In West Potomac Park on the edge of the National Mall in Washington, about a dozen workers on Wednesday morning were smoothing freshly poured concrete on a large pedestal that has all the appearances of a permanent new addition to the park.
The Trump administration is installing a pair of gazebos donated by the government of Uzbekistan, inside what happens to be the site the president has chosen for his proposed garden of heroes. That project, which faces a lawsuit and still needs congressional and design approval, would fill the park with 250 statues of notable Americans. The gazebos, at least according to Uzbekistan’s ambassador on social media, will “become part of” it.
But a spokeswoman for the Interior Department, which oversees the Mall, declined to clarify if that’s what’s going on — if the administration is putting up a temporary and unrelated installation, or if it has already started on President Trump’s next big construction project. The distinction matters because the administration has been saying in court that there’s nothing to see or sue over here: “At this point,” it said in a recent court filing, “the garden is only an idea by the executive branch.”
Similar claims have recurred across court fights over the president’s Washington construction projects. No one can know for sure if the administration is actually going to build an arch, because it has made no final decision to, the government has argued. Plans for a luxury golf course in East Potomac Park? Those are just speculative at this point, never mind the blueprints in the president’s hands.
The president has effectively been moving faster than the courts. With his construction projects, the government has done that while arguing it isn’t actually moving at all.
“This has been the strategy,” said Ed Stierli, the vice president for government affairs with the National Parks Conservation Association, which is suing to block the garden from being built in the middle of protected space on the National Mall. The government is “building or doing work in plain sight while claiming that they’re not doing the work at the same time.”
West Potomac Park is part of the National Mall Reserve, the most heavily restricted public land in the capital. In 2003, Congress declared the area, which encompasses the capital’s major monuments, a “substantially completed work of civic art” that had largely run out of room for more memorials. Today, new statues and structures can’t be legally built within the reserve without Congress’s consent, a standard that would seem to apply to Uzbek “aywans,” whether they’re part of a garden of heroes or not.
“The aywans will be exhibited at West Potomac Park to celebrate the strong bond between the United States and Uzbekistan,” Katie Martin, a spokeswoman for the Interior Department, said in a statement. She did not respond to questions about whether plans to “exhibit” the gazebos meant they’re only temporary. The Park Service told the D.C. State Historic Preservation Office that it plans to install the gazebos for about five months and then remove them. (The Uzbek embassy in Washington did not respond to questions about the gift.)
In the garden case and several others, the administration has argued that it hasn’t yet acted in ways that would harm anyone and justify legal challenges. Yes, the president has talked about these projects. Yes, there have been social media posts. And the National Park Service is indeed considering the president’s ideas, including by drafting plans and surveying construction sites.
But, the administration argues, it’s not actually building anything yet.
There is no clean rule establishing when the government has crossed the line from mulling an idea to acting on it, said Samuel Bagenstos, a law professor at the University of Michigan who served in the Biden administration. Judges must often objectively determine when it becomes clear enough what the government is up to.
“It can’t be the case that an agency can say: ‘Look, it’s too soon, it’s too soon, it’s too soon, it’s too soon. It’s too late!’” Professor Bagenstos said. “There has to be a moment where the agency action can be challenged.”
Lawyers in every administration make versions of this “too soon” argument in court, he said. But as in other areas of the law, he added, the administration is abusing this tendency “in ways that nobody could possibly have imagined.”
The White House did not respond to a request for comment.
The administration’s behavior in demolishing the East Wing has loomed over each of these other cases, forcing plaintiffs and even judges to weigh when to act and whether they can take the government at its word.
“The public was told that the East Wing would not be touched, and then it was bulldozed,” said Rebecca Miller, the executive director of the D.C. Preservation League, which is suing over the garden of heroes and the high-end golf course the president has said he intends to build in East Potomac Park. “It’s very much a ‘fool me once’ type of attitude now.”
On Thursday, Judge Ana C. Reyes of the Federal District Court in Washington is scheduled to hold a hearing in the golf course suit, and she is expected to inquire about the dozens of trees that have been cut down in the park. She previously requested the government not remove more than 10 trees without advance notice.
And she made clear in a July hearing that she was thinking about the ballroom: “I don’t want another demolished East Wing. I don’t want another demolished Reflecting Pool.”
In the arch case, the government has argued that the veterans seeking to block the project near Arlington National Cemetery have effectively sued over remarks about the “president’s vision,” not an authorized construction plan. If that’s sufficient basis for a lawsuit, the Department of Justice said, “the United States could be hauled into court over reported dinner remarks.”
It’s true that the president is known to bluff, said Nicolas Sansone, an attorney with Public Citizen Litigation Group and the lead plaintiffs’ attorney in the arch case. But by the time his clients sued in February, Mr. Trump had announced plans to build an arch, selected a location for it, retained an architect and shown off renderings and models of what it would look like. And he said in late December that he expected to start construction “sometime in the next two months.”
There were enough signs, Mr. Sansone said, “to indicate that, ‘OK, this was not a bluff.’ And everything we’ve seen since has only confirmed that.”
