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Unsurprisingly, there’s a lot going on tonight, so we’ll jump straight in:
The Arch
The National Capital Planning Commission, which Trump has filled with supporters, has added an agenda item to its scheduled November 5 meeting. That item is Trump’s vanity arch, and it looks like the Commission will approve the project despite ongoing litigation.
On Thursday, the Trump Administration notified Judge Tanya Chutkan that construction or demolition could “commence immediately” once notice is published. Just to make sure no one misses what they plan to do, DOJ advises the court that the Park Service “may publish such notice as early as November 5, 2026, and construction could commence as early as November 5, 2026.” As a group challenging the construction noted in their request for an injunction following the government’s announcement, “The Notice makes clear that Defendants have no intention of awaiting this Court’s decision on the cross-motions for summary judgment and have every intention of imminently beginning construction of the arch on Memorial Circle—construction that will have an immediate harmful impact on Plaintiffs and the public.”
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Is the government just messing with Judge Chutkan, who surely is a stop on Trump’s revenge tour? Is this timed to distract from election results? Is Trump serious about building an arch that frames the view of Confederate General Robert E. Lee’s house in Virginia, while obstructing the Lincoln Memorial and the sight line that intentionally exists between those two? It’s probably all of the above.
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The government acknowledges that Congress has to approve the project, but maintains it did that. They say it happened in 1913 when the plans for Memorial Bridge were approved.
As with other Trump “improvement” plan cases like the White House ballroom, a major impediment to legal challenges has been finding plaintiffs with standing. Here, three Vietnam War veterans and an architectural historian filed a lawsuit, and the standing issue and others have been briefed and are awaiting a decision. The government is arguing that the case should be dismissed on summary judgment because the plaintiffs haven’t suffered a concrete, particularized “injury-in-fact” that can be legally redressed by the court. They categorize the issue as an aesthetic disagreement and claim that generalized grievances about how public land is used are insufficient to give rise to standing.
After the government advised the court about its plans, the plaintiffs asked the court to enter an emergency injunction that would prohibit the government from “taking any steps to construct or to direct or facilitate construction of any structure in Memorial Circle, absent congressional authorization, during the pendency of this litigation.” They’ve asked for a decision no later than November 4, in light of the government’s stated plans to commence work the following day.
My view hasn’t changed since we first learned about Trump’s plans. He destroyed the Rose Garden, tore down the East Wing, ruined the Reflecting Pool, put in a cage-fighting arena on the South Lawn, tried to ruin the Kennedy Center, and now this. It may not have the constitutional significance of trying to overturn the 2020 election, flouting court orders, or ordering extrajudicial killing of allegedly suspected drug traffickers at sea, but it is horrific nonetheless. It’s Trump, attempting to signify that he has king-like powers over our nation’s capital itself, and that no one can stop him from acting on his whims.
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The Golf Course
Last week, Judge Ana Reyes declined to extend her Temporary Restraining Order, which covers the administration’s efforts to alter East Potomac Park’s golf courses. It will expire on Monday, unless she grants the requested preliminary injunction before then, which seems likely given the tenor of the earlier hearing she held in the case, which we discussed here: This Is Not What the Founders Envisioned. She also ordered political appointee Gregory Wischer, the Deputy Chief of Staff at the Department of the Interior who seems to be in the mix on most of Trump’s vanity projects, “to preserve the contents of his personal phone.” She puts Wischer on notice that he should “broadly” construe her preservation order.
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We should expect to hear more on a preliminary injunction Sunday night or early Monday, unless the Judge intends for the government to cut down more trees this week.
California
Sunday afternoon, the Ninth Circuit held oral argument on the issue of whether DOJ can get an injunction that would require California to separate out tens of thousands of ballots from voters whose citizenship DOJ questions—not necessarily with any evidence to back the claims. But in the meantime, the litigation is still underway before the District Court, and DOJ filed its response to California’s motion to dismiss the lawsuit before Judge David Carter. (The case was originally assigned to Judge John W. Holcomb, a Trump appointee, but it was reassigned to Judge Carter, a Clinton appointee, because he had an earlier related case—nothing nefarious here; that’s how it works to avoid judge shopping).
That gets a bit confusing, because it’s supposed to be one court at a time. As we discussed, DOJ thought Judge Carter was taking too long to rule, so they skipped over to the Ninth Circuit and asked them to enter an injunction now. They argue he has constructively denied their request by taking, let’s see, a few days to rule and still setting his hearing for next Tuesday. So a lot of the argument this afternoon involved a discussion of whether the Court of Appeals even had jurisdiction to hear the matter (at least two judges, possibly three, didn’t seem to think that they did; I was surprised they even agreed to hear the matter. It seems so clear that they don’t.) But they also covered substance, and the questions we know to expect when a party seeks an injunction: the likelihood of success on the merits, the prospect of irreparable injury, and the balance of equities and the public interest.
Previously, in the brief it filed with the District Court opposing an injunction, the LA County registrar noted that there is plenty of “Indicia Of Unreliability” in DOJ’s list of supposedly noncitizen voters. For instance, a quick run through of a sample of voters on DOJ’s list suggested that more than 25% were born in the United States. Forty-two percent of the people on the list were canceled registrations, which strongly suggests that the lists are old and outdated, even though DOJ promised the court today that they could be trusted. There was an interesting discussion of how they generated the lists, with DOJ’s lawyer explaining someone gave the lists to them—he didn’t know or couldn’t say who—but he said they had to be reliable because they had affidavits from DHS employees who said they were. Apparently, no one had mentioned to him that the presumption of regularity is dead.
The example from Nevada, where the government’s claims that tens of thousands of registered voters were ineligible turned out to be completely false—as in, there wasn’t evidence that a single registrant was ineligible—looms large here, especially with DOJ filing the lawsuit after early voting was underway, and so close to election day. As you might expect, that came up at the argument too, with at least two judges expressing strong views about the Purcell principle and a weak effort from the government to explain why it waited to file its lawsuit until voting was underway.
The Ninth Circuit hearing started at 1:00 pm local time and finished just before 3:00, a lengthy period of time for oral argument. Both the number of issues that had to be discussed and the lack of clarity about the facts demonstrate the key proposition here: trial courts are meant to develop a factual record and make decisions based on it, and then the case goes on appeal. Today everyone had to guess at what the facts were. As California's lawyer pointed out, the Court of Appeals is supposed to be “a court of review, not of first view.” One suspects that, when all is said and done, the District Court will hold its hearing, rule, and then, once an appropriate final order is in place, the government will get its appeal.
CNN and The White House Press Pool
CNN’s lawyer, Ted Boutrous, put the White House on notice that unless they were permitted back on Air Force One by last Thursday, they planned to take legal action. On Thursday, the White House bumped CNN from a Trump campaign trip to South Carolina.
Boutrous is not one to make idle threats. We should anticipate more legal action early this week.
Other News
On Wednesday, U.S. District Judge Theodore D. Chuang in Maryland will sentence John Bolton. Bolton was initially charged with 18 felony counts of transmission and retention of national defense information in violation of the Espionage Act. He pled guilty in June to a single count of retention.
According to DOJ, “Bolton used personal accounts to send classified information to family members who were unauthorized to access such information, including a personal email account that was later hacked by a cyber actor allegedly linked to the Islamic Republic of Iran.” Under the plea agreement, he faces a maximum of 60 months in federal prison, a $2.25 million fine, and forfeiture of his federal retirement pay. He will have to perform 100 hours of community service.
Bolton, who served as Trump’s National Security Advisor between April 2018 and September 2019, fell out of favor with the president over his hawkish approach that Trump felt dragged the U.S. toward new conflicts—which seems a bit ironic now. Bolton’s resistance to Trump’s proposed Afghan peace talks was reported to be the last straw.
Trump fired Bolton in a tweet.
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Unlike other targets of prosecutions widely viewed as part of Trump’s revenge tour, including Jim Comey and Letitia James, Bolton handed Trump a gift by committing a readily provable crime to which he ultimately pleaded guilty.
Finally, next Saturday, just ahead of the election, is Halloween. I’m trying to figure out what kind of candy it’s appropriate to hand out in the middle of a constitutional crisis. I’m also wondering if we’ll see political costumes mixed in with the usual vampires and witches. These days, you’ve got to find something to laugh about, even if the humor is a little grim.
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We’re in this together,
Joyce
