Lawfare Daily: The Trials of the Trump Administration, September 18

The Lawfare Podcast

This episode of Lawfare Daily examines a series of legal challenges and administrative actions involving the Trump administration across various federal

Key takeaways

• Judge Cooper issued an order preventing the demolition of the Kennedy Center without 30 days' notice following a controversial board resolution.
• Litigants are seeking to prevent President Trump's name from being permanently carved into the United States Institute for Peace (USIP) headquarters.

Main topics

• Kennedy Center renaming controversy
• USIP building litigation

Notable quotes

The point of the searching sword of Damocles is that it hangs, not that it drops.

Conclusion

The episode provides a comprehensive look at how various courts are na

Transcript preview

Speaker 5 (0:00) It is Friday, the 18th day of September, the 2026. It is four o'clock p.m. in Washington, D.C. And folks, you, and I mean you, are watching Lawfare Live, the trials and tribulations of the Trump administration. I am Ben Wittes. Editor-in-Chief of Lawfare, Chief Trialer and Tribulator, and I am here with four separate Lawfare senior editors in alphabetical order, Anna Bauer, Eric Columbus, Roger Parloff, and Molly Roberts, who with the last name beginning with R. is going to tend to be late in the alphabetical order, but not as late as Benjamin Wittes, who will almost always be last. Folks, the Kennedy Center. is going to, the board has voted to shut it down. This was a decision made, Speaker 3 (1:11) it was, you Speaker 5 (1:12) know, just based on the financial necessities and deprivations caused by not being able to put Donald Trump's name on the outside. And that just dried up fundraising. And the result is that they, with tears in their eyes, they have said, sir, we need to close. And Roger, is there any reason in the world why an observer might be cynical about this? Speaker 4 (1:44) There are some reasons. A lot happened this week, culminating in yesterday's order not to demolish the Kennedy Center without 30 days notice. We'll get to that. You know, for some time, there's been two pieces to this. One is, should we, the center has wanted to do renovations and to close it for two years to do those necessary renovations. Obviously, a lot of people suspected it was because they were doing so badly financially as well. The suit challenges that and originally wanted to see if it would be possible to keep it. do the renovations while also keeping a portion open. The other half of it was the renaming. He had renamed it the Donald J. Trump and President Kennedy Center. And so there were two pieces. And in May, back in May, Judge Cooper, Christopher Cooper, decided... Speaker 4 (3:00) I'm sorry, what? Speaker 5 (3:01) Donald Trump and John F. Kennedy and Roger Parloff Center. Speaker 4 (3:06) I haven't required that. A lot of people are saying that. Because I think Speaker 5 (3:14) that their fundraising problems would go away if they put Roger Parloff on the face of the Kennedy Center. Speaker 4 (3:21) It's a good thought. Speaker 4 (3:25) Anyway, in May, Judge Cooper did say that the renaming was a non-starter, that Congress was clear. You can't have a memorial to anyone else or anything like a memorial. And it didn't just mean something after somebody died. It could be anything that reminds somebody of somebody else. So he issued that. In August, the board was going to, he also found that their original. Speaker 4 (3:59) plan to close had not gone through the necessary hoops. It was, you know, basically the chairman apparently wanted to do this plan and they did it. They needed to fulfill their fiduciary duty and redo that. So August 13th, they were supposed to come up with a resolution. Did they still want to close it after? Speaker 4 (4:27) They still did want to close it for two years, but there was no evidence that they had gone through any searching inquiry. But the surprise was they came back with three new renaming proposals. And those were renovated and restored by him. And then in addition, if this entity called the Trump Kennedy Center Fund, and no one's sure where that's located, whether it exists. raised $100 million, they would also put on the building endowed by the Trump Kennedy Center Fund under the renovated and restored by Donald Trump language. So his language would be under Kennedy's instead of above Kennedy's, but otherwise the same. The third proposal was that the whole plaza on which the Kennedy Center building is located 17 acres would be renamed Donald J. Trump Plaza. So. Cooper was cogitating on these issues, and there was a status conference approaching this week on September 15th, Tuesday. On September 14th, a new resolution from the board surfaces, and it proposes – it's sort of remarkable. Speaker 4 (6:00) It makes it very clear that there isn't going to be any reconstruction unless Trump's name goes on it and the building. And it gives... Cooper, essentially, Judge Cooper, 10 options. I'll read it to you because I think this is really, you know, historic. I think historians and psychiatrists and clinicians will look at this for years to come. The board understands that without such appropriate recognition, it is unlikely that President Trump will provide the fundamental oversight of the renovation of the building. and lead the fiscal rescue of the center. Accordingly, he says, and then it goes on, so that President Trump can be legally and appropriately acknowledged on the facade, and so that he agrees to carry the burden of managing the renovation and provides the center with a much-required financial rescue, they then list the 10 options Cooper can choose from, basically. My own personal favorite is option nine, which says that we would say acknowledging the unwavering support of President Donald J. Trump. You know, having just threatened. Having just ascribed to the waiver. Right. Having just threatened to destroy the whole thing. Speaker 4 (7:36) That was the day before the status conference. The next day, Judge Cooper issued his ruling on the. earlier renaming proposals and basically rejected them all. Two of them were basically violated his preliminary injunction because he had already made it clear that it wasn't just this formula, it was anything like it would violate the statute and his order. The part about the endowed by the Donald by the Trump Kennedy Center Fund, that part was not right because the $100 million hasn't been raised. In fact, we don't know if a dime has been raised, but he also made it clear that's a non-starter as well. At the hearing. Speaker 4 (8:45) We learn sort of where people were. What the government mainly wants to do is file a summary judgment motion, I think clearly so that it can appeal and it feels like it has a better chance with eventually the Supreme Court. What his lawyer, Representative Beatty, who's challenging this, she's a... ex officio trustee, she wants discovery because she thinks that all of the reasons being given for the urgency of this shutdown are lies. So she wants discovery. And Judge Cooper, I think. feels like the closure of the building for two years is sort of, it's going to happen. You know, we don't have any acts booked. You know, they take about a year to book. And it's going to have to be, everyone agrees it needs to be renovated. The question is, do you sort of string it out or do you get it done quickly? And so I think he was hoping that maybe everybody could even agree on that, to close the building, but keep what's called the Reach, which is a set of buildings right next to it, open, and also have Kennedy Center-sponsored events continue off-site, you know, like the Mark Twain event and that sort of thing. I don't know if the plaintiffs were responsive to that, but that's the direction he was going. Then as soon as the thing was over, we learned that the Kennedy Center was literally being closed. And that wasn't supposed to happen. The preliminary injunction says you can't close it yet. He's going through the process. He did invite the trustee, the board, the defendants, Trump basically, to... submit a motion to dissolve the injunction. But instead, it was closed immediately after the hearing. And no one had mentioned at the hearing that that was going to happen. And then the plaintiffs couldn't get a straight answer. Everyone they asked gave a different answer. The defense lawyers initially told him it had something to do with a fire alarm. Somebody had set off a fire alarm and they had to empty the building. But it was still closed the next morning. And other people were giving different excuses and it was getting confusing. And then late. Speaker 4 (11:51) On September 16th, so that's Wednesday night, the AFP, the Agence France-Presse, took photos of one of the Air Force One planes on the tarmac. And through it, you could see Trump. And you could see he was reading something. If you blew it up, it was a poster board that seemed to say, Kennedy Center demolished through the window. And I should say that Molly Roberts and Anna Bauer both instantly looked at the poster board and said, this is the work of William Pulte. And I think that has since been confirmed that when he walked out of the plane, Pulte was carrying the press, the poster boards. To be clear. What it shows is the letters DY center and demolish in all caps and the edges of the window cut off what's visible at those points. So the and Trump had made a statement in an interview, again, more than more clearly than ever, talking about. Speaker 4 (13:12) I don't have the language in front of me, but basically ripping it down, having to rip it down or something like that if his name didn't go back up. So they had an emergency order before Cooper. The government responded only with they opposed an emergency meeting. They said it had been closed. Speaker 4 (13:43) The center had been closed because of acute risks to public safety, and they would revisit in seven days whether to reopen, but there was no commitment to reopen. They also made no mention about the demolition issue. So at that point, Cooper issued this don't demolish the building order. You know, there's a companion case brought by the D.C. Preservation League in which the government had already said, we have no plans to demolish and we'll let you know if we get some. Here, Cooper lays it out. You need 30 days notice if you change the plan, including wanting to demolish the main building. He also gave... the plaintiff's discovery on the demolition issue. Now, he was vague about that. I don't know what that means. I don't know the degree to which you can even get discovery on what the president was reading in his plane. But anyway, some discovery will happen. Well, speaking of buildings Speaker 5 (15:02) that the president wants his name on. Speaker 5 (15:07) The United States Institute for Peace, which is... Speaker 5 (15:14) Was headed by the very estimable, if oddly named, Ambassador Moose. Has board members that were ousted and barred from the building by armed people. And they have intervened, gone into court. to prevent Donald Trump from putting his name on the USIP building. And tell me, Molly Roberts, were they joining hands with a guitar and singing, all we are saying is give the U.S. Institute of Peace a chance? Speaker 2 (16:03) I don't know why you don't just sing all the music. There's no need to be queuing this stuff up on YouTube. Speaker 2 (16:10) So yeah, a small correction to what they're trying to prevent him from doing. You said putting his name on the building. Interestingly, they have already put his name on the building, but they've done it in a non-permanent manner. They've bolted it in the silver lettering. And what they want to do next, or at least what the former staff members- Carve Speaker 5 (16:31) it in. Speaker 2 (16:32) Carve it in, yes, indelibly. So it's already on there. No, Speaker 5 (16:36) it's on there in magic marker, but they don't want Sharpies. Speaker 2 (16:41) Yeah, sure. That's an excellent way of putting it. You know, I think arguably they shouldn't have done what they did, but these litigants didn't. put up a fuss because the litigation was ongoing. And I think they figured, well, you know, it's just bolted on there. You can take it off. Although as with the Kennedy Center, we've learned it's quite difficult to get some of this stuff taken down and it may cause harm to the building in the process. But so you gave some of the background in... Speaker 2 (17:12) Was it February 2025? This lawsuit started in March 2025, and it was shortly after the Doge seized the U.S. Institute of Peace building on Constitution Avenue with the help of police and the FBI. So some former members of the board, ousted members of the board. sued and said that they shouldn't have been able to, the administration shouldn't have been able to dismantle the Institute of Peace. And they initially won. Judge Howell ruled that the takeover was a gross dissipation of power. But then about the worst panel you could possibly get if you're these plaintiffs, Katsis, Rao, and Walker stayed that decision on appeal and returned the institute to the administration. And so the headquarters is now under the administration's control. The State Department has control of it, and they've been using it as an event space. And it was in December that they bolted Trump's name in silver lettering above the building's title, which is engraved. And the State Department said. earlier, before they actually put it up there, that they'd renamed the institute to the Donald J. Trump Institute of Peace to reflect the greatest dealmaker in our nation's history. So that had happened, and the argument was kind of sitting around. The case was sitting around because they had stayed the decision on appeal, and maybe that wouldn't be so big a deal if then the appeal proceeded in a timely manner. But it got removed from the argument calendar. pending the Supreme Court deciding Trump versus Slaughter. The idea was that's going to bear on this, and so we're going to take it off the calendar, and we're not going to address it. So it's been on the calendar, and they recently said after Slaughter was decided, all right, we're going to get the ball rolling again. But what the plaintiffs are arguing here is that in the meantime, the administration has been doing dismantling work. of the institute that goes beyond the status quo prior to the stay, sorry, not prior to the stay, prior to the injunction that Judge Howell had issued. And so they're arguing they were kind of taking advantage of that and that the latest example of what they've learned, they say that they've received information, they don't say from where, but that the administration is preparing to carve the president's name. into the headquarters building, that a formal request for the work has been made, that a contractor has been selected. So what they're asking for on an emergency basis is what they call a limited status quo preserving modification of the stay pending appeal that really just says you cannot carve his name into it. All they're asking for is while we wait for the appeal, just make sure they can't carve his name in. And doing so, they say, they describe it as unsatisfied with the relative impermanence of external lettering. Appellants apparently now intend to carve President Trump's name into the facade of USIP's privately owned headquarters building while this litigation is pending. So anyway, you know, they're asking him not to do it. They're saying that that's irreparable harm because, you know, it's irreparable. You're carving it in there. They're saying that that's particularly of concern because this is a work of expressive architecture designed to be symbolic of USIP's independent mission. And so this would basically literally set in stone a different message. They're also arguing – Well, I see what you Speaker 5 (20:46) did there with literally. I Speaker 2 (20:48) didn't do it. I didn't do it. The plaintiffs did it. Speaker 5 (20:51) Oh, I see. Yeah, Speaker 2 (20:52) thank you though. Yeah, they're very clever. That's very clever. Yeah. Speaker 2 (20:58) And so that's what's going on. They read Slaughter, because what the appeals court panel had done, it said that the government was likely to prevail on the merits. And the former board members are saying now that they think that Slaughter actually changes that in their favor and that it confirms that Congress can create entities that are governmental in character, but don't exercise executive power. And the key question is whether it exercises executive power. And then you can't do the at-will presidential removals. So we'll see. In response to the filing, I don't believe that the government has filed anything in response yet, but a spokesperson for the White House, Anna Kelly, called the Institute a once bloated, useless entity that blew $50 million per year while delivering no peace. And so we'll, you know, see what happens next. But yeah, not just the Kennedy Center trying to... Get his name, not just get his name, but get his name permanently engraved elsewhere in the city. I Speaker 5 (22:01) have two questions. Sure. Is the United States Institute for Peace a government entity? Speaker 2 (22:11) Is it a government? I mean, what? I thought it was a private Speaker 5 (22:15) institution. Speaker 2 (22:15) It has a mix of federal. It gets a mix of federal funds and private donations, if I recall correctly. Speaker 5 (22:21) Right. But isn't its board? I thought the whole point was. It is not an instrumentality of the U.S. federal government. It's a nonprofit that is sort of federally chartered and receives some federal money. Is it covered by U.S. v. Slaughter? Speaker 2 (22:49) Well, I think that's their argument. Their argument is that it might be governmental in character, but it's not like an executive. It doesn't exercise executive power. So that's their argument. Their argument is exactly what you just said. Speaker 5 (23:02) All right. Molly, the Supreme Court. after holding everybody in suspense until two months before the election, the midterm election, and after letting the final rule issue on the Postal Service, Mishigas, I think is the technical name for the final rule, said, slapped a stay on it and said it couldn't go forward. Or upheld the stay, really, from the lower court. And so my question is, are Clarence Thomas and Sam Alito the only consistent members of the conservative majority and the others just lacked the courage to do what needed to be done? Speaker 2 (24:00) Great question. So the first thing I will say, because I think it's worth doing just given how this is being read and what we know and don't know, I think it's reasonable. I mean. I assumed, and I think it's reasonable for you and many other people talking about this to assume that this is 7-2. We don't actually know that it's 7-2. And what we know is that Thomas and Alita were in dissent. And then we know that Kavanaugh concurred. And we know that there was a majority. So we know that five other justices have to have been in this majority. But we actually don't know what the final justice did.