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America First Legal, a Trump-Aligned Group, Is Spoiling for a Fight

The group, headed by the former Trump adviser Stephen Miller, has filed more than 100 legal actions against “woke” companies and others. But winning may be beside the point.

Stephen Miller declared the America First Legal Foundation to be “the long-awaited answer to the A.C.L.U.”Credit...Haiyun Jiang for The New York Times

By Robert Draper

Reporting from Washington

March 21, 2024

The legal group has filed complaints with the Equal Employment Opportunity Commission asserting that “woke corporations” like Disney, Nike, Mattel, Hershey, United Airlines and the National Football League discriminate against white males. It has filed lawsuits arguing that school districts in Pennsylvania, Virginia, Maryland and Arizona promote “radical” pro-transgender and pro-gay attitudes. It has filed amicus briefs to protect Florida minors from drag shows and former President Donald J. Trump from a federal jury trial.

For those who wonder what Stephen Miller has been up to since he left the Trump White House as senior policy adviser, the answer is litigating loudly.

His conservative nonprofit group, America First Legal Foundation, is no ordinary law firm, beginning with the fact that Mr. Miller, 38, is not a lawyer. But judging by the flurry of filings it has generated over the past three years — more than a hundred lawsuits, E.E.O.C. complaints, amicus briefs and other legal demands — the foundation’s small in-house legal team punches above its weight.

Assessing its success rate is more complicated, partly because many of the group’s cases are still pending, while the E.E.O.C. does not publicize which complaints it investigates. But winning may be beside the point.

America First Legal is primarily notable as a policy harbinger for a second Trump term, and for the considerable trouble it causes. “There are lots of conservative legal organizations out there,” said Thomas Healy, a professor of law at Seton Hall University. “What distinguishes America First Legal from the others is its unabashed connection to MAGA ideology.”

Mr. Miller, who declined to be interviewed for this article, is highly likely to return to a second Trump administration should the former president win in November. His legal group includes several lawyers who worked in Mr. Trump’s Justice Department, and who share his hard-line views on immigration, gender and race.

Mr. Miller has in the meantime maintained close alliances with elected Republicans. Representative Jim Jordan of Ohio, the chairman of the House Judiciary Committee, along with 44 other G.O.P. members of Congress, enlisted America First Legal to submit a brief to the Supreme Court ahead of a hearing on Monday arguing that the Biden administration had pressured social media companies to censor conservative free speech.

Mr. Miller’s group performed the same service for Mr. Jordan and 22 other elected Republicans in January, arguing that the Justice Department had misapplied statutes in the harsh sentencing of several Trump supporters who were found guilty of storming the Capitol on Jan. 6, 2021.

At a recent Judiciary Committee hearing on border security, the group’s executive director, Gene Hamilton, contrasted the Trump administration’s record with that of the Biden White House. “They don’t actually want an end to this crisis,” he said of the current administration. When Representative Pramila Jayapal, Democrat of Washington, reminded him of the Trump administration’s policy of separating undocumented immigrant families at the border, Mr. Hamilton dismissed her criticisms as “crocodile tears.”

An Opening Act

ImageMr. Miller stands in the background as Donald J. Trump talks to two other men, one of whom is wearing a law enforcement uniform and one of whom is wearing a suit.

Mr. Miller at the White House in 2018. He lasted all four years of the Trump presidency, a rarity among senior staff members in a chaotic administration.Credit...Doug Mills/The New York Times]

Mr. Miller founded the America First Legal Foundation two months after the Trump presidency ended. He declared it to be “the long-awaited answer to the A.C.L.U.,” referring to the century-old civil liberties advocacy group that first came to prominence in 1925, when it challenged a Tennessee law banning the teaching of evolution in what came to be known as the Scopes trial.

“I guess imitation is the greatest form of flattery,” the A.C.L.U.’s executive director, Anthony D. Romero, said in an interview. “Still, it’s like saying the El Segundo Little League champions are the answer to the Texas Rangers.”

Mr. Miller is not known for a lack of bravado. A former communications director to Senator Jeff Sessions, Republican of Alabama, Mr. Miller joined Mr. Trump’s presidential campaign in early 2016 and soon became the candidate’s warm-up act. “Are you prepared to seize a once-in-a-lifetime opportunity?” he exclaimed to one crowd in Indiana.

As the White House architect of Mr. Trump’s immigration policy, Mr. Miller frequently pushed for restrictions greater than what other administration officials were comfortable with. More often than not he prevailed because of his relentlessness and views that aligned with the president’s. He was the driving force behind Mr. Trump’s travel ban on immigrants from mostly Muslim countries and the use of Title 42 public health restrictions to shut down immigration at the southern border during the pandemic.

He lasted the full four years of the Trump administration, a rarity among senior staff members in a chaotic White House. His loyalty served him well. Mr. Miller made contacts with conservative state attorneys general, including Ken Paxton of Texas, and developed first-name-basis relationships with Republican senators.

He also met his wife, Katie Waldman, at the White House, where she served as Vice President Mike Pence’s press secretary. Mr. Trump attended their wedding, held at his Washington hotel, in February 2020. A year later, the former president bestowed his seal of approval on Mr. Miller’s new project.

“The era of unilateral legal surrender must end,” Mr. Trump said in a statement, “and I hope all America First patriots will get behind America First Legal.”

In reality, Mr. Miller’s group joined a crowded field of conservative legal advocacy organizations that included Citizens United, Students for Fair Admissions and Alliance Defending Freedom, each of which has scored landmark victories at the Supreme Court.

Mr. Miller’s group, with fewer than 10 lawyers on its payroll, is considerably smaller than the others. (Alliance Defending Freedom has roughly 100 full-time lawyers. The A.C.L.U. has about 550 lawyers.)

Image

Mr. Miller and Katie Waldman, both dressed in formal attire, link arms in a room with glass-paned doors and windows. In the background are trees and an Australian flag.

Mr. Miller met his wife, Katie Waldman, at the White House, where she served as Vice President Mike Pence’s press secretary.Credit...Patrick Semansky/Associated Press]

The group’s abilities may be somewhat hamstrung by its budgetary choices. In 2022, the most recent publicly available tax filing, America First Legal paid $1.7 million of its $44 million budget to lawyers, while devoting $29.6 million to promotion and advertising.

To fill in the legal gaps, Mr. Miller has relied heavily on two conservative law firms with considerable experience in high-profile cases: Consovoy McCarthy, based in Arlington, Va., whose nine partners include five who served as clerks to Justice Clarence Thomas; and the Austin-based office of Jonathan Mitchell, who devised the legal mechanism for the Texas legislation that all but banned abortion in the state.

Many of America First Legal’s early actions took place in Texas, where it scored a victory in 2021 when it joined the Texas agriculture commissioner, Sid Miller, in successfully suing the Biden administration for including billions of dollars in debt relief to Black farmers as part of the American Rescue Plan. Mr. Hamilton, of Mr. Miller’s group, exulted that the debt relief program had “effectively been crushed in court by America First Legal on behalf of its clients.”

A year later, the administration devised a workaround with a provision in the Inflation Reduction Act that offered more than $5 billion to aid “distressed borrowers,” or farmers who had “experienced discrimination.” The original language targeting the money to “farmers of color” was removed.

In other cases, Mr. Miller’s group has provided free counsel to people who seek action against better-financed entities. Recent clients include a white male freelance scriptwriter, Brian Beneker, who claims that CBS’s diversity policies have favored less qualified writers of color at his expense, and a white male law professor, Scott Gerber, who contends that he was fired from Ohio Northern University for speaking out against what he says is the school’s quota-hiring policy.

“When you’re going against a government, a corporation or a university with big budgets, having a nonprofit with an experienced legal team on your side can make a huge difference,” said Zach Greenberg, the senior program officer for the Foundation for Individual Rights and Expression, a free-speech advocacy nonprofit that has also consulted with Mr. Gerber.

‘More Heat Than Light’

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Mr. Miller points as the talks. In the background is a large sign that says “CPAC.”

Mr. Miller is highly likely to return to a second Trump administration should the former president win in November.Credit...Haiyun Jiang for The New York Times]

Mr. Romero of the A.C.L.U. said that some of Mr. Miller’s cases, like the lawsuit against Black farmers, had merit. But he added that while the A.C.L.U. had shown a historical willingness to take on First Amendment cases even when the clients were the Ku Klux Klan or the National Rifle Association, “I don’t see that in the cards for Stephen Miller’s group.”

“They seem less interested in defending core principles and more about cherry-picking cases that feed the grievances of the MAGA wing of the Republican Party,” he said.

Last month Mr. Miller’s group sued Arizona’s largest public school district, whose headquarters are in Mesa, for what the amended complaint described as “an astonishing situation that once would have been unthinkable.” It claimed that the district’s policy was to “encourage” students to change their gender identification and to forbid notifying parents if students chose to do so. The complaint then predicted several outcomes of such a policy, including sexual violence and genital mutilation.

The lawyer for the Mesa district, Robert D. Haws, declined to comment, citing the pending status of the litigation. But in his motion to dismiss the case filed this month, he said that the “parade of potential horribles” imagined by America First Legal was “completely off the rails.” Mr. Haws also said the school district was simply following a policy that forbids discrimination, including against transgender students.

Some of the litigation pursued by Mr. Miller’s group has suffered from questionable timing, at least from a legal perspective. In April 2021, America First Legal sued the San Antonio City Council for “canceling” Chick-fil-A (whose chairman, Dan T. Cathy, opposes same-sex marriage) by refusing to issue the chain a contract at the city’s airport. But the complaint was filed six months after Chick-fil-A, which has more than 40 restaurants in the San Antonio area, abandoned its plans for an airport location.

If the Chick-fil-A complaint seemed belated, a more recent filing by America First Legal might appear premature. In October, the group sued New York University on behalf of a first-year law student, a white male, who asserted that if he applied to the school’s law review he would most likely be turned down because of his race and gender. The school’s lawyers have filed a motion to dismiss, arguing that the lawsuit engages in “fanciful speculation” about a selection process that has yet to occur.

Kenji Yoshino, a law professor at N.Y.U., said that, America First Legal’s track record seems to suggest “more heat than light.” The group has yet to argue a case before the Supreme Court, and more than two years have passed since it succeeded in thwarting the Biden administration’s agenda.

Last week, during a federal court hearing in the Trump documents case, Judge Aileen M. Cannon rejected the argument made by Mr. Miller’s group in an amicus brief that the case should be dismissed because the National Archives and Records Administration lacked the authority to make a criminal referral. She called it “a red herring.”

Robert Draper is based in Washington and writes about domestic politics. He is the author of several books and has been a journalist for three decades. More about Robert Draper

A version of this article appears in print on March 22, 2024, Section A, Page 12 of the New York edition with the headline: Miller’s Legal Group Is Picking Many Fights To Fuel MAGA Causes. Order Reprints | Today’s Paper | Subscribe

See more on: U.S. Politics, American Civil Liberties Union, Equal Employment Opportunity Commission, Donald Trump

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In Texas, Jonathan Mitchell — the far-right attorney who was behind Texas’ draconian anti-abortion law — has also declared war on a part of the Affordable Care Act of 2010, a.k.a. Obamacare, that he claims is discriminating against Christians. Mitchell has filed a lawsuit challenging the ACA’s requirement that a private company’s health care plan cover preventative services, including anti-HIV drugs, which some far-right Christian fundamentalists view as pro-gay. And on Wednesday, September 7, Judge Reed O’Connor, a hard-right appointee of President George W. Bush, agreed with Mitchell’s lawsuit and the claim that anti-HIV medication “facilitates and encourages homosexual behavior.”

The Washington Post’s Ruth Marcus is vehemently critical of Reed’s ruling and Mitchell’s lawsuit in her September 8 column, arguing that both of them are willing to endanger the health and wellbeing of Americans in order to pander to Christianity’s lunatic fringe. The company that Mitchell is representing in the lawsuit is Braidwood Management.

“Mitchell, pressing an array of arguments that conservatives have deployed to dismantle the modern administrative state, argued that the mandates for free contraception and other preventive services were unconstitutional because the entities imposing the rules weren’t subject to enough presidential control or congressional oversight,” Marcus explains. “He lost on the contraception claim, but the judge, Reed O’Connor, found that the panel that determines what other services should be covered is unconstitutional because its members aren’t appointed by the president or confirmed by the Senate — threatening guaranteed no-cost coverage for everything from cancer screening to vaccines.”

The Post columnist continues, “The decision might not stand. After all, this is the same judge who, in 2018, struck down the entire Affordable Care Act based on a cockamamie theory involving the supposed unconstitutionality of a single section — the individual mandate. Last year, the Supreme Court, ruling 7-2, slapped him down, finding that Texas and others challenging the ACA didn’t have standing because they hadn’t proved the provision injured them…. Yet, here we go again; pushed by conservative lawyers, a conservative judge — O’Connor was nominated by George W. Bush — bends over backward to accommodate strained claims of religious liberties.”

The 64-year-old Marcus, who is Jewish, stresses that she isn’t trying to be “dismissive of freedom of religion.”

“As a member of a minority faith,” Marcus writes, “I’m sympathetic to such arguments…. But, as this dispute demonstrates, things have gotten entirely out of whack and, in this era of conservative-dominated courts, now tilt too far in the direction of religious rights.”

Marcus continues, “Medicine has made enormous strides since the emergence of the AIDs epidemic. Antiviral PrEP medications — short for pre-exposure prophylaxis — reduce the risk of contracting HIV from sex by 99 percent. As a result, a government advisory committee recommended, in 2019, that the drugs be made part of the mandatory package of fully subsidized preventive care. This is a development that everyone should cheer, including people who call themselves Christians: It prevents needless death.”

The columnist argues that it is twisted logic to claim that coverage of anti-HIV drugs is “subsidizing gay conduct.”

“If it’s subsidizing gay conduct to cover anti-HIV medication,” Marcus writes, “then isn’t it subsidizing gay conduct to pay gay employees? The court in Bostock (v. Clayton) said religious rights might ‘supersede’ anti-discrimination law ‘in appropriate cases’ and put off the issue for another day. The Mitchell-O’Connor approach would carve a gaping loophole in that protection, which might suit this conservative court just fine.”