Editor’s Note: Norman Eisen served as counsel to House Democrats in the first Trump impeachment and as White House ethics czar and ambassador to the Czech Republic in the Obama administration. Christine Todd Whitman was the governor of New Jersey and administrator of the Environmental Protection Agency in the George W. Bush administration. Eisen was co-counsel and Todd Whitman was an amicus for a brief supporting the Justice Department’s motion for a stay in the 11th Circuit. The views expressed in this commentary are their own. View more opinion on CNN.
This week has delivered a series of devastating blows for former President Donald Trump.
With regards to the criminal investigation into his handling of government materials, the 11th Circuit US Court of Appeals partially stayed a lower court order on Wednesday, allowing the Justice Department to resume looking at the documents marked as classified that were seized from Mar-a-Lago.
On the same day, the New York Attorney General accused Trump, three of his children and the Trump Organization of fraud in a civil lawsuit that may devastate his financial base and cost him his company. Trump, of course, continues to deny any wrongdoing in either case.
But these developments raise a new risk; the more Trump falters, the greater the chance that Florida Gov. Ron DeSantis, his main rival for the leader of American illiberalism, gains momentum.
The governor, a shrewd player in the culture wars, has shown how deft he is at pushing cruel and extreme policies, with the added benefit of raising his national profile and stirring up support among conservatives. This makes him one of the most dangerous men in America, and it is past time to address that risk.
DeSantis’ recent ploy of using migrants as political pawns is just the latest example in a long track record of assaults on the rule of law and its associated norms. Last week, he took credit for sending roughly 50 migrants from Texas to Martha’s Vineyard, following in the footsteps of another Republican governor who has transported migrants to liberal cities to protest immigration at the southern US border.
The migrants claim they were deceived about where they were going, and a non-profit immigrant advocacy group filed a class action lawsuit against DeSantis on their behalf. They allege the deprivation of their constitutional due process and equal protection rights, conspiracy, fraud, false imprisonment, intentional infliction of emotional distress and more. These are serious claims which could result in major damages and embarrassment to DeSantis, should the migrants succeed in court.
Law enforcement in Bexar County, Texas, where the migrants were removed, has opened a criminal investigation, though DeSantis is not personally named as a target. The sheriff has said, “I believe there is some criminal activity involved here, but at present, we are trying to keep an open mind and we are going to investigate to find out and to determine what laws were broken if that does turn out to be the case.”
Texas also has a variety of statutes that merit close examination including unlawful restraint, which entails actions to “interfere substantially with [a] person’s liberty, by moving [a] person from one place to another or by confining [a] person.” The statute does not exclude migrants from the definition of “person,” which includes any living human being.
Here, transporting the migrants might (or might not) constitute such a limitation on movement, and the alleged fraud could vitiate consent. Although we should note we are just at the beginning of the investigation, and the authorities have not yet made a determination one way or the other. Federal law also contains similar and other prohibitions that merit review, and in fact federal authorities are also reported to be studying the case.
Nor does DeSantis’ alleged wrongdoing and associated legal challenges stop there. A Florida federal judge has just ordered a speedy trial after DeSantis suspended Andrew Warren, the state attorney from Tampa, for “neglect of duty.” Warren had joined dozens of other elected prosecutors in speaking out against criminalizing abortion in the wake of the Supreme Court decision. Warren then sued DeSantis in response, saying the governor violated his freedom of speech.
DeSantis’ conduct appears to raise serious issues about penalizing Warren’s speech under the First Amendment. At least, that is how it looks to us, as a former Republican governor who dealt with freedom of speech issues, and a constitutional litigator. We were not surprised that the Florida federal judge just denied DeSantis’s motion to dismiss the First Amendment claim and set a trial to resolve the matter “once and for all.”
That is in part because DeSantis can be questioned about the fact that he has repeatedly promoted laws that courts have found to violate the First Amendment. Chief among these were a so-called “anti-riot” bill that was found to have violated free speech and assembly; a law restricting race-based conversation and analysis in business and schools, which a federal judge said turned free speech “upside down”; and a law intended to punish social media companies that was unconstitutional because, a judge wrote, “the government can’t tell a private person or entity what to say or how to say it.” That is a statement plainly obvious to any high school civics student, but apparently irrelevant to DeSantis as he championed the law’s creation.
DeSantis has also passed homophobic legislation dubbed by critics as the “Don’t Say Gay” law for restricting discussions of sexual orientation in public school for kindergarten through third grade. This too is currently under legal challenge because it’s so broad that it may even prohibit a teacher disclosing a same-sex spouse or explaining why a student may have “two mommies.”
It’s also worth noting that DeSantis has not only affronted the rule of law but also attacked its norms. Following Trump’s playbook of targeting the businesses of his perceived adversaries, DeSantis attacked Disney for opposing the “Don’t Say Gay” law. He has moved to dissolve their special taxation district, despite the fact that the district keeps neighboring county taxpayers from bearing the huge costs of Disney World’s infrastructure.
DeSantis also bullied the Special Olympics into dropping a vaccine requirement for its Orlando games by threatening them with a $27.5 million fine, even though people with intellectual disabilities such as Down syndrome, who constitute part of the core Special Olympian, had higher hospitalization and mortality rates from Covid-19.
DeSantis is now taking his show on the road, traveling the country to brag about what he’s done (while conveniently omitting that the courts have struck down several of his greatest hits for violating people’s constitutional freedoms). Despite this inconvenient truth, these policies pose a political benefit to DeSantis by getting media attention and garnering conservative support as he eyes a potential White House bid in 2024.
Then there is his showing of contempt for the norms at the very foundation of our democracy– voting. DeSantis has stood with election deniers from Arizona to Pennsylvania. While DeSantis himself has avoided answering whether he thinks the 2020 election was stolen, he proposed and backed a $1.1 million election crimes office in Florida. He then held a campaign-style press conference to announce their first bit of handiwork – arresting 20 former felons for voting illegally even though some of these individuals were sent voter registration materials, making it difficult to prove intent, according to NBC News.
For many Americans, Trump’s lack of a legal and normative compass was too much to endure. The events of the past week only emphasize that. But DeSantis is shrewder than Trump, and he has demonstrated the same appetite for pushing the boundaries of our laws and norms.
This pattern of conduct by the governor of America’s third most populous state – who clearly aspires to higher office – is cause for great concern and demands a forceful response. We should now focus our attention on the legal system’s efforts to provide one.