Washington Lawyer

Legends in the Law: Herbert J. Miller, Jr.

(Appeared in Bar Report, February/March 1998)

Herbert J. "Jack" Miller Jr. served four years as Assistant Attorney General, Criminal Division of the U.S. Department of Justice, working with then-Attorney General Robert Kennedy. He helped convict Teamsters boss Jimmy Hoffa and later represented Richard M. Nixon, from after his resignation until his death. In 1965, he founded Miller, Cassidy, Larroca & Lewin.

Bar Report: Tell me a little about growing up in Minneapolis, Minnesota.
Herbert J. Miller Jr.: Well, we played hockey in the winter time. If you don’t play ice hockey in the winter time in Minnesota you may as well leave. I went to grade school, high school and started at the University of Minnesota in pre-law and was just shy of completing two years. The war had started by then and I finally told the draft board to take me and away I went to Texas for basic training.

BR: Where did you get the idea of pursuing a law career?
HJM: I think the reason I pursued a law career was because my father was within a year from graduating from the University of Minnesota Law School when he went into World War I. When he came back he never finished that year and I think he regretted it although he had a magnificent career. Looking back I followed the line of least resistance and got a law degree even though, I will confess to you, initially I had no concept whether I really wanted to be a lawyer or not. As I got further into law school I realized I wanted to be a lawyer.

BR: Did you have any dreams of changing the world and working with a president?
HJM: When I graduated from law school after World War I, I thought real lawyers were general practitioners as distinguished from a specialist. Nowadays each field has become so complicated that it’s hard not to be specialized. When I went into the Army, I graduated from OCS (Officer Candidate School) and went overseas for about 2+ years in New Guinea, the Philippines and Japan. When I returned, law school became a more important objective.

BR: How did you get involved with the Board of Monitors that oversaw the Teamsters Union?
HJM: Ed Williams had put together a consent decree settling a law suit filed by dissident teamsters to stop Jimmy Hoffa from becoming the president of the Teamsters Union. And that consent decree, which was court approved, established a 3-man Board of Monitors to oversee the Teamsters Union to make recommendations as to trusted locals, accounting and other perceived problems with governance of this union. One monitor was appointed by the Teamsters, one was appointed by the dissident group and the impartial chairman, Martin Frances O’Donoghue, an excellent labor lawyer. There was a torrent of litigation. Any steps the monitors took requiring reforms was countered by Teamster locals around the country suing the monitors to stop their reforms. Mr. O’Donoghue obtained this authority from the court for this Board to hire a lawyer. At that time, John Cassidy, now my partner for many years, was working for the Board of Monitors. I was a partner at Kirkland & Ellis at the time as was retained to represent the monitors. At that time, the case had the longest docket entries in the history of the District Court. It was an incredible series of litigation, taking depositions and assisting the Board in achieving the results they were trying to achieve. It was a full-time job.

BR: Did it become a personal goal to convict Hoffa?
HJM: No. I learned quite a bit about the Teamsters Union and how they operated.

BR: Your experience with the Teamsters led to you working with then-Attorney General Robert Kennedy.
HJM: I’ve never been told that, but it’s always been my assumption. At that time, President Kennedy was elected, I was a Republican precinct chairman. I came home one day and the phone rang and it was the Attorney General Robert Kennedy. I had met him a few times, but I did not know him well. Robert said, "I want you to be head of the Criminal Division," and I remember my startled response was, "Who me?" He said, "yes you. Can you do the job?" I said, "I can do any job," with great bravado. But then I said, "But Bob you’ve got to remember that I’m a Republican. I’m with a law firm that represents the Chicago Tribune and other big companies. You’ve got to realize that politically I’m on the other side of the fence." He said, "that doesn’t bother me a bit. Will you do it?" I said, "well sure, but shouldn’t we talk about it." He said make an appointment with Angie, Kennedy’s secretary. The next day at 2 o’clock I met with the Attorney General and explained all the reasons he should appoint someone else. Within a week, I dropped my practice and ended up at the Department of Justice as acting assistant attorney general of the Criminal Division.

BR: What did that feel like walking in there and saying this is it?
HJM: I suppose at my advanced age I probably would have more trepidation but then I had substantial self confidence. I recognized it was going to be difficult but a great challenge and a wonderful opportunity to serve the United States. I explained to my wife, Carey, that it was going to be tough financially, but she said go for it. We have two kids and lived out in Potomac. The decision led to an incredibly great experience.

BR: Being a Republican, how did that affect your position?
HJM: You know, not at all. Absolutely not at all. In fact, and I didn’t realize it until later in my term, I think it was a valuable asset to Robert Kennedy and indeed the Kennedy Administration. Then there was always the question of whether Robert Kennedy was too political to be an effective Attorney General. In fact, he was not and I guess I was exhibit A as to why he was not. It was well known that I was a Republican. And I know Ramsey Clark, head of the Lands Division, often said that it was wonderful to have a member of the opposite political party as head of the Criminal Division because it at least suggested that criminal laws were not enforced in a partisan manner.

BR: What was the highlight of working with Kennedy?
HJM: Oh, that’s almost too hard to answer. After working with him awhile, I became a great admirer of him. He just had an overriding interest in the entire department, a great interest in how the Criminal Division operated. He met constantly with lawyers from the various divisions and would go around the departments and query individual lawyers about what they were doing, what improvements were needed. I think if you talked to any of the then career lawyers in the Criminal Division or elsewhere in the Department of Justice, they would tell you he was the finest attorney general that they had ever seen.

BR: And that’s your feeling?
HJM: Absolutely. He was just terrific. He was straight down the line. There was an unspoken advantage of working for the President’s brother, as you can imagine. And that’s why, for example, in the organized crime drive we were able to establish some degree of coordination of the 26 federal investigative agencies and to really start focusing on organized crime and what it was doing in various major metropolitan areas.

BR: That must have been exciting.
HJM: It was very satisfying. We were able to obtain legislation that had a direct impact on organized crime. Bob spent many hours testifying on the Hill. He would make the first appearance, then I would testify as to the details. In the first year, quite a bit of my time was spent working on getting the legislation through. We worked closely with Byron White, who as Deputy Attorney General, was in charge of legislation. He was, and is, an outstanding lawyer. He had a great analytical mind and I could always go and discuss my problems with him and come away with a resolution I hadn’t thought of. Now, of course, it is Mr. Justice White. Later, I represented Richard Nixon before the Supreme Court contending that presidents were entitled to civil immunity for acts committed while President of the United States. I won that case five to four, but the vigorous dissent was written by Justice White.

There was a wonderful group of lawyers at the Department. I used to sit at the staff luncheons twice a week and I’d see Burke Marshall, Lou Oberdorfer, John Douglas, Byron White, Nick Katzenbach, Bill Orrick, Archie Cox, and think what an outstanding law firm this group would be.

BR: Describe your relationship with Robert Kennedy and with the Kennedys, did you socialize with them at all?
HJM: We became friends.

BR: What was it like working as assistant attorney general during the civil rights era and the assassination of JFK?
HJM: Very hard to put it in words. I had the feeling that we were accomplishing major goals that, in my estimation, had not been accomplished before. We were able to bring in top notch lawyers that would not have been at the Department had it not been for Robert Kennedy. One great example is Jim Neal, now one of the finest trial lawyers in the country. He came to work in the Criminal Division. Supreme Court law clerks came to the Criminal Division for the very first time. Nathan Lewin, a Supreme Court law clerk, worked for me for a year or so, and the next thing I know, the Solicitor General is sitting across the desk saying, "Jack, I really need him." So off he went to the Solicitor Generals Office. But I got him back and he has been my partner for many years. The Department was just humming with activity, civil rights and criminal law and other areas. And then the assassination.

BR: Do you remember where you were when you heard about that?
HJM: Yes, the morning that it happened we were in a meeting of all the organized crime attorneys in Robert Kennedy’s office. We were trying to analyze the problems that existed in various states and cities and what needed to be done, what had been done, what steps should be taken, what new legislation was needed. And we broke for lunch. Bob Morgenthau, the U.S. attorney in New York, and Bob went back to Hickory Hill to have lunch. I was coming back from lunch when a lawyer told me the President had been shot. Then Oswald was shot and Katzenbach sent me down to Texas. There was so much publicity and we were concerned about the impact on any future trial. After we spent time with the FBI and the local district attorney, we got a call that Wagner Carr, the attorney general of Texas, was going to announce that he was going to form Texas investigative commission to look into the assassination. I thought that was the worst of all worlds. Lyndon Johnson was now president, and they were going to set up a commission in his state. I just thought it was a terrible idea. We met with Wagner and I said I would support it publicly, but I didn’t think it was a wise move. Then the Warren Commission was formed which made all kinds of sense compared to the Texas Investigative Commission, which had no real rules of procedure.

BR: Were you involved with the Warren Commission and what were your thoughts on it?
HJM: Before I went to the Criminal Division I had worked closely with Howard Willens, an excellent lawyer, and I came back to the firm to pick up some of my belongings and talked to him. I said, "what are you doing here, why don’t you come down and work with the Criminal Division." And that night I got a call, "Are you serious?" [laughs] To make a long story short, he came to work and contributed substantially to the success of the Criminal Division.

So when the Warren Commission was formed I was the liaison between the Criminal Division and the Warren Commission and to fulfill that function, Howard Willens went over and worked full-time with the Warren Commission. He firmly believes that report is accurate. And if he does, so do I.

BR: Did it bother you, the controversy that followed the report?
HJM: Yes, it did. The Commission had access to the witnesses and the documents, and I can’t believe everybody on the Warren Commission was out to do anything but find out what the facts were. It makes no sense that they were playing games. And then there was the Oliver Stone movie. There were several articles about the Warren Commission which were actually totally false.

BR: Did you go to see the movie?
HJM: No. I didn’t waste my time. I’ve got better things to do.

BR: So then you resigned as assistant attorney general.
HJM: After Robert left, President Johnson wanted to keep the division intact but I felt as though my leader had left.

BR: As far as getting the law firm started, did you have the idea for it before your resignation?
HJM: No, I had no idea what I was going to do. John Cassidy and I chatted. I talked to my wife. I was 41, I had a mortgage and two kids. We decided that I’d open an office and get Courtney Evans who was going to leave the FBI. He was the liaison between Hoover and Kennedy and he was going to retire. So Cassidy stayed back where he had a salary to pay the rent and Courtney and I started the firm. It was Miller and Evans and then John came aboard. It was pretty slim pickings. We had a small office. Our capital investment wasn’t much. We got carpeting from my folks. Our first client didn’t have any money either. He borrowed $5,000 and gave it to us as our first retainer. One of the local judges assigned us to the uncontested divorce cases. Eventually we had a magnificent profit of $15,000 for the first year. In the interim, President Johnson appointed me Chair of the President’s Commission on Crime for the District of Columbia, which was a non-paying job.

BR: Why did you accept that?
HJM: Because law enforcement is not just the FBI investigating, or a group of prosecutors. I mean, it’s a whole system with an independent judiciary and probation and parole and the prison system. If somebody goes to prison, sure it’s punishment, but when they come out you don’t want them to come back. The recidivist rate for our local prison was incredible. And, one of the reasons was there’s no proper training for the jobs that were available in the District of Columbia. We did a report on that and I’m very proud of that report.

BR: You ran for lieutenant governor of Maryland in 1970?
HJM: I did indeed. Robert Kennedy imbued me with the idea that you’re supposed to serve the people. The office of lieutenant governor did not exist, it was on the ballot, and I could have won and not had an office to go into. But I think we raised all of $12,000 for my statewide campaign. I had an old Javelin in those days with sidewinders and I picked up all the gas station voters if nothing else. I went around and did speeches. I don’t think I’m cut out to be a politician, but I gave it a solid try. We were defeated soundly.

BR: How did it come about that you were asked by former Attorney General Richard G. Kleindienst to represent him on charges of perjury during the International Telephone & Telegraph Corp. case?
HJM: I don’t remember exactly how that came about, he knew me a little bit but not well.

BR: You came highly recommended?
HJM: Well, I hope so [laughs]. His situation was a misdemeanor, $100 and 30 days in jail suspended. As a matter of fact, the prosecutor had a very serious problem with that case. I’d made an agreement with the special prosecutor that they would lay out their case for me and I’d lay out a defense, so we did that and they claimed that he had testified before the Judiciary Committee in a manner not consistent with the truth. So they laid it all out, and I went back and found that Congress had passed the Congressional Reorganization Act of 1968. One of the provisions of the statute was that the Congressional Committee in the Senate and House were required to publish in the Congressional Record, their rules and procedures. I checked and found that the rules of the Senate Judiciary Committee had not been published. The rules of the Judiciary Committee stated one senator present would be sufficient for a quorum of the committee. My argument was that the rule was invalid and that the rules of the Senate controlled, which required that two thirds or three quarters of the Senators be present in order to constitute a quorum. And, so before you can have perjury, you have to have a valid quorum. And then I looked at a printed hearing of the testimony and it shows practically every Senator on the Judiciary Committee present on this particular day in question. So I interviewed the court reporter who said that if the Senator puts his nose in the hearing room he gets marked down as present and he said, "I keep no particulars of how many Senators are present at any particular time much less when any particular question is asked and when any particular answer is given." So in great detail I spelled out to the prosecutor that they did not, in fact, have a perjury case. The chairman of the Judiciary Committee called me and said it was an oversight that they hadn’t published those rules. That’s the background of that. We could have gone to trial.

BR: You represented Nixon after his resignation when he faced charges related to the Watergate incident. How did your relationship with him begin?
HJM: I represented Richard Moore, who was one of the White House counsel who testified before the Irvan Committee. A couple weeks or so after Richard Nixon had resigned, Dick Moore called and asked if I were asked to represent Nixon would I accept the case. And I said, "if I said no I’d resign from the bar," and he said, "I thought that’s what you’d say." I met President Nixon and he decided to hire me.

BR: What was that like?
HJM: It was hard to describe. I wanted very much to represent him, as you can imagine. I think the firm at that time had all of eight lawyers, maybe nine, and we were full up business-wise so I was worried about the manpower problem, but it seemed to me a significant case. In retrospect, I think overall it’s got to be the greatest case in the history of the Republic. I mean, working out the pardon and the seizure of his presidential papers, one issue after another. I lost the seizure case in 1972 but I would have won it if the Solicitor General hadn’t represented to the Supreme Court that the personal and private conversations that were on the tape could be returned to the President. And you know what, they haven’t been returned to this day, and we have got a court order from District Court that is now on appeal and will be argued in February.

BR: What was your feeling about Nixon both as a president and as a person?
HJM: I liked him very, very much and got to know him obviously quite well. A brilliant individual. He had an incredible mind. We would sit down, and he would analyze foreign policy. He just had an insight no one else had. I remember he called and told me he was going to address the American Newspaper Association. I strongly recommended he not do it because I didn’t think it was the best forum. I heard later that he walked on the stage, didn’t have a note and gave an hour and a half speech on foreign policy issues and got a standing ovation, and that he was voted the man they most wanted to hear from again. I have nothing but admiration for him and his great accomplishments, such as handling the Vietnam War crisis. But for his China initiative, the course of history would be a lot different. He was the only man who could do it, and he accomplished it. Even after he resigned, the head of the Chinese government invited him over on more than one occasion to discuss politics.

BR: Did it hurt you, the anti-Nixon feeling across the nation at that time?
HJM: Yeah, we had potential clients who wouldn’t hire us. [laughs] That’s about as strong a statement as you can make.

Another case I enjoyed very much was representing Judiciary Committee Chair Senator Eastland, which dealt with the power of a congressional subpoena. They had lost in the Court of Appeals and Eastland called up and asked if I’d represent him and his committee. The case required going to the basic constitutional document of history to find out what the Constitution meant, and what the founders meant, as to what powers Congress had and what defenses there were, if any. I hate to say a wonderful experience, but I just enjoyed it thoroughly. Going back and reading all that and putting together the brief and then arguing it before the Supreme Court. It was a pinnacle that doesn’t come too often. It was great. I loved that case. I’ve had it used against me several times since when I represented those being investigated by Congress, but that’s the way it goes.

BR: Moving on to more personal things, you’ve been married 50 years?
HJM: Carey and I will celebrate our 50th wedding anniversary April 3rd of this year. We’re an anomaly.

BR: What’s the secret?
HJM: Love is the first secret. And a commitment to the marriage to succeed, and when the kids are little, a commitment to make sure they have a mother and father in the home. I can’t conceive of living without her. We’ve had a wonderful life.

We got married and I was going to law school. As a matter of fact, I have a picture of me feeding our first born a bottle the night I graduated from law school. I didn’t go to the graduation. We now have 200 acres in Boyds, Maryland and she runs a thoroughbred operation up there and I make the hay and fix the fences and I still chop wood. I started chopping wood years ago. I still do it almost every morning. It’s great exercise. I have the biggest hand cut woodpile in Boyds.

BR: Finally, what advice would you give to young lawyers who are getting started in their careers?
HJM: I think experience in the Department of Justice is important and helpful. Trying to ascertain the type of law they want to practice. And I think it’s important that they find a method of bringing their talent to the attention of the community and/or clients, whether that’s participating in politics in addition to practicing law. But if you don’t enjoy the practice, I think it’s a mistake to continue. I saw one of my friends drink himself to death, he just couldn’t stand it. His father wanted him to be a lawyer. It was a very tragic thing. So if you don’t like it get out.