No depo for DeSantis, but lawyers may seek his testimony in Warren trial

For ousted state attorney Andrew Warren, it’s a strategic move to avoid delaying the Nov. 29 trial date in his bid to win back his job.
Ousted Hillsborough State Attorney Andrew Warren, left, is suing Gov. Ron DeSantis in an effort to get his job back.
Ousted Hillsborough State Attorney Andrew Warren, left, is suing Gov. Ron DeSantis in an effort to get his job back. [ Times ]
Published Oct. 27, 2022|Updated Oct. 27, 2022

Attorneys for ousted Hillsborough State Attorney Andrew Warren are willing to let Gov. Ron DeSantis avoid testifying in a deposition — as long as they are allowed to put him on the witness stand at trial.

Warren’s lawyers said as much in a court document filed Thursday, noting that they want to get to the fast-approaching Nov. 29 trial date as scheduled to try to win Warren his job back.

The governor, they said, “has indicated he will use any court order compelling his deposition as a reason for delay and protracted litigation.” Had the judge ruled DeSantis should be deposed, the governor was expected to appeal.

DeSantis suspended Warren from office Aug. 4, pointing to pledges Warren signed with other elected prosecutors across the nation vowing not to prosecute cases involving abortion or transgender health care. The governor also referenced Warren’s policies against prosecuting certain nonviolent misdemeanors.

Warren, a progressive Democrat, accused the Republican governor of political retaliation and violating his right to free speech. His lawsuit seeks a judge’s order restoring him to office and prohibiting DeSantis from further actions against him.

DeSantis has argued in court filings that he and his chief of staff should not be compelled to give pre-trial depositions, citing what’s called the apex doctrine — designed to protect high-ranking officials from potentially burdensome or harassing depositions, particularly in routine cases where they don’t have firsthand knowledge of the issues.

But Warren’s attorneys say the governor spoke about his decision to remove the prosecutor who he said supported “a social justice agenda” at a news conference the day it happened, on Fox News, at a conservative fundraiser and at various public events.

In this week’s gubernatorial debate against challenger Charlie Crist, DeSantis said, regarding Warren’s removal, that he “acted appropriately and I would do it again.”

“But now, when a federal court must determine the legality of his action, (DeSantis) is refusing to talk about a decision he is only too eager to discuss everywhere else,” Warren’s attorneys wrote.

They argued that the apex doctrine doesn’t apply in a case with “extraordinary circumstances” — an elected public official removed from office and replaced by the governor’s hand-picked successor, former county judge and prosecutor Susan Lopez, whom voters did not choose.

“It is obvious that (DeSantis) has unique knowledge about what was in his own mind when he made the decision to suspend Mr. Warren,” the lawyers wrote.

The governor’s office did not immediately respond to a call and emails for comment Thursday afternoon. A governor’s spokesperson previously told the Tampa Bay Times: “Anything we have to say about this pending legal matter will be within our legal filings.”

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At a recent hearing, U.S. District Judge Robert Hinkle told the governor’s lawyers to think carefully about the implications of him not testifying. He also told Warren’s lawyers to think carefully about how to respond.

“Motivation is a critical issue here,” Hinkle said in court. “And if you really want to not be able to provide the testimony from the people that know the most about why this was really done, think about how that affects your case.”

No date has been scheduled regarding the governor’s testimony. Hinkle could schedule a hearing or issue an order.