Stephen Miller was already one of the most powerful people in Washington when he stepped in to replace Susie Wiles as President Trump’s chief of staff on Monday, a position that expands his extraordinary influence over the hard-charging executive.
But whether the bellicose former Santa Monica High School Viking can make good on his muscular threats as Trump’s new right-hand man remains an open question — one the courts have begun to answer, even as pundits disagree.
“The single biggest takeaway of this whole announcement is what it symbolizes and the message it sends to Democrats,” said Josh Hammer, senior counsel for the Article III Project, a conservative advocacy organization that promises to “bring brass knuckles to fight leftist lawfare.”
Miller has long sought to jail journalists, undermine the authority of judges, surge armed soldiers into American streets and suspend the writ of habeas corpus, a legal process that allows immigrants to challenge their detention.
But despite his “Darth Vader Sith lord persona,” Hammer said, the new White House chief of staff may find himself hemmed in by the role of a bureaucrat.
“I can’t imagine anything like that is remotely under consideration,” Hammer said. “He’d be the first to admit that he’s essentially there as an operative.”
Many critics echoed that assessment, with caveats.
“Stephen Miller has been calling a lot of the shots already,” said Bruce D. Brown, president of the Reporters Committee for Freedom of the Press. “The combination of his elevation and the shake-up in the national security division at the Justice Department suggests that we might be in for a rocky ride in the remaining two years of the administration.”
Still, Miller’s power to avenge the president may be limited after his party was pummeled in the midterms.
The drubbing has already put the pair at odds over Miller’s much-maligned mass deportation program, which Trump acknowledged “was too tough,” in an interview Sunday with Ross Douthat on “60 Minutes.”
“I’d love to do something on immigration,” Trump said. “I think that’s something that’s actually doable.”
That could inflame Miller, the effort’s architect.
“This is his baby,” Hammer said. “I’m sure he’ll be poring over the data to try to talk the president out of” walking it back.
Miller also faces growing opposition from the courts to his wish list, with recent appellate decisions on press leaks and military deployments breaking in his opponents’ favor.
In October, one of Trump’s 9th Circuit Court nominees joined a Biden pick in quashing any future attempt to federalize National Guard troops without invoking the Insurrection Act — a move the president has regularly threatened but never yet followed through on.
Then, on Tuesday, a 4th Circuit panel ruled the Justice Department could not compel LinkedIn to hand over a trove of records that the department hoped would help it ferret out leaks, noting that “press freedom is among those things viewed by autocrats worldwide as a threat to their grip on power.”
“This ruling is a big deal and will quickly become one of the leading opinions in the area,” Brown said. “The court recognized that confidential sources are the ‘lifeblood’ of investigative reporting and that dragnet demands from technology companies to reveal those sources violate the law.”
Miller has also floated removing “crazy communist” federal judges or suspending the right of habeas corpus, which has increasingly been used by immigrants held in federal detention facilities to petition judges to order their release.
President Lincoln took the extraordinary step of suspending habeas corpus in order to detain Confederate sympathizers, spies and saboteurs during the U.S. Civil War — a move that earned him the epithet “King Lincoln” and spurred bitter court fights and ugly battles in Congress.
Miller has argued that Trump has the authority to suspend the law because immigrants arriving at the border constitute an “invasion” — a legally dubious claim, especially as the president likes to boast that the border is more secure than ever.
Miller would face almost insurmountable opposition from both the Supreme Court and a newly Democratic Congress, both of which are likely to argue the power to impeach judges or suspend basic rights belong to Capitol Hill, experts said.
“You can’t just fire a federal judge because you don’t like what they’re doing,” said retired U.S. District Judge Jeremy Fogel of Keep Our Republic’s Article III Coalition. “One of the reasons we went to war with Britain is because the king kept firing judges because he didn’t like their rulings.”
Sowing distrust in the judiciary and sweeping judges off the bench have become a go-to play for autocrats in countries such as Turkey and Hungary, he said. Similar attempts have sparked widespread street protests in Israel and Mexico in recent years.
“It’s not like we’re the only country where these kinds of conflicts come up, but what’s unique about us is we probably have stronger guardrails,” Fogel said.
He and others worried the rough-and-tumble rhetorical style Miller helped define could continue to cause problems, even if legal efforts to remove judges or muzzle journalists fail.
“When judges are called rogues or radicals, not long after that you start seeing memes on social media saying that person should be dead,” Fogel said.
“I’m sure the debasement of journalists will continue,” Brown agreed. “That threat continues to be the highest priority.”
Despite Miller’s pugnacious pronouncements, his best bet may be quiet backroom dealing to consolidate what remains of Republican power — including efforts to push through confirmation of Trump’s pending judicial nominees before the end of the year.
“At a bare minimum, the pending lower court nominations have to be confirmed — it should be the lowest of the low-hanging fruit,” Hammer said. “Now’s really the time. This is the race.”
There are currently 11 District Court nominees pending, and more than a dozen additional vacancies Trump could struggle to fill once the new Congress is sworn in on Jan. 3.
After that, pundits predict a flurry of official inquiries that could sweep up many top administration officials, including Miller himself.
“Stephen Miller is at the center of the major policy decisions happening in the administration,” said Rep. Robert Garcia (D-Long Beach), who will head the House Oversight Committee next year. “We believe he’s been at the center of actions that are unconstitutional, unjust and possibly illegal, so we’re of course going to investigate that.”