What
more needs to be said about Stephen Miller, architect of Donald Trump’s
cruelest and most inhumane immigration policies, mentee to Steve Bannon, Camp
of the Saints aficionado, and
top contender—with
Rudy Giuliani, of course—for worst hair malfunction of the Trump years? Believe it or
not, we’re ending the year with a great deal that bears mention.
Perhaps
the nicest thing one can say about the fellow is that he’s been busy. In 2021,
after making it through an entire Trump term—that’s over 132 Scaramucci’s, if
you’re keeping count—without quitting or being shitcanned by tweets, Miller cashed
in his MAGA credentials and launched a legal nonprofit named America First
Legal. As a “conservative answer to the ACLU,” the group would, Miller promised, relentlessly sue the Biden
administration as retribution for the Democrats’ success in stymying parts of
the “America First” agenda in court. The philosophy of the group would be to “find
the weakest points and legally attack them relentlessly and as often—and
everywhere—that we possibly can.”
It
took some time to get off the ground, but last year, AFL reported a whopping
$44.4 million in revenue—up seven times from 2021. Of that largesse, $27 million alone came from the Bradley Impact Fund, a donor-advised dark money
fund that previously bankrolled a number of organizations that
pushed election fraud conspiracies in 2020.
Miller
has taken the cash and built up a legal record that reads like a checklist of contemporary
right-wing bugaboos. In January, along with the attorneys general of Oklahoma
and Texas, it sued the Department of Health and Human
Services, alleging it was part of a “globalist plan to surrender sovereignty to
the corrupt [World Health Organization].” In August, it wrote to the CEO of the Kellogg cereal
brand, arguing that the company was potentially breaching its fiduciary duty to
shareholders by trying to “sexualize its products.” (As evidence, the letter pointed
angrily to boxes of Cheez-Its featuring drag queen RuPaul and Jersey Shore star
Snooki and to a red-carpet photo of cereal mascot Tony the Tiger “linking
elbows” (gasp!) with transgender influencer Dylan Mulvaney.)
In
November, it filed a federal civil rights complaint
accusing NASCAR—you know, the sports league that only banned displays of the
Confederate flag in 2020 and has one Black driver in its top rung of
competition—of “ongoing, deliberate, and illegal discrimination against white,
male Americans,” citing its diversity programs for drivers, pit crew, and
interns. That last move represents a particular passion this year for Miller,
whose group ran an ad in late 2022 bemoaning “anti-white
bigotry.”
This
June, Miller greeted the Supreme Court’s decision to
overturn affirmative action on college campuses by vowing “to wage lawfare
against the DEI colossus.” Soon after, AFL set up a legal hotline “for
Americans who are victims of illegal bigotry at the hand of the diversity,
equity, and inclusion cult.” To get the word out, Miller decided to star in a video ad with the oily feel
and supplicating script of a late-night personal injury attorney commercial: “If
you or a loved one were denied a job, raise, promotion, or professional opportunity
as a result of diversity quotas, equity mandates, affirmative action, or other
racial preferences, we want to hear from you … Please contact us now at
1-877-AFL-5454.”
Since
last year, AFL has filed 25 complaints against various companies
with the Equal Employment Opportunity Commission, even as the commission’s
chair has said that the overturning of
affirmative action “does not address employer efforts to foster diverse and
inclusive workforces” and maintains that “it remains lawful for employers to
implement diversity, equity, inclusion, and accessibility programs.” So far,
none of the complaints have been taken up by the commission.
In
addition to dubious discrimination complaints, AFL has pioneered an even more
outlandish legal strategy to go after “woke
corporations.” In
August, the group filed a lawsuit accusing Target of securities fraud after the
retailer’s stock price tanked following a boycott from conservatives incensed
at an LGBTQ-themed product line. “For Target to voluntarily and aggressively
associate itself with this movement is an act of sabotage against Target
shareholders and a destroyer of value,” AFL wrote in a June records request. In
early December, Benjamin Edwards, the chair of the Securities Regulation
Section for the Association of American Law Schools wrote in The Daily Beast that
AFL’s legal claim against Target was so frivolous that “the lawsuit itself
resembles a fraud.” “America First Legal benefits from these junk filings
because it issues press releases and draws publicity allowing it to recruit
more donors,” Edwards wrote.
Indeed,
the group’s press releases, which can read like a mad-lib mash-up of Fox News
buzzwords, seem tailor-made for going viral on right-wing media. A sampling: “New
Racist Biden [Executive Order] Installs Equity Czars in Every Federal Agency
and Converts Entire Exec Branch Into Woke DEI Cult: AFL Vows Relentless
Opposition”; “America First Legal Petitions the Department of Justice to
Require Adam Silver and the National Basketball Association to Register as
Foreign Agents of the Chinese Communist Party”; “America First Legal Sues the
National Archives and DOJ on Behalf of John Solomon For Illegally Refusing to
Make Public Gov’t Records on the Fabrication of the Russian Collusion Lie That
Were Declassified by President Trump.”
AFL
doesn’t have a ton of clear legal victories to speak of—its few clear wins have
mostly come in archconservative legal
districts in deep-red states. But notching courtroom victories doesn’t seem to
be Miller’s top priority, at least when it comes to spending. The Daily Beast’s
Roger Sollenberger reported this December that a whopping 85
percent of the AFL’s $30 million budget last year went to advertising, while
only 4 percent was spent on legal services. With just one-fourth of the ACLU’s budget,
Sollenberger noted, the AFL spent twice as much on ads.
Most
of this expenditure seems rooted in the desire to gain the attention of one
person in particular—the former president, for whom the AFL has become a
reliable cat’s-paw. Over the past year, the group has relentlessly
sued the Biden
administration in an effort to fabricate another email scandal, has defended
Trump’s attempts to overturn the gag order in his January 6 case, and has filed
several FOIAs demanding information about Fulton
County District Attorney Fani Willis and New York County District Alvin Bragg’s
investigations into Miller’s former boss.
I
should say former, and potentially future, boss. Miller is reportedly part of
a small in-group of Trump toadies influencing his second-term agenda and is already
being floated as a potential attorney general
(though Miller’s nonexistent law degree might as well be from Trump University).
Miller’s organization also consulted on Project 2025, the Heritage Foundation’s
nearly 1,000-page battle plan for rooting out the “Deep State” in a second Trump
administration. The AFL’s general counsel, Gene Hamilton, who helped Miller
write the Muslim ban, wrote the chapter on the DOJ, calling for a “top-to-bottom
overhaul” of the department that would wield “full force of federal
prosecutorial resources to investigate and prosecute all state and local
governments, institutions of higher education, corporations, and any other
private employers who are engaged in discrimination in violation of
constitutional and legal requirements.”
But
of all the issues that so exercise Miller’s twisted passions, immigration has
always been his driving obsession. In November, when The New York
Times asked the Trump campaign for comment on
the former president’s immigration plans come a second term, the campaign
referred them to—who else—the man who allegedly enjoyed seeing photographs of separated
families at the southern border.
Under
a new administration, Miller promised in a disturbingly frank interview, Trump would
once again attempt to end Deferred Action for Childhood Arrivals and reinstate a version of the Muslim ban. He
would work to revive the public health emergency powers law Title 42 to deny
asylum claims. To drive deportations into the millions, he would shift
the administration’s enforcement focus from individual arrests of undocumented
immigrants to mass raids of workplaces and public spaces. To deal with the
increase, Trump would build what Miller described as “vast holding facilities,”
likely built in Texas near the southern border, “that would function as staging
centers” for immigrants awaiting deportation. And he would deputize state and local
police officers to aid enforcement and invoke the Insurrection Act to reassign
federal law enforcement personnel to the border.
“Any
activists who doubt President Trump’s resolve in the slightest are making a
drastic error: Trump will unleash the vast arsenal of federal powers to
implement the most spectacular migration crackdown,” Miller told the Times,
portraying the crackdown as a “blitz” that would overwhelm legal challenges. “The
immigration legal activists won’t know what’s happening.”
Such
an agenda, however, would still need “the right kinds of attorneys” to carry it
out, Miller admitted. And he has been working to make it so, as part of an
inner circle of Trump allies looking to build a recruiting network for potential
legal staffers. They hope to build a cadre of Trump loyalists even more
radical than—in their view—the weak-kneed “squishes” of the
Federalist Society. In the words of former Trump administration official
Russell Vought, who runs a think tank with close ties to Miller and is helping
with this effort, the right-wing legal juggernaut that helped
cement the Supreme Court’s conservative majority just “doesn’t know what
time it is.” (The catchphrase is a
favorite among young New Right activists.)
This
effort goes at least part of the way toward explaining what Miller has been up
to this year. Beyond driving clicks and donations, AFL’s work—hiring lawyers
from the offices of conservative attorneys general, finding sympathetic judges,
partnering with right-wing law firms, testing out legal theories—seems oriented
less toward winning legal victories in the present than toward preparing the
ground for the future, one in which a second Trump administration is staffed to
the gills with rubber-stamping lawyers who, when the opportunity arrives, will finally
know what time it is.