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Herbert J. Miller Jr., 1924-2009

November 21, 2009 by Robert Nedelkoff | Filed Under In Memoriam, National Archives, Nixon in the News, Presidents, Richard Nixon, U.S. History, Watergate 

Last Saturday, Herbert J. Miller Jr., known as “Jack” to his friends and colleagues, died at age 85 in Rockville, Maryland. Miller, a native of Minnesota, came to Washington after service in WWII, graduated from George Washington University’s law school in 1949, and went to work at Kirkland & Ellis, one of the city’s best firms. Thus began one of the most varied and impressive legal careers in a city that hardly lacks great lawyers.

In 1961, Miller was persuaded by Attorney General Robert F. Kennedy to leave private practice and join the Justice Department as head of its criminal division. For the next four years, he was the leading figure in the successful prosecutions of Teamster boss Jimmy Hoffa; political fixer Bobby Baker; and many of the biggest names in organized crime. On several occasions his opponent in the courtroom was that legendary advocate, the late Edward Bennett Williams.

In 1965, Miller went into private practice and founded Miller, Cassidy, Larocca & Lewin, which, until its dissolution in 2001, was among the handful of Washington’s most high-powered firms. In his years with the firm, Miller represented organizations as diverse as National Public Radio and NASCAR. He kept in touch with Robert Kennedy and was a pallbearer at the latter’s funeral in 1968; the following year he was retained by Sen. Edward Kennedy for a time after the Chappaquiddick accident. (However, Miller’s own views were those of a liberal Republican; he ran for lieutenant governor of Maryland on the GOP ticket in 1970, his only venture into the political fray, but was defeated.)

But as famed as some of Miller’s clients were, all of them pale in prominence compared to the man whom the attorney represented for nearly two decades: Richard Nixon. Miller was first engaged by the former President just after his resignation in 1974, and from then until RN’s death (and for a number of years afterwards, representing his estate) Miller diligently labored on behalf of his client’s legal interests.

In the first weeks of this work, his task was to deal with Gerald Ford’s White House regarding the pardon which the thirty-eighth President gave his predecessor in September 1974. Then, through the years, Miller carefully worked on the litigation over the ownership and accessibility of the White House tapes, which culminated in the agreement which made them accessible to the public. Among the other Nixon-related cases in which he was involved was the one which led to the 1982 decision by the Supreme Court that the former President could not be sued in civil court for his actions during his time in office – a decision whose ramifications are felt every time a Chief Executive returns to private life.

But to say all this still does not indicate how versatile Miller was. He could argue the profoundest constitutional issues before the Supreme Court and then – as he did once – defend his mother-in-law on a speeding charge in traffic court. His bulldog tenacity in a courtroom was offset by amiability and good humor outside it. Truly, he was an exemplary figure in his profession.



Comments

3 Responses to “Herbert J. Miller Jr., 1924-2009”

  1. David Frisk on November 21st, 2009 11:06 pm

    Apparently America has lost a giant. Who knew?

  2. MK on November 22nd, 2009 9:32 am

    “Jack” Miller may have his admirers but I am not among them. Here is why I cannot describe him as exemplary. The tactics used in defense of Richard Nixon in litigating access to the Nixon tapes resulted in short term gains but long term damage. The Nixon Presidential Library and the Foundation still grapple with some of that damage. Had Miller, Cassidy, Larocca & Lewin used somewhat different tactics, that would not be the case. And, although one person switching to Independent is much less important than the baggage corporate entities and institutions must trail, had lawyers acted differently, I might have remained the Republican I was from 1976 to 1989 – or at least not left the party as early as I did.

    Legal representation being what it is, little of what Miller’s law firm did during the 1980s and early 1990s is known. What I have seen points to some tactical misjudgments. Why, for example, did public Congressional hearing records reveal that lawyers representing Nixon had discussed with Reagan Justice Department officials in the mid-1980s how the Kennedy Presidential Library was releasing “only the most favorable” items? Coupled with a report in the New York Times on December 2, 1986 that Nixon’s lawyers had asked for a “selective veto until 1999” over archival releases from the Nixon tapes, that comment about the Kennedy Library left the impression Nixon’s side was trying to suppress negative information about the former President. A different approach to the matter would not have created – or at least would have reduced the chances for – lingering suspicions about the Nixon sides ability to accept that negative as well as positive information would be contained in archival releases.

    And then there is Kutler v. Wilson, the lawsuit filed by Professor Stanley Kutler for access to the Nixon tapes. Along with a colleague from Miller, Cassidy, Larocca & Lewin (R. Stan Mortenson), “Jack” Miller questioned Fred Graboske, the National Archives’ Nixon tapes unit supervisor, during Professor Kutler public access lawsuit. Seymour Hersh wrote in 1992 that

    “At times, Graboske’s three days of testimony turned ugly, with Stan Mortenson, the attorney for Nixon, in effect putting Graboske on trial by repeatedly asking questions implying that he was biased against Nixon. . . . Graboske’s pro-bono attorney, Patrick J. Carome, a partner at Wilmer, Curler & Pickering, in Washington, accused Mortenson and the Archives of ‘attempting to intimidate this man who tried to see that the right thing was done to the Nixon tapes.’ Graboske was especially upset, Carome said in an interview, at the failure of the government attorneys ‘to take aggressive steps to protect a government civil servant at a deposition at which they were supposed to be representing the government.’”

    At issue in the battles between NARA and Nixon’s lawyers were what disclosure standards should be applied to White House tapes and documents. Notes such as one in which Nixon’s chief of staff, H. R. Haldeman, recorded a Presidential request on July 3, 1971: “Malek – everyone in BLS is Jewish look at all sensitive areas ck. Jewish involvement . . . esp. uncover Jewish cells — & put a non-Jew in chg of each.” Or one about the Vietnam war in which quoted Nixon as saying “get best deal let Thieu paddle his own canoe.” NARA’s archivists had marked the statements for public release. Nixon’s representatives had asked that the notes not be released to scholars.

    Bias was not the issue in the unresolved disclosure standards. (NARA eventually determined the note to be governmental and releasable—but not until 1996, after Nixon had died). Nor was competence, despite Stan Mortenson’s sneering comment in 1991 about “incompetent” federal archivists. The director of the Nixon project during the time the contested tapes and documents were reviewed has twice been promoted since his guiding NARA’s work with the Nixon materials. Other archivists who had worked on the materials also have received promotions and awards for their work elsewhere. Or gone on to assume and successfully carry out higher responsibilities. They were able to overcome the attacks on their professional reputations, attacks which need not have occurred.

    Miller, Cassidy, Larocca & Lewin had a choice when they intervened in Kutler v. Wilson in the summer of 1992. They could have followed the path taken by one of Nixon’s representatives in 1988, when Marin Strmecki wrote in a letter to the editor of The New York Times that “archives regulations provide for a system of appealing rulings by the archivists. Reasonable people can disagree over these judgments, and the objections of Mr. Nixon’s lawyers typically involve disputes about whether release of specific documents would violate a person’s privacy or whether certain materials contain personal political communications not subject to release under archival regulations.”

    Instead, the deposition process during Kutler turned into a harrowing experience for many good, upstanding government employees. The George H. W. Bush administration’s Department of Justice lawyers sat on their hands as Nixon’s legal team sought evidence of bias against Nixon in the work of the federal archivists who between 1981 and 1987 had reviewed all 3,700 hours of the White House tapes for public access.

    Nixon once mused in 1971 in discussing the Pentagon Papers case, “When [John] Mitchell leaves as Attorney General, we’re going to be better off in my view. . . . John is just too damn good a lawyer. . . . It just repels him to do these horrible things, but they’ve got to be done.”

    Nixon also said of the Pentagon Papers case, “We are going to use any means.”

    Using any means may serve a client in the narrowest sense, result in the desired outcome (at least short term) and be ethical within the legal framework. But it can be terribly corrosive, deeply troubling morally to those on the receiving end, and create deeply troublesome baggage for people associated, even tangentially, with the tactic. So no, I cannot describe “Jack” Miller as exemplary. Successful, yes. Exemplary, no.

  3. MK on November 22nd, 2009 9:47 am

    Mortenson’s comment about “incompetent” archivists was in 1992, not 1991, that was a typo on my part.

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