Nearly one month before America’s 250th birthday, its federal government and first capital city fought over the basics of the nation’s origin story in front of a three-judge appeals court panel in Philadelphia on Tuesday.
At issue was the Trump administration’s power to alter a memorial to enslaved people who lived at George Washington’s residence in the city in the 18th century. The National Park Service removed placards and video displays commemorating the history of slavery on the site in January in response to a sweeping executive order from President Trump that claimed to be rolling back a “distorted narrative” of America, one intended to foster “a sense of national shame.” The city of Philadelphia sued over the changes, and a judge ordered that the site be restored. The Trump administration then appealed.
At Tuesday’s hearing, a Justice Department attorney said the Trump administration had the power to make the changes and to potentially further alter the site by removing the names of nine enslaved people that are carved into a stone monument. Such changes were “curatorial” in nature, said the attorney, Gregory in den Berken, and the federal government, not the city, has the right to curate the site since Philadelphia turned the property over to the federal government under the terms of a 2006 agreement.
The memorial, part of Independence Historical Park, sits on the site of the mansion where George Washington led the fledgling United States as president, before the capital was moved to the city that would bear his name.
Two of the three judges on the panel appeared skeptical that the administration has as much power as it has asserted. One, L. Felipe Restrepo, an appointee of President Barack Obama, questioned whether the government was seeking “unfettered discretion” over the site.
Mr. in den Berken attempted to reassure the judges that the National Park Service would not go that far, referring to planned displays that the agency had posted online, which include an acknowledgment of the role that slavery played at the site, as well as references to Christian abolitionists and the Rev. Dr. Martin Luther King Jr.
The case was first heard by Judge Cynthia M. Rufe, of the Federal District Court for the Eastern District of Pennsylvania, who in February quoted George Orwell’s “1984” in an opinion that upbraided the government for “dismantling objective historical truths.”
Much of Tuesday’s arguments revolved around more detailed legal issues involving the agreements between the city and the federal government that govern the site.
More than 100 onlookers listened for more than an hour as lawyers for the federal government and Philadelphia debated whether the city still had some “residual” right to have a voice in the site, and whether the dispute was purely contractual in nature, which could mean that the lawsuit belonged in a different federal court.
Cara McClellan, an attorney representing groups allied with the city, directed the judges’ attention to the symbolic stakes. “Just imagine if the government removed the Lincoln Memorial right before the bicentennial,” she said. “That’s the kind of dangerous precedent that we must avoid here.”
Judge Peter J. Phipps, an appointee of Mr. Trump, seemed sympathetic to the government’s claim that the story of slavery could still be told without the site being fully restored. Some of the placards and videos are back in place at the site and some remain in storage after the appeals court issued a temporary order preserving the status quo.
Judge Thomas M. Hardiman, an appointee of President George W. Bush, implied that some mention of slavery was warranted at the site. He appeared to be weighing the city’s legal rights to dispute the changes that had already been made and the government’s promises of restraint moving forward.
For his part, Mr. in den Berken insisted that the complaints that the administration is rewriting history at the site were overblown. Omitting particular facts, he said, “is not the same thing as falsifying historical facts or denying that they occurred.”
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