Appeals Court Directs Clarification from Judge on Security Fixtures After Inconsistencies in Trump DOJ’s Account

The Department of Justice quickly responded by appealing after a federal judge halted the construction of Donald Trump’s much-publicized $400 million East Wing ballroom. Now, a panel from the U.S. Court of Appeals for the District of Columbia Circuit has instructed that judge to provide clarity on a specific accommodation in the injunction that stopped the ballroom project.

Judges Patricia Millett and Bradley Garcia, appointed by Presidents Obama and Biden respectively, cited the Trump administration’s shifting “representations” in court as the cause of confusion about the “scope of the exception.” In a 2-1 decision, they decided to send the case back to U.S. District Judge Richard Leon for him to “clarify” whether the construction of the ballroom and the security-related work beneath it can proceed independently.

The appellate judges have asked Judge Leon to assess whether the injunction sufficiently considers the government’s concerns about national security and the safety of the President.

The panel highlighted that the National Trust for Historic Preservation had filed a lawsuit to stop the construction, leading to Judge Leon’s injunction at the end of March. Known for his emphatic style, Leon frequently uses exclamation points in his rulings, as he did when blocking actions against Sen. Mark Kelly, D-Ariz., and when opposing an executive order targeting Robert Mueller’s former law firm.

In his ruling, Leon used more than a dozen exclamation marks, repeatedly writing “Please!” to dismiss DOJ arguments. Appointed by George W. Bush, the judge acknowledged the seriousness of the government’s national security concerns but refused to let those “bald assertions” justify bypassing the law or shielding those actions from judicial scrutiny.

“[T]he existence of a ‘large hole’ beside the White House is, of course, a problem of the President’s own making!” Leon observed.

Relevantly, the judge’s injunction still permitted “actions strictly necessary to ensure the safety and security of the White House and its grounds, including the ballroom construction site, and provide for the personal safety of the President and his staff.”

After the plaintiff National Trust for Historic Preservation in the United States won the first round, the DOJ appealed to the D.C. Circuit, but on Friday the panel only extended the stay Leon self-imposed on his order until April 17 — believing that more information was needed to determine if the government will be harmed absent a stay pending appeal it sought. After all, the Trump administration’s story has already changed, the judges said.

“To start, much of Defendants’ discussion of national-security risks concerns security fixtures that are, or will be, installed beneath the planned ballroom. But the district court’s injunction runs only against the ‘physical development of the proposed ballroom,’” the order said. “And Defendants have repeatedly represented to the district court that any below-ground work was distinct from construction of the ballroom itself and could proceed independently.”

“Yet Defendants now seem to suggest that below-ground ‘national security upgrades are inseparable from the rest of the Project,’” the majority went on. “As a result, it remains unclear whether and to what extent the development of certain aspects of the proposed ballroom is necessary to ensure the safety and security of those below-ground national security upgrades or otherwise to ensure the safety of the White House and its occupants while the appeal proceeds.”

Without downplaying the “importance of ensuring the safety of the White House, the President, staff, and visitors,” and supporting Leon’s treatment of those claims, the panel wanted to hear more.

“We cannot fairly determine, on this hurried record, whether and to what extent the district court’s ‘necessary for safety and security’ exception addresses Defendants’ claims of irreparable harm, insofar as it may accommodate the Defendants’ asserted safety and security need for the ballroom itself or other temporary measures to secure the safety and security of the White House, the President, staff, and visitors while this appeal proceeds. We thus remand these cases to the district court with instructions to promptly address the pending motion to clarify how the injunction and its exception will ensure safety and security pending litigation,” the court said.

U.S. Circuit Judge Neomi Rao, a Trump appointee, penned the lone dissent to say she would have granted the stay and “allow[ed] construction of the ballroom and related security facilities to continue during the pendency of an appeal.” Rao took aim at how Leon found the plaintiff had standing, based on the declaration of one member complaining of monthly “aesthetic harm” of having to look at an eyesore.

“[T]he Trust identifies no member with standing to sue. The declaration of the Trust’s sole identified member, Alison Hoagland, relies on the claim that she will suffer aesthetic harm if the East Wing project is completed. Aesthetic harm to a plaintiff’s recreational activities may qualify as injury in fact, but ‘mere incidental viewership’ of an unpleasant sight does not,” the dissent said. “[Alison] Hoagland’s declaration claims that ‘[a]s a resident of Washington D.C.’ she will walk by and ‘be impressed’ with the White House (but displeased with the new ballroom) ‘about once a month.’”

“Such vague and infrequent viewing supports ‘nothing more than [a] generalized grievance[],’ which is insufficient for Article III standing,” Rao concluded, calling the government’s evidence “credible” and of “clearly a weightier interest than the generalized aesthetic harms identified by a single member of the Trust.”