The Washington Post - 23.08.2019

B2 EZ RE THE WASHINGTON POST.FRIDAY, AUGUST 23 , 2019

community forum, I learned

that this community feels it is

under siege. I agree,” she wrote.

“As you are well aware, it takes

only a few prosecutions to

create a deterrent effect.”

Liu has declined all our

requests for interviews on this.

But Norton, in her letter, gave

Liu 30 days to answer a list of

questions explaining the lack of

prosecutions. That was 33 days

ago.

The U.S. attorney in the

District doesn’t have to explain

her actions to the voters of this

city. She only has to answer to

the Justice Department and to

Trump. But Congress, which

doesn’t hesitate to meddle in

the District’s affairs on gun

restrictions, marijuana laws

and other policies, could start

demanding some answers

here.

It’s time for the Democrats

who control the House of

Representatives to bring Liu in

for a hearing, so we can finally

begin to serve hate its eviction

notice.

[email protected]

Twitter: @petulad

Racine.

“The alleged hate crime and

robbery against the gay couple

on U Street this past Sunday is

deeply troubling and

heartbreaking,” Racine wrote in

a statement in June, after the

attack. “Some members of the

community were disheartened

to learn that charges against

the 19-year-old adult arrested

in this case were dismissed.”

His office handles juvenile

cases, but he isn’t allowed to

say whether they’re prosecuting

the two other teens.

D.C. officials held some

community meetings after that

case and got an earful from

folks frustrated about the lack

of punishment on hate crimes.

Del. Eleanor Holmes Norton

(D-D.C.) wrote a letter to Liu

after this.

“As you may know, the

number of reported hate crimes

in the District of Columbia

almost doubled between 2016

and 2018. Many of these crimes

were targeted at the LGBTQ

community, especially

transgender individuals. At a

recent well-attended

reason we can’t, maybe not all

the elements aren’t met, we

look for other ways that we can

address criminal conduct.”

She gave the example of a

man arrested on firearms and

controlled-substance charges —

presumably alleged white

nationalist Jeffrey Clark — who

came to the attention of law

enforcement because of his

statements about sparking a

race war.

But that ignores what hate

crimes do to the people who

experience them. And it doesn’t

make vulnerable people feel

like anyone’s got their backs.

This was especially the case

for those friends of Corado’s

attacked in June by at least a

dozen people who began

taunting them with

homophobic slurs outside a U

Street bar, then robbed and

beat them.

Police arrested three of the

alleged attackers — an adult

and two younger teens. But the

U.S. attorney’s office later

dropped the charges against

the adult, to the dismay of D.C.

Attorney General Karl A.

month on combating anti-

Semitism, said that sometimes,

the odds of conviction are

better when they don’t press a

hate-crime charge.

“We take an all-tools

approach,” she said. “If we can

charge a hate crime, we

certainly will. If for some

doesn’t explain what’s going on

in Washington.

In other cities where hate

crime reports have gone up —

Seattle, Brooklyn, Los Angeles

— prosecutions have increased,

too.

Liu, speaking at a forum at

the Justice Department last

with it.
It’s no surprise to Ruby
Corado, who runs a shelter for
LGBTQ folks in Washington.
She has lived here for decades
and says these past two years
are among the worst she’s seen.
“They’re just getting so
blunt,” Corado told me earlier
this summer, when one of the
transgender women she’d
helped was gunned down. “It’s
just out there. It used to be
more isolated.”
That same week, a man came
to their shelter with a gun, and
two gay men she knew were
beaten on busy U Street. All the
aggressors were shouting
homophobic slurs during the
attacks.
“A lot of this is systemic,” she
said. “While [the Metropolitan
Police Department] has done a
better job, when they go to the
U.S. Attorney’s office, nothing
happens,” she said.
Hate crimes may be difficult
to prosecute, sure. You have to
prove the crime occurred
because of bigotry. But that

DVORAK FROM B

“natural fit” for handling issues
that the high court may ultimately
decide.
“These are significant legal is-
sues, but not issues that are fre-
quently in court,” Sekulow said. “It
was very important to have some-
one like him as part of the team.”
Consovoy’s portfolio with
Trump comes down to what infor-
mation Congress can demand
from a sitting president and how
much a president must turn over.
The outcomes will have implica-
tions for presidents and lawmak-
ers for years to come.
The core of Consovoy’s posi-
tion: Democrats in Congress can’t
rifle through the president’s pri-
vate records to score political
points. Their subpoena power is
not unlimited and must be con-
nected to a “legitimate legislative
purpose.”
Trump’s private lawyers are dis-
tinct from the White House Coun-
sel’s Office and the Justice Depart-
ment, which defends the presi-
dent 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, ac-
cording 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 estab-
lished legal precedent, said Wil-
liam 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 circum-
stance.”
Committees in the Democratic-
controlled House want a look at
Trump’s closely held finances, po-
tential 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 turn-
ing over Trump’s records to the
House Financial Services Com-
mittee because such subpoenas
distract from the president’s offi-
cial duties and exceed congres-

CONSOVOY FROM B1 sional power.
Consovoy made similar argu-
ments in trying to shield the presi-
dent’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 politi-
cal opponents. Once this Pan-
dora’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 coun-
sel.
Consovoy also is defending the
president in a separate lawsuit
that alleges that Trump is violat-
ing the Constitution’s anticorrup-
tion ban on presidents receiving
payments or gifts — known as
emoluments — by doing business
with foreign and state govern-
ments at his D.C. hotel. That case
and a second lawsuit filed by con-
gressional Democrats mark the
first time federal judges have in-
terpreted the constitutional claus-
es 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 Conso-
voy’s background.
“A lot of lawyers would say, ‘You
can’t make that argument because
a court won’t buy it,’ but he’s think-
ing Supreme Court. He’s predict-
ing where the law is going, not
where it is now,” said Lisa S. Blatt,
an appellate specialist and self-de-
scribed liberal Democrat who has
enlisted Consovoy for practice ses-
sions 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 class-
mate 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 hit-
ting 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 Su-
preme Court clerk the same year
for Justice Anthony M. Kennedy.
“He gets to stand by his convic-
tions.”
The son of two state govern-
ment workers — his father, a law-
yer 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 sci-

ence but thought he would be-

come 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 per-

cent 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 for-

mer Thomas clerks.

Consovoy returned to the firm

in 2009 and worked with con-

servative activist Edward Blum

and Bert W. Rein, the firm’s found-

er, 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 ac-

tion in admissions at the Univer-

sity 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 Har-

vard 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 appel-

late 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 sev-

eral 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: Mi-

chael H. Park, a former firm part-

ner whom Trump tapped to sit on

the New York-based appeals court.

Consovoy has declined offers to

join the administration, said a per-

son familiar with the discussions

who spoke on the condition of ano-

nymity because the person was not

authorized to discuss the offers.

Although Consovoy leans con-

servative, 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 politi-

cized.

“This Court has never seen any-

thing like the current House,” Con-

sovoy wrote ahead of oral argu-

ments about the release of the

president’s accounting firm rec-

ords.

Citing a former judge and Stan-

ford law professor, Consovoy

wrote: “To quote Michael McCon-

nell: ‘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 negotia-

tion or accommodation.’ ”

Perhaps thinking ahead to re-

view 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 rec-

ords of sitting justices subject to

congressional subpoena.

Those calls for limiting Con-

gress’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 Cons-

ovoy’s filing in the accounting firm

case to go after the president.

“It’s a spectacularly anti-consti-

tutional 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 inves-

tigate the president” — an argu-

ment, they said, that is “for auto-

crats, not Americans.”

In District Court in Washing-

ton, Douglas Letter, the lead law-

yer 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 can-

not regulate the president, a posi-

tion 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 in-

vestigate illegal conduct of a Presi-

dent, before and after taking of-

fice,” wrote U.S. District Judge

Amit Mehta in Washington in re-

fusing 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.

[email protected]

Eddy Palanzo contributed to this

report.

An unusual lawyer

for a similar client

MARY ALTAFFER/ASSOCIATED PRESS

Demonstrators in New York in 2015 demand that President Trump release his tax returns. The Arlington-based lawyer William S.

Consovoy is representing the president in a private capacity as Trump resists efforts in Congress to obtain his tax records.

PETULA DVORAK

D.C. hate crimes are up. So why is this U.S. attorney not prosecuting them?

“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.”

Edward Blum, conservative activist, on Trump lawyer William S. Consovoy

MATT MCCLAIN/THE WASHINGTON POST

Counterprotesters at the Unite the Right 2 rally in August 2018 in

the District, which had 204 reported hate crimes last year.

washingtonpost.com/postpoints

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