Lawfare Daily: For-Profit Cage-Fighting at the White House

[Intro]

Brendan Ballou: So this is a deal where the president and companies allied to him stand to profit personally from the private use of our most sacred national monuments, and that is what creates the harm here and why we're challenging it

Roger Parloff: It's the Lawfare Podcast. I'm Roger Parloff, senior editor at Lawfare and I'm with Brendan Ballou the founder and CEO of Public Integrity Project.

Brendan Ballou: You know, once these things are starting to be used for for-profit endeavors for companies allied to the president or to the v- president himself, these will no longer be seen as the people's house. You know, it will be seen as yet another opportunity for monetization.

Roger Parloff: Today, we're talking about Douglas v. National Park Service, seeking to enjoin the U.F.C. cage fighting event on the White House South Lawn. This podcast was recorded Thursday morning, June 11th. In the early afternoon on Friday, June 12th, Judge Amit Mehta denied the temporary restraining order that the Public Integrity Project was seeking to stop the U.F.C. cage fighting match at the White House on June 14th. Judge Mehta ruled mainly on the grounds that the plaintiffs were unlikely to be able to show that they had standing.

[Main Podcast]

So on Sunday, there's a scheduled U.F.C. cage fight on the White House lawn, and on Friday, there's a event at the Lincoln Memorial. Now, of course, cage fighting is not everyone's cup of tea and, and some find it tasteless, and some find it fun, but you are with the Public Integrity Project. So tell us why you got involved to bring a suit to try to stop this in a nutshell.

Brendan Ballou: Yeah, no, I appreciate that. And to be clear, the concern here, the fundamental problem is not with having a sporting event, not even having an MMA fight. The problem is the corruption associated with it. So in this deal, the U.F.C. and its parent company, TKO, are selling individual sponsorship packages for $1 million to $1.5 million per person selling advertising space at the White House and potentially the Lincoln Memorial for companies like Crypto.com and Monster Energy Drink, are giving the exclusive streaming rights to Paramount, which is a company allied to the president, and allowing the president, Donald Trump, to invest directly in U.F.C.'s parent company itself.

So this is a deal where the president and companies allied to him stand to profit personally from the private use of our most sacred national monuments, and that is what creates the harm here and why we're challenging it.

Roger Parloff: Okay, right. And you are the founder and CEO of Public Integrity Project. When did you found that?

Brendan Ballou: Just at the beginning of the year. Yeah, we're, we're brand new.

Roger Parloff: And what did you do before that?

Brendan Ballou: So I spent six years at the Department of Justice, primarily in the Antitrust Division, where I was working on white-collar crime, and then I spent two years in the U.S. Attorney's Office in DC working on January 6th prosecutions.

So as you can imagine, once the president returned to office, my time there was very short. So he got inaugurated on a Monday, he sent out his pardons that Monday, and I, I quit on Wednesday.

Roger Parloff: I see. Okay. Also, for our readers, we're in an odd posture here. We're recording this on Thursday, June 11th, so likely by the time this airs, they will know what happened, even though we don't know exactly how, how this is gonna play out.

But as you were saying in, in the briefs, you describe this as a, quote, "volcano of corruption," and a turning point in American history. I take it there's, there's never been this sort of for-profit event at the White House?

Brendan Ballou: We're not aware of any, no. So this is, I think, the first time that there is going to be a for-profit sporting event at the White House, and certainly at the Lincoln Memorial.

So we think that this is a fundamental change in how these national monuments are going to be used, and importantly, how these national monuments are gonna be perceived. You know, we think that these are for the public, and quite literally, they are being used for private benefit here.

Roger Parloff: I see. Now, the government has said that there have been other events well, obviously there have been other events on the White House lawn, you know, some, Easter egg rolls and Christmas, you know, Christmas ceremonies.

Biden did put an ice rink on the lawn, I think for a couple months, which was they say 100 tons, and they say it was supported by Comcast and NHL. They also mention a partnership. They say there were partnerships with private entities like BET Presents during the Obama celebration. How do those compare?

Brendan Ballou: Yeah, and you know, truthfully, you know, not only do those events predate our existence as a law firm, they predate my existence as a lawyer. So I'm not too in the weeds on them. I think frankly, it is a little concerning to have anything as, that could even be perceived as sponsorship associated with a White House event.

So putting a BET or a sports league label on anything, I think should ra- raise red flags for people. I think what makes this genuinely different is the truly profit-seeking nature of the event. Again, that they're selling $1.5 million sponsorship packages to individuals. The only person who's about to spend $1.5 million to get a ticket to an event at a White House, at the White House is somebody that's seeking to make good use of that $1.5 million, presumably to get influence or access.

You add on top of that the advertising that's going to run here, that is committed to run here, and that according to pictures is already running here. You know, there were pictures floating around yesterday where they first started running the ads for Monster Energy drink, and I think that just raises the question for people.

Is this how we want our national monuments to be used? You know, especially these sort of most important ones. You know, the White House is the people's house. Do we want that to be used for private advertisement? I think the question, at least for most people, answers itself.

Roger Parloff: Yeah, I, I think one thing that struck me is in your initial brief, you outlined some of these, these VIP packages and the fact that Trump, it seems reportedly invested in the parent, U.F.C. parent company earlier this spring.

And I expected there to be footnotes at least responding to those arguments, denying it or saying, you know, all the profits will go to help, you know, injured war veterans or something. But there was nothing. There there was, they, they didn't touch it in the re- reply. It was, it was all legal arguments, so they seem to be conceding all of these allegations. That- that's my understanding.

Brendan Ballou: You know, I, I think that's exactly right. You know, the, the only defense that, that the U.F.C. or the government seems to have been making is that the U.F.C. keeps saying that it's going to lose money on this event. But again, with the, with the tickets that it's selling, it only needs to sell 40 tickets at its current price in order to make an event profitable at, at its own self, self-claimed cost.

So, you know, this is an event that is going to have tens of thousands of people, so I think it's a little implausible to claim that people aren't gonna be making money here.

Roger Parloff: Right. And I, I think, I don't know if you mentioned, but U.F.C.'s is it CEO, is Dana White a, a friend of Trump's? Is that, is that correct?

Brendan Ballou: You know, I don't know if his title is CEO or president. I think it's CEO of TKO. But yes, he is a-

Roger Parloff: Okay.

Brendan Ballour: –close ally of the president. He's spoken at multiple RNC conventions. Trump and he have been business allies for, I believe, decades at this point. So they are closely entwined with one another.

Roger Parloff: And at Paramount, Skydance is, is also basically an ally of Trump.

Brendan Ballou: David Ellison,

Roger Parloff: Yeah.

Brendan Ballour: –is working hard to secure regulatory approval for his proposed acquisition of Warner Brothers. Reportedly, his family has discussed firing anchors that the president doesn't like. And so this is another situation where a executive in a company that are closely allied to the president stand to make a lot of money here.

They are going to have the exclusive streaming rights for the title card for $8.99 each. So they're gonna, they stand to make an awful lot of money from this as well.

Roger Parloff: Okay. And there's one other factual thing here that we ought to mention, which is the, the claw. Maybe you can explain. People have probably seen it by now in photos, but what is the Claw?

Brendan Ballou: The, the claw is a massive, several hundred foot, I believe, structure that hosts the octagon where the fight is scheduled to take place. So it's sort of this four-legged behemoth on the White House lawn. They say that the w- that the Claw is going to be taken down, but you know, this is another area where the administration's been inconsistent.

Donald Trump has now twice suggested that they'll actually keep the Claw up permanently. He sort of analogizes it to the Eiffel Tower. You know, this is reshaping what the White House looks like. Actually kind of makes it hard to see what the White House looks like when you're looking from the south. So it, it is a literal reshaping of our relationship with these monuments.

Roger Parloff: And in your briefs you say that it, it weighs 600 tons. It's, it's steel, these things, and they're sort of arches. 154 feet wide, 92 feet high, which is higher than the White House. Now, the White House in their briefs, like you say, this is sort of a moving target, but in the briefs they say that-- now say they will begin taking it down on June 15th.

But we'll see about that. Now, in their brief, before we get to the legal arguments, their brief really puts front and center their, their number one defense is, quote, inexcusable delay, unquote. They, they say you should have brought the suit earlier and there's a lot of reliance that's taken place. U.F.C. has spent $60 million so far. So, what is your response to the inexcusable delay argument?

Brendan Ballou: Yeah, and I think it's notable that, you know, the vast majority, I think, of their emphasis is on the sort of equitable issues rather than the actual compliance with the law here. And I think it's increasingly hard for the administration to argue that it actually is complying with the law here.

You know, their argument is, look, the world knew that Donald Trump was trying to organize a U.F.C. fight on the White House lawn, people should have challenged it earlier. But let's go back to what fundamentally motivates this litigation. The problem here isn't that a sporting event exists. The problem is that a corrupt sporting event exists.

And it wasn't until June 4th that a spokesperson for what's called Freedom 250, which is one of the sort of quasi-government organizations that's putting together events for the American 250th anniversary, said that it actually played no role in this event, confirming, in fact, that a private company, U.F.C. TKO, was the one that was fully behind this.

That was the revelation that made clear that this was a wholly for-profit endeavor that needed to-- that created deep sort of reputational aesthetic dignitary harms for the White House and the Lincoln Memorial, and it's what made it necessary to challenge the action. So, you know, that, that revelation came out on June 4th. We filed 48 hours later on June 6th.

Roger Parloff: I see. The other claim they make, and I have to admit this one seemed to have more weight to me, was just in the brief you say that they basically concealed what this was until the last minute. But there are a lot of people, I gather, who have- bought seats or, or not bought seats, but maybe, but booked airli- airfare and hotels in order to see this thing.

What about them?

Brendan Ballou: Yeah. So I think there's sort of two groups here. One is the people actually associated with U.F.C. itself, you know, the company and, and there, there really isn't any reliance interest. You know, the government doesn't get any benefit of the doubt that it put in a lot of time allowing this event to happen.

You know, just because you put in a lot of time breaking the law doesn't mean that you get to break the law. Same sort of analysis happens with the U.F.C.. But I think you're exactly right about the idea of the individual fans who are, you know, literally just bystanders to this corruption. You know, they're not involved in it if they're not paying for tickets and so forth and trying to get access, you know, political access.

I think, you know, you know, one opportunity is this does-- this event doesn't have to happen at the White House, one. You know, it can happen elsewhere. They can, they can do this in a way that is legally compliant. But I will also sort of focus specifically on the concerns around the Lincoln Memorial, and I think in some ways that's where the greatest aesthetic harms are going to happen when you have a scheduled walkout from the actual chambers of the Lincoln Memorial.

The fighters are scheduled to walk out from the chamber and down the steps, and then are gonna have a face off. And as MMA fans know, these face offs can be raucous, deeply , deeply charged, you know, affairs with lots of questionable language, even fights and so forth. You know, this is going to, you know, fundamentally change our relationship with the Lincoln Memorial.

You know, there are gonna be pictures of this in AP history textbooks to, to symbolize the corruption of the current moment. And you can move that face off away from the Lincoln Memorial without inconveniencing a single fan. And so even that small change could really reduce a lot of the harm that this event is causing without inconveniencing any fans.

Roger Parloff: An interesting point about the Lincoln Memorial aspect, and, and, and correct me if I'm wrong, but the Lincoln Memorial so-called, face-off and press conference, that's supposed to be Friday night, that's the 12th. And then there's what's called a weigh-in Saturday night, but that's on the Ellipse, and you haven't taken issue with that, and then Sunday night is the event.

But on this Lincoln Memorial thing, two days ago they filed a brief saying, "You have it wrong. We're not going to be going inside the actual chamber of the Lincoln Memorial, the actual place where the statue is. We're just gonna be out front between the memorial and the Reflecting Pool." And then yesterday, after you pointed out that the plans don't say that, they agreed.

They filed a new declaration acknowledging, "Well, yeah, come to think of it, the fighters are gonna... They're gonna close the Lincoln Memorial, and the fighters are gonna come out in the chamber. They're gonna go up the elevator, come out in front of the statue, and down the steps." It's, it's like it's been kept secret from their own lawyers, it seems like

Brendan Ballou: It, it does, and it seems the administration flip-flopped on this and then flip-flopped again.

So, you know, they, they put together a rushed application around this for the action at the Lincoln Memorial. They said that there was going to be a walkout from the chamber, so where the monument to Lincoln is down the steps. You know, and all credit to my colleague, Sam Ward Packard on this. He you know, raised this issue with the government, said, "Is this actually true?"

They in their brief said, "No, it's not. That's a misunderstanding." And then after they filed their brief, they submitted a follow-on declaration saying, "No, this actually is the original plan, and we're gonna have a videotaped walkout with the fighters carrying children for some reason down the steps," you know, true, you know, brawl style.

So this is, you know, this is a situation where the government has been profoundly inconsistent. Either the lawyers are misinformed or their clients are changing their minds or hiding information from their lawyers. But it is a situation where currently it seems the White House is planning to have this walkout from the inner chamber of the Lincoln Memorial to begin this face-off.

Roger Parloff: Yeah. Let's turn to standing, which is, you know, the other recurring problem and hurdle in all of these cases relating to, you know, like the ballroom and the Triumphal Arch and, and so on, because the sorts of injuries are aesthetic and you say dignitary. Tell us who your plaintiffs are and, and why you have standing here and and our, our listeners probably know, but basically standing is a concrete injury traceable to the wrong that you're challenging that can be redressed by the relief that you're seeking.

Brendan Ballou: Yeah, exactly. So, you know, this is a situation where, you know, these are, these are two clients who have been deeply involved in challenging, for instance, the triumphal arch that Donald Trump is planning to build between the Lincoln Memorial and Arlington Cemetery functionally as a monument to himself.

They have been very active in working to prevent that from happening because of, you know, this is literally going to sever the connection between the Lincoln Memorial and Arlington Cemetery. It's gonna be a disrespect to, to veterans and to the interred and so forth. And so they, they understand a lot of the sort of architectural issues on the National Mall.

One client is a Vietnam War veteran, served as a medevac, is deeply concerned about the effect that this is gonna have on these various memorials that are meant to honor soldiers and veterans. And then you have our other client is a frequent activist on a lot of issues, who's often at the National Mall making her voice heard.

Now, as you said, you know, the way the courts describe these harms is what we would call aesthetic, you know? But it's more than just saying, "Well, I don't like the look of this thing." What we're saying is the corruption of this event is what changes people's relationships with these monuments. You know, once these things are starting to be used for for-profit endeavors, for companies allied to the president or to the v- president himself, these will no longer be seen as the people's house.

You know, it will be seen as yet another opportunity for monetization. And so that's what we're talking about when we talk about an aesthetic harm. It's not the problem with having a sporting event, it's the problem of having a corrupt sporting event. Now, I agree with your point that oftentimes in challenges to the government, it comes down to a fight over standing.

And I think part of the issue that you have here is, you know, our court system isn't accustomed to the level of sort of profound corruption that we're experiencing right now, and so really isn't ha- used to having to grapple with how are people harmed by corruption. And so I think in some level, the law is starting to catch up with the corruption that we're experiencing.

I'll also just say, you know, you mentioned the ballroom case. We've been very fortunate, you know, our colleagues at other organizations, you know, secured standing for plaintiffs that were challenging the destruction of the ballroom. It's the same theory of the case here. You know, the, the kinds of people who are harmed by the destruction...

Sorry, I said the destruction of the ballroom. Destruction of the East Wing. The kinds of people who are harmed by the destruction of the East Wing are also the kinds of people that are harmed by having a corrupt for-profit sporting event at the White House lawn. So if the argument worked there, it should work here

Roger Parloff: Well, let's turn to the, the merits then. And it sounds to me, and, and correct me if I'm wrong, like there's mainly, there's a regulate, which I assume is a National Park Service regulation, the capital region regulation. And then there's The National Park Service Organic Statute 40 U.S.C. 8106, and then there's the National Environmental Protection Act 42 U- U.S.C. 4332. Tell us, a- and, and if I'm wrong, correct me, which are the key regs and laws and, and how do they apply here?

Brendan Ballou: Yeah. And, and once again, all credit goes to my colleague Sam, who has been the architect of this case and really understands the ins and outs here. At a high level, what the concern here is, National Park Service has a series of regulations that govern who and how events can be had at the White House and at the Lincoln Memorial, and generally there are extreme limits for what can be had there, particularly you, you essentially cannot have for-profit events at either of these things.

Now, there is an exception for events associated with America 250, so the celebration of America's 250th anniversary. But the problem that happens here is it turns out the government is completely uninvolved in the actual planning of this event. This is a private event happening on public property, so this limited exception doesn't apply here.

Now, you also mentioned NEPA, you know, which governs environmental reviews. This requires significant construction projects that may have a environmental impact to go through, you know, different kinds of environmental reviews depending on the kind of project. None of that happened here, and that's really important because you have these sorts of reviews to see if things are going to have a lasting damage or effect on the grounds or on the property.

That's the risk with the Claw, especially given that the president suggests he might not take it down. So if you were going to put up a massive sort of roller coaster-sized structure on the White House lawn, it seems intuitive that some baseline level of procedural review would be required here. It seems that the administration completely blew past all of that.

Roger Parloff: I see. And it seems that the government is really relying mainly on, as you mentioned, the- these well-standing and also the equitable consideration of the, the suit having been brought too late rather than getting into whether they were authorized to do what they did here. This might be an unfair question, but these are some of the same statutes that are involved in the ballroom case and the Triumphal Arch case.

Is that your understanding?

Brendan Ballou: That is. I think that's right. Yep.

Roger Parloff: O- okay. In terms of the nitty-gritty of the legal argument, is corruption then sort of a side issue? Or, you know, in, in other words- That they didn't follow the permitting process or, or is it crucial to the legal argument as well?

Brendan Ballou: It is. So, you know, there's sort of two ideas in the law.

One is what's called a cause of action, and then the other is standing. So a cause of action says, was a law violated that you can challenge? And standing is, are you the kind of person who's experienced a harm that is worthy of bringing a challenge? So, you know, you, if somebody, you know, breaks a obscure banking regulation, but you don't do any business with that bank, you know, you're not a customer, you're not a client, you're not a partner, whatever it happens to be, there may be a cause of action there.

You know, some, some regulatory violation was broken, but you don't have standing, right? And conversely, you can be harmed by the government in all sorts of ways, but if the government's complying with the law, you can't bring a case. So you need both a cause of action and standing. So, you know, the causes of action are the violations of all these things that are meant to ensure that our national parks properties, the White House, the Lincoln Memorial, and so forth, are used with care and dignity, and not for private gain.

So that's the cause of action here. What gives somebody standing is the aesthetic harms that come from the corruption here. So by being a person in the Washington area who's seen the White House and the Lincoln Memorial every day, e- either because you're going to work past it or because you're protesting near it, and you are seeing these institutions or these monuments fundamentally changed because of the corruption, then you have standing to sue.

So because it's core to the standing argument, the corruption is core to the case entirely.

Roger Parloff: I see. And I, and maybe you were touching on this before, but when I think of aesthetic injury, you know, it, it, I think of the Sierra Club and somebody, you know, ruining a, a beautiful landscape, and certainly y- you have that.

But here it's really more of that dignitary injury that, that- These monuments are being desecrated. It, it doesn't sound like aesthetic, I don't think really captures it entirely.

Brendan Ballou: I, I think you're right in, in terms of how we use the word aesthetic just in our own lives. I think as a sort of legal term of art, it's, it's the right one to use because it's capturing the fundamental misuse of a property that changes your relationship or your perception of that property.

But you're right, I think at least in how we commonly use these words, I think a dignitary harm might be a little bit more appropriate. At, at the risk of being a little repetitive here, you know, when we talk about aesthetic harms, we're not talking about, you know, I lost money or even I think this thing is tasteful.

You know, tasteful or not tasteful. That's really not what's in dispute here. It's does this change our relationship with the property or with the monument? And once these things are used for for-profit purposes, even if the event is just temporary, the change in the relationship is permanent, and that's what gets you standing.

Roger Parloff: Suppose now that the TRO, the temporary restraining order, is denied by Judge Mehta, something our readers will know, that our listeners will know that we don't know, either because of standing or maybe the reliance interests because the suit was brought recently. What else can we do about- What's happened here, and about what will happen the next time 'cause clearly there will, there will be a next time.

Brendan Ballou: Yeah. Yeah, and I th- I think you're... I think it's great that you put it that way, because if this is allowed to go forward, it will only embolden this administration, and bluntly future administrations, to hold for-profit events at our national monuments, and really to, you know, literally monetize their government for their own benefit.

So, you know, we need to, we need to be working to stop this from happening. On this event alone, even if it goes forward, there may need to be follow-on litigation to actually confirm that the claw gets taken down. The government seems to be inconsistent on this particular issue. I also would just emphasize that I think speaking out and doing research on these things matters a great deal.

The reason that we had to bring the case so close to the event was it wasn't disclosed until pretty recently Freedom 250's complete uninvolvement in the event. And so the earlier that we can learn about these instances of potential corruption, the sooner that we can bring these cases. But I'll also say for folks even who aren't lawyers and can't litigate these cases themselves, I really try to emphasize that public perception really matters here.

You know? The less popular that something is, the less likely it is to happen either because of resistance within the bureaucracy, not at the top, but in the middle or the bottom that, you know, don't want illegal things to happen. And judges who want to do, you know, rule against these violations of the law and feel empowered to do so when there's such overwhelming opposition to these sorts of things.

So I think literally just following the news and speaking out about the news matters here. You know? It's, it's a little frustrating because you don't see the impact that you have immediately, but I can absolutely assure you, as a former government employee, as a practicing lawyer, it makes a difference.

Roger Parloff: Yeah, and I, I have to say that I, I think your, your suits certainly had a- an educational impact on me. I, you know, I learned a lot from reading these documents and, and from, from seeing the lack of denial in the re- response to them. So y- I have to thank you for that public service no matter what happens here.

Brendan Ballou: I, I'm, I'm very grateful that you've read the briefs in such detail. So, you know, it's, it's rare that we get people that aren't directly involved in the case who are so engaged in it. So I'm very grateful that you've, you've done that.

Roger Parloff: Okay, good. Well, I think we're gonna h- have to leave it there. But thanks so much for speaking to us, especially in such a hectic moment.

And good luck to you.

Brendan Ballou: No, thank you.

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