AG Yost files amicus brief supporting states’ power to remove county prosecutors who fail to enforce laws

COLUMBUS — Ohio Attorney General Dave Yost is leading a coalition of 15 attorneys general in urging the U.S. Court of Appeals for the 11th Circuit to affirm states’ authority to remove local prosecutors who refuse to put the law ahead of their personal politics.

In an amicus brief filed this week in Warren v DeSantis, the attorneys general maintain that states have a right to defend their constitutions against local prosecutors who, by pledging not to enforce laws they dislike, essentially wield a veto power over lawfully enacted legislation.

“Prosecutors have no right to exercise a veto over an entire law,” Yost said. “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 v DeSantis centers on Florida Gov. Ron DeSantis’ removal last year of Hillsborough County State Attorney Andrew Warren, who “signed in his official capacity” a statement promising not to prosecute those who provide abortions in violation of Florida law.

Warren has appealed a lower court ruling rejecting his argument that the suspension violated the First Amendment. 

The attorneys general argue otherwise, encouraging the appeals court to reject Warren’s claim of a First Amendment violation: “The official punishes the misconduct the speech proves, not the prosecutor’s speech itself,” the amicus brief says. Government employees do not have a First Amendment right not to enforce the law.

An appeals court ruling to the contrary would hinder states’ ability to protect their constitutional systems from wholesale prosecutorial abuse.

Specifically, the attorneys general say the First Amendment free-speech clause doesn’t limit states’ ability to remove prosecutors who refuse to do their jobs.

“A world in which each prosecutor is free to ignore the law in favor of his or her own individual sense of what the law ought to be,” Yost said, “is a world where what will get you arrested depends on who's in office – a government of individual prejudices, not a government of laws.” 

Joining Yost in the amicus brief were the attorneys general from Alabama, Arkansas, Georgia, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, South Carolina, South Dakota, Texas, Utah and West Virginia.