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opinion | A judge exposes DeSantis’ contempt for the First Amendment

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Andrew Warren, the Attorney General of Hillsborough County, Florida, spoke out against Florida Republican Governor Ron DeSantis’ forced birth and abortion plan and his prosecution of LGBTQ youth. In August, DeSantis suspended him – falsely claiming that Warren had made a blanket promise not to prosecute certain cases. Warren sued. On Friday, a judge sided with him on the facts, but failed to give him the relief he sought.

In his ruling, U.S. District Judge Robert L. Hinkle called DeSantis’s claim against Warren “false.” “Mr. Warren’s consistent policy, followed in any case by every prosecutor in office,” wrote Hinkle, “was to exercise the discretion of the prosecutor at every stage of every case. Any reasonable inquiry would have confirmed.’

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Hinkle emphasized that Warren performed his duties flawlessly. “The record contains no trace of misconduct by Mr. Warren. As far as this account reflects, he diligently and competently performed the task for which he had been elected, much as he had told voters he would do. Contrary to DeSantis’ claim, Warren had “no blanket non-prosecution policy”. The judge added: “Any minimally competent investigation would have confirmed this. The claim that Mr. Warren neglected his duty or was incompetent is false. This matter of fact is not close.”

In fact, based on undisputed evidence, the court determined, “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.

In the first 57 pages of the 59-page opinion, the court makes it crystal clear that DeSantis went after Warren because of his political beliefs 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 get a recovery.

Unfortunately for Warren, the court ruled that even if he was protected from dismissal because of his stated beliefs, DeSantis would still remain have suspended Warren for unprotected reasons (e.g. his track record as a reformer and his unwillingness to prosecute first-time police officers for bicycle and pedestrian offenses). In addition, Hinkle believed that Warren could not get the exemption 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.

If Warren had taken the case to state court, there would have been no 11th Amendment barrier. But Warren no doubt chose to take the case to federal court on a First Amendment theory to evade right-wing state judges. He could still follow that path to enlightenment.

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

Still, the end result is unsatisfactory. When, as the judge pointed out, someone breaks both federal and state law and gets away with it, the sense of injustice is palpable. But while Warren didn’t win his reinstatement, he certainly pulled back the curtain on the authoritarian mindset of a governor who suppresses dissent to score political points. As Warren said in public remarks following the ruling, DeSantis’ behavior “should send shivers down the spine of anyone who cares about free speech, the integrity of elections and the rule of law.”

Put another way, Warren served as a canary in the coal mine regarding a governor who remains a top president for 2024, exposing DeSantis’s abuse of power and his contempt for the First Amendment. There have been other warnings about DeSantis, too — from his retaliation against Disney for opposing the “don’t say gay” law 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 obstacle of the Eleventh Amendment should not detract from that truth and the danger it represents. Like [former president Donald] Trump, DeSantis is a serial rule of law violator with a cunning (maybe even more cunning) ability to evade consequences.”

Let no one get confused: DeSantis is not a break from the MAGA anti-democratic movement. He’s just a less idiotic version of the defeated former president. And that makes him all the more dangerous.

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