What’s A Governor To Do?

When Florida’s governor targeted progressive prosecutor Andrew Warren, he used the same rhetoric that’s thrown at others across the nation, blaming them and their decarceral policies for the “catastrophic rise in crime” that isn’t actually happening, and certainly not in the way claimed.

In announcing the suspension, DeSantis excoriated Warren for being a “woke” prosecutor more interested in social justice than in enforcing the law. He warned of a “pathogen” spreading in U.S. cities — progressive prosecutors trying to reduce incarceration rates they see as overly punitive and that disproportionately affect people of color. He said prosecutors like Warren have caused “catastrophic results” in other states.

But the real reason wasn’t Warren’s generally less punitive approach to prosecution, but something else entirely.

In particular, DeSantis cited a pledge Warren signed with other prosecutors across the country to not charge women who seek abortions or the doctors who perform them. (Florida recently passed a law banning all abortion after 15 weeks of pregnancy, though a judge has temporarily blocked the measure.)

Whether DeSantis’ flex of authority, as he was entirely within the scope of his guberpower to toss Warren out the door, was a manifestation of evil is basically a reflection of whether you agree with Warren’s declaration that he would refuse to execute duly enacted state law that he believed wrong.

Florida gives its governor the power to remove public officials from office, but that power has traditionally been reserved for officials accused of crimes or corruption. DeSantis suspended Warren over policy disputes.

Here’s where it gets trickier. It would be easy enough to draw a line based upon believing criminalizing abortion is a travesty and, therefore, Warren’s refusal to do so is a principled decision on his part. And, indeed, it is. And like civil disobedience, the price for engaging in a principled stance must be paid, in this case by suspensions from office.

The point here, that so many refuse to acknowledge or accept, is that the state’s attorney is a subordinate position within the executive branch of state government, which like the federal government has a tripartite system consisting of the executive, legislative and judicial branches. What the state’s attorney is not is the boss of them all, at least when it comes to criminal law. Traditionally, the prosecutor would prosecute based on the duly enacted laws of the state, meaning those laws passed by the legislature and signed by the governor.

If he wanted to oppose these laws, he should have run for the legislature. If he wanted to veto these laws, he should have run for governor. But instead he ran for the downstream functionary position of prosecutor, which became the target of progressive takeover when they realized that few cared about who was district attorney or even knew who they were voting for and that it was a post that had pressure point discretion to accomplish goals that they could never accomplish legitimately.

And so a disinfo campaign began, conflating prosecutorial discretion in individualized cases with categorical discretion to eradicate laws duly enacted by legislatures and signed by governors because a downstream functionary decided he didn’t like them. To be sure, many of us don’t like them either and can’t find ourselves too upset with a prosecutor who decides that smoking pot or sex work really shouldn’t be a crime.

And then there’s killer cops. In New York, Rensselaer County District Attorney Joel Abelove had a killer cop in his county and he put him into the grand jury to testify without a waiver, effectively conferring transactional immunity. Then-governor Andy Cuomo had issued an executive order stripping the elected district attorney of his authority when he failed to prosecute cops for murder and giving the Attorney General, otherwise merely a civil lawyer representing the state, the power to prosecute cops.

The order issued after Staten Island District Attorney Daniel Donovan sabotaged the grand jury indictment of Daniel Pantaleo for the murder of Eric Garner, but that was big downstate news and Abelove was upstate, where he figured no one would notice or care that he sabotaged an indictment for a killer cop. He was wrong. But because Cuomo had no authority to remove Abelove, the only recourse was to prosecute him for malfeasance, of which he was acquitted.

Is there any difference between Cuomo’s effort to rid himself of this meddlesome prosecutor and DeSantis’? Well, sure, since we like what Cuomo is doing and not what DeSantis is doing (bear with me, I know some of you will disagree).  But what both are doing is trying to prevent a prosecutor from becoming a law unto himself, superior to the law enacted by legislatures and signed by governors, whether they like them or not.

So Abelove was a badge-licker and Warren is pro-abortion and decarceral? Each is a prosecutor, a person elected to office to perform a discrete function. Each possesses limited discretion necessary to perform that function, such as determining which cases to bring based on the strength of the evidence, the balance of the equities, and a variety of other concerns which are generally deemed legitimate (say, protection of child witnesses, for example).

When progressive prosecutors were “invented” as a means to seize control of the vast authority given district attorneys to make life and death decisions for entire communities, was the solution to excessive prosecutorial power to seize it and exercise it for what you believed to be good rather than what the other tribe believes to be good?

Once the gloves were off and prosecutors felt empowered to function without constraint of such insignificant matters as law, two things were certain to happen. First, prosecutors would become the target of governors and legislators who didn’t care to be treated like dirt. Second, prosecutors would use the same unconstrained authority in the opposite direction. If it’s legitimate to usurp power to further your agenda, the same is true for the other tribe as well.

7 thoughts on “What’s A Governor To Do?

    1. Hunting Guy

      Emery Ballard, Texas high school football coach to freshman trying out for the team.

      “If you’re gonna run with the big dogs, you gotta expect to be hit.”

  1. Skink

    Two dopes that insist on politicizing a legal issue. It seems everything, every conversation, degenerates into politics. It could begin with a conversation about one’s ability to parallel park–it will become political.

    Warren ran as a reformer. He made some moves regarding bail and prosecuting those who will never be convicted, yet sit in jail. He also signed off on the June 2021 “Joint Statement From Elected Prosecutors” regarding not prosecuting laws criminalizing Alphabet behavior, which the Swamp does not have, and signed a newer version in the wake of the recent abortion decision. That’s what caused the current issues.

    A state attorney has no authority to refuse prosecution of laws he finds offensive, or wrong or even stupid. That’s a political decision. When politics meets law, only stupid shit happens. Our dope governor takes a pure legal issue and also makes it political. He likes the new abortion law because it supports his agenda and suspending Warren makes him look good, so he thinks. He relies entirely on the requirement that a state attorney enforce “duly enacted law.”

    But the issue didn’t have to be political–a state court judge, before whom I’ve appeared many times, found the statute to be unconstitutional before any of this blew up. If Warren wasn’t going to enforce the law the rationale was simple: I won’t enforce an unconstitutional law. That’s his duty. But it wasn’t good enough, he had to make it political because of beliefs.

    DeSantis was something of a lawyer and he tries to shade the politics with law: the statute was “duly enacted.” But he knows what his adorers don’t: there’s properly enacted and constitutional. Gotta have both for the law to be valid.

    These gyrations are helpful to no one but the two involved. They certainly don’t fit within their official responsibilities. They violate the 1st rule of SJ by making people stupider. Shame on them both.

    1. Hal

      @ Dave,
      Great choice!

      @ Scott,
      Yeah, it’s a tummly rub. Deal with it

      To all the denizens of this fine hotel. Here in VT, the sun is shining, I’ve got music playing, and for the first time in days I’m not in pain.

      I hope your days are going as well as mine is.

      Stay safe and stay sane.

  2. Charles

    “Might makes right” for the 21st century:

    “Are you going to enforce the law?”
    “I might.”

  3. Molly Malone

    An older, but on point, Executive Order from a NY Governor: Governor Pataki’s Executive Order No. 27, “Requiring the Attorney General to Supersede the District Attorney of Bronx County with Respect to the Murder of Police Officer Kevin Gillespie” because Pataki had concluded that DA Robert Johnson “has instituted a blanket policy not to seek the death penalty.”
    [Ed. Note: Link deleted per rules.]

    The DA’s challenge to the Executive Order proved unsuccessful. “We hold that the Governor acted lawfully under constitutional and statutory authority, and that even if the rationale for his action were subject to judicial review, the superseder order here would be valid.” Matter of Johnson v Pataki, 91 NY2d 214, 220 (1997).
    [Ed. Note: This one too.]

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