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Governor DeSantis and the Rule of Law—Part I

Governor DeSantis and the Rule of Law—Part I

This essay first appeared in the Aug. 8, 2022 Epoch Times.

Florida Gov. Ron DeSantis has suspended a “woke” prosecutor who announced he will not enforce certain laws with which he disagrees. I’ll explain in my next essay why DeSantis’s action is so important. This essay explains what DeSantis did and a political lesson from how he did it.

The Factual Background

The Florida state court system is divided geographically into circuits. Each circuit has an elected “state attorney” who prosecutes criminal cases in that circuit. The job is comparable to that of the district attorney in some other states.

The state attorney for Florida’s 13th judicial circuit, Andrew Warren, is reportedly one of the current crop of leftist prosecutors promoted by “progressive” financier George Soros. Warren joined others in signing statements saying that he would not enforce restrictions on abortion or measures against the “transgender” physical and psychological mutilation of children.

Warren also adopted a policy that slanted prosecutions against automobile drivers and in favor of pedestrians and cyclists. The policy stated that Warren’s office would not prosecute “crimes where the initial encounter between law enforcement and the defendant results from a non-criminal violation in connection with riding a bicycle or a pedestrian violation.”

What it means is that (1) if the police stop a motorist who then flees or otherwise resists arrest, Warren might well prosecute the motorist, but (2) if the police stop a cyclist or pedestrian who then flees or otherwise resists arrest, Warren will not prosecute. This policy matches the leftist agenda of favoring cyclists and pedestrians over motorists.

Flaws in Warren’s Conduct

All prosecutors have a certain amount of discretion in deciding which defendants to pursue. Prosecutors traditionally exercise this discretion on a case-by-case basis. This enables prosecutors to adapt justice to the specific facts of a case and, in some cases, to temper justice with mercy.

But prosecutors are not permitted to ignore entire statutes they don’t like. That would give them an absolute veto over state laws—a prerogative not even the governor enjoys. Such conduct violates principles of democratic governance, and is inconsistent with the rule of law.

Such conduct also conflicts with a long Anglo-American legal and constitutional tradition: A major reason the English forced King James II from the throne and then adopted their Bill of Rights (1689) was the king’s practice of “dispensing” with statutes he didn’t like. The English Bill of Rights, in turn, was a precursor to our own Bill of Rights and to the Declaration of Independence.

Additionally, Warren’s prosecutorial discrimination against automobile drivers in favor of cyclists and pedestrians may violate the U.S. Constitution’s 14th amendment, which provides “nor shall any State …  deny to any person within its jurisdiction the equal protection of the laws.” Warren’s conduct, if allowed to continue, could enmesh the State of Florida in unwelcome and expensive lawsuits.

What DeSantis Did

Florida law provides that the governor, acting as Florida’s chief law enforcement official, may suspend state attorneys for (among other grounds) malfeasance, misfeasance, neglect of duty, or incompetence.  Warren’s conduct fits within two or more of these categories.

Accordingly, on Aug. 4, DeSantis issued an executive order suspending Warren. You can read the order here (pdf).

DeSantis’ text consumes 10 pages. It obviously was drafted with great care. The text:

  • explains the scope of a prosecutor’s discretion,
  • explains how Warren exceeded that discretion,
  • explains the legal and constitutional duties of the governor in the circumstances,
  • backs up the governor’s action with specific sections of the state constitution and extensive case law, and
  • adds 19 pages of exhibits.

The exhibits consist of statements signed by Warren and other “woke” prosecutors detailing how they plan to nullify state law. They convict Warren in his own words.

The Lesson from How DeSantis Did It

DeSantis’s careful approach made it very hard to argue that he acted improperly. So despite the controversial nature of his order, he has faced relatively little blowback from the establishment media.

It’s interesting to compare this approach with that of his ideological ally, Donald Trump. When Trump was president, he sometimes announced decisions in a way that make them seem impulsive or without complete foundation. Even when the decisions were wise and necessary, the mode of issuing them invited attack.

A good example was Trump’s executive order diverting spending from the military to the border wall. The questionable legality of, or at least insufficient support for, the order offered an opening for the assaults of political opponents, professional litigants, and the hostile media.

The left controls most of the national media-propaganda apparatus. For this reason, to be successful conservative politicians must comply with far higher standards of conduct than those applied to leftist politicians. It’s clear that DeSantis has learned that: Before he steps, he ensures the footing is firm.

The Importance of DeSantis’s Action

Freedom, prosperity, and democratic self-governance all depend heavily on a reliable, principled, and honest legal system—what experts call the rule of law. America’s success is due partly to our traditional respect for the rule of law.

However, the rule of law in America is eroding, as many readers can sense and as a number of research studies confirm. One study, for example, shows that the United States has slipped to 27th among nations in adherence to the rule of law, well below such developed countries as Australia, the United Kingdom, New Zealand, and Canada (pdf). (The study was published before Canada’s government adopted its current authoritarian course.)

A principal reason for this change is the conduct of establishmentarians and of leftists such as Warren, who promote their secular religion over principles of equality, constitutionalism, and democratic self-governance. I’ll provide more details in my next essay.

At this point, suffice to say that Gov. DeSantis’s order is an effort to reverse the rot—that it comes at a critical time—and that other political office holders should learn from what he did and from the careful and intelligent way he did it.

Rob Natelson