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Why Andrew Warren might lose his lawsuit against DeSantis — and why he might not

Was Warren’s pledge not to prosecute abortions considered official conduct? Or was it free speech?
Suspended Hillsborough County State Attorney Andrew Warren speaks during a news conference Wednesday, Aug. 17, 2022, in Tampa.
Suspended Hillsborough County State Attorney Andrew Warren speaks during a news conference Wednesday, Aug. 17, 2022, in Tampa. [ CHRIS URSO | Times ]
Published Dec. 2, 2022|Updated Dec. 2, 2022

TALLAHASSEE — Ousted Hillsborough County State Attorney Andrew Warren’s trial against Gov. Ron DeSantis wrapped up Thursday evening.

Over three days in Tallahassee’s federal courthouse, lawyers for both sides made their cases for the motivations behind DeSantis’ decision to suspend Warren on Aug. 4.

A central issue is a June 24 letter Warren signed by the advocacy group Fair and Just Prosecution. The letter, co-signed by state attorneys from around the country, was about the recent overturn of Roe v. Wade, and it included a pledge that “we ... refrain from prosecuting those who seek, provide, or support abortions.”

Warren said the pledge was never the policy of his office. Instead, the letter he signed was speaking out on a controversial topic of the day, and therefore constitutionally protected free speech.

DeSantis’ team has said they believed the pledge was an official action, which is not protected by the First Amendment. The pledge was part of a pattern of illegal conduct by Warren, they argued, which included adopting policies to not prosecute minor offenses that stem from bike stops or person stops.

Warren’s fate is now up to U.S. District Judge Robert Hinkle. Hinkle, appointed to the bench by former President Bill Clinton, said he would need at least two weeks to write his decision, and he said he has not made up his mind.

“I don’t know who’s going to win,” he said Thursday.

Hinkle was an active participant during the trial, frequently turning to witnesses to ask questions and grilling attorneys for both sides.

His comments and questions offer an insight into what he might decide:

Why Warren might win

In December, DeSantis turned to his “public safety czar,” Larry Keefe, asking whether there were any prosecutors in Florida not carrying out the law. DeSantis had repeatedly railed against “woke” prosecutors in other states.

Keefe set out to find out — by calling dozens of like-minded sheriffs, prosecutors and other Republicans.

Nearly everyone Keefe spoke to pointed to Warren, arguably the most high-profile — and outspoken — Democratic state attorney in Florida. But they almost all talked about Warren’s “reputation,” testimony showed. They couldn’t point to particular laws or cases that Warren wasn’t prosecuting.

Keefe was also selective of who he spoke to in Hillsborough County, chatting often with Hillsborough County Sheriff Chad Chronister and former Tampa Police Chief Brian Dugan, both critics of Warren, but not contacting former police chief — and current mayor — Jane Castor or the current police chief, who might offer different perspectives.

DeSantis officials also never contacted Warren or anyone else in his office, and they didn’t request any of the office’s policies or detailed data on prosecutions. (They said they considered doing both, but dismissed the idea.)

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Hinkle said it could be seen as “a very one-sided investigation,” and they “didn’t try to find out how he (Warren) really runs his office.”

When Warren signed the June 24 abortion pledge, that sealed the decision to oust Warren, DeSantis officials testified.

But, Hinkle noted, early drafts of the order to remove Warren were “chock full” of references to George Soros, a liberal billionaire donor to progressive prosecutors — indicating that political differences were central to Warren’s ouster.

When DeSantis was asked on Tucker Carlson’s show why he suspended Warren, the first reason he gave was the “destruction that we’ve seen with these Soros prosecutors around the country,” Hinkle noted.

Hinkle also questioned DeSantis’ lawyers about Seminole County Sheriff Dennis Lemma, who in 2020 refused to enforce an assault weapons registry if it was enacted through a constitutional amendment.

Although DeSantis officials testified this week that they would consider suspending Lemma (and other state attorneys who are not prosecuting low-level marijuana crimes), Hinkle said he didn’t believe that they would.

Lemma’s comments were made on the campaign trail while talking to constituents, and such speech by political candidates should clearly be protected under the First Amendment, Hinkle said.

“Of course he (Lemma) couldn’t be suspended for that,” Hinkle said.

Related: Who are the Tampa names that came up during the Andrew Warren trial?

Why Warren might lose

On the other hand, Warren signed his name and title on the abortion letter; that gave the public — and DeSantis officials — the belief that he wouldn’t prosecute abortion crimes, DeSantis’ lawyers argued.

In an interview with Fox 13 Tampa Bay four days after the abortion pledge, Warren clarified that he would review abortion-related crimes on their merits case-by-case, which was the office’s official policy. (DeSantis administration officials testified that they didn’t believe Warren.)

Warren’s own chief of staff testified that he thought the abortion pledge was official office policy, although two top prosecutors said it was not.

Related: Andrew Warren’s chief of staff undercuts argument in DeSantis lawsuit

While Keefe was convinced of the need to remove Warren, DeSantis’ general counsel, Ryan Newman, was initially skeptical. But Newman came around, testifying that he found it “remarkable” that a state attorney would flatly refuse to prosecute crimes.

Warren’s pledge was such a fundamental misunderstanding of prosecutorial discretion, Newman and others testified, that they believed it amounted to both “neglect of duty” and “incompetence” under state law. Hinkle said Floridians should be proud of how much thought Newman had given the issue.

“I just thought that was deeply wrong,” Newman testified, and “essentially inviting lawlessness.”

DeSantis, too, was initially skeptical that the pledge was enough to remove Warren, but Newman testified that he won him over. Still, DeSantis asked both Keefe and Newman to do more research into other state attorneys’ policies, to make sure that the governor wasn’t setting up other officials for removal, too.

“He was conscious of the concern of setting a line that is unreasonable,” Newman testified.

They found that Warren’s policies on non-prosecution and bicycle stops were unique in the state, and no other state attorney in Florida signed on to the abortion letter, Newman said.

The testimony gave an impression that Newman, at least on some level, was acting as a check on Keefe, and not necessarily motivated by politics, Hinkle suggested.

“That does, to me, kind of get over to conduct instead of speech,” Hinkle said.