‘Let’s Take the Fight to Them’: Why This Legal Group Keeps Suing Biden Administration
Virginia Allen /
An organization called America First Legal has filed at least two dozen lawsuits against the Biden administration.
“We need to fight for the American people, advance conservative principles, and be there to really make a difference,” Gene Hamilton, vice president and general counsel for America First Legal, says.
Hamilton served as counselor to the attorney general at the Justice Department during the Trump administration and he recalls growing weary of various leftist groups filing lawsuits to block President Donald Trump’s agenda.
“It’s a little bit of an exaggeration … ,” Hamilton says, “but it’s almost close to the truth that every time we’d have a press conference, there would be some organization that would file a lawsuit representing somebody to get us enjoined before we could even get done with the press conference to get things off the ground.”
When President Joe Biden came to office in January 2021, Hamilton and Stephen Miller, who was a senior adviser in the Trump administration, decided to “do what they do.” They, along with other former Trump administration officials, founded America First Legal.
“Let’s take the fight to them,” Hamilton says of America First Legal’s approach to fighting the policies of the Left. “Let’s be equipped and ready to bring the battles to the Left, wherever it may be, whether that’s in the government, whether that’s in big business, big education, wherever.”
Hamilton joins “The Daily Signal Podcast” to discuss how America First Legal is fighting the Biden administration’s effort to redefine sex. He also explains how the legal group is looking into Manhattan District Attorney Alvin Bragg’s prosecution of Trump.
Listen to the podcast below or read the lightly edited transcript:
Virginia Allen: Vice President and General Counsel of America First Legal Foundation Gene Hamilton is joining us today. Gene has also served as counselor to the attorney general at the United States Department of Justice. Gene, thanks for being here.
Gene Hamilton: Thanks for having me.
Allen: So go ahead first and just tell us a little bit about the mission of America First Legal Foundation.
Hamilton: I’ll start with a little bit of a backstory, which is, having served in the Department of Justice for four years and witnessed firsthand the sustained attacks on our country, on everything that we tried to do—I mean, it’s a little bit of an exaggeration to say that, but it’s almost close to the truth that every time we’d have a press conference, there would be some organization that would file a lawsuit representing somebody to get us enjoined before we could even get done with the press conference to get things off the ground.
And that was a really enlightening experience for us to be able to witness that and see, “Well, gosh, why can’t we do anything? There’s always someone who’s ready to fight. Someone on the Left is always ready to fight and stop the good work that we’re trying to do.”
So fast-forward to the end of the administration, Stephen [Miller] and I got this thing put together and we thought, “You know what? Let’s do what they do. Let’s take the fight to them. Let’s be equipped and ready to bring the battles to the Left, wherever it may be, whether that’s in the government, whether that’s in big business, big education, wherever. Take the fights to where they need to be brought.”
We need to fight for the American people, advance conservative principles, and be there to really make a difference. I think Stephen has described us as the conservative answer to the ACLU and hopefully someday we’ll be as large as them, but we’ve had a tremendous record so far and it’s been a lot of fun.
Allen: How many lawsuits has America First Legal Foundation filed against the Biden administration?
Hamilton: Well, against the Biden administration, probably a couple of dozen at least. And I think we have a total of, I don’t know, probably 80 to 90 lawsuits going on right now against various—whether it’s local schools, whether it’s the Biden administration, whether it’s corporations, other entities. We like to stay busy and we wish we could do more.
Allen: I guess you do.
Hamilton: Yeah.
Allen: That’s a lot. Well, I want to talk through some of these legal actions because I was interested to see some of the areas where you-all really are engaging. And of course, one of those issues is education.
You guys are on the forefront of really trying to protect the rights of parents within education. And in March, America First Legal Foundation, you filed a lawsuit against the Department of Education and [Education] Secretary Miguel Cardona on behalf of parents in Cedar Grove, New Jersey.
Now, this situation involves schools gathering information on kids’ sexuality. Explain what is going on here.
Hamilton: Absolutely. So, look, Congress passed a law called the Protection of Pupil Rights Act or Amendment—I forget the precise terminology. This has been on the books for decades. On the books for decades, and it gives parents the right to opt out, to get their kids to inspect curriculum and to opt out of these surveys [that are] administered to kids about certain delineated subjects.
And what we are seeing across the country in various local school districts are, whether it’s a survey that’s collecting information, sensitive information, about a third grader’s gender ideology, about their sexual habits, about all kinds of just disgusting things that you never thought would’ve ever happened, but they’re doing.
Another example, another area where this comes to the forefront is in the area of curriculum. What are you teaching your kids in your schools? What kind of things are being taught? Are you using critical race theory methods to teach children? What are you instructing them with?
Federal law, if you accept federal funding, which most public schools do, gives parents the right to object and to inspect. Well, the problem is that a lot of these school districts aren’t honoring those requirements to inspect or to object.
And so there is a process that has been set up, which is, the parents, if they suspect a violation, then they file a complaint with the Department of Education. That puts the onus on the Department of Education to conduct an investigation to look into things. They have an Office for Civil Rights, that’s their job. “Hey, what’s the school district doing? What’s going on here? Let’s get to the bottom of it.”
The problem is that the Department of Education under the Biden administration doesn’t care. They don’t want to do anything. They don’t want to look into this stuff because they agree with it.
And so we have sued the Department of Education to ask the court to require that they do their job and that they actually open an investigation and they do what they’re supposed to do, what Congress has instructed them to do.
And so we’re optimistic that we’ll prevail on that, but that’s just one example of one of the many things that we’re trying to do to fight for parents’ rights and for kids across this country.
Allen: Well, one of the other areas where you-all are seeking to bring accountability has to do with an investigation into former President Donald Trump. And obviously, we’ve all been hearing about this in the news quite a lot recently. The name Alvin Bragg has become a common name, I think, in households across the country as we understand what exactly is going on here.
So recently you-all began looking into this investigation that Manhattan District Attorney Alvin Bragg launched against former President Donald Trump, and you’re trying to obtain internal and external communications from key leaders regarding former President Donald Trump.
What do you think you might find as you investigate what was going on in this office? What were the communications back and forth?
Hamilton: Look, I mean, I think that what we’re going to see is a tangled web of key personnel making decisions based not on the interest of justice or the citizens of New York, for example, but based on preferred political outcomes. They want to take down their perceived political enemy, so they’ll stop at nothing.
So some names have already become public knowledge, like Michael Colangelo, who was the acting associate attorney general in the Department of Justice under the Biden administration. That’s the No. 3 position in the Department of Justice. He went from that to the New York district attorney’s office to work on this thing. Hmm, something seems off here.
And when you look at the underlying circumstances, also, that we’ve recently uncovered for folks relating to the circumstances surrounding the Mar-a-Lago raid, where initially the story was [the National Archives and Records Administration] said, “Well, we obtained these records, we got these records back, and we made a referral to our Office of Inspector General, who then made a criminal referral to the Department of Justice to open this investigation”—OK, interesting story.
Actually, I don’t know that the NARA IG has the power to make a criminal referral, but regardless, what they failed to talk about and what they failed to mention was that the White House also used a special access request to provide these underlying records and material from NARA to the FBI.
So think about that convoluted set of circumstances. Under the Presidential Records Act there’s only limited circumstances under which NARA can disclose presidential records, and they’re all delineated by statute. If there’s an ongoing criminal investigation, of course a court order can provide access to records. But that’s not what they did here.
They didn’t use that. They didn’t go to a court to try to obtain access to these records. Instead they created this kind of—try to watch my language here—this absurd justification to say that, “Oh, actually, we need to do this.”
Now the problem is that under the Presidential Records Act, for those types of requests, for White House special access requests, it has to be germane. It has to be material to the president’s ongoing business of the operations of the White House.
So you think about this in terms of, “Hey, what did the last president’s ethics policy look like? What kind of things were in there and how did they adjudicate problems or issues as they arose? Or what about the two presidents ago or three presidents ago?”
These are the types of things, those kind of ministerial things that pertain, that are germane to the White House’s operations that you typically use those for. That’s the only circumstances that you can under the statute.
But what they did instead was, the FBI and the DOJ approached the White House and said, “Hey, we’d really like to look at these things. Could you help us out?” And they said, “Sure, we’d be more than happy to sign off on this.” And then they provided access to the records, which led to the underlying predicate of the raid at Mar-a-Lago.
And so what we’re trying to uncover in all of these circumstances are abuses of power in the targeting of political opponents by those in law enforcement across the country, whether that’s at the federal level or the state or local level.
All Americans should be offended at the notion that political opponents of those in power can be targeted and taken out just because the regime opposes them.
Allen: And what have you-all learned so far that you’re able to share with us? And what’s really the end goal, the end objective here?
Hamilton: So, the end objective is, again, to shine a light and to expose wrongdoing. That’s really what we’re about. It’s a key part of our mission.
So we litigate cases, of course. We take cases, we file lawsuits, and we fight in courts all the time for the rights of Americans across the country. But we also do this oversight as a huge part of our mission, which is really holding people accountable and bringing things to light that aren’t going to be brought to light otherwise.
So far, there’s some stuff that we’re not ready to talk about yet and some leads that we’re working on that I probably shouldn’t talk about just yet. But again, all of this is done with an eye toward bringing accountability to people in power. If it works, it has to work both ways in this country.
In the last administration, we had all kinds of people trying to hold us accountable for different things. And look, mistakes were made in some cases, and in some cases it’s good to bring that accountability and to allow people to be held accountable. But it has to work both ways. It can’t just be a one-way street, and that is exactly why we’re here.
We’re here to try to do what the Left has done to the Right over and over and over and over again without any kind of pushback from the conservative movement. So that’s why we’re here.
Allen: And I do want to address an issue that relates to education and that I know that you-all are passionate about, and that’s protecting women’s sports. And this relates to some very recent news that we’ve seen where there was a bill put forward to protect women’s sports. It passed through the House, but not a single Democrat voted for it. Why do you think not a single Democrat is willing to say, “We should prevent men from being able to compete in women’s sports”?
Hamilton: Well, that’s a great question.
I mean, for decades, for decades and decades, people fought and women fought to have the ability to have their own athletic competitions, their own sports, their own sporting events, their own teams, because of inherent biological differences between men and women. And that was a goal, that was a shared goal, whether you’re conservative or liberal, whatever, that was something that everyone accepted in society as being a good thing for us to do.
The fact that not a single Democrat voted for that bill that you’re talking about is reflective of the capture of the leadership of that party and of the liberal movement, generally speaking, by radical ideologues who don’t want there to be biological differences, who don’t want there to be differences between men and women.
Because remember, what their mindset is today is that you can be anything you want to be at any moment in time. So if today you want to be a man and you want to identify as a man, that’s great. Tomorrow you want to identify as a woman, you can identify as a woman, and that’s fine. And that is where their leadership is, and that is where their core motivating base is.
And so there’s probably a lot of Democrats who I think at their core, in their hearts, would be more than happy to have voted for that thing, but they’re not going to dare cross their leadership to do the right thing because it is contrary to their dogma, to their current speech, and the way that they advertise everything. I mean, it’s a sad state of affairs.
It just goes to show the extent that they have moved on the Left, so far to the Left. And the things that were once mainstream even 10, 15 years ago are now viewed by them as being way far to the Right, ultra-conservative people on the Right, all the MAGA movement, when a lot of this stuff, if you just look back and you had a time machine, and you went back to 2005 and you said, “Guess what? In 18 years, men are going to be identifying as women, they’re going to be competing in sports, they’re going to be doing all kinds of things, and no one is going to do a single thing about it,” I think most people would say, “That’s ridiculous. That’s the craziest thing I’ve ever heard.” But that’s where we are.
Allen: It is where we are. And you-all have really been on the forefront and having conversations about Title IX. And the Biden administration, they have proposed a rule change to Title IX to change the definition of sex within Title IX to say it includes gender identity and sexual orientation. And this makes a way for men to be able to compete in women’s sports, for men to have access to things like women’s bathrooms, women’s locker rooms.
And we already started seeing this in some places, and specifically we saw it in Loudoun County, [Virginia]. Now, you filed a complaint against Loudoun County schools regarding a violation of Title IX. Explain what happened here.
Hamilton: In a very similar fashion, Title IX also has investigatory requirements that have to be done, school districts have to maintain to investigate and to look into violations of Title IX. That can come in the form of, in a lot of places, especially in the education setting, sexual harassment or sexual abuses, and they have to have a policy in place to look into these things.
And of course, what we believe to be the case is that Loudoun County completely failed to do that. And it’s evidenced by the fact that there was this horrible sexual assault in the bathroom of a student at Loudoun County and there was no investigation, and there was really nothing that was done about it, and it’s been a subject of a lot of debate, a lot of things going on with a lot of folks in Virginia interested in this issue.
But again, it’s an area where we hope the federal Department of Education does its job and holds people accountable for not having a policy in place. It’s a meaningful Title IX thing, but we’ll have to see what happens because this is the same department that’s pushing these regulations that are trying to redefine the ability of folks to engage in sports based on things like gender identity, and it’s nonsense.
I mean, everyone knows the statute. When Congress passed it, when they were talking about sex, they meant biological sex. Gender identity was not a thing. And the fact that they’re trying to advance this radical notion based on inherent executive authority to try to interpret some regulation violates, I think, fundamentally, one of the most core legal principles that you could have, which is the text of our statutes, are all that we have. You can’t go around the text. You can’t go around the text.
When Congress wrote biological sex into these statutes, they didn’t mean gender identity. In 1988 or 1989 or 1979 or any of these prior decades where there’s been actions in that space, there’s no concept of gender identity. This is not like a thing that people openly talked about all the time and it was not where it is today.
So we’ll see what happens with that. We’ll keep our fingers crossed, but ultimately, our job is to watch, see what happens, and when there is not action, or when there are things that are done that are wrong, is to take action and try to bring accountability for folks.
Allen: And you-all are trying to bring that accountability, not just to the government, but also to big businesses through challenging hiring practices and in so many different capacities. For those who are interested in diving deeper into the work that you-all are doing, how can they do that?
Hamilton: Well, the first thing they can do is go to our website, www.aflegal.org. We put everything there for folks to see. There’s a whole lot of things—resources, case descriptions, our oversight work. We even have a thing called the Woke Wagon where you can find the resumes and supporting information for almost every political appointee in the Biden administration. We have all kinds of stuff there which is great.
You should follow us on Twitter, follow us on Facebook, any of the other social media platforms. But we do get a lot of our stuff put up on Twitter. We make sure that that’s an active place. We are doing a new thing almost every day and it’s hard to keep up with.
But I would say, follow us, sign up for our email list, follow us on social media, go to our website. It’s interesting stuff. It should be interesting to you. If you are a conservative who cares about anything, and across the conservative movement, there’s a pretty good chance that we’re working on it.
And you should probably check out what we’re doing because it’s not just a white paper. We’re not just talking about stuff. We are actually doing things. We’re actually jumping in front lines and taking action. I think we’ve been successful and we’ve had a good record so far, but we’re not afraid to lose. We’re here to fight. That’s why we are here.
Allen: Gene Hamilton of America First Legal Foundation, thank you so much for your time. We really appreciate it.
Hamilton: Thanks for having me. Appreciate it.
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