N.S.A. Installs Trump Loyalist as Top Lawyer Days Before Biden Takes Office
The acting defense secretary ordered the spy agency to appoint Michael Ellis,
who has been accused of having a hand in one of the Trump administration’s most
contentious legal decisions.
By Julian E. Barnes and Michael S. Schmidt
• Jan. 17, 2021Updated 7:33 p.m. ET
https://www.nytimes.com/2021/01/17/us/politics/nsa-michael-ellis-trump.html
WASHINGTON — The National Security Agency is moving forward with hiring a Trump
administration loyalist, the agency said on Sunday, after the acting defense
secretary ordered he be made the spy agency’s top lawyer.
Christopher C. Miller, the acting defense secretary, gave Gen. Paul M.
Nakasone, the spy agency’s director, until 6 p.m. on Saturday to install
Michael Ellis as its general counsel.
The deadline came and went with the National Security Agency remaining silent.
But the agency said in a statement on Sunday that “Mr. Ellis accepted his final
job offer yesterday afternoon. N.S.A. is moving forward with his employment.”
He has not been formally sworn in, and it is not clear when that would happen.
Mr. Ellis has been accused of having a hand in one of the more contentious
legal decisions the Trump administration made: the attempt to stop John R.
Bolton, the former national security adviser, from publishing a damning book
about the president.
Mr. Ellis’s allies had pushed for him to be installed before President-elect
Joseph R. Biden Jr. is inaugurated. While it will be difficult to fire Mr.
Ellis under Civil Service rules, the Biden administration could easily reassign
him to another, less important post.
The Biden transition team declined to comment.
A senior official at the National Security Council and a former top lawyer to
Republicans on the House Intelligence Committee, Mr. Ellis applied months ago
to be the National Security Agency’s general counsel.
He was one of three finalists, although he did not receive the highest score
from the panel evaluating the candidates, according to people familiar with the
hiring process. Nevertheless, White House officials told the Defense Department
general counsel that the administration favored Mr. Ellis for the job.
Debatable: The sharpest arguments on the most pressing issues of the week.
Positioning a political appointee in a Civil Service job is a complex procedure
requiring various approvals to prevent favoritism in the hiring process. With
Mr. Ellis, the Office of Personnel Management eventually determined that the
general counsel position was exempt from a policy requiring special approval,
though those deliberations slowed the process. Mr. Ellis also had to seek a new
security clearance.
Although General Nakasone was not pleased that Mr. Ellis was chosen over career
officials at the National Security Agency, he did not actively block or slow
the process of installing Mr. Ellis, according to two people familiar with the
matter. He did, however, insist that all procedures were followed and all
approvals were put in writing.
At the Pentagon, Mr. Miller was angry that the agency’s leadership had
slow-rolled Mr. Ellis’s installment for months despite his going through the
standard hiring process and being selected for the position, a senior U.S.
official said. So Mr. Miller ordered the agency to swear Mr. Ellis in, a move
The Washington Post reported on Saturday.
In a statement, the Pentagon defended Mr. Ellis’s hiring, saying he was
properly selected by the Defense Department general counsel. “To be clear,
congressional or media interest in a particular hiring action are not
justification under the merit system principles and process to delay placing a
selected qualified individual in a position,” the statement said.
Mr. Ellis is seen as a smart lawyer. But the push to install him in a permanent
government job puzzled some. According to former officials, he is likely to
enter the general counsel’s office under a good deal of suspicion and will have
an uphill battle to win the confidence of General Nakasone.
Mr. Ellis will be a member of the Senior Executive Service, a Civil Service job
that has strong protections against firing. However, civil servants can be
easily moved in the Defense Department, so he could be given a legal job
elsewhere in the sprawling department — overseeing compliance with
environmental regulations at a remote military base, for example.
When he was on the Intelligence Committee, Mr. Ellis was a trusted adviser to
Representative Devin Nunes, Republican of California. Mr. Ellis held various
roles in the Trump administration, including serving as a lawyer for the
National Security Council and then the White House’s senior director for
intelligence.
At the White House, Mr. Ellis overruled the decision by a career official to
clear Mr. Bolton’s book for publication, even though he had no formal training
in the classification of national security information. The Justice Department,
under pressure from President Trump, sued Mr. Bolton to recoup his profits from
the book.
A judge overseeing the case issued a ruling on Thursday that makes it highly
likely that Mr. Bolton’s lawyer, Charles J. Cooper, can question White House
officials like Mr. Ellis about whether the classification decisions were made
in bad faith. Should Mr. Ellis take over as general counsel, at least for a
time, he may be able to stall that testimony.
Mr. Ellis is also being investigated by the Defense Department inspector
general examining accusations that he retaliated against Yevgeny Vindman, who
goes by Eugene and worked with Mr. Ellis as a lawyer for the National Security
Council. Mr. Vindman is the twin the brother of Alexander S. Vindman, the
former Army lieutenant colonel who testified against Mr. Trump in his first
impeachment trial.
Early in Mr. Trump’s term, Mr. Ellis provided Mr. Nunes intelligence reports
that associates of Mr. Trump were swept up in foreign surveillance by American
intelligence agencies. The material is at the heart of Mr. Trump’s frequent
accusation that the Obama administration spied on his campaign.
Allies of Mr. Trump have pushed to declassify documents that some conservatives
believe would buttress those claims, including last-minute pressure in recent
days. But in reality, Mr. Ellis will have little direct power to declassify
those documents or overcome General Nakasone’s objections to their release.
It is not clear precisely what led the Pentagon to push General Nakasone to
speed Mr. Ellis’s hiring. However, Mr. Trump met with Mr. Miller on Friday to
discuss various issues, according to the senior U.S. official.
Eric Schmitt and Michael Crowley contributed reporting.
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