DeSantis, Warren and the rule of law
The only judge who has ruled on Gov. Ron DeSantis’ ouster of Hillsborough County’s elected state attorney found two things: One, that the Republican governor used a false pretense to suspend Democrat Andrew Warren, and two, that the move violated both the Florida and U.S. constitutions. But the judge also found he had no authority to reinstate Warren. That raises the obvious question: How can there be no remedy to a violation of law?
Warren has put that very question to the Florida Supreme Court. In January, the twice-elected prosecutor lost his federal lawsuit to reclaim his office. Warren has appealed that decision, and separately last week, filed a petition with the Florida Supreme Court, arguing that since the federal judge ruled the governor’s actions were illegal, Warren should be reinstated.
DeSantis suspended Warren in August, accusing him of having blanket policies against prosecuting certain crimes. Warren called his suspension politically motivated and sued in federal court to reclaim his job. While U.S. District Judge Robert L. Hinkle ruled in January that he lacked that authority, the judge was unsparing in dismissing DeSantis’ rationale for removing Warren.
The governor’s claim that Warren had blanket policies against certain prosecutions “was false,” Hinkle wrote in his 59-page ruling. “Any reasonable investigation would have confirmed this.” The judge suggested instead that “policy differences” were in play, given Warren’s pursuit of criminal justice reforms. “The record includes not a hint of misconduct by Mr. Warren,” Hinkle wrote. “The assertion that Mr. Warren neglected his duty or was incompetent is incorrect. The factual issue is not close.”
“In short, the controlling motivations for the suspension were the interest in bringing down a reform prosecutor — a prosecutor whose performance did not match the governor’s law-and-order agenda — and the political benefit that would result,” Hinkle wrote, finding that DeSantis sought a “pretext” to violate the state constitution and Warren’s First Amendment free speech rights.
Yet Hinkle also concluded he lacked the authority under the U.S. Constitution to restore Warren to office, which pending the federal appeal, effectively kicked the matter back to the state. “If the facts matter,” the judge wrote, “the governor can simply rescind the suspension. If he does not do so, it will be doubly clear that the alleged nonprosecution policies were not the real motivation for the suspension.”
It’s cheeky to suggest that DeSantis reinstate Warren since it obviously isn’t going to happen voluntarily. It’s also wrong to expect generosity from a governing power to take the place of due process. That’s what makes Warren’s petition to the state’s highest court such a far-reaching test of Florida’s democracy.
The question for the justices is simple: If there was no lawful or legitimate basis for suspending Warren, given the federal court ruling, mustn’t the suspension end? Put another way, how can an executive order based on falsehoods remain legally enforced? This is a question of great constitutional importance to Floridians of all political stripes. And it cuts directly to the high court’s standing and credibility.
We’re aware that DeSantis appointed four of the high court’s seven sitting justices, and we’re not naive about the prospects of a Democrat prevailing in such a high-stakes standoff in Tallahassee’s hyperpartisan environment. But the court doesn’t get to hide behind low expectations. Warren has raised a core query about the state of checks and balances in Florida.