Facing rebukes from the courts, Stephen Miller and Elon Musk are threatening the independence of the judiciary.
White House deputy chief of staff Stephen Miller attends a Make America Healthy Again (MAHA) Commission Event in the East Room of the White House, Thursday, May 22, 2025.
(Jacquelyn Martin / AP)
Donald Trump’s second term has been marked by attacks on the Constitution so extreme that even judges Trump appointed in his first term are aghast. On Saturday, US District Judge Karin Immergut, nominated by Trump in 2019, blocked the president’s deployment of 200 National Guard troops to Portland, Oregon. Trump had claimed that Portland was “war-torn” and “under siege” by “Antifa, and other domestic terrorists.” Judge Immergut brushed off Trump’s justification as “untethered to facts” and affirmed, “This is a nation of Constitutional law, not martial law.”
Responding to the ruling on Sunday, Trump justified the charge that he was “untethered to facts” by misgendering Judge Immergut. “I wasn’t served well by the people who pick judges,” Trump complained to reporters on Sunday. “If he made that decision, Portland is burning to the ground…. That judge ought to be ashamed of himself.”
More alarming were attacks on the judiciary made by two of Trump’s most important political associates, deputy chief of staff Stephen Miller and tech billionaire Elon Musk.
On Saturday, Miller posted on X (a social media site owned by Musk):
Legal insurrection. The President is the commander-in-chief of the Armed Forces, not an Oregon judge. Portland and Oregon law enforcement, at the direction of local leaders, have refused to aid ICE officers facing relentless terrorist assault and threats to life…. This is an organized terrorist attack on the federal government and its officers, and the deployment of troops is an absolute necessity to defend our personnel, our laws, our government, public order and the Republic itself.
A White House official describing a judicial decision as “insurrection” is no small matter. But Musk took things further by calling on Trump to emulate Nayib Bukele, the authoritarian president of El Salvador who has destroyed his country’s independent judiciary. The right-wing pundit Eric Daugherty then quoted Bukele’s attack on the judiciary and insisted, “We need to Bukele our court system. WATCH how quickly this country is fixed.” Musk boosted Daughtery’s tweet and wrote, “essential.” He responded to another tweet critical of Judge Immergut by simply saying “treason.”
Former Obama adviser Tommy Vietor provided some essential context for Musk’s tweet, noting that “Bukele forced out independent judges, packed the courts with loyalists, then declared a state of emergency that allowed him to arrest and indefinitely detain people without any due process. When we say these guys are advocating for fascist ideas, it’s because they literally are.”
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These incendiary attacks on the judiciary don’t just reflect anger at Judge Immergut, or the many other federal judges who have been ruling against Trump’s policies on immigration and other matters. They are also setting the stage for the series of looming battles that Trump faces at the Supreme Court.
While lower-level federal judges have been a major check on Trump’s policies, the Supreme Court is a different ballgame. It has granted Trump extraordinary (though supposedly temporary) power in a series of emergency rulings that have almost always favored the president. The Washington Post, citing the research of Georgetown legal scholar Irving L. Gornstein, notes, “The Trump administration has been overwhelmingly successful in these provisional cases, prevailing in 18, losing two and receiving mixed rulings in two others.” But the newspaper also points out that in the new term starting Monday, the court and Trump both face a “reckoning” because these provisional decisions will have to give way to “full, final verdicts.”
The court’s pro-Trump tilt would seem to make the president’s normal bullying tactics unnecessary. But why take chances? Miller and Musk could be trying to keep the court completely in line by making clear the full wrath of MAGA if judgments are made against Trump’s wishes.
This threat might even be literal. New York Times columnist David French, a Never Trump conservative, argues that Miller’s rhetoric is “incredibly dangerous” and could incite violence against Judge Immergut or any other judge who provokes Trump’s wrath. This claim is plausible given the history of MAGA violence, including the January 7, 2021, attack on the Capitol. (On Saturday, the home of Diane Goodstein, a South Carolina state judge, was burned to the ground. While it’s too early to say whether Goodstein was deliberately targeted or what any potential suspect’s motivation might have been, Goodstein had reportedly been receiving death threats after issuing a ruling against the Trump administration in September.)
The most optimistic reading of Miller’s words is that they come from a place of fear. Miller knows his window to establish enduring authoritarianism in America is small, and he has to act frantically now. This interpretation of events is given credibility by an unlikely source, the far-right thinker Curtis Yarvin, a writer much admired by tech lord Peter Thiel and vice president JD Vance. In a hysteria-laden Substack post, Yarvin worried that the Trump revolution was “failing” and is on the verge of producing a fierce political backlash:
Because the vengeance meted out after its failure will dwarf the vengeance after 2020—because the successes of the second revolution are so much greater than the first—I feel that I personally have to start thinking realistically about how to flee the country. Everyone else in a similar position should have a 2029 plan as well. And it is not even clear that it will wait until 2029: losing the Congress will instantly put the administration on the defensive.
Yarvin has to be read with care. He is unmoored from reality and mostly not a useful guide to events. But he does have a following on the far right because he is an accurate gauge of their mood. Further, there are ample reasons for Yarvin’s pessimism. Polls show that immigration, once a strong issue for Trump, is now one where a majority of the population disapprove of his policies. The New York Times reports that 51 percent of Americans feel Trump has gone “too far” with immigration enforcement. In cities such as Los Angeles and Chicago, the immigration crackdown has been met by fierce local protests. Coupled with the pushback from federal judges and the pending midterms, there is ample reason to think Miller’s war on immigrants is running out of time.
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The shift of public opinion on immigration has come despite the cowardice of the Democratic Party. Believing that the party is stronger on economic issues such as healthcare, congressional Democrats have shied away from challenging Trump on immigration. Further, referring to Miller’s inflammatory tweet, Hawaii Senator Brian Schatz pointed out that there is often a tendency to downplay dangerous rhetoric from the White House. Schatz said he acknowledged “the need not to overreact and I understand that no one in the media wants to chicken little this thing” while also recognizing that Miller’s words seem “escalatory and also rather emotional.”
But with the comments from Miller and Musk, this ostrich strategy no longer makes sense. Miller and Musk have given Democrats a gift: a way of tying the defense of immigrant rights with a broader defense of constitutional norms. With the Trump White House on the defensive, it would be foolish for Democrats to avoid attacking.
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