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Opinion A judge exposes DeSantis’s contempt for the First Amendment

Andrew Warren had been suspended last year from his position as a Florida state attorney. (Octavio Jones/Reuters)

Andrew Warren, the state prosecutor for Hillsborough County, Fla., spoke out against Florida Republican Gov. Ron DeSantis’s forced-birth abortion plan and his persecution of LGBTQ youth. In August, DeSantis suspended him -- and falsely claimed it was because Warren had made a blanket promise not to prosecute certain cases. Warren sued. On Friday, a judge sided with him on the facts but did not give him the relief he sought.

In his ruling, U.S. District Judge Robert L. Hinkle called DeSantis’s allegation against Warren “false.” “Mr. Warren’s well-established policy, followed in every case by every prosecutor in the office,” Hinkle wrote, "was to exercise prosecutorial discretion at every stage of every case. Any reasonable investigation would have confirmed this.”

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Hinkle underscored that Warren had been carrying out his duties without a fault. “The record includes not a hint of misconduct by Mr. Warren. So far as this record reflects, he was diligently and competently performing the job he was elected to perform, very much in the way he told voters he would perform it.” Contrary to DeSantis’s claim, Warren “had no blanket nonprosecution policies.” The judge added, “Any minimally competent inquiry would have confirmed this. The assertion that Mr. Warren neglected his duty or was incompetent is incorrect. This factual issue is not close.”

In fact, the court determined based on uncontroverted evidence, “There it was, stripped of pretext: a motivating factor in Mr. Warren’s suspension was that he was a ‘progressive prosecutor,’” and “of all things,” supported by billionaire George Soros, who is also a contributor to the Democratic Party.

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In the first 57 pages of the 59-page opinion, the court makes crystal clear that DeSantis went after Warren for his political affiliation and views, including his outspoken defense of his record as a reform prosecutor. However, the kicker lies in the last two pages: Warren still couldn’t obtain reinstatement.

Unfortunately for Warren, the court ruled that even if he was protected from being fired over his stated beliefs, DeSantis would still have suspended Warren for nonprotected reasons (e.g., his record as a reformer and his disinclination to prosecute people in their first encounter with the police for bicycle and pedestrian violations). In addition, Hinkle held that Warren could not obtain the relief under the Florida constitution because the 11th Amendment prohibits a federal court from ordering a state official to take action for a violation of state law.

Had Warren brought the case in state court, there would have been no 11th Amendment barrier. But Warren no doubt chose to bring the case in federal court on a First Amendment theory to sidestep right-wing state judges. He might still pursue that avenue for relief.

Warren told me on Monday, “The reaction has been overwhelming. People are excited that we won on the merits and proved DeSantis broke the law in suspending me, and they are eagerly awaiting my reinstatement.” He added, “We are still weighing our legal options going forward.”

Still, the end result is unsatisfying. When, as the judge indicated, someone breaks both federal and state law and gets away with it, the sense of injustice is palpable. But while Warren did not prevail in getting reinstated, he certainly pulled back the curtain on the authoritarian mind-set of a governor who crushes dissent to score political points. As Warren said in public remarks after the ruling, DeSantis’s conduct should send “shivers down the spine of anyone who cares about free speech, the integrity of elections and the rule of law.”

Put differently, Warren served as a canary in the coal mine with regard to a governor who remains a top presidential prospect for 2024, exposing DeSantis’s abuse of power and his contempt for the First Amendment. There have been other warnings about DeSantis, as well — from his retaliation against Disney for opposing the “don’t say gay” bill to his inhumane and deceptive practice of shipping asylum seekers from Texas to Massachusetts. Norm Eisen, former co-counsel for House impeachment managers, tells me: “The Eleventh Amendment obstacle should not detract from that truth and the danger it represents. Like [former president Donald] Trump, DeSantis is a serial violator of the rule of law with a shrewd (perhaps even shrewder) ability to dodge consequences.”

Let no one be confused: DeSantis is not a break with the MAGA anti-democratic movement. He is only a less buffoonish version of the defeated former president. And that makes him all the more dangerous.

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