Herbert J. “Jack” Miller, the founder of my old firm (the much mourned Miller Cassidy Larroca & Lewin) died Saturday. He was 85.
Jack had a career full of highlights any one of which would have been the capstone to a successful lawyer’s career: service as a Republican as head of the Criminal Division under RFK; representing Teddy Kennedy; winning Richard Nixon’s pardon; getting a sentence of probation for Michael Deaver. He was a great mentor, boss, and friend, whom Washingtonian magazine aptly called “the perfect lawyer,” and whom the the D.C. Bar honored as a “Legend in the Law.”
Jack was the original “outside-the-box” thinker. He successfully moved for the dismissal of a case based on the prosecutor’s opening statement. He scuttled charges that a witness had lied to a congressional committee because the relevant statute then required a showing of a quorum, and Jack was able to raise doubts that a quorum had been present at the time. The dismissal of a criminal case “on a technicality” always invites scorn, at least outside the universe of the white collar criminal defense bar and those who have been indicted (two groups which, if present trends continue, together will one day constitute 100% of the Earth’s population). But Jack took particular delight in killing a prosecution in this way. As he was fond of saying, “Any fool can get to the merits.” (He also was fond of delays in criminal cases. As he said, “If you don’t go to trial, you can’t go to prison.”)
In a town full of sharp elbows and tongues, he was unrelentingly cheerful, kind, and civil. He had one known fault, which was a love of puns. Let us never speak of that again.
In addition to being a consummate lawyer, he had a variety of outside interests, frequently involving physical labor, even when he was well into his 70s. He loved chopping wood, raising hay (which his associates and partners were sometimes pressed into service baling, miraculously without the recorded loss of any digits), his Corvette (375 horsepower at age 76, which must be some sort of record), and, of course, malted beverages, usually Miller Lite. Only the insiders know the story of the P.O.M. button, and we’ll keep it that way. Jack also maintained a small refrigerator in his office that he kept stocked for those in need of refreshment. Readers of my first two “What Were They Thinking” pieces for the Green Bag in October Term 1999 and 2000–both of you–will be unsurprised to learn that Jack’s fridge played a prominent part in their creation.
Jack had precisely the right attitude about the practice of law. He frequently told associate candidates, “I can’t promise you that you’ll make a lot of money. But we’ll have fun.” He had a great eye for legal talent, as demonstrated by the roster of distinguished MCLL alumni to whom he gave that speech.
The few photos of Jack on the web date back to his days in the Justice Department, but the man is unmistakeable even behind the horn-rims.
Jack at the witness table:
Justice Tom Clark swearing in his son Ramsey and Jack, together with an unidentified onlooker.
We will not see his like again.
Orin Kerr says:
Cool post. Thanks for it, John.
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November 16, 2009, 1:47 amMitchell J. Freedman says:
Beautiful post, John. We all have our legal mentors, and there is something almost magical about guys of that era, such as Jack. And reading your bio, you appear to have carried on their great tradition of tough, smart–and fun–lawyering. Really.
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November 16, 2009, 2:34 amautrement qu'etre says:
This is a very charming post. Thank you.
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November 16, 2009, 3:14 amWidmerpool says:
The “unidentified onlooker” looks like such a bright and clean and nice-looking guy. Is it Joe Biden?
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November 16, 2009, 8:17 amKate Pringle says:
Thanks John. We lawyers fortunate enough to have been part of MCLL were mentored by the best. I consider my work with Jack a highlight of my career. I hope we can continue his legacy of public service and fine lawyering.
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November 16, 2009, 12:23 pmThomas Carr says:
The Perfect Eulogy. Thanks John. Tom Carr
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November 16, 2009, 12:38 pmAsher Steinberg says:
Isn’t that unidentified onlooker Bobby Kennedy?
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November 16, 2009, 1:00 pmTenrou says:
A consummate professional. They don’t make them like Mr. Miller anymore, I read a blog posting a few days ago about professionalism among lawyers, it was a real eye-opener: http://lawblog.legalmatch.com/2009/06/18/trusting-americas-lawyers/
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November 16, 2009, 1:45 pmG. Robert Blakey says:
I worked for Miller in the Department of Justice before he established the firm.
I concur with Elwood’s sentiments wholeheartedly.
I once referred to him one of the people who worked with me on the hill. His firm had a problem with the government. It was represented by counsel. I told him to get his own lawyer. He did, and he subsequently told me that it was the best advice that anyone had ever given him, particularly Jack Miller. Nothing happened to him.
Requiescat in pace.
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November 16, 2009, 5:27 pmRory Little says:
Thanks John for these insightful words. No one who ever lawyered with Jack Miller could think any less. He had a brilliant intuitive sense for where the weak spots were. How many times was I in the library as a young associate with Jack (he always said he’d gotten lost an so ended up there by accident), and hear him say “There MUST be a case out there that says X.” He was always right in my experience.
Another Miller aphorism: “Justice delayed is Justice.”
His leaving leaves a hole in my universe. What a great mentor, lawyer, and guy!
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November 16, 2009, 5:41 pmys says:
Sure looks like him. This is under Johnson of course. And putting Ramsey and Clark together we get a perennial rival of William Kunstler as a champion of vicious kooks.
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November 16, 2009, 7:44 pms says:
One really has to hope that the author of this post hasn’t unintentionally disgraced and humiliated himself by not recognizing RFK–unless this was humor so dry that several VC commentators felt forced to correct it? A mere caption at the end of a wonderful post is like nails on the chalkboard, because of such a nauseating mistake. Now we have to discount much of the post itself based on the error. I really regret it, but it can’t be helped. Please, just follow American history, or make clear you’re trying to make a bizarre joke! Jesus...
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November 17, 2009, 12:11 amWilliam A. Kennedy-Las Vegas Lawyer says:
I have always wondered if there is such a creature as a perfect lawyer the law dictionary does not define a perfect lawyer, if any, but after reading this blog i am convinced that a perfect lawyer exists Herbert Jack Miller is the definition and description of a perfect lawyer.
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November 17, 2009, 5:18 amJohn Elwood says:
I was being facetious by pretending not to recognize the person in the photo whose face is most recognizable, even iconic. A little wry humor is entirely fitting in a tribute to Jack Miller.
Do you really think someone could identify the much-less-recognizable Ramsey Clark and Justice Tom Clark and not recognize RFK? I worked in the Justice Department building named for him, and where his portrait hangs prominently, for over a decade.
I would also encourage you to moderate the tone of your comments: “disgraced” “humiliated” “nails on a chalkboard” “nauseating” and “bizarre” seem a bit excessive, particularly in a eulogy post.
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November 17, 2009, 9:11 amWidmerpool says:
What Elwood said–I spotted the wry humor, too. Hence my little wry joke about Joe Biden. Jack Miller, you see, once had this obscure, almost anachronistic quality, generally referred to as a “sense of humor.” Some people would like to see it come back into modern use (like the gibson martini). Others, apparently, find it “nauseating” and “bizarre.”
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November 17, 2009, 9:37 amneurodoc says:
How did Miller “win” Nixon’s pardon, wasn’t the pardon granted by Ford, who made the decision on his own?
And that’s all that should be said about Miller’s services to Nixon, no doubt his most famous/infamous client, over the course of years?
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November 17, 2009, 11:36 amBecca says:
That’s all that can be said about Miller’s services to Nixon.
One of Jack’s many wonderful qualities (in addition to his sense of humor, of course) was his unstinting respect for the rules of client confidentiality. There are secrets worth millions in publishers’ advances and that would make historians weep that Jack took to his grave.
Thanks for this, John. I will always regret having worked with Jack for such a short time. And, interestingly, my desire to litigate pretty much died with his disappearance from the halls of the firm. Not a coincidence.
The world was a better place with Jack Miller in it.
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November 17, 2009, 1:23 pmTweets that mention The Volokh Conspiracy » Blog Archive » The Perfect Lawyer — Herbert J. “Jack” Miller, 1924–2009 -- Topsy.com says:
[...] This post was mentioned on Twitter by Beer logos!, Sarah Ludington. Sarah Ludington said: RIP, Jack Miller. http://bit.ly/1SGNZ2 [...]
Mike Bittman says:
Jack Miller is a lawyer’s lawyer. My family knows. He was a close friend and attorney for my father, Wm. O. Bittman. Jack and (now Judge) Ray Randolph represented my father during the Watergate scandal and persuaded the government not to issue an indictment which could have ended my father’s brilliant legal career.
My father was in Jack’s office when the call came in from the government announcing that an indictment would not be brought. I’m told the call brought tears to my father. My father was not the sensitive type; the tears meant he had feared the loss of everything.
Our family’s love and affection for Jack, his beautiful wife, Cary, and their sons, will last at least two generations.
God Bless Jack Miller and his family.
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November 17, 2009, 6:07 pmJim Cunningham says:
Jack used to call himself the Cunningham family lawyer (and the Kennedy family lawyer, the Nixon family lawyer, the Bittman family lawyer, and so on). He, Carey, John and Bo are wonderful, lifetime friends, one of my father’s very best friends, and he will be sorely missed.
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November 18, 2009, 11:09 amJeff Kinder says:
Milestone — Herbert “Jack” Miller
January 11, 1924 — November 14, 2009
The Twentieth Century took another step into historical obscurity with the passing of the man who Rolling Stone Magazine once portrayed in their centerfold, calling him “The most powerful man in Washington, DC”. If you haven’t heard of him, that’s OK. In fact, he preferred it that way. Whether he was representing an indigent or the President, he knew it wasn’t about him. In contrast to many of today’s legal powerhouses who use the media to personally embody a case, Jack always felt that if he did his job well, the client, the facts, and the law would best speak for themselves within the court room.
He also knew that he would always be his best when teamed up with the best. As a WW II vet and fresh out of law school, he found his first partner in Carey Kinsolving, his loving wife of sixty-one years and widow who survives him today. With her blessing, Jack left the promise of his first job at the law firm if Kirkland, Ellis and his Republican roots to serve as an Assistant Attorney General and Chief Prosecutor of the United States for the Kennedy administration. Teamed up with Attorney General Robert Kennedy, Jack represented our country with distinction. With the assassination of President Kennedy and the resignation of Attorney General Robert Kennedy, Miller declined President Johnson’s offer to stay on at the Justice Department and returned to private practice with partner John Cassidy.
Like any new start up on the Washington scene, Miller, Cassidy, et. al., paid their dues and grew at a consistent and conservative rate. Following Jack’s lead, many of their young associates went on to distinguished careers in the Justice Department and other areas of national service. Jack put his stamp on new associates early with a tradition of having them out to his farm, not to be wined and dined in the heart of equestrian Montgomery County, but to help pitch bales and bring in the hay. As much as the law, Jack loved stacking hay, cutting wood and letting his new legal eagles know that there is more to their work ethic than what happens at the office. In several published interviews, Jack noted that one of things of which he was most proud, was that year in and year out, he probably had the largest hand-split wood pile in the county; and he was the one who split it. Anybody who has ever had the pleasure of shaking Jack’s hand can confirm that he’s a guy who stacks his own hay and splits his own wood.
Although a lifelong Republican, Jack kept an abiding friendship with the Kennedy family. One of the most poignant mementos of his time at the Justice Department is the invitation that still hangs on his wall. It was to a dinner at the White House that never was, scheduled just days after the assassination of the President. As is the case with many high profile families, the Kennedys had their share of issues and entanglements where Jack also represented members of family professionally. It was when Watergate was the national obsession and Jack was representing former President Nixon, that Rolling Stone took notice of Jack’s feet firmly planted on Washington’s Kennedy left and Nixon right and proclaimed him “The Most Powerful Man in Washington, DC.” Yet exemplifying his personal disinterest for the limelight, he arranged to have a young associate house-sit on the weekend that President Ford announced Nixon’s pardon. When the media scrum swarmed his house the next morning, the astounded associate could only say that he had no idea where Miller was, as Jack and Carey enjoyed their privacy at the Delaware beach.
Herbert J. Miller’s passion and talent for representing the client, articulating the facts, and explaining the law won him the respect of advisories and judges alike. Jack talked about a case he argued before the Supreme Court where Justice White just raked him up one side and down the other; and did it again in his vigorously written opinion for the minority. Yes, Jack & President Nixon won the case determining that a President could not be sued, civilly, for what transpired while in office. What was also interesting, however, was the mutual respect that grew between Miller and Justice White, who from his retirement to his passing, never missed a Miller, Cassidy Christmas party.
Herbert J. Miller has been recognized as a Legend in the Law, and received numerous accolades from the legal and political community. Although a passionate lawyer who was truly humbled and grateful for the recognition of his peers, Jack’s greatest personal satisfaction and the things that brought him unbridled joy, were things of family, farm and friends. He was a husband who threw everything he had into winning the fancy and the heart of the girl that eventually became his wife, Carey. That original partnership flourished until death did they part. He was a father who adored his precocious sons. As unique as each one is, he supported John and Bo through the tribulations every father endures and rejoiced in their accomplishments and achievements. He was a grandfather who joyously marveled at the coming of age of the next generation. He was an entrepreneur who relished in the entrepreneurial successes of his sons and the many small businesses that he helped to thrive. Some of them even grew into big ones. He often spoke of the blessings he experienced every day as he drove up his driveway, through the little patch of woods, past the pond that he dug with his early Soviet era Russian bulldozer, around the pastures where Carey’s horses stand guard and up to house. It was time of decompression and release from the rigors of Herbert J Miller, attorney at law, and transition to the private, peaceful and loving life he relished as Jack the farmer.
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November 20, 2009, 1:45 pm