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Tipsheet

State AGs Rally to Remind That Prosecutors Can Be Removed for Not Enforcing the Law

AP Photo/Brennan Linsley, File

Gov. Ron DeSantis (R-FL) made headlines and went to court for removing Andrew Warren, a George Soros-backed state attorney who vowed to not enforce state law on abortion and transgender procedures on children who may be experiencing gender dysphoria. As the matter progresses through the courts, 14 attorneys general have filed an amicus brief reminding that states can remove elected prosecutors who don't pursue criminal charges against abortion providers for not following the law.

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The Columbus Dispatch highlighted one such attorney general, David Yost of Ohio, who signed onto the amicus brief with the 11th U.S. Circuit Court of Appeals. 

"Prosecutors have no right to exercise a veto over an entire law," is quoted as saying in a Wednesday press release from his office. "But some are acting as though they do – and they are breaking our system of government. The political preferences of a single prosecutor cannot be allowed to override a lawfully enacted statute."

Warren had sued DeSantis, arguing that his removal violated his First Amendment rights, and emphasized that he had been elected, though Gov. DeSantis, of course, has also been elected to his position. The Columbus Dispatch mentioned that Warren stunningly "argued that DeSantis violated his First Amendment right to freedom of speech, while also saying his pledges did not represent the prosecutorial policy of his office."

Yost's press release reminded though that Warren "signed in his official capacity" a statement promising not to prosecute those who provide abortions in violation of Florida law.

The amicus brief also focuses on the First Amendment claims, and early on makes clear prosecutors "do not have the power to effectively repeal laws by categorically suspending enforcement." It also mentions that these pledges "violate the traditional separation of powers between government branches," and with a particular dig at Warren's arguments, reminds that the idea that "the legislative branch, not the executive branch, makes law" is something "every schoolchild learns."

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As the brief summarizes:

The First Amendment’s Free Speech Clause does not limit the States’ ability to remove prosecutors who pledge not to do their jobs. This follows for two independent reasons. First, the Free Speech Clause “does not prohibit the evidentiary use of speech to establish” misconduct... When a state official (like Governor DeSantis) removes a prosecutor (likeWarren) who pledges not to enforce a category of laws, the official punishes the misconduct the speech proves, not the prosecutor’s speech itself. Such punishment does not implicate the First Amendment. Id. Second, the First Amendment does not give public employees “a right to perform their jobs however they see fit... ”This means that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline...” It follows that prosecutors(like Warren) removed for official-capacity non-prosecution pledges have no valid gripe under the First Amendment.

U.S. District Judge Robert Hinkle ruled back in January that he did not have the power to remove him as a federal judge, citing the 11th Amendment. Warren has since appealed, and the appeals court announced last month it would set up the case for an accelerated review on May 1. 

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Other states where the attorney general has signed on include Alabama, Arkansas, Georgia, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, South Carolina, South Dakota, Texas, Utah, and West Virginia. 

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