Perhaps. And Ron DeSantis probably succeeded, too, but that’s not entirely germane to Andrew Warren’s complaint. Warren blasted the Florida governor for suspending him from office as the elected State Attorney for the 13th Judicial District yesterday, complaining that the action was based on “conjecture and lies”:
Hillsborough County State Attorney Andrew Warren lambasted Gov. Ron DeSantis’ decision to suspend the prosecutor, arguing the Governor is “trying to overthrow the results of a free and fair election.”
“People need to understand this isn’t the Governor trying to suspend the one elected official, Warren said. “This is the Governor trying to overthrow democracy here in Hillsborough County.”
Warren responded to the Governor’s decision after a press conference on a cold case recently solved by his office. The announcement came without notice to Warren, who said he has not yet gotten the chance to read the suspension, but said he “heard it contains a lot of conjecture and lies.”
“I woke up to do my job today, and that’s exactly what I did,” Warren said. “Just based on the Governor’s track record with unconstitutional orders, I have a feeling that this is going to be just as unconstitutional.”
That’s certainly a curious reaction. This State Attorney is commenting publicly on an order he hasn’t read and a raising a constitutional objection without researching the topic. It seems that DeSantis might have another ground for suspension on the basis of incompetence.
As I pointed out yesterday, the state constitution very much gives DeSantis this authority — which Warren will discover when he realizes that Florida actually has a state constitution:
SECTION 7. Suspensions; filling office during suspensions.—
(a) By executive order stating the grounds and filed with the custodian of state records, the governor may suspend from office any state officer not subject to impeachment, any officer of the militia not in the active service of the United States, or any county officer, for malfeasance, misfeasance, neglect of duty, drunkenness, incompetence, permanent inability to perform official duties, or commission of a felony, and may fill the office by appointment for the period of suspension. The suspended officer may at any time before removal be reinstated by the governor.
(b) The senate may, in proceedings prescribed by law, remove from office or reinstate the suspended official and for such purpose the senate may be convened in special session by its president or by a majority of its membership.
(c) By order of the governor any elected municipal officer indicted for crime may be suspended from office until acquitted and the office filled by appointment for the period of suspension, not to extend beyond the term, unless these powers are vested elsewhere by law or the municipal charter.
Emphasis mine. DeSantis predicated the suspension on Warren’s public declaration that he would not enforce new statutes limiting abortion and sex-change surgeries and treatments for minors. Warren now complains that DeSantis acted prematurely:
When asked about the specific issues brought up by the Governor — not enforcing a 15-week abortion ban and a prohibition of gender-affirming surgery for minors — Warren said he has yet to have a case brought to him on either matter.
“We’ve had none. None of those cases have been brought to us. We’re not anticipating those cases being brought to us,” he said. “You should go ask the Sheriff whether he has had those cases and whether they’re investigating arresting people for that, because when they do, and they bring us a case, we’ll evaluate it.”
Warren somehow forgets that he signed a public pledge never to pursue such cases. He claimed at the time — as did his defenders — that this would be considered an act of prosecutorial discretion. That, however, is nonsense. Prosecutorial discretion gets applied to specific cases, not statutes themselves. Prosecutors can no more refuse to enforce existing laws on the basis of their personal taste than they can make up laws to enforce on the same whim.
If Warren tries to fight this in court on the basis of constitutionality, it will be a tough slog. Courts will much more likely find this to be a political issue, as the state constitution clearly gives the governor the discretion to determine what “neglect of duty” is. The check on that power under the same constitutional clause is the state senate, not the courts. That means Warren’s only real avenue for relief is the legislature’s upper chamber, where Republicans currently have a 23-16 majority. Good luck.
Warren went to Twitter to complain further, but my friend Brant Hadaway had a ready response:
In our community, crime is low, our Constitutional rights—including the right to privacy—are being upheld & the people have the right to elect their own leaders—not have them dictated by an aspiring presidential candidate who has shown time & again he feels accountable to no one.
— Andrew Warren (@AndrewWarrenFL) August 4, 2022
You don't have the right to veto the duly enacted laws of this state. Bye, Felicia.
— Brant Hadaway (@BrantHadaway) August 5, 2022
That’s precisely what Warren tried to do, and what other progressive prosecutors around the country have done by abusing prosecutorial discretion. DeSantis merely put an emphatic end to it by exercising his own executive authority, or perhaps better put, his gubernatorial discretion.
If Warren wants to change the law, he can run for the legislature. If he wants to work against the statute, he can defend the people prosecuted under these laws as either a public defender or in private practice. If Warren wants to be a prosecutor, then he has to represent the People and the laws they have created for self-governance through their elected legislatures. Those should be the only options. And thanks to DeSantis, they are … in Florida, anyway.
Update: I hadn’t thought about it when I wrote the headline, but some on social media thought “Warren” referred to Sen. Elizabeth Warren. I’ve changed it to “Suspended prosecutor” to eliminate the confusion.