The upcoming federal court battle between suspended Hillsborough State Attorney Andrew Warren and Gov. Ron DeSantis, who removed him from office last month, could make for a legal and political spectacle:
A sitting governor running for reelection — and also widely considered to be a 2024 presidential contender — grilled on the witness stand.
“I wouldn’t think his lawyers would be excited about the prospect of the governor being put on the stand, put under oath and questioned about it,” said Scott Tozian, a Tampa attorney who represents judges and lawyers in court and disciplinary matters. “Frankly, most lawyers aren’t anxious to have their clients under oath on the stand in most proceedings.”
But Republican former Florida Senate president Don Gaetz said DeSantis could be different: “The usual approach is to avoid having a high-profile business or political leader have to testify and therefore be exposed to all sorts of questions that they may or may not be prepared for,” he said. “But this governor is someone who rides to the sound of the guns.”
The trial will focus on DeSantis’ surprise Aug. 4 order removing Hillsborough County’s twice-elected state attorney from office. He accused Warren of refusing to enforce laws involving abortion, transgender healthcare and certain low-level nonviolent crimes.
Warren, a Democrat, contends that his ouster by the Republican governor with whom he has disagreed publicly is instead rooted in politics and retaliation. He’s suing DeSantis on free speech grounds.
Last week, Senior U.S. District Judge Robert L. Hinkle said Warren’s bid to get his job back should be decided in a trial and soon.
The two sides are expected to exchange what’s called discovery before the trial begins.
Todd Foster, a former FBI agent and federal prosecutor now in private practice in Tampa, said the lawyers will ask for “robust discovery — emails, records, texts, records of conversations, meetings, anything that could possibly give insight to the governor’s decision.”
A trial also means witnesses questioned in depositions and called to testify in court.
“We certainly believe it would be appropriate to depose the governor and we plan to ask to do that,” said Warren’s attorney Jean-Jacques Cabou.
Warren’s suit points out issues that he and the governor have clashed on: restoration of ex-offenders’ voting rights, the governor’s order nullifying local restrictions on religious gatherings in the spreading pandemic — a move Warren called “spineless” — and DeSantis’ “anti-rioting” bill. The suit also points to a tweet from a governor’s then-spokesperson the night before Warren’s ouster predicting “the liberal media meltdown of the year.”
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So what are potential pitfalls for the governor giving testimony?
“What Gov. DeSantis has to worry about is when he’s asked the question: ‘Do the people who voted for the district attorney get to decide, or do you get to decide?’” said Lanny Davis, former special counsel to President Bill Clinton. “Gov. DeSantis cannot avoid defending an anti-democracy position. And if I were his lawyer, I’d be very worried about that question.”
Tozian, the Tampa attorney, said he expects Warren’s lawyers will be “proficient at cross-examination.”
“I wouldn’t think that would be an exercise the governor would find enjoyable,” he said.
“If I were representing the governor, I’d try to restrict the scope of the questions as much as I could,” Tozian said. “Conversely, if I were representing Andrew Warren, I would try to get into everything that could lead to discoverable evidence.”
Foster, the former federal prosecutor, predicted the governor’s lawyers would cite executive privilege and ask for limitations on what they must turn over to opposing counsel.
“Decisions made by the chief executive of the state, some of it is privileged,” Foster said. “The governor has to have to some extent the ability to speak candidly and openly to advisors without threat of communications to be made public.”
“On the other hand, if you’re Andrew Warren’s lawyers, if you’re making decisions about Andrew Warren, (you would argue) we’re entitled to see them,” Foster said.
Could the governor not have to testify at all?
Not likely, Tozian said, because he made the decision to suspend Warren. “If there’s two essential witnesses, one’s Gov. DeSantis and one’s Andrew Warren,” he said.
Gaetz, the former state senator, said he has been called to testify in a case himself. “It’s not entirely pleasant to have someone performing a legal proctological examination when you’re running for office or you’re in office,” he said.
But, he said, DeSantis is a lawyer and “extraordinarily good at the give and take of both politics and the law.”
A DeSantis spokesperson declined to comment on whether the governor would attempt to limit discovery or whether he’ll give a deposition and testify.
“Anything we have to say about this pending legal matter will be within our legal filings,” said spokesperson Bryan Griffin. The Florida Attorney General’s Office, which represented DeSantis at the recent hearing, also declined comment.
Florida governors have faced depositions and given court testimony in varying circumstances.
In 1987, days after he took the oath of office as governor, Bob Martinez was on the witness stand denying allegations that he took illegal contributions and bribes related to his 1979 Tampa mayoral campaign. (Martinez wasn’t on trial and the allegations went unproven.) In 1991, Lawton Chiles admitted in a federal court hearing that the water in the Everglades was dirty. In 2014, Rick Scott did not appear for a deposition in a legal case over his private email account.
The judge in the Warren case wants a trial within four months. Could it resolve before that?
“Working it out is almost always better than the alternative,” said Tozian.