Published by The Lawfare Institute
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Earlier this week, the Washington Post broke the story that Michael Ellis—a former staffer for Rep. Devin Nunes and current National Security Council (NSC) official—has been selected as general counsel of the National Security Agency. This set off alarm bells among commentators and those familiar with the agency, in part because it comes in the same week in which Trump summarily fired the top civilian leadership of the Department of Defense and installed loyalists and cronies in their places.
The circumstances of Ellis’s selection, however, point to something different—and in some respects worse—than the developments at the Pentagon. The firings at the Defense Department involve political appointees, nearly all of whom will be gone as of Jan. 20. By contrast, selecting Ellis as NSA general counsel appears to be an attempt to improperly politicize an important career position. Relatedly, it appears to be an effort to “burrow,” or improperly convert a political appointee into a career position. And to make matters worse, the ample public record suggests that Ellis is particularly ill suited to discharge the essential functions of the office.
While important details remain unclear, media accounts include numerous indications of irregularity in the process by which Ellis was selected for the job, including interference by the White House. At a minimum, the evidence of possible violations of civil service rules demand immediate investigation by Congress and the inspectors general of the Department of Defense and the NSA.
The moment also poses a test for President-elect Biden’s transition, which must address the delicate balance between remedying improper politicization of the intelligence community, defending career roles against impermissible burrowing, and restoring civil service rules that prohibit both partisan favoritism and retribution. The Biden team needs to set a marker now, to clarify the situation to the public and to enable a new Pentagon general counsel to proceed with credibility and independence in investigating and potentially taking remedial action upon assuming office.
The NSA general counsel is not a Senate-confirmed role. Unlike the general counsels of the CIA, Pentagon and Office of the Director of National Intelligence (ODNI), all of which require confirmation, the NSA’s general counsel is a senior career position whose occupant is formally selected by and reports to the general counsel of the Department of Defense. It’s an odd setup—and one that obscures certain realities, like the fact that the NSA general counsel in practice reports to the NSA director. This structure is the source of a perennial legislative fight. Every few years, Congress proposes laws to impose a confirmation requirement as more appropriately befits an essential administration role, and every few years, the executive branch opposes those efforts as dangerously politicizing what should be a nonpolitical job.
While a lack of Senate confirmation reduces some accountability and legislative screening, this career selection process has the benefit of being designed to eliminate political interference and to ensure the most qualified candidate is hired. The system includes a complex set of rules governing a selection board that interviews candidates, certifies qualifications and makes recommendations guided by a set of independent merit-based principles. The Pentagon general counsel has the final call in making a selection. For example, if the panel has ranked a first-choice candidate, the general counsel is empowered to choose one of the others.
The NSA general counsel is ordinarily designated as part of the Defense Intelligence Senior Executive Service (DISES). In essence, the DISES system (created under Title 10 of the U.S. Code) is a modified version of the more familiar Senior Executive Service found elsewhere in the government and created under Title 5. The rules governing these systems are not identical, but the DISES system must operate in a manner “consistent with the requirements” of the SES to produce and protect qualified career officials. The Pentagon is required to maintain a “merit personnel system free of prohibited personnel practices”; it must protect career officials from “arbitrary and capricious” action; and it must ensure the executive system is “guided by the public interest and free from improper political interference.” However, DISES positions don’t involve the same level of oversight from the Office of Personnel Management (OPM) that SES positions do: Candidates for DISES roles aren’t required to go through OPM oversight and qualifications review, nor are DISES positions covered by the requirement to obtain OPM’s written authorization before appointing to a senior career post any individual who has served as a political appointee within five years. While protections against political interference and improper conversions exist within the DOD regulations, they are far less transparent than in other contexts. This is compounded by the idiosyncrasies of the regulations—variations on permanent and nonpermanent appointments, the ability to use DISES to fill appropriately categorized political roles, and an alphabet soup of alternative designations—which makes it difficult to identify precise irregularities from the outside.
Whatever the precisely applicable regulations are here, the heart of the concern is that the NSA general counsel position should not simultaneously avoid the scrutiny of the Senate and also sidestep independent merits review that ensures apolitical, qualification-based career appointments.
The mere fact that Ellis was previously a political appointee doesn’t and shouldn’t disqualify him from the position. While conversions of this type merit additional scrutiny, when they comply with all applicable laws and regulations, there’s nothing inherently wrong with them. Former NSA General Counsel Raj De, for example, was the White House staff secretary immediately prior to assuming office. Prior political service can’t be held against someone who is the best candidate for the job, though it elevates the need to have confidence in the integrity of the selection process.
The Washington Post has reported that Ellis’s selection, however, was made after “pressure from the White House”—and the New York Times similarly writes that he was chosen “after White House officials made clear that Mr. Ellis was their preferred candidate.” That raises serious questions about the nature of White House involvement and whether it was unlawful. It’s possible to imagine the White House simply exerting pressure that a selection be made, which might look bad but isn’t necessarily impermissible. But the White House doesn’t get to stack the deck for a partisan candidate. And, from the outside, this looks a lot like the latter.
The particular circumstances of Ellis’s background also raise concerns. NSA general counsels need to be highly experienced. At the time of his appointment, for example, De was a respected national security lawyer who had served on the 9/11 Commission and had been a partner at a law firm. De’s very apparent qualifications tamped down perceptions of political influence. In contrast, Ellis is a 2011 law school graduate whose resume prior to his tenure in the Trump administration consisted of his time as counsel to Nunes, the chairman and then ranking minority member of the House Intelligence Committee.
By contrast, the other candidates reportedly under consideration for the general counsel role were much more obviously qualified. They included NSA’s current acting general counsel, Teisha Anthony, and Brad Brooker, current acting general counsel of the Office of the Director of National Intelligence. Both of these candidates have exceedingly strong reputations in the field. Anthony has been at the NSA for decades and carries more legacy institutional knowledge than perhaps any other person in the building. She has served capably as acting general counsel multiple times and has won the trust and confidence of the agency’s director and Office of General Counsel staff. Brooker, for his part, has a sterling resume and more than a decade of experience across the intelligence community, and is extremely well regarded. These are both superb lawyers, and the selection board would face an unenviable task in ranking between them—but either of them would obviously be more appropriate than Ellis.
That Ellis was selected over these candidates fuels the suspicion of political foul play. Hiring decisions are complex, but there are real questions about how Ellis’s name came to be on the list in the first place and the Pentagon’s rationale for choosing the least experienced candidate. Furthermore, Ellis isn’t simply a neutral official who happened to occupy a political role; he was an overtly political actor involved in some of the famously disturbing episodes of the Trump administration. Ellis was reportedly involved in the bizarre “midnight run” during which the White House passed intelligence information to Nunes, then the House Intelligence Committee chairman—and Ellis’s former boss at the time—only for Nunes then to theatrically pretend to present the information to the White House as if it were a revelation. Lt. Col. Alexander Vindman, a witness in the impeachment investigation, also testified that Ellis was involved in moving a transcript of Trump’s call with the president of Ukraine into a specially compartmented system in an apparent effort to prevent the wrongdoing from being discovered.
Any reasonable person examining the public record would conclude that Ellis’s professional biography creates a perception of being politically biased. In the intelligence community, the perception of impartiality is almost as important as the reality. The risk that this perception would undermine confidence in NSA legal determinations is itself a reason why a future Pentagon general counsel might determine that Ellis is unsuitable for this position and take remedial action. The NSA director must have confidence that the general counsel is guided solely by the law and the institutional interests of the agency; even small fears that a general counsel might have, say, a back channel to one party on Capitol Hill would be incredibly corrosive to the relationship.
There are other issues with the selection. The timing is suspect. This position has been unfilled since February. Anthony is, by all accounts, ably leading the office, and President Trump was defeated for reelection just last week. There is no particular urgency in filling this position now, especially under such odd and irregular circumstances.
What’s more, the Post reported that NSA Director Gen. Paul Nakasone did not endorse the decision to hire Ellis. This is a big red flag. While the Pentagon’s general counsel technically supervises the role, the view of the NSA director is given extraordinary weight in the decision—at least, it normally is. The director is the general counsel’s principal client, and the two need a “close and confidential” working relationship, to borrow a term from the civil service regulations. The NSA general counsel might speak to the Pentagon’s general counsel a few times a year; the NSA general counsel communicates with the NSA director many times each day. The position also requires strong relationships externally, and there is reason to question whether Ellis would be capable of establishing the necessary credibility with peers across the federal government.
In short, there is a lot that stinks here. But the public record isn’t yet sufficient to definitively claim wrongdoing. It is important to be careful and disciplined both in fully understanding what occurred here and in charting an appropriate path forward.
At the moment, the committees of jurisdiction in Congress must conduct oversight and demand clear answers from the Pentagon as to how this selection was made and whether it complied with all applicable laws and regulations. Congress should also call on the relevant inspectors general to thoroughly and swiftly investigate the matter and identify any irregularities that may have occurred. And it should also reexamine whether legislative changes are necessary to defend the integrity of the NSA general counsel position and to reform the selection process to reflect the reality and equities of the principal client, the director of the agency.
Similarly, the Biden transition should use this incident as an opportunity to take a hard look at all conversions from political to career positions that have occurred during the presidential election period or the transition period. The transition should reaffirm its commitment to compliance with the protections and requirements of the civil service rules. But it should also be clear that safeguarding the intelligence community from improper politicization and preserving the integrity of the merits selection process is essential and may require swift remedial action. The transition should craft a statement with the aim of allowing a future Defense Department general counsel to act with credibility and integrity in investigating and responding to the issue.
The precise options available to the next Pentagon general counsel will depend in part on the technical circumstances of Ellis’s appointment. Remedial action should be taken only upon investigation and only if supported by the facts. If the new Pentagon general counsel determines that there were irregularities or political interference in the selection process or qualifications review process, or that the appointment was not in keeping with burrowing prevention laws, she or he would likely be permitted under the law to fire Ellis as a remedy. In other agency contexts, federal courts have upheld dismissals of burrowed political appointees in career billets. If Ellis were fired, he would be entitled to challenge the action at the Merits Protection Review Board and granted procedural protections including a notice period and the ability to be represented by counsel.
Completely apart from improprieties in the selection process, new leadership at the Pentagon might still determine that Ellis is not a suitable candidate for the job. There is a one-year probationary period following elevation to a DISES position or similar designations, during which there are lower barriers to removal. Likewise, leadership is entitled to review and adjust conditions of employment that are in “the best interests of Defense Civilian Intelligence Personnel System, or national security, or mandatory for effective performance in the position.” Effective performance requirements could—and should—include the ability to hold the confidence of the principal client and credibly lead subordinates. A new Pentagon general counsel might simply determine that the selection process got it wrong, and that other candidates are better fits. The various circumstances of Ellis’s background and hiring—the specific reasons to question his suitability discussed above—might make such an outcome more plausible than in prior years.
Short of removal, it is within the discretion of the Pentagon general counsel and the NSA director to make reassignments to other non-legal DISES positions. Reassignment is a common occurrence among senior intelligence leadership and happens for a wide variety of reasons including operational demands, reorganizations, scheduled periodic rotation and a determination of unsuitability for a given role.
Typically, an individual cannot be removed from the DISES entirely or given a performance evaluation—which might serve as the basis for adverse personnel action—in the first 120 days following the beginning of a new presidential administration or the appointment of a new head of a Defense Department intelligence component. If Ellis hasn’t started in the job before the inauguration, the incoming administration might still be able to intervene within the 120-day period to halt ongoing security or personnel processing while an investigation is completed. Assuming he had started as of noon on Jan. 20, 2021, he might be protected from being removed from the DISES or given an unsatisfactory performance review until May 20, 2021. The clock might also theoretically reset if relevant Defense Department intelligence component heads change in the early days and weeks of the new administration.
But this does not mean a new (or newly acting) Pentagon general counsel has to sit on his or her hands for four months if something improper has occurred. If an appointment to the DISES has been made in violation of applicable law, then initiating a remedy might be permissible without reference to the 120-day moratorium. And the moratorium does not necessarily prevent reassignment while the clock runs. Additionally, at any time, the Pentagon general counsel (who is dual hatted as the director of the Defense Legal Services Agency, which includes the NSA general counsel’s office) may exercise special authority in that capacity to suspend—though not outright terminate—employees “in the interest of national security.”
Whatever the outcome here, it is essential that the Department of Defense and senior leadership at the NSA operate in a manner that respects the law and is transparent, accountable and fair. And it is essential that the public understand the difference between proper remedial action as opposed to impermissible political retaliation.
There has been a great deal of speculation as to the motivation behind this and other personnel changes, running the gamut from setting the stage for mass declassification to resume padding to mere presidential vindictiveness. But the American public should take comfort that, in relatively short order, new leadership will have a significant amount of flexibility in investigating and reevaluating personnel decisions as appropriate.