Texas AG Ken Paxton is getting free help from Stephen Miller's America First Legal

Exclusive: According to contracts provided to Law Dork, America First Legal has worked on at least five ideological cases for Texas for "$00.00."

Texas Attorney General Ken Paxton is and has been a right-wing ideologue. The attorney general’s office under him and fellow Republican predecessor, now-Gov. Greg Abbott, have regularly brought ideological litigation — and defended against challenges to the office’s ideological actions.

Now, though, the office appears to have a new arrow in its quiver for going after the left: Free help from the Trump-administration-in-exile America First Legal run by non-lawyer Stephen Miller.

Do not for a second be confused about the goal of this group: This is MAGA in quasi-legal clothes. The group makes it clear from its mission statement, which concludes: “With your support, we will oppose the radical left’s anti-jobs, anti-freedom, anti-faith, anti-borders, anti-police, and anti-American crusade.”

For the past 16 months, that extreme ideological group has served as “co-counsel” with the Texas Attorney General’s Office for the state of Texas on an increasing number and range of cases. And America First Legal has been doing so under a “$00.00” contract.

That contract, obtained by Law Dork in response to a public records request, was signed by America First Legal Executive Director Gene Hamilton and Grant Dorfman, the deputy first assistant in the Texas Attorney General’s Office, on the morning of Valentine’s Day in 2023.

It was the start of an apparently wonderful and mutually beneficial relationship for them.

For the public, however, the arrangement raises several ethical questions.

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The initial case for which America First Legal agreed to represent Texas was a case challenging the inclusion of World Health Organization standards in federal government policies determining whether a public health emergency exists in the United States.

From the addendum to the February 2023 contract

In October 2023, Hamilton and Dorfman signed an amendment to the agreement, adding three immigration cases, which is not surprising in light of Miller and Hamilton’s extremism on immigration as seen during their time in the Trump administration.

From the October 2023 amendment to the contract

Then, on April 26 — a Friday — Ryan Walters, the chief of the Special Litigation Division of the Texas Attorney General’s Office, reached out to Hamilton about a challenge to the Biden administration’s new Title IX rules.

Walters emailed Hamilton, noting that additional “pro bono cases” could be added under the prior agreement and writing:

[W]e consent to America First Legal representing the State of Texas as co-counsel in litigation brought alleging violations of the Administrative Procedure Act, the U.S. Constitution, and other related claims challenging the U.S. Department of Education's Final Rule titled Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, to be filed in the United States District Court for the Northern District of Texas, or any other venue to which the case may be transferred. If you respond with your consent, we will have an agreement for this representation.

Consent and agreement there was. Suggesting that it had already been decided that America First Legal would help Texas in its Title IX litigation, Hamilton responded four minutes later: “Thank you, Ryan. We consent and look forward to working with you. Best, Gene.”

In an email sent five minutes after that, Walters forwarded the two emails to others in the Texas Attorney General’s Office, noting that the “representation has executive approval.”

One business day later, on Monday, April 29, Texas filed its challenge to the Title IX rules. The complaint was signed by Walters, and Hamilton was listed as one of the lawyers for the state.

Notably, although Jonathan Mitchell — the former solicitor general of Texas who is now in private practice — was also listed as a lawyer for the state, an otherwise duplicate public records request filed with the office about Mitchell resulted in a response that the office had “no information responsive to [the] request.” The explanation, to the extent I think I figured it out on my own, came when the state filed an amended complaint on May 13. This time, two university professors were added as plaintiffs. Hamilton is listed as representing Texas and the two professors. Mitchell was still on the filing, but this time, he was no longer representing Texas. He was solely listed as counsel for the two professors.

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America First Legal’s free representation raises several ethical concerns — concerns I have reported about previously. In December 2023, Law Dork reported that far-right Christian legal advocacy organization Alliance Defending Freedom was representing Idaho “without charge” in a few cases.

At the time, James Tierney, a lecturer at Harvard Law School who was the attorney general of Maine from 1981 to 1991 and teaches courses on the role of state attorneys general, laid out succinctly the problem with this sort of arrangement.

“It is a very bad practice to allow an advocacy group to represent the state,” Tierney told me then. “They will represent their true client, the advocacy group, not the state.”

Kathleen Clark, a professor at Washington University in St. Louis School of Law whose research focuses on legal and governmental ethics, raised other concerns. For example, she noted that “[w]hen a state agency accepts a gift, that can undermine legislative control of executive branch activities.”

Since my initial reporting, Pema Levy for Mother Jones and Andrew Perez and Tessa Stuart for Rolling Stone have followed up with other ways and other places in which ADF is engaging in this concerning practice.

To my knowledge, this is the first report on the scope of America First Legal’s engagement with Texas — or that it is, like ADF in Idaho, doing the work without charge.

This expanding, concerning practice merits more attention.

As Clark said about the ADF contract, this arrangement can also have a distorting effect because the beneficiary state attorney general’s office isn’t bearing the costs of its policy decisions.

“If the state AG had to bear the cost, that could influence the state AG’s behavior,” Clark told me. “ADF is removing that question by gifting the service.”

Now, America First Legal — which The New York Times’s Robert Draper recently described as “a policy harbinger for a second Trump term” — is providing that same “service” for Texas’s Paxton.