President-elect Joe Biden and his wife Jill Biden arrive at Andrews Air Force Base, Tuesday, Jan. 19, 2021, in Andrews Air Force Base, Md

President-elect Joe Biden and his wife Jill Biden arrive at Andrews Air Force Base, Tuesday, Jan. 19, 2021, in Andrews Air Force Base, Md (AP Photo/Evan Vucci

Biden's NSA May Face Legal Fight Over Trump-Installed Lawyer

Acting SecDef Miller warns firing Michael Ellis could bring new allegations of unfair retaliation.

Updated 11:32 PM, 1.21.21 After the publication of this article, Michael Ellis, the subject of this post, was reportedly placed on administrative leave pending an additional Defense Department Inspector General investigation into mishandling classified information.  

The Trump administration’s decision to install Michael Ellis as the NSA’s top lawyer is giving the next administration a difficult choice: live with a GOP operative near the top of the intelligence agency or fire an employee who has civil service protections. Biden has promised to reverse the previous administration’s efforts to undermine those protections.

The NSA has reportedly agreed to seat Ellis, who faces an investigation by the Defense Department for allegedly retaliating against the brother of one of the key witnesses in the impeachment of Donald Trump. In his new position as the NSA’s general counsel, Ellis would have civil service protections, making him more difficult to remove. 

In a Monday memo, the office of acting Defense Secretary Chris Miller pushed back against House Speaker Nancy Pelosi’s allegation that Ellis had been selected because he had served as a Trump loyalist.

“A candidate for a career position at the DOD is not automatically excluded from consideration due to actual or perceived ‘administration ties,’” said the memo, which has been reviewed by Defense One. The memo notes that the two prior NSA general counsels had similar ties: Glenn Gerstell was a campaign bundler for President Obama, while Rajesh De was a White House Staff Secretary and a deputy assistant to Obama.

The memo also said the Defense Department could expose itself to a lawsuit if it did not seat Ellis.

“Once a candidate is selected through the merit system, given the offer, and meets the requirements to be entered into the position. It [sic] that entry does not happen it exposes the Department, agency, and senior leadership to claims for a violation on the merit system principles and processes that are designed to protect the participants in such selections,” the memo said. 

But Miller’s insistence on Ellis has already violated those processes, said Susan Hennessey, executive editor of Lawfare and a former attorney in the NSA’s Office of General Counsel. 

“In a fair and reasonable process you would expect the DOD general counsel and selection board to have spoken to the IG [inspector general] about a serious allegation relevant to the work of being the NSA general counsel,” she said. “It would be unprecedented that someone would be hired for this position while under investigation.”

Ellis faces a potential investigation by the Defense Department inspector general for allegedly retaliating against Lt. Col. Yevgeny S. Vindman, the brother of retired Lt. Col. Alex Vindman, a key witnesses in the impeachment of Donald Trump, by taking duties away from Vindman and giving him a poor performance review.

Moreover, Hennessey said, the memo argues that the NSA director is somehow putting the Defense Department at legal risk by asking for written guidance to ensure that the laws are fully complied with. This, she said, “is such a facially absurd argument that we should question the rigor and integrity of any other work that person has produced. It’s such an absurd argument that no one in the DOD’s office of general counsel is putting their name on it.”

Hennessey said the Biden administration will have several options for getting rid of Ellis, including firing him on day one. 

“The idea that somebody who has violated the civil service rules is entitled to their protection is not a proposition that federal courts have endorsed,” she said. 

But the administration will face additional public scrutiny if they do so. “The [Biden] administration is likely to be very careful in explaining their processes, legal rationale and justifications because they, in fact, want to respect the civil service rules,” Hennessey said. “They don’t want this to be perceived as political retaliation, because it isn’t.”

Unfair retaliation is also at the heart of accusations against Ellis by Vindman, who also served on the National Security Council. Vindman claims in a whistleblower reprisal complaint dated August, 18 that he was gradually pushed out of duties and assignments for supporting his brother in testifying against President Trump. That process culminated in a review of his performance as “Unsatisfactory’ and ‘Unqualified,’” last June. A review that “was delivered and timed to cause the greatest damage to LTC Vindman’s career and reputation, just weeks before his promotion selection board to Colonel was scheduled to convene,” according to the complaint. 

Eugene R. Fidell, who represents Vindman in his whistleblower complaint with co-counsel with Mark Zaid, said “It is certainly something the DOD inspector general has to get to the bottom of before any policy makers give him a permanent job” as a member of the Senior Executive Service.