was not closed until they decided whether or not to prosecute. We also informed them that we would continue the investigation if advisable.”

Attorneys for Stein have asked a federal judge to continue blocking Freeman’s office from bringing Stein’s case to a grand jury while they appeal her ruling allowing the prosecution to move forward.

Unless that request is granted, Freeman’s office could seek charges against Stein as early as Monday.