Herbert Miller Text of Interview (December 11, 1996)

Interview of Herbert J. Miller, Jr.
December 11, 1996
Mr. Willens: This is Howard Willens speaking on December 11, 1996. This is
the fourth session of the interview of Herbert J. Miller, Jr. as part of the Oral History Project of
the District of Columbia Circuit Historical Project. Jack, at the conclusion of our last session, we
were discussing your departure from the Department of Justice and your return to practice in
early 1965. With respect to your return to private practice, you mentioned forming the firm of
Miller and Evans. Is that correct?
Mr. Miller: Yes.
Mr. Willens: When did you organize the current firm of which you have been
the senior partner for some 30 plus years?
Mr. Miller: There was no organization as such. It evolved out of Miller and
Evans. Courtney, as I said, retired from the FBI and subleased space from some trade association
over in the Ring Building. Finally I was able to convince the people at the Department that I
should be permitted to leave, and I left. That was the firm John Cassidy wanted very much to
join us, but the fee income was rather sparse, to say the least, so it was decided that the longer he
stayed at a place where he’d have a regular salary, the better off we’d be.
Mr. Willens: Where was he at that time?
Mr. Miller: He was at the Department of Justice in the Criminal Division. He
came out I think in August or September of that year. Courtney and I sent out an announcement
April 25, 1965, and as I say, John joined us. Originally the firm was Miller and Evans. Then
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subsequently, Nick Katzenbach wanted Courtney to come back as a Special Assistant. Nick was
Attorney General or Deputy Attorney General. In any event, Courtney went back to the
Department, and at that time we thought it best if he took his name off the door. Then a very
respected trial attorney, Joe McCarthy, contacted me, and eventually the firm became Miller and
McCarthy, Evans and Cassidy. Then Joe decided that he was going to practice in Rockville. We
finally convinced Ray Larroca, who was practicing over at my old firm, Kirkland, Fleming,
Green, Martin and Ellis, to join us. Then Nat Lewin, who was the first Supreme Court law clerk
that was ever inveigled into working for the Criminal Division. After he left the Criminal
Division to go to the Solicitor General’s office, he went to the State Department and then became
I think the number three lawyer or so in the Civil Rights Division. Then he came to us. Then as
I say, Courtney dropped his name out, although he remained of counsel, so by then it became
Miller, Cassidy, Larroca & Lewin, which is the current name after 32 years next April.
Mr. Willens: In those first few years, what kind of clientele did you have?
Mr. Miller: Very little, if the truth be known.
Mr. Willens: Were any of the clients that you had in private practice before you
went into the Department available as clients?
Mr. Miller: None that I can think of off hand. The first client we had was Bill
France, who had established NASCAR and had built the Daytona Racetrack, primarily on credit I
might add. He did not have much in the way of financing, but he had a letter of credit and he
borrowed $5,000 and gave us a retainer. That was our first retainer client.
Mr. Willens: What kind of work did you do for him?
Mr. Miller: Various issues that would come up concerning the operation of
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NASCAR or the running of the major racetrack down at Daytona I know shortly after it opened
up, a friend of mine, Judge Ryan, who was a domestics relations judge, used to send us noncontested
divorce cases. He would assign us to represent the defendant for, I don’t know, $150 a
pop, and we were very pleased to have the income. It was very sparse. We represented an
organization called Perma Tex in a matter. And then we were hired to represent two farmers in
Belle Glade, Florida, concerning operations under the Agricultural Marketing Agreement Act of
1937 and had an extremely successful result. People started to come to the door. It’s hard to say
where business came from I can tell you that in the first year of operations we had a profit of
$15,000. I’d taken out my retirement money from the Department of Justice and sold a lot next
to us in Potomac, so I took $3,000, and Courtney took $6,000, and John took $6,000, John
Cassidy. It got a little better after that.
Mr. Willens: I hope so. Did any of the other individuals such as Mr. Evans, Mr.
Cassidy or Mr. Larroca bring clients to the firm?
Mr. Miller: Ray brought a client to the firm or two. Cassidy began to bring in
some clients. I can’t remember other than the ones I’ve mentioned.
Mr. Willens: Did you anticipate when you left the Department that there would
be interest in your services because of your experience in the Criminal Division?
Mr. Miller: I really did not, I guess primarily because I had not really sat down
and analyzed what the market, if you want to call it that, would be for someone with an
established background in criminal law. But once I got out, I began to realize fairly quickly that
the larger law firms, while they may have tried to handle criminal cases involving tax or antitrust,
anything beyond that they would pass off to criminal law practitioners. Consequently, a
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substantial part of our business then and even now, to a certain extent, comes from major law
firms, although now the major law firms all have established a white collar criminal section so
they do the work in-house. But when we started, that was not the case, and in many major
criminal cases around the country, our name would come to the fore. We would represent clients
around the country in various jurisdictions — a lot of time in Los Angeles and some in New York
and Florida As I say, around the country.
Mr. Willens: Did you have the sense when you established the firm that it was
going to be the base for a national practice as it has developed, or did you think you were going
to be more like one of the local firms that you had come into contact with in the 1950s?
Mr. Miller: I had assumed it would be a local general practice firm I mean,
that was my assumption. I had never contemplated that we would end up as a firm with expertise
in the white collar crime area But that’s the way the practice developed, and since then the firm
has always been primarily (if not solely) a litigation firm Now I guess our practice has been for
years, 60-40 criminal-civil but it may be reversed the next day. But it’s all litigation. We don’t
engage in giving regular corporate advice or the like. We do on occasion, but that isn’t what we
hold ourselves out for. We do litigation, civil and criminal, and that’s it.
Mr. Willens: Have most of the lawyers with the firm after being here for several
years tried cases before juries?
Mr. Miller: Oh, yes. We have substantial expertise on that.
Mr. Willens: If you had to pinpoint one or two important developments in the
growth of your law firm in the late 1960s or early 1970s that might explain the development of
the firm, what would your recollections be?
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Mr. Miller: . Off the record. I guess one of the first major criminal cases that
came in was representing an individual by the name of Ray Ryan, who was an oil man originally
out of Indiana. He had been an important witness for the Department of Justice in an organized
crime case in which he testified to an extortion attempt by Mafiosos, which resulted in the
conviction of a very important Mafia individual. Surprisingly, after that he became the subject of
an IRS investigation which was very substantial and we started to represent him To make a long
story short, he was indicted four times, and we beat the case four times. One case, the third case,
went to trial, and he was convicted. We appealed to the Ninth Circuit, and the Ninth Circuit
ordered the entry of a verdict of acquittal. Then I guess as a last gasp, he was indicted here in
Washington for not properly reporting overseas assets. Allegedly he had owned the Mt. Kenya
Safari Club with Holden, the actor.
Mr. Willens: What was the name of the club?
Mr. Miller: Mt. Kenya Safari Club. It was over in Kenya That case was
thrown out by a local district court judge here on the basis that was going to cause a disbandment
of the whole agency, so that case immediately went away.
Mr. Willens: I don’t understand that.
Mr. Miller: Well, the basis for the decision was that it was unconstitutional to
require the information that they were supposed to gather on foreign assets. So once the judge
had dismissed the indictment, rather than re-indicting they decided that they would drop the case
totally, so the constitutionality of the ruling would not impact the continued existence of their
agency. But that Ryan case was major litigation. It was a series of motions, letters,
interrogatories that went on for years, involving Swiss bank accounts and the like. We bad the
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trial and the reversal. Then subsequently he was tried for criminal contempt of court, we tried
the case, and the judge entered a direct verdict of acquittal at the close of the government’s case.
Mr. Willens: That sounds like a very satisfied client.
Mr. Miller: We did stop the enforcement of the subpoena which would have
required that he produce documents from Kenya We were ordered to produce, and we appealed,
the Ninth Circuit agreed that he did not have to sue overseas to produce those documents. The
government appealed the case and the Supreme Court, I’m sorry to report, reversed the case 9-
zip. One of my five arguments in the Supreme Court. Some of the others went a little better than
that.
Mr. Willens: How long was it after you began the firm before you had some
sense that finances were such that you were on firm footing and you were looking forward to
continued success?
Mr. Miller: I’m not sure I even have reached that conclusion yet, Mr. Willens.
Let’s put it this way: I began to be able to sleep at night maybe after the third, fourth or fifth year.
Mr. Willens: Did you have any trouble hiring young lawyers in those days to
come with a firm with your particular interests?
Mr. Miller: We had no trouble hiring any young lawyers because we hired
none. Then finally we decided that we’d hire somebody and we were very fortunate. We had no
trouble in hiring a Supreme Court law clerk by the name of Martin Minsker, who came to the
firm I think he was enamored with the idea of a smaller firm, and I’m happy to say he was a
brilliant lawyer and is still with us. The next one we hired was William Jeffress, who was
courted by Covington and Burling and other major firms after he clerked on the Supreme Court
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and also clerked for Judge Ge- sell. He decided that he would come with the firm, and I’m happy
to report that he is still with us and one of the outstanding trial lawyers in the United States.
Mr. Willens: I remember that your first year in practice was interrupted to some
extent by your appointment as Chairman of the President’s Commission on Crime in the District
of Columbia. Do you have any recollection of how it came to be that you were appointed by
President Johnson to be Chairman of that Connnission?
Mr. Miller: You know, I really don’t, although I was told subsequently by one
of the members of the Commission that President Johnson wanted to appoint her but he was
afraid the Commission would come to nothing; and he preferred to have a Republican as its head
and that’s where I came in, I assume because of my prior service as Assistant Attorney General of
the Criminal Division.
Mr. Willens: Do you have any recollection as to why President Johnson decided
that there should be such a Commission for the District of Columbia since at the same time, as
you recall, there was a national Crime Commission also appointed?
Mr. Miller: I assume that the same circumstances that caused the creation of
the National Connnission caused the creation of the District of Columbia Connnission. I think
there was a concern that crime was increasing, and I think there was a concern about whether the
police were asking improperly in terms of dealing with minorities. I can’t remember any
specifics, but since you were the man that ran the Commission, that did all the work and
produced the report, maybe you can tell me why it started.
Mr. Willens: Well, I do remember hearing a story that President Johnson called
up then-Acting Attorney General Katzenbach after the 1964 election and complained that the
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“crime in the streets” issue had damaged his election effort. As I recall, he only lost one state to
Mr. Goldwater. So as the story goes (and I don’t know who my source for this is — maybe you),
the President told the Acting Attorney General that he wanted a federal program against crime on
his desk in 2 weeks. Mr. Katzenbach then called several people together including me and Mr.
Schlei possibly and said that he, Mr. Katzenbach, wanted a program directed against federal
crime on his desk in 10 days. And we in turn went back to our colleagues and said we wanted to
put together a program in 7 days. The upshot was something called the Law Enforcement
Assistance Act of 1965 and the two Presidential Commissions. Does any of that refresh your
recollection?
Mr. Miller: That does refresh my recollection. I was not a party to some of the
conversations, but now that you’ve reminded me, I am reminded that I was told of these events.
Mr. Willens: Do you have any recollection of the issues that were regarded as
being so critical with respect to crime in Washington some 30 years ago?
Mr. Miller: To the best of my recollection, there was really a duality of issues.
One was the problem of law enforcement treatment of blacks. The other was the perception that
criminals were coddled, one of the reasons being that there was a substantial delay from the time
of the arrest to the time of any ultimate incarceration in the event of a conviction. There was a
roaring issue whether the Court of Appeals or the trial courts were soft on criminals, the contrary
argument being that they were certainly entitled to their constitutional rights when they went to
trial. That’s a simplification, but that’s as I remember it. You were the Executive Director of the
Crime Commission and helped produce an incredibly good report which for the first time
outlined what law enforcement was in the District of Columbia People didn’t realize that you go
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from the investigative stage to the trial, then the sentencing and then probation or jail. And if the
criminal goes to jail, do you just turn out hardened criminals or do you have adequate programs
in the prison to make sure that the recidivism rate does not increase and instead goes down.
Then you have the review by the Appellate Courts and indeed the Supreme Court on occasion.
So that you have all of these diverse interests — the Probation Department, the Corrections
Department, the police and the prosecutor, and in the middle you have the independent judiciary.
For the first time I think it was outlined in the report how those did or did not interrelate, in terms
of having effective and speedy law enforcement.
Mr. Willens: Did you personally have any role in selecting the other members of
the Commission?
Mr. Miller: I do not believe that I did. I have no recollection of it.
Mr. Willens: Do you know who did identify the members of the Commission?
Mr. Miller: If I were guessing I would think that Charlie Horsky certainly
played a substantial part in deciding who would be on the Commission.
Mr. Willens: As you and I have discussed off the record, you were on the
Commission with eight other members. These included Judge Pine, Don Bittinger, Bill Rogers,
Abe Krash, Pat Wald, Fred Ballard, Marjorie Lawson and Clyde Ferguson. Do you have any
recollection with respect to Judge Pine as to what he brought to the work of the Commission and
what his perspective was?
Mr. Miller: Well, what he brought to the perspective was where the District
Court fit into the so-called law enforcement process, and what were the problems with delay in
the District Court or delay in the Court of Appeals. The Probation Department of course was an
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arm of the court. So he was able to bring forth the so-called independent part of the law
enforcement process, i.e., the courts.
Mr. Willens: Was there generally a consensus within the Commission that more
expeditious processing of cases was a desired objective?
Mr. Miller: Oh, I think there was no dissent to the basic premise that speedy
law enforcement, assuming it was just, was desired and necessary for the protection of society, if
you will.
Mr. Willens: As I recall, Mr. Bittinger was President of the Washington Gas
Company.
Mr. Miller: Right.
Mr. Willens: Did you have any recollection as to what he brought to the work of
the Commission as a leading businessman?
Mr. Miller: Well, he looked upon it (I think) probably more as a citizen,
because he had no direct contact with any of the elements of law enforcement. What he was
concerned with was the long delay and the consensus then that the Court of Appeals was turning
loose too many criminals in our society.
Mr. Willens: As I remember, one of the handful of issues on which the
Commission divided related to the so-called insanity defense. My recollection is that there was
some considerable debate in the community at that time as to what the appropriate formulation of
an insanity defense was. Is that one of the issues you’re referring to?
Mr. Miller: That is one of them That issue, of course, involved the so-called
Durham Rule that was announced by the Court of Appeals. A substantial part of the community
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felt very strongly that that was an improper test. That was one of the issues that generally
divided those who felt law enforcement should be (shall we say) stricter, as distinguished from
those who felt that all of the rights of the defendant had to be carefully observed. That certainly
was one of the issues. And I might add to that how long ago was the Durham Rule revised?
Mr. Willens: I don’t remember.
Mr. Miller: Oh, I know. It definitely has been substantially changed, but that
was years and years ago.
Mr. Willens: Another member was Bill Rogers, who was a former Attorney
General of the United States under the Eisenhower administration and was also a member of the
National Crime Commission. Do you have any recollection of what Mr. Rogers brought to the
work of the Commission?
Mr. Miller: Bill Rogers spent his time primarily with the National
Commission, which is understandable. I don’t recall him attending more than one or two
meetings of our DC Commission.
Mr. Willens: What is your recollection of Mr. Krash’s participation in the work
of the Commission?
Mr. Miller: Mr. Krash was an outstanding lawyer with Arnold and Porter. I
think his position was what would be today termed more of a liberal concern that the law
enforcement process was not adequately protecting the rights of the defendant. That’s stating it a
little too broadly, perhaps, but I know on the various issues you would have Mr. Bittinger and
Judge Pine on the one side, and you would have Abe Krash and sometimes Pat Wald on the
other. I mean those two together. So the Commission to a certain extent reflected the so-called
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split in ideas within the community itself.
Mr. Willens: Just let me mention a few additional names. What is your
recollection of Fred Ballard?
Mr. Miller: Fred Ballard was a very distinguished lawyer. My recollection of
Fred is that he was very thoughtful and carefully reviewed each issue to arrive at what his
position was and what he thought the Crime Commission position should be.
Mr. Willens: How about Marjorie Lawson?
Mr. Miller: Judge Lawson was a former Juvenile Court Judge, as I recall. I
know that she had a concern that the police department on occasion was mistreating blacks. But
I think her views were fairly what I would call middle of the road.
Mr. Willens: How about Clyde Ferguson?
Mr. Miller: I’m embarrassed to say I really don’t recall the positions that he
took in the discussion. You have to remember there were a broad number of issues, and there
was no set position by any member of the Commission really.
Mr. Willens: Looking back on the experience which (as I recall) lasted for about
16 or 17 months, what is your assessment of what the Commission accomplished?
Mr. Miller: What the Commission accomplished was I think for really the first
time to demonstrate what law enforcement consists of, how the various parts of law enforcement
could be improved and made more efficient, and how law enforcement as a whole (with the
independent judiciary in the center) could improve to the point that it would be effective in
controlling crime, by speedily prosecuting those crimes that were committed and in the last
analysis turning back into society people who had been trained in a trade or brought up their scale
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of education rather than just being warehoused in a prison someplace and turned out with no skill
with which to earn an honest living.
Mr. Willens: Did you personally play any role in trying to get the
recommendations of the Commission implemented?
Mr. Miller: Yes. After the report was submitted to President Johnson, I sensed
that there was no organized effort, if you will, to try to put into effect those recommendations of
the Commission that I thought should be examined and implemented. So I gave a talk to the
judicial conference, which was held at a local hotel, and exhorted the bar to get behind the report
and start seeing that these things were implemented. Then I spent time around the City talking to
various groups trying to energize the citizens to see to it that the various recommendations were
enforced. I believe I testified in Congress, but I can’t recall.
Mr. Willens: Do you recall much opposition to the Commission’s
recommendations from the agencies that were most directly involved, such as the Police
Department, the Department of Corrections, or the courts?
Mr. Miller: Maybe I’m just closing my mind, but I really do not. I can
remember the concern of the courts that they were going to be unjustly criticized for their delay
when it was going on. I know that the Police Chief was concerned at the time with what we were
going to come up with Naturally they would be concerned about any criticism about the Police
Department. But afterwards my recollection is that a substantial part of those recommendations
were adopted by the Police Department. I don’t believe there was much success in terms of the
Department of Corrections, one of the reasons being that as I recall some of the unions in town
were strongly opposed to having in effect trade schools within the prisons that would turn out
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individuals who would be qualified to work. One example I remember involved sheet metal
workers, where it was very difficult to get qualified black members. But as I say, that’s a long
time ago.
Mr. Willens: Well, it is almost 30 years to the day that the report was issued.
Crime in the District of Columbia is, if anything, much more severe than it was then.
Mr. Miller: No question about it.
Mr. Willens: It also seems different in many respects, most particularly the drug
problem that the city and other urban areas experience today. What is your sense about the
changes that have come about with respect to the nature of criminal activity in a city such as
Washington?
Mr. Miller: Well, it’s not only Washington, but across the country. When we
were looking at the situation, there was not the broken homes, and the juvenile and young adult
crime that seems to be driving the statistics today. You can only look back and think that it’s the
breakdown of the family and the lack of guidance and love for youngsters that lets them go out
on the street at the age of 15 and 16 and commit acts of violence and murder. If you look at the
percentage of crime that is committed by individuals under 21, it is of course substantial. Added
to that is the much more widespread utilization of narcotics than was ever the case when you and
I were looking at the problem Those two things seem to me to stand out as to what the problem
is. Mandatory minimum sentences are supposed to solve the narcotic problem Obviously they
haven’t. I don’t know that they’ve even had any substantial inroad. I think the only thing that’s
going to change that is education, which inculcates a desire in the individual not even to try
narcotics, not even to get into the utilization of narcotics. How you accomplish that — I have no
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idea. The other thing is where you have homes with one parent or foster homes, how do you try
to raise children with the concept that they should abide by the law, that they should not steal,
they should not get involved in acts of violence? Obviously you think of the school. If they can
do it, they’re not doing it. Can you enforce a home life on individuals? I guess the answer is you
can’t do that. I don’t know what the answer is. It’s a very, very discouraging picture. I can only
hope that the sense of responsibility will be reinstilled into citizens, particularly when they’re
thinking of having children, that will somehow require them, cause them, to see to it that they
continue to raise their children until they’re young adults and try to drive home the concept that a
life of crime is hardly the way to exist in today’s life.
Mr. Willens: Let us just talk briefly about the changes in your law practice and
Washington practice generally over the past 25 or 30 years. I know from our previous
discussions that your firm has grown slowly but steadily over the years. Did you and your
partners have any particular plan when you set out as to how large the firm should be or that you
wanted it to be?
Mr. Miller: I had very definite ideas. I had been in a large firm and did not
want to be a part of that social strata, if you want to call it that, again. I assumed when I started
the firm that the maxnnum size would be maybe 10 or 12 lawyers. I am now somewhat surprised
as I look around and see we have maybe 36 or 37 lawyers. They are very careful here to make
sure I don’t know the exact number.
firm?
Mr. Willens: Do you personally play an active role in the management of the
Mr. Miller: Yes. I have been. For years we had no partnership agreement. I
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didn’t think it was necessary. -I think normally on any major decision affecting the firm I would
participate in making it. Several years ago it was decided we should have a partnership
agreement, and that set up a Management Committee, and whether through intimidation or
adoration, I’ve been Chairman of the Management Committee ever since it was formed and still
am.
Mr. Willens: Why were you reluctant to see the firm exceed 10 or 15 lawyers?
Mr. Miller: It’s a manner of collegiality. I like to know, and I like the other
lawyers in the firm to know, what the various cases were, to participate in the cases with giving
advice and the like, and it was just an easier way to practice law. You had less concern about
interfering with somebody else’s practice or losing a good client because there might be a
potential conflict. As it has turned out, I’m happy to say that, as large as the firm is, the
collegiality factor is still a very important one to everybody here. I think the reason that we are
able to attract young lawyers who have a substantial future is because they like the way the
practice here is run. One of the other reasons I wanted to stay small is because I did not want to
have to undertake cases where there would be three or four partners in charge and five or six
associates, and the associate would come in and work for 3 or 4 years on one case involving
substantial documents and the like. We are (thank God) too small to undertake such cases, and
consequently we have avoided that form of work which has turned out to be a real drudgery part
of the practice of law.
Mr. Willens: Has the firm deh”berately turned down some representation because
it would involve more resources than you wanted to allocate to a particular case?
Mr. Miller: Yes, on more than one occasion, perhaps foolishly on my part. In
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fact, at one stage, at more than one stage, when we determined that we were full up and that there
was too much of a load on the various lawyers, we would embargo new business, something that
I suppose is a foolish thing for a firm to do. But in order to keep the workload within bounds, on
occasion we have felt that was necessary.
Mr. Willens: In any finn, there’s a tension created by the desire of the younger
lawyers to want to grow in responsibility and to some extent that means to them that there have
to be newer lawyers hired that are junior to them within the law firm How can you control
growth and at the same time accommodate those aspirations of the younger lawyers?
Mr. Miller: Well, first of all the lawyers we hire all have clerked in the District
Court, Court of Appeals or the Supreme Court. So when they come to the finn, they are better
trained than somebody who has just gotten out of law school. That has been necessary because
we staff cases very thinly compared to other firms. The reason why the practice here has been
attractive to the younger lawyers is because they are not standing behind five or six other
lawyers. When they get here many times they are the number two lawyer on the case. They get
to participate in discovery procedure, they get to argue motions, they get to go to trial much
quicker in this firm than they would in many of the larger firms. That ( a) makes for better
lawyers and (b) makes for lawyers that like to practice. They really enjoy it.
Mr. Willens: Some of the articles about your firm descn”be it as a boutique law
firm Is that a description that you think is accurate?
is it, yes.
Mr. Miller: Well, I’m not sure I know what a boutique is, but if small and good
Mr. Willens: How would you say that the practice that the firm has changed over
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the past 25 or so years?
Mr. Miller: I’m not sure that it has changed. I suppose it has changed to this
extent. We now represent some of the larger corporations in the country on occasion. But that
really is the only change. The mix of civil versus criminal as I say varies from day to day, but it
remains pretty much 50-50 depending upon what you’re talking about, which day you’re talking
about. I really don’t think the practice has changed that much
Mr. Willens: Is there any drift toward specialization among the partners in the
firm?
Mr. Miller: No. If we get a federal election campaign case in, yes, we
specialize in that. We learn what the statute is and why.
Mr. Willens: You were referring to the kinds of specialized cases that you do
take, but my question goes to whether the partners, in your judgment, are more or less all
fungible in terms of their background, their capabilities, so that as a new matter comes in, almost
any partner who is available could undertake it.
Mr. Miller: Oh, I see what you mean. When the case initially comes in, the
answer is yes. Partners are pretty much fungible. Over the years some partners have had much
more trial experience than others. One example that comes to mind immediately is Bill Jeffress,
who I consider probably the finest trial lawyer in the United States, whether it be civil or
criminal. He’s tried cases all over. There are others, Stan Mortenson and other lawyers in the
firm who have had substantial trial experience. The younger partners coming up haven’t. So to
that extent they’re not as fungible. But by participating with those that have the practice, they
soon attain the skills and are off on their own. But in terms of what kind of a case to handle or
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the like, not really. Litigation comes in, it’s a case that involves statutes, it involves facts, the
lawyers here have a phenomenal capability to analyze facts, how to obtain the facts, and they’re
very good at analyzing the statutes, and they’re very creative in their approach. It sounds very
simple, but —
Mr. Willens: It does sound simple, but it also sounds very different from the
approach that many other firms, especially larger firms, are taking, where there seems to be an
increased tendency to encourage specialization among the younger lawyers. What do you think it
is that accounts for this difference in philosophy?
Mr. Miller: Well, in the big firms, of course, they will develop an expertise in
environmental law, for example, and there are many regulations and statutes on the civil side,
and of course there’s the criminal side. When the criminal side comes into play in an
environmental case, we will be approached. We have found that, specialization or not, it is not
all that difficult when you have a specific factual issue to ascertain what regulations, what
statutes apply, and how they’re enforced and how they should be enforced. That’s much different
than requiring a specialized knowledge that requires you to answer questions on a daily basis as
to whether a client should do this or do that in general to comply with a broad scope of
regulations. That’s the joy of litigation. By the time the case gets to you, it is to a certain extent
focused on a particular set of facts and a particular set of laws and regulations, so that that
expertise historically as far as we’re concerned is not necessary.
Mr. Willens: Well, you began practice with the Kirkland Ellis firm which had a
reputation of having a very high-quality connnunications practice, although you in fact didn’t
specialize in that area
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Mr. Miller: .I tried not to.
Mr. Willens: Is the practice that you now have with this firm Washingtonoriented
to any extent, as would be a communications practice, or do you think that this firm
could have survived and prospered as well as it has if it were situated in Chicago, Boston or
some other city?
Mr. Miller: That’s an interesting question. I suppose to a certain extent the
clients have been referred here by other firms that know that we are capable of presenting an
intelligent conference at the Department of Justice, for example. I think the firm has a reputation
for integrity, and a reputation for doing excellent lawyering. So that (I like to believe, and I think
is true) when we go to a government agency in order to make a presentation, they will listen
carefully to what we have to say simply because we don’t go and present arguments that are
ridiculous. We’ve had the experience. We know when a case is good, and we know when a case
is bad. And we know how to emphasize why a particular case should not be brought or why a
particular case should be settled with a plea instead of going to trial. And all that is experience,
and that in some respects could apply anywhere in the United States.
Mr. Willens: Have lawyers in this firm other than the name partners had any
substantial experience in one government agency or another?
Mr. Miller: Well, yes. Jamie Gorelick spent a year or two as a special assistant
at the Department of Energy. Of course, she’s now at the Department of Justice as Deputy
Attorney General. Two of the lawyers here went to the Department of Justice, and have returned.
Mr. Willens: They have returned.
Mr. Miller: Yes. I don’t know what happened to the others — I have no idea
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Mr. Willens: .Do you think it’s desirable for the firm to have its lawyers go into
the public service for 2 to 4 years and then return to the firm?
Mr. Miller: Every time a lawyer has come to me and discussed leaving the firm
to go with the government, I tell them that it’s unfair for them to ask me that question for the
simple reason that I did. And if that’s the case, how could I suggest to them that such conduct
would be inappropriate. No, I encourage it, even if it means losing a fine lawyer, because I think
if an individual wants to participate in the public arena, I think that’s the way it ought to be. In
fact, we just had a recent situation where one of the lawyers was asked to assume an exceedingly
important job, and after I recommended that he consider it, he decided that he preferred to stay
here. So it’s up to each lawyer when a request comes.
Mr. Willens: Is there a specific philosophy of compensation that you’ve followed
here at the firm with respect to both rewarding and encouraging your colleagues?
Mr. Miller, We have a system of compensation that nobody believes. I
realized this very early in the practice. Having watched other law firms engage in violent and
vituperative arguments about who was entitled to how much money and who brought in what,
and firms breaking up, we decided some years ago that for every partner in the firm at the end of
the year there would be statistics passed around that would show how much the lawyer had
earned with his own body, what business had been brought in, what significant cases had been
accomplished. Then there would be a secret vote. Every partner would have one vote, and it
would be an equal vote, so that the newest-made partner would have the same vote that I had as
the partner who started the firm. And every year since, we have had an annual vote as to what
the compensation of each partner should be. It is an amazing, rewarding thing that, with a few
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anomalies every so often over- the years, in a great majority of the cases, the vote appropriately
rewards each lawyer for his contribution to the firm And there is no, nor can there be, any real
anger because it’s the decision of the partnership as a whole as to what everybody gets.
Mr. Willens: So as I understand it, the vote of each partner identifies the
percentage or the level of compensation of that partner and each other partner.
Mr. Miller: Oh, yes.
Mr. Willens: And then these go into some kind of a mechanism where some
person looks at the views and then accommodates the differences.
Mr. Miller: Oh, no, not at all. What happens is the vote is confidential, and
then the vote is put in a sealed envelope and sent over to a certified public accountant. And he
takes the vote and he adds up the whole thing, who got what, and then he puts it all on a chart,
and then figures out what percentage each partner gets based on that vote. We found anomalies
on occasion, so we decided the smart thing to do was take out the highest vote and the lowest
vote for each partner. All the balances are included in, and then the Management Committee has
the power to change, modify to the extent it so desires, the amount of compensation any partner
gets. I think that’s only happened once or twice, and it’s been very minor. So as it turns out, if
anybody wants to complain that they haven’t been adequately compensated, they can go and
argue with every one of the partners in the firm They can’t come to the senior partners and say
you’re taking all the money improperly, as happens in some other firms, and that’s the way the
vote goes.
Mr. Willens: I gather that under that system, each partner then can assign what
importance that partner wishes with respect to factors such as number of hours worked, bringing
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business in, public activities, business development and other considerations. Other firms
sometimes expressly use such factors with respect to each candidate for compensation.
Mr. Miller: Each lawyer has those facts, and then it’s up to him to decide what
he thinks he’s worth and what every partner is worth And that’s what the vote is. And as I say,
it’s tabulated totally in confidence, and the results are sent back to the firm and given to the
Management Committee. We distribute them and say if anybody’s got a complaint, go ahead and
give it to us. It has very effectively minimized unhappiness ( or at least expressed unhappiness
shall we say) with the compensation of the various partners.
Mr. Willens: I’ve been given a copy of an article which came out of one of the
legal rags with your distinguished picture on the front page. The heading is “Miller Cassidy at
the Crossroads”, and under your picture it says “Name Partner Herbert Miller: ‘Don’t label me a
manager.”‘
Mr. Miller, I do not consider myself a manager.
Mr. Willens: I don’t see a date on this article, although I’m sure it’s somewhere
right up on the top, but the one interesting thing is that they emphasize the diversity of your
clientele. They have pictures of former Attorney General Meese, actress Jody Foster, former
President Richard Nixon, lobbyist Michael Deaver and Rabbi Schneerson. I know there are
many other eq?y colorful clients. What can you say on the public record with respect to your
representation of members of the Kennedy family?
Mr. Miller: I guess not really much. I guess it’s a matter of public record that I
did represent Ted Kennedy in the Chappaquiddick matter. I represented the Kennedy family
when Bob Kennedy’s son died of a drug overdose down in Florida I have represented others
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throughout the years.
Mr. Willens: That all goes back to your service in the Criminal Division?
Mr. Miller: Yes, I would say that.
Mr. Willens: How did it happen that you crune to represent former President
Nixon?
Mr. Miller: I’m not sure. I was home one day, and I received a call from Dick
Moore, who was White House counsel during the Nixon administration and whom I represented
during the Watergate inquiry. He was subsequently Ambassador to Ireland as a matter of fact.
He said he was calling from someplace up in the North woods and he asked me would I represent
Richard Nixon if asked. And I told him that if I turned down that representation I would
immediately resign from the Bar. He said that’s what he thought. Later that day I received a call
from Ron Ziegler out in California, the President’s public relations man. The following day I
flew to California and went down to San Clemente, spent until 3 or 4 in the morning talking to
Ziegler about the various issues that were involved.
Mr. Willens: About what year was this if you recall?
Mr. Miller: This was about 2 or 3 weeks after he resigned, which was 1974. I
spent the night at the then-familiar San Clemente Inn where all the reporters used to stay, but it
was quite empty. The next morning I went in and met with the President.
Mr. Willens: Had you met him before?
Mr. Miller: Only passingly in a reception line. Then we had a discussion. I
explained my background. After the conversation, he decided to retain me, and from then on I
represented him I represented him until the day he died. And we still represent him in the
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remaiuine Nixon litigation that continues to this day.
Mr. Willens: What have been the principal issues on which you represented
President Nixon?
Mr. Miller: I suppose the original principal issue was the allegations of
criminal conduct on his part and my negotiating the pardon. Subsequently there were (I suppose)
100, 150 lawsuits here and around the country, some governmental, some not, that raised issues
that came up. Then of course in the latter part of 1974, Congress passed legislation seizing the
Presidential papers. I argued the constitutionality of that before the courts. At first it was a
pending case before one of the District Court judges. We contended that once it was enacted
there had to be a three-judge court. I remember the decision was filed I think at 3 or 4 in the
morning, and we filed a mandamus action saying that would bar our three-judge court action, and
that was argued 2 weeks later. I remember realizing the interest in the Nixon litigation when I
arrived at the courthouse Saturday afternoon, I think 2 o’clock, and the line of spectators who
wanted to attend the argument was stretched almost as far as I could see around the block. We
argued the case that afternoon. The court directed the District Court to suspend that opinion
saying that they otherwise would issue mandamus. And then the three-judge court ruled against
us. I argued it before the Supreme Court. The government carefully avoided my invasion of
privacy arguments by saying that all of the personal and private tapes and documents that had
been seized by the government would be returned to President Nixon or his heirs forthwith. And
because of that, said the majority, there was no constitutional privacy issue. The vote was 7
against and 2 in favor of my position. I only mention that because to this date the Archives have
not returned the personal and private papers. They’ve just given us copies, but they have not
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returned the basic original tapes. And indeed, the Department of Justice Civil Division has just
decided that we are not entitled to a return of the personal and private tapes — contrary to the
representation that the Solicitor General made to the Supreme Court back whenever it was. That
is now pending (a motion for summary judgment) before Judge Holloway Johnson. Later the
issue of Presidential immunity came up, and I argued that President Nixon as President of the
United States was entitled to absolute innnunity from any civil actions involving actions he
committed as President of the United States. The District Court dismissed it without opinion.
The Court of Appeals affirmed per curium The Supreme Court recognized the serious
Constitutional issues, granted certiorari, and I argued that case. By a vote of 5 to 4, the Supreme
Court held that he did have innnunity.
Mr. Willens: That he did have immunity.
Mr. Miller: He did have immunity. And of course there were numerous other
cases throughout the years, too many to mention here. The other major case was in 1980. We
filed a suit asking that Nixon or his heirs be compensated for the taking of his Presidential
papers. We lost a summary judgment motion; back in 1986 summary judgment was rendered
against our position. We appealed. In 1989 the Court of Appeals unanimously ruled that there
was a constitutional taking, that he and every other President who preceded him owned the
Presidential papers, and that the only issue left was what compensation he was entitled to. The
case went back to the District Court, and we had a trial date set for December of this year, but
because of various matters, the trial has been put over to a future date. But I expect there will be
a resolution in that case some time within the next 6 months. Is that enough?
Mr. Willens: It obviously is such a rich source for legal historians and scholars
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that I’m tempted to ask whether in retrospect there is any sort of bottom line assessment you’d
want to put on that particular representation. It certainly has generated considerable controversy
and a great deal of publicity for you and the law firm. Yet I don’t want to suggest that the
important clients are more important to you than the less important clients.
Mr. Miller: Well, they’re not obviously.
Mr. Willens: I know they’re not.
Mr. Miller: I tell anyone who will listen that the representation of Richard
Nixon was the greatest case in the history of the Republic, not only because of the constitutional
issues involved, but the length of time that it took to resolve them all. And the decisions in the
process have obviously affected the Presidency. I mean, right now you have before the Supreme
Court the issue of whether a civil lawsuit can proceed against a sitting President where the
conduct occurred prior to the President assuming office, and it’s a civil case. It’s very clear to me
that that case to a certain extent is an outgrowth of the prior decision of the court saying that a
President has immunity for acts done while he was President of the United States. This raises the
next issue.
Mr. Willens: Do you have a view as to how that issue should be resolved?
Mr. Miller: I would not interfere with the Supreme Court dehberations .
Mr. Willens: Let me just ask a few questions generally about practice, and it may
be that we have touched on some of these as we bring this interview to conclusion. In the nearly
45 years of practice — you became a member of the bar in 1949, was it not?
Mr. Miller: Was it 1948 or 1949?
Mr. Willens: You got your B.A. in 1948 and your law degree in 1949, and
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everyone complimented you completing your legal education in one year.
Mr. Miller: That is correct.
Mr. Willens: But in any event, we’re talking about 46 or 47 years of practice in a
time during which the Washington bar has increased in number many times over. What would
you say have been the significant changes among members of the bar over that period of time
given their growth in number, the different nature of the practices, and other factors of that sort?
Mr. Miller: Oh, I think no question that Congress has greatly influenced the
legal profession, because every time Congress passes legislation, it’s in effect a lawyers’ relief act.
You’ve had a tremendous quantity of legislation passed which requires lawyers to interpret it.
This is required, of course, because much of the legislation and the regulations issued pursuant
thereto are very, very complicated, and that drives specialization.
Mr. Willens: You mentioned about your practice in the 1950s that when you
went to try a case you quickly came to know the small group of litigators — whether they were
fifth street litigators or litigators from the larger firms. Do you still feel you have that kind of
familiarity with your colleagues at the Bar?
Mr. Miller: It’s grown so that it’s changed really. It used to be a much smaller
group, and now it’s huge. To know everybody at the bar is a waste of time, because you can’t do
it. So the lawyers in this firm, I guess what we do is meet those who also litigate. The specialists
sometimes, you know. But essentially those are the lawyers that we run across — people that we
meet in the course of depositions, other discovery, grand jury inquiries, and when we go to court.
That’s true whether it’s in this jurisdiction or around the country. Except for here, when you go
around the country, you’re on a case, you may not be back there for 3, 4, or 5 years.
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years?
Mr. Willens: .Is there a downside or loss involved in this kind of change over the
Mr. Miller: Well, anytime a group gets very large, there’s a lack of
cohesiveness. You have substantially different viewpoints, and you don’t know your opposing
lawyer as well. Maybe you don’t even know him at all, whereas in the old days in the District
Court here I would walk down, and I’d walk up and down and I’d see the calendar of cases set
out, and I’d know just about every lawyer listed as appearing in court.
Mr. Willens: Do you think this has some relationship to the ongoing debate
about civility among members of the Bar?
Mr. Miller: I think it does, because once, you know in the old days, when the
District Court was in that smaller building before it moved over to the new one, the members of
the bar that would appear down there weren’t all that great in number. And even in the new
District Court, as I say, back 20 years ago, I would know just about every lawyer that was listed
as appearing before a judge on a particular case. Now I go down and, perhaps because I am
getting quite old and all my friends maybe except you have passed on, there’s a different group
down there. I was down in court the other day and I’m wandering around, and I only recognized
two or three names in going from courtroom to courtroom
Mr. Willens: Well since your early days, of course, the local bench has grown
substantially in number and has enlarged jurisdiction. Do you find yourself involved in
appearances from time to time before District of Columbia Superior Court judges?
Mr. Miller: On occasion, yes. I don’t think I’ve been before the Superior Court
in the last 2 or 3 years, but before then I remember we represented a bodyguard of a Senator who
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made the mistake of showing the guards at the Capitol that he had a gun, which necessitated
appearances before that court.
Mr. Willens: Have you seen any significant changes in the relationships between
members of the bar on the one hand and members of the Bench on the other hand over the past
several decades?
Mr. Miller: Aside from the fact that it was a smaller group then, I think when
you go to these judicial conferences you about have the same relationship. Maybe that’s because
the judiciary has a fair say in who’s invited, so that I’m not sure whether those participants in a
judicial conference actually reflect the entire Bar, because it is a small, invited percentage. But I
don’t see much difference between a judicial conference 10 years ago and now or 20 years ago
even.
Mr. Willens: As you know from the increased coverage of the legal profession,
there seems to be a growing interest in the bottom line, and the suggestion that the profession has
increasingly taken on the attnbutes of a business. What is your sense of that?
Mr. Miller: I have read that, and I think it is an unfortunate fact. I think the
main reason is because the size of businesses, the size of clients, and the size of the cases have
increased dramatically. And in order to handle cases of that larger size, you have to maintain a
substantial staff of lawyers, of paralegals, of support staff, you have to have large quarters, you
have to have a lot of equipment including computers, all of which entails a substantial capital
investment. A substantial capital investment requires a continual influx of business.
Mr. Willens: But isn’t that commercialization also a natural consequence of the
increased number of lawyers and their competition among themselves?
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Mr. Miller: . Yes, but I look upon it as a focus of the size of the case. I mean the
size of the case to me is what causes law firms to become large, and the larger you get the more
you have to adopt business practices. I mean, we do it. I don’t consider us a business, because
we have a great many smaller cases as distinguished from huge cases that involve 20 or 30
lawyers and paralegals. But the bigger the case, the bigger the firm, and the more you have to
look upon it, well, how do you raise money? Do you sell stock to fund this whole thing or what
do you do? But it creates a necessity because of the substantial investment, and a large firm
creates a necessity that it operate on business principles in order to survive.
Mr. Willens: Do you think the practice of advertising of legal services and other
forms of business development are necessary attributes of the profession these days?
Mr. Miller: I was opposed to the advertising concept, but it’s a first amendment
issue and has been adopted. I still wince when I see billboards advertising lawyers and see
lawyers on television saying come to our firm, and I trust that I will die before I come to that, but
maybe that’s just age. I don’t like it, but it is perhaps because of the substantial size of a cadre of
lawyers available that maybe it is a necessity that those who have particular specialties inform the
public. Because it’s very hard for an uninitiated individual to know where to go to get a lawyer.
Big corporations obviously have no problem
Mr. Willens: Do you think the attitudes within the profession with respect to pro
bono work have changed in the last few decades?
Mr. Miller: They haven’t here. We do a substantial amount of it.
Mr. Willens: Do you have any view as to whether that’s commonly shared
among other law firms? Or is that something that you don’t know.
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Mr. Miller: .From what I’ve seen, I think pro bono work has had much more of
an emphasis in the last 10, 20 years than it ever had before.
Mr. Willens: Another change in the local bar and in other cities as well has been
the increased number of women and minority lawyers, and gender and race issues are very much
in the headlines these days. What is your judgment about the changing complexion of the legal
profession.
Mr. Miller: Well, if you talk about gender — let’s start there. I think the first
lady lawyer that we hired was Jamie Gorelick, which was obviously a spectacular decision on our
part, because she was a fine lawyer, a former General Counsel of the Department of Defense, and
is now Deputy Attorney General of the United States. We’ve obviously hired other women since
then, and in terms of race, we have hired others of a race other than mine, and they’re outstanding
lawyers. So it is definitely a change. I can remember going to a bar association meeting in the
District of Columbia and watching the membership vote that black lawyers should not be
admitted to the bar association.
Mr. Willens: When did that change?
Mr. Miller: Well, let’s see. I was with the Kirkland firm at the time, so that
was 1948, 1950, 1952, around in there. The vote was that they should not be admitted. A
lawsuit was brought, and the vote was declared illegal because there was no checking at the door
to make sure that the people in the room were bar members and thus entitled to vote. Following
that decision, there was another meeting at which you had to prove your credentials as a bar
member. The vote was taken. The rule was changed. Blacks were admitted, and that was it.
Mr. Willens: Another issue that is much discussed among younger lawyers these
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days is the proper balance between one’s professional obligation and one’s personal life. Is this
an issue that has been discussed within your firm, and what are your views on that subject?
Mr. Miller: Oh, absolutely. No, that issue has been discussed — starting with
the concept of time off in the event a child is born to the couple. We have established procedures
for the staff as well as the lawyers to help themselves to whatever time is needed. If they desire
to go off and do some work in a pro bono thing or take time off, we do not have a sabbatical like
some firms do. But we all recognize the importance of time with the family, and the lawyers
here pretty well decide what hours they’re going to work. I mean if there’s a case here that they’re
working on, they’re going to spend whatever time is necessary to do that case, but once that case
is over, normally sometimes there’s a little bit of a hiatus before the next case, and the next case
is less demanding. I know one of the lawyers in the firm who is one of the most successful
partners spends a lot of time during the day with his family. He works out of the home to a
certain extent, comes to work in off-rush hours, and there’s no crisis, no problem I mean
everybody to the extent possible is their own master here.
Mr. Willens: Well that’s aJmost a fitting summation for this interview, Jack, and
I want to thank you on behalf of the D.C. Circuit Historical Project. Are there any judgments or
observations you’d like to make at the conclusion of this interview with respect to your four and a
half decades in practice?
Mr. Miller: Well, I would like to say something, as a matter of fact. The first
thing I’d like to say is that Howard Willens, aside from being a friend, is one of the most
outstanding lawyers I’ve ever run across. I was crushed when he took the intelligent step of going
with one of the better law firms rather than joining me, but I have overcome that disappointment.
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But bis work in the Crime CoJl]Illission and bis superlative work at the Criminal Division were
just absolutely a great contribution to the community and the country. As to other observations, I
think the practice of law is probably the greatest institution I can imagine, if you enjoy it. If you
don’t enjoy it, you might as well go into the Serbonian Bog, but if you enjoy a new case coming
in and analyzing the facts and the law and the jousting in the court if you will, I can’t think of a
finer profession or a more enjoyable one. Which explains why I’m still working, I suppose. I
still enjoy it.
Mr. Willens: Thank you, Jack.