Federal judge appears skeptical that Trump has legal authority to proceed with White House ballroom

By Devan Cole, Betsy Klein, CNN

(CNN) — A federal judge expressed deep skepticism Thursday that the White House has legal authority to construct President Donald Trump’s massive new ballroom without express authorization from Congress.

US District Judge Richard Leon said during a hearing in a challenge to the project that the White House was attempting to “end-run” Congress’ role in the historic undertaking. Leon appeared ready to at least partially side with the nation’s top historic preservation group in a lawsuit it brought late last year.

The judge said government lawyers defending the project were adopting “a pretty expansive interpretation of the language” of a federal law they’re leaning on in the case. That law, which authorizes the president to spend taxpayer dollars to maintain the People’s House, is meant to cover “very small sized projects,” Leon said, pointing to air conditioning and heating, lighting, and other standard maintenance.

“It’s not (for) $400 million worth of destruction and construction,” the judge told Justice Department attorney Yaakov Roth.

As Roth pointed to two other White House projects that didn’t receive congressional approval, Leon quickly pushed back and accused the lawyer of downplaying the significance of the ballroom project, which is expected to dramatically expand the size of the building.

The other projects Roth cited – Gerald Ford’s swimming pool and cabana and a tennis pavilion overseen by first lady Melania Trump during the president’s first term – did little to advance their arguments, the judge said.

“The ‘77 Gerald Ford swimming pool? You compare that to tearing down and building a new East Wing? Come on. Be serious,” the judge said.

The sprawling ballroom project has an estimated size of approximately 89,000 square feet, according to lead architect Shalom Baranes. By contrast, the primary White House structure, the Executive Mansion, is just 55,000 square feet.

Leon, an appointee of former President George W. Bush, did not rule from the bench but said he expected to issue his decision in the coming weeks.

The National Trust for Historic Preservation is asking the judge to issue a preliminary injunction that would grind work on the ballroom to a halt until the public has a chance to weigh in and Congress gives the green light.

Attorneys for the group argue that, among other things, Trump is skirting a federal law that requires congressional authorization to construct anything on federal land in Washington, DC.

Leon seemed to agree.

Trump, the judge said, “has a majority in the House and Senate” and “he could’ve very easily” gotten congressional approval.

But Roth noted the project is being funded privately, and that seeking congressional authorization would have meant taxpayer dollars would need to be used.

Trump, Roth said, “had a way to get the money under the existing law.”

Leon said at one point that he was confused by the funding scheme set up to bankroll the project, which included a transfer of the private donations from an account managed by the National Park Service to a small White House office, the Executive Residence, that is now officially in charge of the project. Attorneys for the National Trust have argued that that decision was made by the administration in a bid to evade judicial review of the project since courts are unable to issue orders enjoining actions by offices like that one.

Roth’s arguments Thursday also underscored the intimate role that Trump has played in the ballroom, suggesting that the decision to shift the project’s leadership from the National Park Service, which traditionally has oversight over White House grounds, to Executive Residence staff, was meant to “keep it in-house.”

It is in the “president’s personal interest,” Roth said. “He cares about this and wants to keep it in-house … with personal staff.”

Trump, a former real estate developer, has been personally involved in the ballroom details, from floor plans to marble selection, touting its progress in recent meetings with world leaders and business titans.

Former National Park Service director Jonathan Jarvis, who served during the Obama administration, questioned that process in a sworn declaration submitted to Leon ahead of Thursday’s hearing.

The Executive Residence, he said, “has little if any experience managing construction projects of any size, and, in my opinion, no experience at all managing a project the size and importance of the Ballroom Project.”

Jarvis added that NPS “has extensive experience in the design and construction of buildings” with teams of architects, engineers, and project managers on staff.

Though the lawsuit has failed so far to halt construction or otherwise impact the process, it has forced the administration to reveal details about the project that had otherwise been kept under wraps, including plans for a reimagined two-story East Colonnade revealed in December filings; information about the preservation of existing artifacts from the now-destroyed East Wing; and an expected timeline for construction.

More recent filings from the Trump administration alluded to a “top-secret” project underneath the East Wing multiple times without providing substantive information on the record.

“For reasons described in greater detail in a supplemental classified declaration, an injunction halting construction would endanger national security and therefore impair the public interest,” Justice Department lawyers wrote.

Joshua Fisher, a top White House official involved in managing the ballroom project, noted in his sworn declaration that one of the project’s additional goals beyond hosting large-scale White House events was to “(carry) out significant Secret Service upgrades to meet current protection requirements for the president and first family.”

Tad Heuer, a lawyer representing the National Trust for Historic Preservation, told Leon on Thursday that his clients have “no concerns” around the bunker and were not asking the judge to halt construction of it.

But he repeatedly warned that the underground work that is underway now could place significant constraints on what is built above-grade before the project has a chance to be scrutinized by Congress and the public.

“The president is a temporary tenant of the White House — he’s not the landlord,” Heuer said.

“He’s a steward,” Leon responded.

This story has been updated with additional details.

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