Opinion: Would Tudor Dixon suspend prosecutors who balk at enforcing abortion ban? She's not saying

  • In US
  • 2022-08-12 23:15:59Z
  • By Detroit Free Press
Republican candidate for Michigan governor Tudor Dixon answers questions from the press after casting her ballot in the Michigan gubernatorial primary Tuesday, Aug.
Republican candidate for Michigan governor Tudor Dixon answers questions from the press after casting her ballot in the Michigan gubernatorial primary Tuesday, Aug.  

Tudor Dixon, the woman Republican primary voters have chosen to contest Gov. Gretchen Whitmer's bid for a second term, says she'd welcome the resurrection of a 1931 Michigan law that makes abortion a felony.

That puts Dixon at odds with prosecutors in seven of Michigan's largest counties, who say they won't enforce the ban, even if courts give them the discretion to do so.

But would a Gov. Dixon try to remove elected prosecutors who oppose the ban from office, as Florida Gov. Ron DeSantis did last week? And if she did, who could stop her?

I posed that question to Dixon's campaign the morning after DeSantis suspended Hillsborough County State Attorney Andrew Warren for promising not to enforce to enforce Florida's newly enacted abortion law. The Florida law criminalizes abortions performed more than 15 weeks into a pregnancy.

But Dixon isn't ready to say what she'd do about Michigan prosecutors who've made exactly the same pledge Warren made.

More: Michigan judge extends order preventing criminal charges under abortion ban

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Kyle Olson, a spokesperson for Dixon, agreed to pursue an answer to my query on Aug. 5, and responded courteously to my repeated follow-up texts and emails. But a week later, neither Olson nor anyone else with the campaign has said whether Dixon, who favors a total abortion ban with no exceptions for rape or incest, would follow DeSantis' example.

Who decides who gets charged?

DeSantis, who is widely viewed as Donald Trump's strongest rival for the Republican presidential nomination in 2024, sacked Warren last week after he joined prosecutors and attorneys general from around the country in vowing not to bring charges against "those who seek, provide or support abortions."

That infuriated DeSantis, who said prosecutors like Warren are violating their oath to uphold the law.

Florida Gov.
Florida Gov.  

"When you flagrantly violate your oath of office, when you make yourself above the law, you have violated your duty," DeSantis told a cheering crowd of abortion opponents at a press conference to announce Warren's suspension. "You have neglected your duty, and you are displaying a lack of competence to be able to perform those duties."

In fact, courts have historically given prosecutors wide latitude to allocate local law enforcement resources as they see fit - and it's a stretch to argue that Warren's promise not to spend his time charging doctors and women constitutes a violation of his oath.

Most prosecutors exercise their discretion to pursue some violators more zealously than others without stirring much controversy. For instance, statutes prescribing criminal penalties for adultery remain on the books in most states, including Michigan. But who can remember the last time a straying spouse was arrested and brought to trial?

Voters tend to make it clear when a prosecutor's charging priorities diverge too sharply from their own. That was the case a generation ago, when Oakland County voters turned incumbent Prosecuting Attorney Dick Thompson out of office for his zealous but largely ineffectual prosecution of assisted suicide advocate Jack Kevorkian.

But Michigan's governor, like Florida's, enjoys broad authority to remove a local official for misconduct even if the official remains in the electorate's good graces. (Warren, the prosecutor who incurred DeSantis' wrath, has been elected twice, most recently in 2020.)

And it's unclear whether a Michigan statute circumscribing that authority would protect pro-choice prosecutors here from a governor bent on enforcing her own law enforcement priorities.

What Michigan law says

Article VII, Section 33 of the Michigan Constitution says that elected officials may be removed for cause, and a 1955 statute specifies the range of transgressions - official misconduct, willful neglect of duty, extortion, habitual drunkenness, or conviction of a felony - for which a county prosecutors may be given the gubernatorial heave-ho.

In practice, though, Michigan governors have been reluctant to defrock local officials elected by voters, even for serious misconduct.

In 2008, when Detroit Mayor Kwame Kilpatrick and his chief of staff were arraigned on felony perjury charges, then-Gov. Jennifer Granholm agreed to consider Kilpatrick's expulsion only after the Detroit City Council formally invited her to do so. Kilpatrick resigned from office and pleaded guilty before Granholm could act.

Neither of Granholm's successors used their removal authority, although Whitmer's staff says  she gets frequent requests  to do so, usually from citizens or local officials seeking the ouster of a political opponent. Whitmer typically refers requests to the attorney general's office to investigate whether the accused official's conduct is so egregious as to compel the governor's intervention. So far, Whitmer has not seen fit to remove any local official voters have elected.

But nothing in the law requires a formal evaluation by the AG's office, and it's unclear what recourse, if any, an official removed by a Michigan governor would have. The 1955 statute requires that officials being considered for removal be notified of the allegations against them and given an opportunity to respond, but there is no mandate for a formal hearing, and it's unclear under what circumstances a court could overturn a governor's decision to remove a prosecutor.

In short, making sure a governor exercises his or her removal authority responsibly might depend on electing a governor who can be trusted not to abuse it.

Tudor Dixon isn't saying whether she'd go as far as Florida's DeSantis to assure that Michigan becomes a state where abortions are furtive, dangerous, and fraught with the prospect of criminal prosecution and imprisonment.

But that doesn't mean voters shouldn't keep asking.

Brian Dickerson is the Editorial Page Editor of the Free Press. Contact him at bdickerson@freepress.com.

This article originally appeared on Detroit Free Press: Would Tudor Dixon punish prosecutors for ignoring abortion ban?


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