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Thursday, Florida Governor Ron DeSantis purged Tampa’s elected prosecutor, Andrew Warren. Warren had pledged not to prosecute people who seek and provide abortions. Warren had not actually had any such cases before him. DeSantis is, of course, vying for the Republican nomination for President in 2024.
DeSantis has been taking shrill steps – Warren called this a “political stunt” – to woo the future primary voters, and to fundraise from those well off, with Trump views.
Still, there is a real clash here. There are many blue enclaves in red states, like the Democratic cities in Republican Texas. Since the Supreme Court overruled Roe v. Wade there will be a new world of potential for prosecuting women or doctors or their helpers, even out-of-state helpers or organizations, for any part in abortions.
It is entirely possible this is the first of many clashes between red state Governors and State Legislatures and defendants or other figures in those blue enclaves about prosecuting women or doctors or helpers. Also, there will no doubt be countless clashes between neighboring states in which the pro-choice state offers help to women living in the next-door anti-abortion state. (Although after the Kansas election, one has to wonder whether prosecuting women or doctors will be so popular with the electorate even of red states.)
This particular time, there is a strong argument DeSantis’ move was illegal, and will be decided so in court. The Hillsborough County (Tampa) State Attorney is independently elected by the voters. Warren was not appointed by DeSantis, and the most straightforward legal rule is that those one appoints, one may sometimes remove, but those who come to office, and hold office, independently, one may not remove.
I was General Counsel of the U.S. House of Representatives. Every once in a while some nut would come out of the woodwork and say that a Representative the nut disliked would be removed by the State’s Governor or Legislature.
It never happened and it never will happen. Representatives of one party and one set of views co-exist with Governors and State Legislatures of the other party and an opposite set of views. They just verbally joust, without removing each other. The Representative cannot be removed, just face challenge when seeking re-election.
Warren was escorted out of his office. How will this get to court? This is the most legally interesting and arcane part of the affair. Warren’s lawyer, almost unnoticed, said specifically that he would file a quo warranto action to challenge the governor’s claim of power.
Quo warranto is practically a dinosaur still alive and kicking hard. It is Latin for, literally, “by what warrant,” meaning, where does the claimed office or power come from. It has a medieval origin. It flourished many centuries ago. It figured in England’s “Glorious Revolution” of 1689.
Quo Warranto is alive and well in Florida. In Florida Statutes Title VI, Chapter 80, entitled “Quo Warranto,” the action’s power and process is laid out. The section on procedure says, “The rules about pleading and procedure in mandamus apply to actions for quo warranto as near as may be.” Mandamus is another dinosaur that is still alive and kicking hard.
Both figures may emerge “winners.” Warren may establish that DeSantis wrongfully removed him. So Warren would be legally vindicated. However, DeSantis will keep his far-right stance in front of the Republican primary voters. So, he makes his political point.
Good luck legally for the Tampa State’s Attorney. Meanwhile, we can only imagine, with shudders and rolling eyeballs, what DeSantis would do along these lines with the presidency, which he will hopefully not attain.