DOJ to judge: Ignore Trump’s statements on Hudson Tunnel in fight over funding

MANHATTAN (CN) — Department of Justice lawyers on Thursday urged a federal judge not to look at past statements from President Donald Trump about the Hudson Tunnel Project, a rail tunnel being constructed under the Hudson River, as they fight a lawsuit over the project’s funding.

Trump’s Department of Transportation unceremoniously pulled the plug on more than $200 million in federal cash last year, threatening its construction until a federal judge ordered the funding restored in February. DOT claimed the reason for the funding freeze was that the agency was reviewing whether diversity, equity and inclusion requirements were involved in the project’s contracting.

But different rhetoric came from the White House. Trump boasted in October that he was killing the project, championed by one of his Democratic adversaries in Chuck Schumer of New York, amid contentious negotiations over the federal budget in Congress.

“We’re cutting a $20 billion project that Schumer fought for 15 years to get, and I’m cutting the project,” Trump said on social media. “The project is gonna be dead. It is pretty much dead right now.”

And a statement from White House spokesperson Kush Desai in January made it appear as if the project was directly being used as a bargaining chip in those budget negotiations. Desai stated Schumer and Democrats were “standing in the way of a deal” for the project “by refusing to negotiate with the Trump administration.”

“What do I make of the president’s statements?” U.S. District Judge Jeannette Vargas asked government attorneys Thursday at a hearing over the legality of the funding freeze. She noted DOT seemed to express different reasons for the freeze than the White House did.

“I don’t think we need to look at the president’s statements here,” replied Assistant U.S. Attorney Chibogu Nzekwu.

“But he’s part of the executive branch,” the judge shot back. “You’re telling me not to look behind the curtain. … How could I ever find pretext?”

Nzekwu urged the judge to only focus on communications between DOT and the Gateway Development Commission, the group building the tunnel, which purportedly show the funding was paused as the government reviews the commission’s compliance with Trump’s anti-DEI initiatives.

The underlying lawsuit wasn’t brought by Gateway; it was brought by New Jersey and New York, who argue the Trump administration’s threats against the tunnel jeopardize jobs and hinder commuters. The government claims they don’t have standing to sue since the federal contract is with Gateway, not the states.

It also claims the states improperly based their lawsuit on the Administrative Procedure Act, which targets final decisions from government agencies. Nzekwu argued Thursday that there was no “final” action since the freeze was not necessarily a permanent one.

Vargas seemed unconvinced.

“Well, the funding stopped,” the Joe Biden appointee said. The decision, the judge continues, is “final at the time it’s made.”

“The suspension has consequences,” she added.

Vargas didn’t immediately rule from the bench. The states are looking to keep the money flowing, while the government wants the suit tossed altogether.

In February, Vargas sided with the states in ordering $200 million of federal funding to flow on the very day the construction project was due to run out of cash. In an 11-page ruling, she found that “the public interest would be harmed by a delay in a critical infrastructure project.”

Her ruling on Feb. 6 came just two days after the states filed their lawsuit, accusing Trump of using the project to engage in “political retribution.” The halt in funding, according to the states, was not based on legitimate matters of federal law but rather “the president’s desire to punish political rivals.”

The Gateway Development Commission currently has its own lawsuit over the project’s funding in the U.S. Court of Federal Claims. It similarly claims the administration breached the contract and is unfairly jeopardizing the yearslong project to the detriment of workers and commuters.

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