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PHILADELPHIA (CN) — In a heated exchange, a federal judge on Friday strongly challenged the Department of the Interior’s justification for taking down an exhibit about nine individuals enslaved by George Washington.
The hearing, held in Philadelphia federal court, centered around the city government’s legal push to have the informational panels and video presentations returned after the National Park Service removed the exhibits on Jan. 22 without providing the city any notice.
The project — which had stood across the street from the court on the grounds of Washington’s Philadelphia home — was originally created as part of an agreement between the city and National Park Service. Philadelphia officials argue that removal of the exhibit without city approval constitutes an arbitrary and capricious act under the Administrative Procedure Act.
U.S. Attorney Gregory in den Berken argued for the Interior Department that the exhibit’s removal did not constitute a final agency action, which would prevent the city from arguing an arbitrary and capricious act occurred — but U.S. District Judge Cynthia Rufe appeared deeply skeptical.
“How do you discount the harm to the truth?” the George W. Bush appointee asked.
“I think ultimately … that is an issue for the political process,” in den Berken replied, suggesting future presidential elections would be the sole recourse for Americans seeking the exhibits’ return. “Ultimately, there is always accountability in our system to democracy.”
“I would like to believe that,” Rufe said, shifting the subject to question the accountability of in den Berken’s client: President Donald Trump.
Rufe read aloud a series of socialmediaposts made by Trump in 2017 that criticized the removal of public confederate statues. She contrasted his disdain then with his administration’s removal of these educational exhibits about enslaved people.
“You are now in a position of representing his administration,” Rufe told in den Berken. “That’s the question I’m posing to you …is this a desire to change history?”
“I have no insight into the subjective motivations for the decision,” in den Berken replied. He suggested the contrasting statements have no impact on the legality of the exhibit’s removal.
Additionally, in den Berken argued that the basis of Philadelphia’s legal claim to protect the exhibit — that is, a 1950 congressional agreement that the city and National Park Service are mutually responsible for maintaining the historic grounds surrounding Independence Hall — grants the city no such authority.
“Any work or restoration, or any major alterations or repairs to any of the buildings shall not be undertaken until the plans for such work shall be mutually agreed upon, Your Honor,” in den Berken said. “This was not a building.”
“It’s a structure," Rufe replied, disagreeing.
“That is not the definition in the project, your honor,” in den Berken said.
“I beg to differ, counsel,” Rufe replied again. “You can’t treat it like changing the definition of what bricks and mortar are because you want to do something with its information. You just can’t go back and forth with the projects like that. Where does the Liberty Bell fit in? Where does the National Constitution Center fit in?”
As in den Berken proceeded to challenge Rufe’s definition of the President’s House project and exhibits, Rufe in retort cited 16 U.S. Code Section 407: “Let me quote it, please — ‘including buildings and grounds. And it’s not an exhaustive list, it says so. ‘Including buildings and grounds.’”
“I’m not familiar with what the statute itself says,” in den Berken replied.
“Well, how can you not apply all of the statutes that are here?” Rufe asked, interrupting the defense counsel. “Picking and choosing what you want to interpret as you think the executive order says you must does not lend itself to rule of law. Interpretation does not give consistency to history. And it can’t be that you practice law like that. It can’t be that you practice running the government like that, because everyone needs rule of law and consistency to believe in it. And what does the Park Service’s behavior here leave us to believe?”
“Are we playing with words and partitioning sections of cooperation agreements and statutes that is not desired by almost every American?” Rufe continued. “It’s not a question of what I want to believe, or what citizens want to believe — it’s a question of what’s been proven to be true … You can’t erase history once you’ve learned it. It doesn’t work that way.”
Additionally, Rufe lambasted two of in den Berken’s core arguments — that the city’s complaints should be heard in the U.S. Court of Federal Claims and that Rufe herself has the authority to order the exhibits restored, meaning there exists no irreparable harm — arguing that the two positions cannot coexist.
“You are talking [out of] both sides of your mouth, counsel, because you don’t want to argue that,” she said. “You don’t want this review here. It’s too close to the people.”
Arguing for the city, Philadelphia attorney Anne Taylor also questioned the federal government’s argument that no irreparable harm has been inflicted by rendering the President’s House effectively meaningless as a project.
“It is a ghost of a building that allows insight into the past,” Taylor told Rufe. “Those videos, that information is all critical to that house really having really any meaning — because otherwise, it’s an interesting architectural phenomenon that you walk by and you don’t know why it’s there. It’s essential to the President’s House being the President’s House. So in terms of irreparable harm, every day that that’s not there, people walk by and don’t know.”
At the hearing’s close, Rufe granted both parties the opportunity to amend their pleadings, telling the court that “all of us need to have that clarity” that more a detailed amended complaint would provide.
Additionally, Rufe highly encouraged the Interior Department to ensure that the President’s House will not be further altered before a decision on the injunction is reached, suggesting that a temporary restraining order could otherwise be forthcoming. She said: “I don’t like to have things escalate where they could be done in a professional manner.”
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