Wachtell Lipton Partner George Conway Withdraws From Justice Department Consideration

Conway cited family reasons as the basis for his decision, but other considerations might have played a role.

George T. Conway III

George T. Conway III

On Wednesday evening, George T. Conway III — leading litigator, longtime partner at Wachtell Lipton, and husband of Kellyanne Conway, senior adviser to President Donald Trump — sent a letter to the White House withdrawing from consideration to lead the Civil Division of the Department of Justice. Conway, also a finalist for the post of U.S. Solicitor General, emerged as the presumptive pick for assistant attorney general of the Civil Division back in March.

Conway shared news of his withdrawal with friends and colleagues earlier this week. Here’s his statement explaining his reasons:

I am profoundly grateful to the President and to the Attorney General for selecting me to serve in the Department of Justice. I have reluctantly concluded, however, that, for me and my family, this is not the right time for me to leave the private sector and take on a new role in the federal government. Kellyanne and I continue to support the President and his Administration, and I look forward to doing so in whatever way I can from outside the government.

It seems that the Conways have their hands full. (Photo of Kellyanne Conway, George Conway, and their twins, via Kellyanne Conway's Twitter feed.)

It seems that the Conways have their hands full (photo of Kellyanne Conway, George Conway, and their twins, via Kellyanne Conway’s Twitter feed).

Conway’s decision to withdraw from the process for family concerns makes sense. He and Kellyanne have four children and two demanding jobs. Their life after the election — splitting time between D.C. and New York, with Kellyanne logging long hours in the White House and George looking after the kids (while still working at Wachtell, a famously demanding firm) — has been hectic, to say the least.

While eminently understandable, Conway’s decision met with surprise and disappointment at both the White House and the Justice Department. The Trump administration has been filling the DOJ’s ranks with superstars, like Deputy Attorney General Rod Rosenstein and Associate Attorney General Rachel Brand, and Conway — one of the nation’s top civil litigators, a graduate of Harvard College and Yale Law School, and a former law clerk to the renowned Judge Ralph Winter (2d Cir.) — would have been a great addition to the roster.

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This is admittedly speculative on my part, but I can’t help wondering whether factors other than family considerations might have contributed to Conway’s decision. First, I suspect that the slowness of the selection and vetting process might have dampened his enthusiasm. He was identified as the likely AAG for Civil back in March, and it’s now June. (Indeed, the delay in officially announcing his nomination led me to wonder earlier this week whether he might be having second thoughts.)

Second, I’m guessing that D.C. divisiveness — reflected, for example, in disappointingly party-line votes for superbly qualified nominees like Rachel Brand (52-46) and Sixth Circuit Judge Amul Thapar (52-44) — probably made Conway less than thrilled about enduring the highly partisan process of Senate confirmation (not a fun experience even in good times, and positively unpleasant today). As a longtime partner at a top law firm where profits per partner hover around $6 million a year, Conway might very well have thought, “I don’t need this s**t.”

Finally, it’s quite possible that recent turmoil in the Trump administration played a role in Conway’s choice. In the past few weeks, several individuals have either left the Trump administration or withdrawn from consideration to join it, including Michael Dubke, who stepped down as White House communications director; James Donovan, who withdrew from consideration as deputy Treasury secretary; and at least half a dozen people who interviewed for the post of FBI director. Recent pieces in the New York Times and Politico claim that the ongoing investigations into Trump associates’ contacts with Russia are deterring qualified individuals from government service.

With DOJ service off the table, what’s next for George Conway? If I were in his shoes, I’d angle for an appointment to the Second Circuit, the great appellate court for which he once clerked. As I noted last month in my nationwide round-up of possible circuit-court nominees, there are two open New York seats on that court, and not many contenders. (The only name I’ve heard as a serious candidate is Judge Richard J. Sullivan (S.D.N.Y.); if you’ve heard of others, let me know.)

It could be tricky at first for the Conways to split their time between New York and Washington, but over the long term, assuming they eventually want to return to the New York area after Kellyanne’s White House service, a life-tenured federal judgeship based out of Manhattan would be perfect. The pay cut isn’t a problem; the Conways are worth tens of millions, and retired Wachtell partners get generous benefits. And concerns expressed by some over excessively close ties between the Justice Department and the White House, with George at the DOJ and Kellyanne in the White House, wouldn’t apply if George took the bench (although he might have to recuse from certain cases, like the Emoluments Clause case filed in the Southern District of New York).

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So that’s the latest exciting news from the nation’s capital. Say what you will about the Trump administration, but it’s definitely not boring.

UPDATE (3:38 p.m.): I was asked on Twitter whether George Conway could get retirement benefits from Wachtell Lipton if he took the bench. I believe he could. Before joining the S.D.N.Y., Judge Katherine Forrest disclosed such benefits coming from Cravath, Swaine & Moore. Mary Jo White, as she left Debevoise & Plimpton to lead the Securities and Exchange Commission, similarly disclosed that the firm would liquidate her retirement benefits and pay them out as a lump sum. (Conway would of course have to recuse on any Wachtell Lipton cases anyway.) [UPDATE (6/3/2017, 9:53 a.m.): Some judges recuse in matters involving their former firm and partners, and it’s often prudent, but it’s not always required.]

UPDATE (6/5/2017, 1:14 p.m.): It sounds like Conway feels pretty good about his decision this Monday morning. See Trump Proves His Own Lawyers Have Been Lying To The Courts Regarding The ‘TRAVEL BAN’ (and the Conway tweet embedded therein).

As Trump Weighs Shake-Up, He Faces Recruiting Challenge [New York Times]
Russia probe scares off potential appointees [Politico]
Russia scandal ices government lawyer hiring [Politico]
James Donovan Backs Out as Nominee for No. 2 Treasury Job [DealBook / New York Times]

Earlier:


DBL square headshotDavid Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.