Stephen Miller Spent 2023 Preparing for His Infernal Comeback

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.