Trump’s Kennedy Center Fight Is Barreling Toward a Constitutional Showdown (w/ Nathaniel Zelinsky)

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of the bulwark i'm very pleased to be joined for this special friday afternoon uh podcast discussion about what's going on at the kennedy center by my friend nathaniel salensky who is the uh principal and managing counsel of the washington litigation group and the lead counsel for representative baity who's been fighting president trump over the future of the kennedy center so nathaniel thanks for thanks for taking 15 minutes out of your busy day to to join me it's been a week bill i think you joked to me you should that you know you didn't have on your bingo card right spending lots of time like trying to prevent the kennedy center from being destroyed you're defending civil servants you're defending the rule of law you're defending a million different things you know it it yeah it's the gift that keeps on giving um would it would it help maybe just to to give you an overview of what's happened and where we are yeah so tell us where we are so we're talking just so people know we're early mid-afternoon friday and there'll be this demonstration tonight but so far you've had court cases this week and stuff so where do you stand so um on tuesday uh and it's been a whirlwind week lots have happened on tuesday judge cooper issued an order uh that said that the latest effort to rename the kennedy center uh violated his previous decision um that he issued in may which was very clear the kennedy center is named for john f kennedy by law and it can't be named for anyone else president trump had tried to get around that by adding his name to the kennedy center this time it was going to say endowed by donald trump or restored and renovated by donald trump i liken it to those hotels that are you know uh the resort by hilton it was going to be kennedy center by trump um and uh what judge cooper said is his words were that's linguistic gymnastics and it doesn't get around his opinion and it doesn't get around the law uh moments later uh about an hour later there was a board meeting uh and the board meeting was another uh effort to shutter the kennedy center and these two things are linked donald trump has said that he wants the kennedy center closed immediately and no renovations will occur on tuesday so it's going to be a little bit longer unless his name goes on the kennedy center and we think that the real reason they need to shut down or want to shut down is to hide the financial mismanagement that is the direct result of his name going on the kennedy center so we think these two things the renaming and the shutdown are intimately linked and this is all came after he after he took over the board a year ago right i mean yeah so a year ago he takes over the board he he he stocks it with loyalists i mean you've got uh laura ingram you've got another fox news host you've got members of his administration who are on there steve winn's wife it is a a clown car of a who's who of flunkies so um you know what what ends up happening is um they vote in may to shut down or sorry march in may cooper says that wasn't lawful uh and they didn't evaluate the things that a prudent board that really was doing this would evaluate and then uh they voted again in august to shut down we don't think that was proven either and then on tuesday they were holding another vote to shut down now i wasn't in the room but my client was she's on the board right as a ex-officio member that's right she serves because she's one of the members of congress who serves on the board there are a handful of folks who by virtue of their office serve on the board and are not presidential appointees so it's sort of a scott a stop gap if you will to the presidential appointees the 36 of whom you know the president can fire and and replace um you know she cannot be fired and so she is in the meeting she's objecting to the shutdown and it gets very heated um and uh you know there's been a little bit of public reporting on that um and so then we think everything is over but then it turns out that on late tuesday night early wednesday morning uh they have started to shut down the kennedy center and they have started to shut down the kennedy center the very thing that judge cooper had told them they couldn't do and we filed an emergency motion in front of judge cooper that said they're shutting down the kennedy center and you said they couldn't do that judge cooper ordered the government to respond by thursday on wednesday night before the government responded uh photographers obviously outside of air force one uh were able to catch a photo that had donald trump uh in the window looking at a poster board of some kind that said across the top kennedy center demolished and then had some kind of graphic underneath it as well donald trump has been routinely threatening to demolish the kennedy center if he doesn't get his way and right before he boarded air force one he told the poor pool reporters if my name doesn't go up there we might have to demolish this thing it's sort of like a uh it's my what a wonderful kennedy center you have there shame if it had to get demolished so we brought that to judge cooper's attention early on thursday morning even before the government filed their brief at 10 a.m on thursday we filed a reply shortly thereafter about two hours later i have a wonderful team of lawyers and i should say i'm litigating this alongside my friends at democracy defenders fund or democracy defenders action uh on whose board you sit bill and so you own a little bit of the of the glory here and um it was an extraordinary lift on the part of our teams we filed a reply in two hours highlighting this new demolition threat judge cooper ultimately ordered the kennedy center to respond to the law and it was an extraordinary lift he ordered that first uh the government would have to appear uh before him or submit a sworn declaration next week uh attesting to the alleged safety concerns they've said that the building has sort of immediate safety concerns that make an uninhabitable we think those are not true we think that's inaccurate it's a pretext but judge cooper has said explain to me on wednesday of this coming week uh what you find additionally judge cooper also um ordered the kennedy center to respond to the law that there not be demolition so uh the technical way the order is written is that if the scope of the project is changed including if any demolition is to occur we have to get 30 days notice this is really really really important because it means that at least as a legal matter donald trump can't do what he did to the east wing he can't just show up wreck the thing and move on uh sort of making it a fiat complete and then lastly judge cooper uh gave us discovery into the demolition plans um so we get to know uh are they planning to do demolition what is going on um and and hopefully get to the bottom of some of this so the case is now barreling forward on a extraordinarily expedited discovery schedule judge cooper also entered that order on wednesday the expedited discovery schedule so we get to get some facts finally we got to get to the truth um and it's going to be a fair amount of work and you think you really can get facts and get to the truth they won't fight discovery and say it's inappropriate and they can't you know reveal other internal discussions and all that kind of thing well look uh they've already said discovery was inappropriate they've already tried to fight it and i had every assessment that they're going to fight me tooth and nail as they've been fighting us tooth and nail throughout this proceeding i mean you know look the department of justice has uh has has fought at every step of the way um and the president's fought at every step of the way i mean the president has become wholly fixated on this there were three separate attempts first the initial resolution to put his name on the building then again the attempt in august and there was actually an attempt that they withdrew after we notified the court in september to propose 10 different ways that his name could go on the front facade he is fixated on this so to be honest i expect the department of justice to keep fighting us every step of the way because he is so just grotesquely fixated on putting his name on a memorial to a slain president who gave the last full measure of devotion to the line of duty it is extraordinary and it is extraordinary that i mean i guess he's the president so the whole federal government is but they've done a good job from their point of view i would say of mobilizing the whole government and this has in other areas right so the post office gets involved in their plans for the election and dhs does its thing and they're doing stuff with dod and justice the degree to which it's an unfair fight i mean i really admire what you've done and what norm eisen and defended and the democracy defenders have done but and luckily been able to get the resources to fight this but they have the huge don't they i mean how big a it makes me wonder if it weren't something this prominent and if representative beatty actually hadn't been as courageous as she's been in standing up to trump and she really did it kind of alone i think right you can talk about that a bit if you want but i just it brings home to me how dangerous having a president like this in charge of the entire federal government and unlike in the first term having stocked the entire federal government with loyalists and having not just the top level but then they've stocked it down levels and levels of levels well how does that look to you you're fighting the you're litigating against justice department i'm say a few words about all those yeah i mean i'll say two things the first is look the justice department is the biggest law firm in the country if not the world so Um, yes, you don't want to be going up against the department of justice, but, uh, and what I will say is that the efforts to intimidate major law firms has had real consequence. There has been efforts to intimidate law firms so that good lawyers are not in the business of suing and being on the other side of justice department. My law firm exists, the Washington litigation group, because I was at a law firm, they signed a deal. And I said, I am not going to be at a firm that signs a deal with the administration. And so we founded this firm, my colleagues and I precisely so that we could provide big law level representation in these type of cases. So when you said, I don't think it's a fair fight, my answer is it's not a fair fight for them on the other side, my guys outclass them. So, and I firmly believe that we've been able to hire the best lawyers in the business. And I'm proud, extremely proud of the work we put forward, but you're absolutely right. There is, in some of these cases, there can be an imbalance because the other side has just a lot of bodies. On the other hand, we've also seen a flight of really good lawyers from the Department of Justice. I'm not going to talk about the opposing counsel I'm on in this case, but I will say generally that we've seen, you know, there has been, and it's been publicly reported, it's been difficult for the justice department to recruit, long time people have left. And I will also say that, you know, every case you tie them up here, that's another case they can't litigate. So it's a bit of a mix. You know, our side has been able to do a good job, but you're absolutely right. It is, there's a bit of an imbalance and they've been trying to create an imbalance. As the Congresswoman, she's been incredibly courageous. She is a strong and phenomenal person who has stood up for what she believes. She has a caucus that is behind her in doing this, colleagues who are behind her in doing this. But she personally has invested time and energy and effort. And I have a deep admiration for her. Yeah, no, it's impressive. It's not as if, you know, the Kennedy Center is not in her district, so to speak. It's not like she's getting, you know, the voters in Ohio necessarily. So I think that's great. I mean, they probably approve of what she's doing, but admire her. But no, it is, and I wish more people were willing to take on these kinds of fights. And you guys have done a great job. But yeah, it isn't, and as you say, maybe you have better quality, if not all the quantity that the Justice Reverend has. But yeah, the degree to which, I mean, are you a little surprised? Well, how surprised are you by what's happening? Just the whole thing. I mean, you were never for Trump. You were against him. We were all in the same place, I think, in January 20th, 2025, which was very alarming to what could happen in a second term. Well, I think you and I were there January 20th, 2017. So it's been a while. Totally. Second term was going to be worse than the first and all. But I guess I, I'll just say for myself, looking across the government, the degree to which they have, in a kind of goofy way and somewhat ham-handed way and losing a lot of good people, which is helpful, honestly, in the sense that they don't do it quite as well. The degree to which they've just pushed everything, though, at every level and at every front, so to speak, in their agenda. This is true of immigration. It is true of election subversion. This is true of just Trump's personal obsessions with glory or whatever. That's, it's, it's pretty striking. I completely agree. I mean, when you look at the gamut of litigation that just my firm alone is involved in and the number of precedents they're trying to overturn or institutions they're trying to destroy, it's extraordinary. I am struck, however, by how much this president is obsessed about this building. Yes, I was saying a little about that. Generally about memorializing him. I mean, this is a guy who's in the middle of a war. He's got a looming debt crisis. He's got a cost of living that's just out of control. And he's getting onto board calls, talking about putting his name on this building. And it's like his obsession with the ballroom, right? There's some aspects of him. It has a sort of Rome is burning, Nero is dancing kind of vibe. The Mad King is out. And it's just, it's extraordinary. It makes no sense to me. And at the end of the day, you know, this case has occupied his attention in the same way it's caught the public limelight. And it's, it's, I don't quite understand why he's so fixated on it. Yeah. I guess they're interesting psychological theories about him and whatever. And it either shows his, his incredible overweening imperial confidence in himself or the opposite, actually, you know, and I've been a little involved in the fight on the arch where they're too, they're just, I mean, the degree to which it would be easier for them to, you know, slow down and go through the process. And they probably, they might be able to build that thing if they, they've stacked all the relevant, just like with the Kennedy Center Board, the relevant commissions and so forth, but they're racing to do it. And actually that creates some opportunities legally for our friends, my friends to say, well, wait a second, you're not following this rule and that rule. And the courts are pretty friendly, don't you think? Whatever their own views of the merits to sort of, you know, yeah, you should follow the processes that are in law and in the books. Well, that's much of administrative law. I mean, much of administrative law in this country is process. It's not, you know, outcome determinant, but it's process based and there are processes and that makes sense, right? We're a rules-based country and you're supposed to follow the rules and, you know, within the bounds of reason, you've got a certain amount of policy discretion, but the rules are rules. I mean, what I will say too, right, is we're also lurching in some of these cases toward a potential constitutional crisis, because what happens if the president defies an order? Now, I don't want that to occur, but the president has been talking about ripping down the structure. Obviously, right now, the president's been filing. The president's been filing orders, but they've been voting to re-add his name back onto the Kennedy Center, despite being told that was unlawful by a judge. So they're skirting as close as they can to the sun without actually getting there. In other cases, they've also skirted very close, and that's very, very, very serious. I did not have on my bingo card that the Kennedy Center was going to be one where we were going to have to worry about defiance of a court order, and that might be, you know, a potential constitutional moment. Yeah, that wasn't the one reprimand we're thinking about, but, and also from their point of view, I suppose, that, you know, whatever, if they can establish the president in one place, they can do it in other places as well. I'm stepping back from, well, anything you want to say about the Kennedy Center case would be great, but also stepping back from it, I'm very curious. You're been a very close, you know, student and observer of what's been happening for the last decade as a young lawyer and a law student and a clerk and then a young lawyer and involved in a lot of these issues. Where do you think it stands? I mean, just broadly speaking, there's sort of the assault. What worries you the most about the possible successes in the assault on the rule of law? What reassures you that maybe we will not lose things that are awfully important to this country over the next two years? I guess the thing that worries me most is the unpredictability, right? The fact that I don't know if the rules are going to get followed. I don't know in any given case whether they're going to just bald-facedly lie. I mean, they've been making representations in litigation in certain cases that, you know, to me do not appear credible. And those are the consequences. They're kind of breakdowns of the orderly process of litigation. And I should add, by the way, I think, you know, there are real questions to be had about the ethical obligations of lawyers in this moment. I'm reminded of the work of people like Timothy Snyder and others who talk about, you know, in authoritarian moments, the obligation of professionals to abide by professional ethics. And so, you know, you can't lie as a lawyer, you can't mislead the court, you can't mislead your opponents. And so the unpredictability of it all concerns me. Also, the fact that the federal government has a lot of guys with guns, that concerns me, right? I mean, just, you know, you've talked about the whole government approach. You've got DHS, you've got the National Guard, you've got a lot of other agencies out there that have weapons that obviously is concerning, especially when you have an executive that is increasingly unbounded by the rules. The flip side, the things that make me feel good is that I think we've seen in many respects, a sort of grassroots bottom-up aspect. And I think that's an important aspect of civil society addressing the moment. You know, I think elite lawyers have largely pulled back, we've seen lots of small law firms get involved. I'm just, I want to give you one example. I'm heartened because there's an employment law bar here in DC who represents civil servants who've been fired, dozens and dozens of civil servants. The employment bar in DC, they're not people who make a lot of money. They're small firms. You know, we're talking firms that have four or five people in them, and this is real money out of their pocket. They've got a pro bono case. There are law firms across the city, tiny, tiny firms that have stepped up. And so that's where I, you know, get a little bit of hope every day is sort of watching people and I'll just name a few firms, Caterparks and Wright, Korea Puth, Gilbert, Jim Eisenman, you know, at the Alden Law Group. These folks have done an incredible amount of pro bono work. And I think that that deserves a lot of praise and when this history is written, it's going to be a lot of fun. And I think that's where I'm going to be. I think that's where I'm going to be. in some sense that maybe they've decided they went a little far in the accommodation, or at least maybe they shouldn't keep on doing that or pull back a bit or not much yet? I will say I haven't seen it in the law yet, right? So just taking the law firms, I have not yet seen a resurgence in law firms that are saying, oh, now we want to do this work. I'm not having them clamoring at my door and saying, can we join your cases? Can we offer you resources? There are a handful of firms that have done it. And those firms, again, deserve a lot of praise. And one firm that comes to mind is Cooley. And Elizabeth Freelager's shop at Cooley has been a phenomenal, phenomenal advocate. Small firms, again, people like Paul Clement, who's really stuck to his guns. And again, you know, those two names, one was a Solicitor General in a blue administration, one was a Solicitor General in a red administration. You know, this is a bipartisan coalition very much. But it's, you know, I haven't seen the rest of elite law show up to the fight. Looking more broadly, I'm not sure I'm seeing institutions within America, necessarily start to stand up. I mean, Harvard is a notable exception. And I say that to a Harvard man. And I'm a Yale man. So I'm a bit chagrined to say that my wife is a Harvard person. So, you know, we all we all can claim some credit. But but, you know, I think Harvard's a notable exception of an institution in this country that has stood up for itself. The news networks are starting to ABC suing. I think that's important. And I think I would hope to see more. On the flip side, you've seen a lot of groups that are basically, you know, think about the folks who gave to the ballroom. That was pretty corrupt. Right. Think about all the corruption that's going on. To me, that's something that needs to be called out. And hopefully that that reverses. Yeah, we'll see. The public's been ahead of the elites in some ways. I mean, he's lost, you know, he's gone from 50 percent to 38 percent. The public's looking up and saying, this is bad, you know, and I wish more elites were the same. But they have more of an investment in a way, I guess. Right. Once you go down the path of accommodation, it's a little hard, I suppose, both psychologically and even practically, maybe to just reverse course. But what I will say is, right, at a certain point, there is going to become a truth teller. Right. I mean, we have to at a certain point. Right. Institutions that have subpoena power are going to come into existence. And, you know, whether it's a Congress that wants to get involved and subpoena, whether it's another administration in the future and whatever the corruption is that's going behind closed doors, that's going to come out. And so, you know, I hope that elites in America who are accommodating start thinking about it. And I also hope that, you know, there are people who are going along with the administration in government, career civil servants who are doing things that they shouldn't be doing. I hope those people are thinking about their ethics and where they're standing. No, that's important, I think. And I'm glad we got to touch on that. There's a demonstration scheduled, I think, for 630 tonight at the Kennedy Center. From your point of view, once the demonstration happens or whatever, the action stays in the court. It's very fast, right? Next week, you're back in court? Well, you know, look, next week, the government's going to have to file something. We're going to then be on expedited custody. We could be back in court soon. You know, we've got an appeal that's going on forward in the in the D.C. Circuit. So it's moving very fast and it's requiring a ton of resources and effort and time on the on the part of, you know, both the lawyers and my client, Congressman Beatty. So it's a full hands on deck operation. But this is where we are going to outlaw the other side. And I'm I'm I'm very hopeful. Good. No, keep up the good work. And it's really important. It's a symbolic I mean, it's not a symbolic thing. It's a real place, the Kennedy Center. It matters. But also, it's an important precedent, I think. And you guys are finding it so well. So I really admire that. To my mind, it's a case that matters because even though it doesn't involve someone's life or liberty or, you know, the structures of our government, it's a very tangible, visible symbol of the rule of law and the assault on the rule of law. And the law here just couldn't be clearer. And it's an effort by one man to take an institution and corrupt it for his own personal aims. And so it's in many ways a visible microcosm for the American people of what they're watching. in every aspect of the presidency right now under Donald Trump. That's really well said. Nathaniel, thank you for joining me. Thank you for joining us at The Bulwark this afternoon, and good luck on the case. Thank you for having me, Bill. Picture this. You're on the boardwalk with your best friends. The waves are rolling. The band is playing. And doomscrolling feels like a distant memory. 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