On this week’s episode of Now & Then, “Presidential Lawyer Problems,” Heather Cox Richardson and Joanne Freeman compared former President Trump’s merry-go-round of personal lawyers to Nixon fundraiser-lawyer Herb Kalmbach’s saga as a fixer and an eventual disgraced Watergate bagman. Kalmbach is not the only Nixon-era lawyer who sheds light on the current Trumpworld legal chaos. Shortly after Nixon’s resignation, another lawyer – the prolific Herbert “Jack” Miller Jr.– began a long and decidedly familiar quest to shield Nixon’s sensitive documents from public scrutiny.
On August 28th, 1974, 20 days after his presidential resignation, news broke that Richard Nixon hired Herbert Miller as his personal attorney.
The 50-year-old Miller was a Washington mainstay. He was a Republican, but had spent much of the 1960s in the service of the Kennedy family. He led the Justice Department’s Criminal Division under Attorney General Robert F. Kennedy, embarking on a successful, years-long effort to indict Teamsters Union President Jimmy Hoffa on jury-tampering and fraud charges.
Miller then served as a fundraiser for RFK’s tragic 1968 presidential run. And he represented RFK’s brother Edward Kennedy in the aftermath of the 1969 Chappaquiddick incident, wherein Kennedy left the scene of a fatal accident after driving his car into a lake on Martha’s Vineyard.
Notwithstanding his loyalty to the Kennedys, Miller in the 1970s became a defense attorney for several figures caught up in Watergate. Shortly before taking on Nixon as a client, Miller helped Nixon’s former Attorney General, Richard Kleindienst, receive a $100 fine and a 30-day suspended sentence (rather than a much more serious perjury charge) for his 1972 role in misleading Senators looking into the Nixon administration’s cozy relationship with the massive conglomerate International Telephone and Telegraph.
The press acknowledged Miller’s talent for navigating tense political climates in their reportage on his Nixon appointment. “Nixon’s New Attorney: An Aura of Success,” read the Christian Science Monitor headline announcing Miller’s hiring. The subheading called Miller a “keen tactician.”
Miller quickly showed this tactical skill. In his first two weeks on the job, Miller negotiated President Gerald Ford’s still-controversial September 1974 pardon of Nixon.
As Miller was hammering out the details of the pardon agreement, however, he was also setting the table to return to Nixon some 42 million documents and 880 tape recordings from Nixon’s administration that the General Services Administration (GSA) was holding. Some of the documents – and particularly the notorious recorded Oval Office conversations – had already gone public and had played a central role in turning both popular and congressional opinion against the former president.
In Nixon’s eyes, the entire oeuvre of these documents, many of which still were under wraps, belonged to him. Their dissemination – either as evidence in legal cases or for public consumption – was, according to Miller, a violation of Nixon’s executive privilege.
In a series of meetings with the Ford White House legal team at Washington’s posh Jefferson Hotel in the days immediately preceding the pardon, Miller forcefully demanded that Nixon have access to his administration’s documents.
Miller even worked out a document-sharing agreement: the materials could be sent to a federal storage facility near Nixon’s Southern California home of San Clemente for three years. The documents would remain private and there would be two keys – the GSA would have one key and Nixon would have the other. After five years, Nixon could order the destruction of any of the documents.
Ford’s lawyers agreed to the compromise in principle, and Miller set to work orchestrating the final touch on the pardon: a quasi-confession from Nixon acknowledging his role in the Watergate scandal, but stopping short of assuming any criminal responsibility. “No words can describe the depth of my regret and pain at the anguish my mistakes over Watergate have caused the nation and the presidency, a nation I so deeply love, and an institution I so greatly respect,” Nixon’s statement read.
Even though the American public was incensed by the pardon – Ford’s approval rating quickly dropped from 71% to 50% – Miller had been successful in protecting his client.
Nixon was out of the most pressing legal woods, but the documents agreement that Miller and the Ford team had worked out quickly began to fray, unleashing a new legal challenge for Nixon’s lawyer.
Congress was not amused by Nixon’s potential access to his papers and feared that the former president would hide as much of the record as possible through scrapping the chronicle of his misdeeds altogether.
To counter Nixon and Miller’s play to keep the records secret and secured, Congress in December 1974 passed the Presidential Recordings and Materials Act, which entrusted the in-limbo Nixon documents to the National Archives and set a timetable for their public release. Miller’s initial agreement was totally nullified by the law. To make matters worse, the Watergate Special Prosecutor’s office also objected to Nixon’s ownership of the tapes.
Miller set to work picking apart the new law, sending off a flurry of appeals. He was dealt another blow in February 1975, however, when a District Court Judge, Charles A. Richey, upheld the statute. Richey argued that the federal government, not Nixon, effectively owned the tapes and that presidents could not claim executive privilege after leaving office.
Miller took to the U.S. Court of Appeals, asking for the Court to vacate Judge Richey’s ruling and to form a three-judge panel to review the constitutionality of the new records law in more depth. “I don’t believe any lawyer can read that statute and not understand the constitutional questions it raises…over private ownership,” Miller told the Court.
The Court was swayed, and consented to create the panel. In early March, Miller stood before the three judges to plead his case. He argued that Congress had disregarded historical and legal precedent in wrenching the documents away from Nixon. “Presidential items and papers always have been considered to be a part of the vestige of the office, and when a President left office, they were entitled to go with him,” Miller claimed.
“Every President in the history of the United States has dealt with his papers as if they were his personal property,” Miller reiterated.
As Miller battled to secure the documents, he largely avoided much press attention. An exception, however, was the funding structure for his services. The legal fees that Miller was accumulating during his early tenure were paid by a passionately pro-Nixon Rabbi from Providence, Rhode Island named Baruch Korff. The Orthodox Korff, who had retired in 1971, had devoted much of the previous two years to defending and befriending Nixon, including publishing a book-length transcript of their conversations amid Nixon’s downfall, entitled The Personal Nixon: Staying on the Summit.
By mid-May 1975, Korff had handled $195,000 of Miller’s legal fees in the documents fight through his President Nixon Justice Fund. Korff had become overwhelmed, however, by the incessant media attention that accompanied his funding. In a May 28th announcement in a crowded room at Washington’s Mayflower Hotel, Korff announced that he was resigning from the Fund, although he assured the public that money would still flow in to defend the ex-president.
Miller largely stayed out of the Korff circus, but the sheer capital necessary to keep Nixon fighting underscored the tangled nature of the battle to dismantle the Presidential Recordings and Materials Act.
The battle became more complicated in late June, when both the Senate’s Church Committee and the House’s Pike Committee – intelligence committees tasked with examining excesses in Nixon-era use of the CIA and the FBI – demanded Nixon documents.
The Committees were particularly interested in the Nixon administration’s meddling in the Socialist Government of Chilean President Salvador Allende, who was killed in 1973 in a coup that brought right-wing dictator Auguste Pinochet to power.
While the government still had possession of the relevant Chile documents, Miller successfully jockeyed – given the ongoing litigation – for the very sensitive task of deciding which documents were given to Church and Pike. Miller managed to furnish the appropriate documents, avoiding a legal standoff with the Committees.
The victory was short-lived. In January 1976, the three-judge Appeals Court panel upheld the constitutionality of the Presidential Recordings and Materials Act. Miller had nowhere else to turn but to the Supreme Court.
In November 1976, the Supreme Court agreed to hear Nixon’s appeal. And in April 1977, Miller appeared in oral arguments before the Court to argue once again for overturning the Presidential Recordings and Materials Act.
Miller offered an impassioned, historically-dense defense of executive privilege and personal privacy, invoking President Washington’s decision to withhold information on the 1794 Jay Treaty from Congress. He further declared that the entire Presidential Recordings and Materials Act was “totally violative” of the Search and Seizure clause of the Fourth Amendment. “We are talking about five-and-one-half years of a man’s private life,” Miller reminded the Court.
The Solicitor General, Wade McCree Jr., fired back, calling Miller’s sweeping arguments “hobgoblins” and encouraging the Court only to look at the case in question: “I believe if the Congress apprehended some great harm to the republic, it could prevent the destruction of records in the custody of any public officer.”
The Court sided with McCree Jr.’s interpretation, ruling 7-2 that the Presidential Recordings and Materials Act was indeed constitutional – the Act did not represent a violation of the separation of power by giving Congress too much sway, nor did it violate Nixon’s right to privacy. Rather, the Court argued, protecting the documents offered political and public access to vital historical materials.
The Supreme Court decision was the end of Miller’s initial crusade, but he remained in Nixon’s employ until the ex-president’s 1994 death. During the 1980s, Miller spearheaded numerous efforts to block the National Archives from releasing sensitive materials from the document cache. Oval Office tapes and unseen, damning memos dripped out slowly beginning in 1987.
After Nixon’s death, Miller stayed on at the estate, organizing a civil settlement with the federal government to compensate for the value of the archive and for the extensive and unprecedented negotiations over their contents. In 2000, the government agreed to pay the Nixon estate $18 million for unfettered access to the materials. Miller personally received $7.4 million.
Even before his big payday, Miller was enthusiastic about his multi-decade quest to protect Richard Nixon. “I tell anyone that will listen that the representation of Richard Nixon was the greatest case in the history of the Republic,” he told the Historical Society of the District of Columbia Circuit in 1996, “not only because of the constitutional issues involved, but the length of time it took to resolve them all.”
Trump’s lawyers may not be “Jack” Miller. And Trump finds himself in a far more precarious legal position than post-pardon Nixon. Miller’s service, however, shows just how much personal lawyers can help to resolve thorny post-presidential conflicts – or, in Trump’s case, how much the lack of an attorney as skilled and tenacious as Miller might damage his legal fate.
For more on Nixon’s eventful post-presidency, check out Stephen Ambrose’s 1990 Nixon: Ruin and Recovery, 1973-1990.
And head to the Twitter account of Now & Then Editorial Producer David Kurlander for supplemental archival threads on each Time Machine piece: @DavidKurlander.
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