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In a ruling Friday, District Judge Christopher Cooper ordered the cessation of all repair plans for the Kennedy Center and the removal of Trump’s name from the building within two weeks. It is a detailed and comprehensive opinion, but I believe Judge Cooper is wrong about halting the repairs.
I previously expressed skepticism over the claim that the board could order such a change unilaterally. At that time, I raised the very issues that Judge Cooper cited in his rejection of the right to rename the center without congressional approval.
I agree with the court on its standing decision, which is hardly a surprise given my past writings in favor of broader standing.
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However, the opinion becomes more challengeable when the court addresses the decision to close the center for two years to carry out major renovations. The opinion is rife with digs at President Donald Trump for his social media postings and his unilateral plan for a ballroom. Judge Cooper editorializes that “Especially after the demolition of the East Wing of the White House — which occurred out of the blue a few months after President Trump pledged that construction would not ‘interfere with’ and would ‘pay total respect to the existing building’ — there has been understandable concern that the Kennedy Center may be the next target of the wrecking ball.”
Judge Cooper accepts that the center is long overdue for major renovations and that the board had the authority to order them. He further rejects the sweeping claims of litigants that Trump was planning to effectively raze the center: “The evidence before the Court does not demonstrate that the Center is poised for wholesale destruction and rebuilding, à la the East Wing.”
The opinion is rife with digs at President Donald Trump for his social media postings and his unilateral plan for a ballroom.
However, Cooper rules that the board could not have given the decision sufficient time or attention in carrying out the plan. He declared that “None of the board members had sufficient information in advance of the March 16 meeting to make a well-considered decision to close the center.”
The court’s tight analysis is lost in supporting the cessation of repairs. While he acknowledges that such repairs have long been planned and studied, he cites differing statements on the plan to continue operations before a later decision to close the center. The court finds that the record illustrates a failure to fulfill the fiduciary duty of the board and chair:
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“Whatever happened during that purported four-month incubation period, Board input was, most evidently, an afterthought. Trustees learned about the plan to close the Center at the same time as the general public, by social media post. Deprived of time and information, they had no meaningful opportunity to consider perhaps the most momentous decision in the Center’s lifetime since it opened in 1971.”
That analysis is heavily laden with assumptions about the lack of consideration by the board. The same approach could be used to set aside an array of board decisions that do not evidence sufficient concern or scrutiny to the satisfaction of a judge.
Judge Cooper seems to recognize how far the court was taking its own authority in countermanding the decision:
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“The Court appreciates that, in both the charitable and corporate spheres, board meetings are often scripted affairs. … The Court should not be heard to suggest that trustees must scrutinize every piece of prefatory work that has been done, or labor through the night debating the relative merits of their decisions in order to discharge their fiduciary duties — especially where, as here, a board is large and comprised of members who may not be well schooled in the subject matter before them.”
Yet the court still concludes that this board “seems to have fallen grossly short of prudent decision-making.” That seems like far too subjective and fluid a standard for federal courts to micromanage executive branch decision-making.
For example, Judge Cooper recognizes that lawyers were present at the critical meeting, but suggests that they were not relied upon enough due to the lack of direct statements preserved on the record. Since when is there an obligation for counsel to speak and be memorialized in such records? The court writes:
TRUMP KENNEDY CENTER’S BOARD VOTES UNANIMOUSLY TO APPROVE $257M RENOVATIONS AND TWO-YEAR CLOSURE
“Where were the lawyers? The answer appears to be ‘nowhere.’ The Center’s General Counsel and Associate General Counsel were present at the March 16 Board Meeting but, according to the minutes, did not speak. There is, further, nothing in the record to indicate that the Board relied on any legal advice in reaching the closure decision. It goes without saying that, for all his background in project management and construction, Mr. Floca is no legal expert.”
Yet the court answered its own question. Where were the lawyers? They were there. There is simply no record of their views expressed in this meeting, as opposed to other conversations or inquiries. Moreover, lawyers give advice, not commands, to political appointees. The court seems entirely adrift in reading the lack of such references as proof that the decision was made without legal guidance or consultation. Finally, given the thrust and tenor of the decision, I seriously doubt that a notation reading “the lawyers stated that they agreed with this plan” would have made any material difference to the court.
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For his part, President Trump was equally sweeping and unrestrained in his response. He declared that he would order the Commerce Department to transfer the center to Congress “so they can make a determination as to what to do with it.”
Given that Judge Cooper’s order on the cessation of repairs may be reversed, it is unnecessary unless the naming of the center is the overriding consideration. In either case, it would make little sense for the center to be placed under the supervision of Congress. It would be appropriate for Congress to address the naming question as well as potentially weigh in on the need for a closure.
In the end, I thought that the court’s cessation analysis conveyed ample reasons why Judge Cooper himself, and others, may be unhappy with how the decision was made. It is less clear why that should matter. There are ample reasons to close the center to facilitate what the court acknowledges will be extensive and major renovations. That construction can only be facilitated and expedited if there is not a simultaneous need to keep a substantial part of the center operating for the public.
The administration should appeal the decision and may soon be able to resume work on the center, regardless of its name.
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