As ousted Hillsborough prosecutor Andrew Warren and Gov. Ron DeSantis prepare to square off in a Tallahassee courtroom — in a trial fast-tracked because an elected official’s future hangs in the balance — court filings and judicial rulings are coming at a rapid pace.
In the blizzard of legal pleadings loom questions: Will the governor testify about why he removed the state attorney? Has the judge signaled what he’s thinking? And if Warren gets reinstated, what happens next?
What’s the case really about?
A central issue is the governor’s motivation. Did DeSantis, a Republican, have sufficient legal reasons to remove Warren, a Democrat, or was it because he disagrees with him politically?
The governor said he suspended the twice-elected state attorney because Warren signed pledges against prosecuting abortion and transgender health care cases and because of his policies against pursuing certain misdemeanors. Warren, DeSantis said, refused to follow the law.
Warren argues that the governor defied the will of the voters in removing him and violated his right to free speech.
The trial begins Nov. 29 and is expected to last four to five days.
Notably, U.S. District Judge Robert Hinkle, who will decide if Warren gets reinstated, wrote in a September order that, with the possible exception of one sentence, nothing in Warren’s pledges or office policies “explicitly announced a blanket refusal to prosecute cases of any kind.”
The judge observed: “The governor has not identified a single case the state attorney failed to prosecute.”
Will the governor testify?
Though DeSantis has spoken about ousting Warren in a news conference, on TV and at public and political events, his lawyers want to prevent him from having testify about it under oath.
Warren’s lawyers said they would agree to forgo the governor answering questions in a pre-trial deposition as long as they could call him to the witness stand in trial. But they want a judge to declare that only they — and not DeSantis’ lawyers — get to call him as a witness.
It’s speculation, but as a strategic move, Warren’s lawyers could decide not to call the governor after all. That could leave the judge to decide the case without hearing from the one person whose motivations are key.
The judge said the governor must say by Thursday if his lawyers intend to reserve the right to call him as a witness.
Who’s a witness for DeSantis?
Lawyers have been busy with depositions of witnesses, including members of the governor’s staff — among them, Christina Pushaw, his former press secretary. Pushaw infamously tweeted the night before Warren’s suspension a prediction of “the liberal media meltdown of the year.”
In a transcript filed in court with excerpts from her deposition, Pushaw spoke of “prosecutors who refuse to uphold or follow laws that they don’t agree with.”
Warren’s attorney, J Cabou, asked her about laws against adultery and whether someone who committed it should be prosecuted.
“I don’t know,” Pushaw said. “I guess I would have to hear the details of that, like, what happened.”
In his deposition, Larry Keefe, the governor’s public safety czar, recalled a December meeting between DeSantis and senior staff. The governor, while discussing other topics, asked unprompted whether any of Florida’s state attorneys were refusing to enforce laws, Keefe said.
Keefe said he told the governor he didn’t know but would look into it, then took on a review of the work of the state’s elected prosecutors.
Cabou asked: “Did you not think it was antithetical to a democratic society to remove from office an elected prosecutor who was doing the exact things that he ran for office to do?”
“I agree with the governor,” Keefe said. “And I believe that to continue to allow prosecutors of the sort of Mr. Warren … to basically be God in their particular circuits and decide what laws of the Legislature will be ignored and those that will be enforced, is a threat to democracy, yes.”
The judge said that when the governor’s lawyers question Warren, his deposition should not be “a search for other grounds that could have, but did not, motivate the suspension.”
”The deposition should not be an after-the-fact management or performance audit of the state attorney’s office,” Hinkle wrote. “The object is to prepare the case for trial — nothing more and nothing less.”
What happens if the judge rules for Warren?
It’s anticipated that whatever Judge Hinkle ultimately rules, the losing side will appeal to the Atlanta-based U.S. Court of Appeals for the 11th Circuit.
“What I imagine would happen is there would be an immediate application for a stay to the 11th Circuit,” said Tampa attorney Todd Foster, who is not involved in the case. “They could ask the 11th Circuit to stay or freeze the court’s order until they could be heard.”
Judge Hinkle could also build into his order a delay in its effective date, allowing the parties time to appeal.
“The judge is a very experienced judge and he certainly knows what he’s doing,” Foster said. “He would anticipate an appeal from either side.”
Whether the 11th Circuit grants a stay depends on whether the appeals court decides the case has merit, Foster said.
“It has to have real substance,” Foster said, “As I believe this will.”
If Warren gets reinstated, what happens to the former judge DeSantis picked to replace him?
To take Warren’s place, DeSantis tapped Susan Lopez, a longtime prosecutor whom he appointed to become a county judge eight months earlier. (Lopez, who named her dog Rhonda Santis after the governor, has said she loved being a judge.)
Hillsborough County has two judgeships open and awaiting the governor’s appointment. In September, a DeSantis spokesperson declined to say whether the governor would appoint Lopez to one of those positions should Warren prevail.