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Gov. Ron DeSantis’ Controversial Power Grab Gets Its Day in Court

The Daily Beast 12/1/2022 Jose Pagliery
Photo Illustration by Kelly Caminero / The Daily Beast / Getty © Provided by The Daily Beast Photo Illustration by Kelly Caminero / The Daily Beast / Getty

When Gov. Ron DeSantis moved in August to summarily fire an elected county prosecutor over his stance on abortion, the provocation sparked intense national backlash, media scrutiny, and ever more adulation from the governor’s growing right-wing fan base.

But this quintessential DeSantis move has also started something else: a court battle to decide whether that prosecutor will get his job back—and whether the ambitious governor will be deterred in his aggressive quest to reshape Florida in his image.

On Tuesday, U.S. District Judge Robert L. Hinkle began hearing arguments in Tallahassee federal court over one question: whether DeSantis was wrong to suspend the Tampa area’s top prosecutor, Andrew Warren, over his refusal to enforce the state’s new, more restrictive anti-abortion law.

But the case has potential repercussions far beyond whether Warren will return to power as Hillsborough County State Attorney.

“These power grabs by conservative politicians to remove prosecutors who are exercising their discretion on what to prosecute is terrifying. It’s anti-democratic. It’s genuinely very scary,” said Eliza Orlins, a public defender who ran for Manhattan District Attorney as a reformer candidate last year.

As Warren himself told The Daily Beast in October, “There’s so much more at stake than my job. This is a fight to stop the erosion of our democracy. It’s to ensure our democracy has meaning, so we have elected officials and not a king.”

In the wake of the Supreme Court decision in June repealing the right to an abortion, Warren joined 80 other prosecutors nationwide who signed a pledge refusing to pursue criminal cases against “individuals who seek or provide abortion care.” At the time, Warren told the local radio station WMNF that enforcing Florida’s 15-week abortion ban “doesn’t protect public safety,” as “it potentially criminalizes private medical decisions made between a woman and her doctor.”

That act of defiance drew DeSantis’ ire, and documents introduced into court as evidence show how it factored into the governor’s strategy to crack down on liberal prosecutors.

A single federal judge is now presiding over what’s called a bench trial, and he alone will decide whether DeSantis violated Warren’s First Amendment rights. If Hinkle finds that the governor did, his gambit will have failed.

The trial got underway Tuesday, when Warren testified that he was removed from office in a partisan and unprofessional way, according to Tampa Bay Times journalists in the courtroom.

Suspended Florida State Attorney Andrew Warren holds a press conference discussing his lawsuit against Governor Ron DeSantis on Aug. 17, 2022 in Tampa, Florida. Octavio Jones/Getty Images © Provided by The Daily Beast Suspended Florida State Attorney Andrew Warren holds a press conference discussing his lawsuit against Governor Ron DeSantis on Aug. 17, 2022 in Tampa, Florida. Octavio Jones/Getty Images

Warren recounted how he simply got an email on Aug. 4 saying, “You’ve been suspended,” forcing him to step out of a grand jury proceeding. He had only minutes to return to his office and consult his chief of staff before there was a tense interruption. DeSantis’ so-called “public safety czar,” Larry Keefe, showed up with two sheriff’s deputies—and refused to allow Warren to review a printed copy of the governor’s suspension order.

“You cannot have a chance to review this. You have to leave immediately,” Keefe told him, according to Warren court testimony quoted by the local newspaper.

Meanwhile, DeSantis attorney George Levesque argued in court that Warren’s outright refusal to enforce the law was a clear neglect of duty, thus reaching the high bar for removal from office.

However, according to the Tampa Bay Times, the governor’s lawyers never provided a single example of Warren refusing to charge an abortion-related crime. Under additional questioning by the judge, Levesque was forced to acknowledge that Warren hadn’t followed through on a separate pledge to refuse to enforce laws restricting gender-affirming care—particularly because the state doesn’t even have them yet.

The trial is expected to take only a few days and could yield a verdict by week’s end. DeSantis himself is not expected to be called as a witness in the proceedings, though top aides and officials in his administration are expected to testify.

Warren’s ouster was only one in a string of norm-breaking moves by the governor, who’s grown increasingly bold in recent months. He has banned transgender students from girls’ sports, implemented the “Parental Rights in Education” law, dubbed “Don’t Say Gay” by critics, which restricts elementary school teachers from even discussing the existence of same-sex parents, targeted “woke math” textbooks, and recently placed raging conspiracy theorists on a public school book-banning council. Florida voters apparently approved, having re-elected him last month by a nearly 20-point margin.

This trial comes at a critical moment for DeSantis’ political future. The governor is widely understood to be mulling a run for the White House in 2024, which would set up a brutal primary battle with former President Donald Trump, who was once his most important political ally. With many Republicans blaming Trump for their poor performance in the 2022 elections, DeSantis’ power plays—like his decision to fire Warren—have only made him more popular among the base that Trump used to command.

The proceedings may ultimately reveal the political nature of DeSantis’ decision—and the odd way his administration assessed their success.

In emails following Warren’s removal, the governor’s communications office noted how TV and news coverage of the removal gifted DeSantis with what they estimated to be $2.4 million worth of “free earned media coverage” over two weeks. A detailed breakdown that listed individual local television stations was included in a document titled “Echo Report, Warren” sent by Brandy Brown, the governor’s director of strategic initiatives.

That report and several other internal emails were recently turned over as public records to the Public Rights Project, a watchdog group.

“This just speaks to how this is clearly a political ploy. What they were wondering was the value in making a story of it,” said Jonathan Miller, chief program officer at the group.

Emails and text messages just made publicly available in the court docket now that trial is underway also show the role played by Keefe, who DeSantis appointed in 2021 as the state’s “public safety czar” against illegal immigration—part of the governor’s potentially unlawful campaign to humiliate and punish undocumented immigrants by, among other things, tricking them into boarding chartered flights to far-flung places that put them at increased risk of deportation.

That cruel show of political opportunism has opened up DeSantis to even more legal liability, given that a Texas sheriff is now conducting a criminal investigation into whether these migrants were “lured under false pretenses” by government officials as part of a taxpayer-funded public relations stunt. But the trial over Warren presents an immediate opportunity for a legal rebuke to the governor’s increasingly harsh tactics.

Florida Governor Ron DeSantis with his wife Casey DeSantis speaks to supporters during an election night watch party at the Convention Center in Tampa, Florida, on Nov. 8, 2022. Giorgio Viera/AFP via Getty Images © Provided by The Daily Beast Florida Governor Ron DeSantis with his wife Casey DeSantis speaks to supporters during an election night watch party at the Convention Center in Tampa, Florida, on Nov. 8, 2022. Giorgio Viera/AFP via Getty Images

It’s now clear DeSantis has been targeting prosecutors long before Warren ever spoke up about abortion.

In his “public safety” role during the spring, Keefe was apparently reaching out to sheriffs to see who would dish dirt on their local prosecutors for being too soft on crime. Among them was Hillsborough County’s own Sheriff Chad Chronister, who eagerly told the bureaucrat how he had amassed a dossier on Warren.

“Hi Mr Larry, I hope all is well with you. I have that info for you…please let me know the best way to get it in your hands,” Chronister texted him on April 6.

They stayed in touch for months and closely coordinated in the moments just before Warren was fired by the governor, with the sheriff submitting the name of a prosecutor who could replace Warren—and even sending over a draft speech to be made the day of the announcement.

Notably, the pair exchanged emails over private accounts—potentially skirting Florida’s famously transparency-friendly public records laws.

“The Governor’s suspension of Andrew Warren is not political to me… it’s about law and order!” reads the draft speech Chronister emailed Keefe two days before the firing.

Warren became the first elected Florida prosecutor in recent memory to be removed this way. In recent decades, the closest anyone has come to that was when DeSantis’ predecessor, Rick Scott, pulled the Orlando area’s elected prosecutor off a case where she refused to pursue a death penalty in March 2017.

Court filings show that the DeSantis administration relied on that as precedent, noting how the state’s supreme court upheld his Republican predecessor’s decision—and how the Democratic state attorney eventually chose to dismiss her own federal lawsuit.

The governor’s office did not respond to questions from The Daily Beast about the trial on Wednesday.

Because a part of Warren’s case turns on whether or not he was correctly doing his job, the trial offers a glimpse into how prosecutors’ offices are supposed to operate. And it comes at a time when the country is seeing a wave of reformist district attorneys like George Gascón in Los Angeles and Kim Gardner in St. Louis.

For example, Warren’s team submitted as evidence a portion of the Hillsborough County State Attorney’s Office’s manual for new employees, which makes clear that “the ultimate goal of the prosecutor is to seek the truth, not a conviction.” The portion that seems most relevant in this case is a section that details what prosecutors should consider before filing a criminal case—like an illegal abortion—instructing them to consider “whether or not the interests of justice warrant prosecution of the case.”

This Florida case is among several showdowns happening nationally in which Republicans are accused of trying to usurp voters by attacking elected prosecutors through means beyond the ballot box. Just last month, the conservative majority in Pennsylvania’s House of Representatives impeached the progressive Philadelphia District Attorney Larry Krasner.

Emily Galvin-Almanza, a former public defender who now leads an organization that helps them nationwide called Partners for Justice, warned that this kind of attack on prosecutors violates a core tenet of that job: carefully deciding when and how to charge someone with a crime.

“The purpose of the state law is to hand the prosecutor the toolkit to execute their primary ethical duty as lawyers. The duty is to do justice. It is not defined what that means,” she said. “For better or worse, prosecutors have broad discretion in deciding how to enforce or not enforce the laws they are given… we see it all the time.”

Prosecutors sometimes shirk away from making tough choices and end up looking stupid and cruel. Galvin-Almanza said that happens when a teenager who sends a naked selfie to classmate gets charged with child pornography—resulting in what she calls “moral recoil” from the public.

“Prosecutorial discretion is intended essentially to only function in a way that tends toward mercy,” she said, adding that in Warren, “we see a prosecutor doing exactly what prosecutorial discretion was intended for.”

Read more at The Daily Beast.

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