The Justice Department was in court again on Friday to contend with the battle over the East Potomac Park golf course that President Donald Trump decided he wanted to take over as part of his ongoing construction projects in Washington D.C.
According to the DOJ lawyers Associate Attorney General Stanley Woodward and Principal Deputy Assistant Attorney General Adam R.F. Gustafson, the seawall is so dangerous around the island that children could die. So they need to shut down the whole island, Lawfare's Molly Roberts reported, detailing the hearing moment by moment on BlueSky.
Judge Ana Reyes found the comment confusing, given a declaration submitted on Oct. 9.
The problem that the DOJ is facing is that the Marine Corps Marathon took place as the end of October. The judge noted that there were about 30,000 people on the island and there was no previous announcement by the Department of Interior or the National Park Service that the seawall was a huge hazard.
Gustafson explained that "a well-organized race in broad daylight doesn't present the same risk as children walking in the dark along the deteriorating seawall."
The courtroom laughed. As a national park, the island isn't open at night. The walking path and the cycling path are open, but a gate goes up each night at dusk, blocking anyone from reaching the parking lot.
Judge Reyes asked if there was anything in the Oct. 9 declaration that states that the seawall was so dangerous that children running around at night could die.
Gustafson began reading from the declaration in technical language about the seawall, including the details that the sidewalk above the seawall floods twice a day with the tides.
"Tell me in there that she [acting NPS Director Jessica Bowron] says that presents a safety hazard to individuals?" the judge asked.
He held up some photos of the flooding. Roberts said that the judge was leaning back in her chair, waiting while Gustafson rambled on about mortar. They went back and forth on the matter. The problem, however, is that previous statements said those areas were being fenced off. Gustafson began trying to talk over the judge.
So, Judge Reyes asked again where in the declaration from the National Park Service director it says that there are potentially hazardous conditions that pose a risk to human life and limb, necessitating they close the full park. Gustafson struggled to answer again and the judge asked the question again.
Roberts, summarizing the exchange, noted she assumed the judge already knew the answer to that question, or she wouldn't be hammering it so hard.
"I'm sorry, my mistake," admitted Gustafson. He said the declaration was filed on Oct. 9, which was "well before the decision to close the park" was made.
The judge corrected him, saying his chronology was off, as President Donald Trump posted on Oct. 18 and 19 that he had issued a directive and on Oct. 30, they said they were following it.
"You're carrying out the president's directive, right?" she asked.
"And that's the way government works," the DOJ answered.
"That is the way government works, and that's the point I made for hours [in the last hearing]," Reyes replied. Yet, she said, the DOJ kept telling her she was wrong. "But I guess I wasn't."
Another declaration was filed on Oct. 28. The National Park Service said the seawall was falling down and dangerous. So, the judge wanted to know what happened between Oct 9 and Oct. 28 that changed everything. It's an issue that NPS has known about since 2011 and there were many assessments starting in 2019, she said. Yet, on Oct. 9, no one said it was a problem.
"Suddenly, on Oct. 28, days after 30k+ people ran around Ohio Drive, it's an emergent situation," the judge said.
The DOJ claimed that it's due to limited resources and discretion. But that didn't work for Reyes, who noted they're spending $300 million to repair the seawall.
What the DOJ is saying doesn't exactly match what Trump previously said on Truth Social. Reyes quipped, "I'm just trying to figure out which iteration of me not paying attention to the president I'm supposed to go with today."
