Most lawyers are intent on winning every argument.
In his courtroom role, Consovoy is trying to shape the law on novel constitutional issues in the power struggle between the Republican president and House Democrats.
Two of Trump’s critics have called Consovoy’s views “spectacularly anti-constitutional.” Federal judges in Washington and New York have rejected his argument that the president’s financial records for his businesses are off-limits to Congress.
But Consovoy, whose small firm in Arlington, Va., is appealing the rulings this summer, is looking to the next round with an eye on a Supreme Court win.
Jay Sekulow, an early member of Trump’s team of private lawyers, said Consovoy’s strategic thinking and appellate expertise from years in the trenches at a big Washington law firm make him a “natural fit” for handling issues that the high court may ultimately decide.
“These are significant legal issues, but not issues that are frequently in court,” Sekulow said. “It was very important to have someone like him as part of the team.”
Consovoy’s portfolio with Trump comes down to what information Congress can demand from a sitting president and how much a president must turn over. The outcomes will have implications for presidents and lawmakers for years to come.
The core of Consovoy’s position: Democrats in Congress can’t rifle through the president’s private records to score political points. Their subpoena power is not unlimited and must be connected to a “legitimate legislative purpose.”
Trump’s private lawyers are distinct from the White House Counsel’s Office and the Justice Department, which defends the president in his official capacity.
Consovoy, who declined to be interviewed for this article, stands out intellectually and personally.
An outside-the-box thinker with a big imagination, he does not feel constrained by precedent when he crafts legal arguments to push back on investigations of the president’s business affairs, according to lawyers who have watched him in action.
“Because of group think in elite legal circles, very few people are actually ready to take the step” to reconsider or challenge established legal precedent, said William Baude, a law professor at the University of Chicago and a friend of Consovoy’s who was a clerk for Chief Justice John G. Roberts Jr. “Either they don’t see it or don’t want to take it.”
On the personal side, Baude added: “Many lawyers in D.C. have this kind of upper-class affect, and Will is not one of those. You can tell he’s still sort of the scrappy guy from New Jersey who doesn’t care about the pomp and circumstance.”
Committees in the Democratic-controlled House want a look at Trump’s closely held finances, potential conflicts of interest and influences on the businesses he still owns.
Those demands have Consovoy battling in an array of cases.
At the U.S. Court of Appeals for the D.C. Circuit in July, Consovoy was trying to stop the president’s accountants at Mazars Inc. from complying with a subpoena from the House Oversight Committee.
For an appeal set to be argued Friday in New York, Consovoy and his law partner have made the case in filings that Deutsche Bank and Capital One are barred from turning over Trump’s records to the House Financial Services Committee because such subpoenas distract from the president’s official duties and exceed congressional power.
Consovoy made similar arguments in trying to shield the president’s New York state tax returns from the House Ways and Means Committee and in directing the Treasury Department not to turn over Trump’s tax records.
“It would be a gross abuse of power for the majority party to use tax returns as a weapon to attack, harass, and intimidate their political opponents. Once this Pandora’s box is opened, the ensuing tit-for-tat will do lasting damage to our nation,” he wrote in a letter to the department’s general counsel.
Consovoy also is defending the president in a separate lawsuit that alleges that Trump is violating the Constitution’s anticorruption ban on presidents receiving payments or gifts — known as emoluments — by doing business with foreign and state governments at his D.C. hotel. That case and a second lawsuit filed by congressional Democrats mark the first time federal judges have interpreted the constitutional clauses and applied their restrictions to a sitting president.
Separation-of-powers battles typically are resolved outside of court, but Trump and Democratic leaders appear to be pushing harder than usual, creating an opening for someone with Consovoy’s background.
“A lot of lawyers would say, ‘You can’t make that argument because a court won’t buy it,’ but he’s thinking Supreme Court. He’s predicting where the law is going, not where it is now,” said Lisa S. Blatt, an appellate specialist and self-described liberal Democrat who has enlisted Consovoy for practice sessions to help her prepare for oral argument.
Consovoy, 44, is well-positioned to take up thorny issues for the president from the Arlington firm he started five years ago with Thomas R. McCarthy, his classmate from George Mason’s law school and partner on annual trips to the Super Bowl. Working from his own operation affords a latitude to pursue highly charged cases and to avoid conflicts that might arise at a firm with many clients.
Leaving the large firm in 2014 was a gamble, but “Will had the entrepreneurial bug and was hitting a ceiling in terms of what he could do. He needed to go in a different direction,” said Ashley Keller, a friend who was a Supreme Court clerk the same year for Justice Anthony M. Kennedy. “He gets to stand by his convictions.”
The son of two state government workers — his father, a lawyer who worked for the New Jersey parole board, and his mother in the victim compensation office — Consovoy managed the standout basketball team at his Catholic high school in Bayonne, N.J.
At Monmouth University, he was again the basketball team manager and roomed with a high school friend who was one of the star players, said Dave Calloway, then the assistant coach.
Consovoy studied political science but thought he would become a college coach, Calloway said. Instead, he went to law school, thinking he might pursue his passion for sports through work in the law.
At George Mason’s law school, Consovoy took a separation-of-powers seminar on the powers and limits of the presidency, and even then he flashed uncommon thinking, said Kenneth W. Starr, who taught the class.
Starr, the independent counsel who investigated President Bill Clinton’s affair with White House intern Monica S. Lewinsky, said Consovoy was a strong student with a “very creative mind.”
He finished in the top 10 percent of his class in 2001, landed a clerkship with Judge Edith H. Jones of the New Orleans-based federal appeals court and then joined the D.C.-based firm Wiley Rein. There, Consovoy worked closely with three lawyers who had been clerks for Thomas and recommended him to the justice.
“I knew he had what it took, but I told the justice that they would get along famously because Will is down to earth, loves football, and is fun and funny to be around,” said Helgi Walker, one of the former Thomas clerks.
Consovoy returned to the firm in 2009 and worked with conservative activist Edward Blum and Bert W. Rein, the firm’s founder, on two cases that would reach the Supreme Court. Consovoy was instrumental in developing the cases, framing the issue for the court and strategizing about how it might play out.
One challenged affirmative action in admissions at the University of Texas, and the other led the Supreme Court to strike down a major portion of the Voting Rights Act.
Out on his own, Consovoy teamed up again with Blum and his organization Students for Fair Admissions when his fledgling firm filed lawsuits challenging race-conscious admissions at Harvard University and the University of North Carolina.
By the next year, Consovoy had argued his first two Supreme Court cases in consecutive months, including another voting rights case backed by Blum.
“He’s planning the first appellate process and ultimately the Supreme Court appellate process from the very beginning of any of the cases I’ve brought to him,” said Blum, who talks to Consovoy several times a week. “He has a unique ability to show me and explain how this case in two years can lead to a new case and another case.”
The firm has grown quickly to include a tightknit band of former Supreme Court and appeals court clerks. Among the early hires: Michael H. Park, a former firm partner whom Trump tapped to sit on the New York-based appeals court.
Consovoy has declined offers to join the administration, said a person familiar with the discussions who spoke on the condition of anonymity because the person was not authorized to discuss the offers.
Although Consovoy leans conservative, friends and colleagues say he is not particularly political.
“He’s not slugging it out in an unstructured, undisciplined way. Will is the kind of guy who would depoliticize that and make it about the law. He’s going to slug it out in the legal arena,” Rein said.
Even so, the cases involving the president are inherently politicized.
“This Court has never seen anything like the current House,” Consovoy wrote ahead of oral arguments about the release of the president’s accounting firm records.
Citing a former judge and Stanford law professor, Consovoy wrote: “To quote Michael McConnell: ‘Never before have so many congressional committees issued so many subpoenas demanding documents and testimony from so many executive-branch officials, with so little attempt at negotiation or accommodation.’ ”
Perhaps thinking ahead to review by the high court, Consovoy wrote that if the ruling against the president is allowed to stand, it could extend to the Supreme Court, with the accounting records of sitting justices subject to congressional subpoena.
Those calls for limiting Congress’s investigative powers are fodder for Trump’s critics.
Lawyers Neal Katyal, a former acting solicitor general who argued against Trump’s ban on travelers from certain majority-Muslim countries entering the United States, and George Conway, the husband of White House counselor Kellyanne Conway, seized on Consovoy’s filing in the accounting firm case to go after the president.
“It’s a spectacularly anti-constitutional brief, and anyone who harbors such attitudes toward our Constitution’s architecture is not fit for office,” they wrote in an opinion piece in The Washington Post.
The argument rests on the idea that “only the president can investigate the president” — an argument, they said, that is “for autocrats, not Americans.”
In District Court in Washington, Douglas Letter, the lead lawyer for the House, told the judge that Congress has a long history of eliciting information as it did with investigations in the aftermath of the attacks of Sept. 11, 2001, and the Iraq War, and can certainly examine whether the president’s businesses leave him beholden to foreign interests.
Letter said Consovoy appeared to be arguing that Congress cannot regulate the president, a position that he said demonstrates a “total and basic and fundamental misunderstanding of the system that’s set up by the Constitution.”
Consovoy lost the first round.
“Congress plainly views itself as having sweeping authority to investigate illegal conduct of a President, before and after taking office,” wrote U.S. District Judge Amit Mehta in Washington in refusing to block a House subpoena. “This court is not prepared to roll back the tide of history.”
Consovoy took up Trump’s pending appeal in July. Round two.
Eddy Palanzo contributed to this report.