‘fire With Fire’: How America First Legal Plans To Fight Democrats

The American Civil Liberties Union has been a thorn in President Donald Trump’s side for years. The civil liberties group took legal action over 430 times in his first administration, challenging his policies on deportations and travel bans. Its mission has been to keep him tangled in court.

For America First Legal, the ACLU’s approach was an inspiration.

The law firm, co-founded by deputy chief of staff Stephen Miller in 2021, is hiring scores of young lawyers and training them to fight “fire with fire” for the remainder of the president’s term and on into a post-Trump world. (Miller is no longer formally associated with the group.)

“Our focus has been solely on fighting and fighting and fighting and fighting and fighting,” said AFL co-founder and President Gene Hamilton in the organization’s first in-depth interview about its mission.

It’s an ethos familiar to the famously litigious president and Miller, who launched the organization as the “conservative response to the ACLU.”

The group’s ambition is broader cultural change using the courts as an ideological cudgel. The ACLU, by way of example, spent decades expanding not only the protections of the First Amendment but also the public’s conception of free speech. AFL is similarly playing a long game with its sights set on forcing changes to issues such as immigration, transgender rights, and diversity, equity and inclusion initiatives.

These goals mean the organization can advance its cause even when it loses in court by getting its arguments into the record and building legal theories that could one day persuade a majority. Most recently, the Supreme Court overturned Trump’s order ending birthright citizenship, a ruling that the organization called “a major loss for the rule of law.”

But Justice Clarence Thomas, in his dissent, picked up on an argument AFL made in its brief on behalf of 12 senators and 16 representatives, which pointed to a necessity of being “subject to the jurisdiction” of the U.S. to receive citizenship.

Children born to those with diplomatic immunity are not granted automatic citizenship, the brief argued, because they do not have complete allegiance to the United States. Similarly, babies born to women who come to the U.S. for the purpose of giving birth should not be given citizenship, AFL argued. Thomas’ dissent and AFL’s argument offers a legal rationale that five justices at some point in the future could conceivably use to reverse the ruling.

The high court last month also granted AFL’s request to challenge a 2023 Washington state law which allows operators of emergency shelters to notify state authorities, rather than parents, when children run away to pursue gender-affirming care. The court will consider whether parents whose children were not affected by the law have the right to sue. A victory could allow a broader challenge to the law.

For Hamilton, who served as deputy White House counsel during the first Trump administration, Thomas’ reference to their brief and the court’s decision to consider their suit are evidence that AFL is “building a movement that will fight the most critical battles of our time for generations to come.”

The focus on transgender issues is a driving force for AFL. Early in the second Trump administration, the Department of Education investigated five Virginia school districts AFL flagged over Title IX concerns on sports and gendered bathrooms. The fight against having people assigned male at birth using female bathrooms and participating in female sports was so clear, Senior Counsel Ian Prior said he had a feeling Trump’s administration would act.

“There didn't need to be coordination [with the administration], because I knew exactly just from the zeitgeist of where things were, what the priorities of the Trump administration were going to be here,” Prior said. “We have the institutional knowledge of certainly Fairfax, but these other school districts to really start the process and help the Trump administration identify some early school districts to start investigating.”

DEI is among the areas AFL has had its most success. Working hand in glove with an administration willing to use the power and purse of the federal government to achieve its goals, AFL has piled up a series of victories, including successfully suing to reinstate a tenured professor who was (allegedly) fired for objecting to Ohio Northern University’s race-based hiring practices.

Hamilton, who also served stints in the Justice Department and the Department of Homeland Security, also pointed to Disney taking down its DEI workforce page and Southwest Airlines abandoning its DEI hiring practices after AFL’s complaints.

That “will make the next company think twice before it acts unlawfully,” he said.

Conservative legal firms are not new. Alliance Defending Freedom, Institute for Justice and others are a part of the Washington landscape. The Federalist Society, devoted to an originalist reading of the Constitution, was founded in 1982 and has become one of the most influential legal organizations in the country.

But AFL is different, acting with a war-room mindset more typical of a political campaign than a legal conference room.

AFL’s “speed and aggression,” and its desire to push the envelope, caught the legal world by surprise when it first opened its doors, said O.H. Skinner, CEO of American Juris Link, a legal nonprofit that connects lawyers.

AFL “really shook the existing sleepiness off of the nonprofit side of conservative litigation,” Skinner said. “AFL emphasized speed and tenacity, recognizing how crucial it is to move against government policies and rules as quickly as possible in order to get swift judicial orders. They didn't sit on their hands and play nice with everybody.”

In its first years, when Joe Biden was president, AFL worked with state attorneys general to challenge that administration’s immigration practices. It sued the administration for refusing to adhere to the Taylor Force Act, which prohibits the U.S. funding of the Palestinian Authority. It successfully aided in striking down Biden’s race-based farm loan forgiveness program. In 2024, AFL unearthed photos of then-Vice President Biden visiting with his son Hunter Biden’s Chinese business associates in 2013, which led to a storm of media coverage and was fodder for a Congressional investigation into the alleged Biden foreign business ties. The Biden family denied any corrupt business dealings.

AFL’s aggressiveness and desire to be the ACLU “on the right” were borne out of the frustration Miller and Hamilton felt during the first Trump administration when it seemed a lawsuit dropped after every executive action.

“Every single day, sue, sue, sue, sue, injunction, injunction, injunction, injunction,” Hamilton said of his time working with Miller in the first Trump administration and the surge of legal challenges they received from Democrats.

“It got frustrating, because you would think that, well, where's our help, where's the groundswell of people who say, who believe in the things that we believe, but why is there not anyone who is there to be helpful?”

Miller declined to be interviewed.

Hamilton describes his principles as being “very very similar” to Miller’s, with their ideas melding together over a decade of knowing each other, like what happens in a long-term relationship with a “significant other.”

Ben Wizner, ACLU’s deputy legal director, disagreed with the comparison, saying, "unlike the ACLU, [America] First Legal shows little interest in being a non-partisan defender of core constitutional principles. Rather, they are an arm of Stephen Miller's project to turn back the clock on civil rights and liberties."

The firm believes that its biggest fights are ahead. At some point, Democrats will control Congress, the White House or both, and push not only an agenda anathema to conservatives, but target former Trump officials, AFL’s top brass believe.

House Democrats have already said they hope to investigate and possibly prosecute Trump officials, alleging financial corruption and accusing the administration of breaking laws in its pursuit of undocumented immigrants and with its deadly strikes on alleged drug boats.

House Speaker Mike Johnson last month warned Republicans attending the Faith and Freedom Coalition’s annual "Road to Majority" conference that “half” of those in attendance would be targeted by Democrat probes if the GOP fails to hold the majority.

That’s the next battle, Hamilton said. AFL will represent “people who are targeted by a weaponized Department of Justice, people who are targeted by radicals in House committees,” he said.