Government Service

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SAN FRANCISCO ATTORNEY SUMMER.2004

Government Service

An election often marks a turnover in posts in Washington, even if the incumbent party remains in power. We profile four lawyers who have served the federal government and find out why, for each, it was a highlight of their careers.

Ronald Hayes Malone, 57, a partner at Shartsis Friese, went to the U.S. Justice Department in Washington, DC, straight out of Santa Clara University Law School, where he graduated second in his class and received the Outstanding Graduate Award, in 1971. He had a summer internship with the department and served his first three years in the criminal division. Even today, he’s amazed at the responsibility he was given as a young attorney.

One of the first big cases he worked on was the prosecution of Tony Boyle, president of the United Mine Workers, who was suspected of arranging the murders of union rival Jock Jablonski and his family. He tried seven felony cases in all. He took a year off to earn his LLM from Harvard and in 1975 returned to work an investigation on behalf of the Rockefeller commission, which was looking into alleged crimes by the CIA. Malone was cohead of an investigation into claims the CIA had illegally opened domestic mail.

“They were trying to identify Eastern Bloc and Russian espionage in the United States. They would intercept mail from certain mail drops, open it, examine it for codes, photograph it, and seal it back up and send it on,” Malone says. Lee Harvey Oswald was on the watch list, Malone remembers, but so was Jane Fonda. “It got out of hand.”

CIA agents involved claimed they had presidential approval. “The U.S. Justice Department in the 1940s and 1950s had taken the position that presidential approval for foreign intelligence searches was the constitutional equivalent of judicial approval of a domestic search,” Malone explains. “But by the 1960s, that was no longer the government’s position.”

It was Malone’s job to determine if one or more U.S. presidents had given permission for the covert operations. But he knew not to look for a paper trail. “Yours truly took on the responsibility for determining whether the idea of presidential plausible deniability was real or imaginary,” he says. After interviewing some fifteen high-level government officials, ranging from the vice president to former secretaries of state Justice William O. Douglas and Ronald Hayes Malone and defense, attorneys general, national security advisors, military advisors to the president, chairs of the Joint Chiefs of Staff, as well as high officials at the CIA, and tangling with Edward Bennett Williams, who was representing then CIA Director Richard Helms, Malone reported to Attorney General Edward Levi that it would be improper to prosecute the agents because the standard had changed since their actions commenced.

Levi was not pleased. ”He appointed three U.S. attorneys to review my report and determine whether I had adequately investigated. All three agreed it was adequate, and two out of three agreed with my recommendation,“ Malone says. Not satisfied, Levi asked several well-known constitutional law scholars to review Malone’s legal analysis, and each backed him up.

Malone went from the Justice Department to the Watergate special prosecutor’s office. The office was winding down and had just a handful of staffers left, but there was one outstanding indictment and two grand jury investigations to deal with. Charles Ruff assigned Malone to handle the final trial - an illegal campaign contributions case that ended in a guilty plea.

He then returned to the Justice Department and became a speechwriter and policy advisor to Attorney General Levi. Then, Jimmy Carter was elected, and Griffin Bell became attorney general. At the time, Congress was pushing to reform the criminal grand jury process, and Malone was charged with figuring out how to handle the proposed legislation. Malone decided the best strategy to head off legislation was to incorporate some of the less onerous charges into Justice Department policy, thereby avoiding legislation, and possibly a Supreme Court opinion upholding it, entirely. Malone’s proposals, promulgated in the U.S. attorney’s manual, are still department policy today.

“If anyone wants to be a trial lawyer, and you are lucky enough to get an opportunity to work at main Justice, they’d be crazy not to take it,” Malone says. “Brandeis said responsibility is a great developer of men. Justice believed in early responsibility.”

One doesn’t need to be a political appointee to rub shoulders with those in high office. “The Justice Department is a meritocracy,” Malone says. “It is a cadre of real professionals. The opportunities are just unbelievable. Limitless.”

He still uses lessons and methods he picked up during his tenure. “The most important thing I learned from Charles Ruff, who was also my section chief before he was Watergate special prosecutor, was about ethics.

“He said, because this is a rough business, we are sometimes called upon to cut corners. Before anyone cuts any corners, ask is it legal? If the answer is yes, ask the next question. Is it ethical? Knowing we are smart enough to convince ourselves through analysis it is, think about how your answer to that question, after that analysis, would look on the front page of the Washington Post tomorrow. If you think your analysis would not read very well, don’t do it. It’s not right.”

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