N.S.A. Installs as Top Lawyer Days Before Biden Takes Office, Trump Loyalist
The acting defense secretary ordered Michael Ellis, who was accused of having a hand in one of the most controversial legal decisions of the Trump administration, to be appointed by the spy agency.
The National Security Agency is going ahead with recruiting a loyalist of the Trump administration, the agency said on Sunday, after the acting secretary of defense ordered him to be made the top lawyer of the spy agency.
The acting defense secretary, Christopher C. Miller, gave Gen. Paul M. Nakasone, the chief of the spy agency, until 6 p.m. To install Michael Ellis as its General Counsel on Saturday.
With the National Security Agency staying quiet, the deadline came and went. "But the agency said on Sunday in a statement that "Mr. Yesterday afternoon, Ellis accepted his final work bid. "N.S.A. is moving forward with his job." He was not officially sworn in, and when that will happen is not clear.
Mr. Ellis has been accused of having a hand in one of the Trump administration's most controversial legal decisions: the effort to block the release of a damning book on the president by John R. Bolton, the former national security advisor.
Before President-elect Joseph R. Biden Jr. was inaugurated, Mr. Ellis' supporters had pushed for him to be installed. Although under Civil Service regulations, it would be difficult to fire Mr. Ellis, the Biden administration might easily reassign him to another, less important role.
The transition team for Biden declined to comment.
Mr. Ellis, a senior official on the National Security Council and a former top Republican prosecutor on the House Intelligence Committee, applied months ago to be the general counsel for the National Security Agency.
He was one of three finalists, but, according to individuals familiar with the hiring process, he did not earn the highest score from the panel assessing the applicants. Nevertheless, White House officials told the general counsel for the Defense Department that Mr. Ellis was preferred by the administration for the job.
It is a complicated procedure involving different approvals to avoid favoritism in the selection process to position a political appointee in a Civil Service job. The Office of Personnel Management ultimately agreed with Mr. Ellis that the role of general counsel was excluded from a regulation requiring special approval, although the process was delayed by those deliberations. Mr. Ellis had to get a new safety clearance as well.
While General Nakasone was not happy that Mr. Ellis was chosen to be a career official at the National Security Agency, according to two people familiar with the matter, he did not deliberately obstruct or delay the process of installing Mr. Ellis. However, he insisted that all protocols had been followed and that all permissions had been put in writing.
Mr. Miller was furious at the Pentagon that the leadership of the agency had slow-rolled the installment of Mr. Ellis for months despite going through the normal recruiting procedure and being chosen for the role, a senior U.S. official said. So Mr. Miller instructed the agency to swear Mr. Ellis in, a move reported on Saturday by The Washington Post.
The Pentagon defended Mr. Ellis' hiring in a statement, saying he was duly chosen by the general counsel of the Defense Department. "To be clear, the interest of Congress or the media in a specific hiring action is not justified under the principles of the merit system and the process of delaying the positioning of a selected qualified individual," the statement said.
Mr. Ellis is seen as a lawyer who is smart. But others were confused by the drive to put him in a permanent government position. He is likely to join the general counsel's office under a good deal of skepticism, according to former officials, and will have an uphill fight to gain General Nakasone's confidence.
Mr. Ellis will be a member of the Senior Executive Service, a position in the Civil Service that is highly shielded from dismissal. Civil servants can, however, be quickly relocated to the Defense Department, so that they can be offered a legal job elsewhere in the sprawling department, such as monitoring compliance with environmental laws on a remote military base.
Mr. Ellis was a trusted advisor to Representative Devin Nunes, Republican of California, while he was on the Intelligence Committee. In the Trump administration, Mr. Ellis held numerous positions, including working as a lawyer for the National Security Council and then as the senior director of intelligence for the White House.
At the White House, Mr. Ellis overruled a career official's decision to clear Mr. Bolton's book for publication, even though he had no formal training in national security information classification. Under pressure from President Trump, the Justice Department sued Mr. Bolton in order to recover his income from the book.
On Thursday, a judge overseeing the case released a ruling that makes it extremely probable that the counsel of Mr. Bolton, Charles J. Cooper, would be able to challenge White House officials such as Mr. Ellis about whether the classification decisions were made in bad faith. Can, at least for a while, Mr. Ellis take over as general counsel, he might be able to stall the testimony.
The Defense Department inspector general is also investigating Mr. Ellis, probing claims that he retaliated against Yevgeny Vindman, who left Eugene and served with Mr. Ellis as a National Security Council lawyer. Mr. Vindman is the twin brother of the former Army lieutenant colonel, Alexander S. Vindman, who testified against Mr. Trump in his first impeachment trial.
Mr. Ellis sent Mr. Nunes intelligence reports early in Mr. Trump's term that Mr. Trump's associates were rounded up by American intelligence services during overseas surveillance. The material is at the center of Mr. Trump's repeated allegations that his campaign was spied on by the Obama administration.
Mr. Trump's supporters have lobbied to declassify information that some conservatives think would support those allegations, including recent days of last-minute pressure. In fact, however, Mr. Ellis would have little direct authority to declassify those documents or resolve the objections of General Nakasone to their publication.
It is not clear exactly what prompted the Pentagon to force General Nakasone to accelerate the recruitment of Mr. Ellis. Mr. Trump, however, met with Mr. Miller on Friday, according to the senior U.S. official, to address different issues.