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DoD Inspector General finds no wrongdoing in hiring, and sidelining, of former NSA top lawyer

A review by the Defense Department’s inspector general found that the Trump White House did not seek to influence the selection of a former Republican operative to be the NSA‘s top lawyer late last year.

The internal watchdog examined the process that saw Michael Ellis, then a White House political appointee, picked as the agency’s general counsel, as well as the decision by U.S. Cyber Command and NSA chief Gen. Paul Nakasone to place Ellis on administrative leave one day after he was sworn into office.

“We conclude there was no improper influence or failure to comply with DoD guidance in the process and decision” to select Ellis for the post, according to the IG.

Similarly, the office found that Nakasone was "appropriate and within his authority" when he placed Ellis on administrative leave following two alleged security incidents involving Ellis, who previously worked as a lawyer for the Republicans on the House Intelligence Committee and was White House senior director for intelligence at the time he was selected.

However, the inspector general determined that another basis for Nakasone delaying the appointment  — a review by the DoD watchdog office into Ellis' hiring — “was not a valid reason” to sideline him, the report stated.

The move to install Ellis as the NSA’s general counsel drew outcry from national security experts and congressional Democrats, who considered it an attempt to “burrow,” or convert a political appointee into a career position, at the country’s largest spy agency in the final days of the Trump administration.

As general counsel, Ellis would have been one of the top leaders, in terms of seniority, at the NSA.

Nakasone opposed Ellis’ appointment and sought to delay his installation, according to two people with knowledge of the situation who spoke on the condition of anonymity. Nakasone was eventually ordered by the acting defense secretary Christopher Miller to put Ellis in the position.

However, the day after Ellis was sworn in — the same day Joe Biden took office — Nakasone placed him on administrative leave, pending the evaluation by DoD’s inspector general. 

Ellis submitted his resignation in April, writing in a letter to Nakasone that he hadn’t received “any explanation or updates” in months. 

Around the same time, GOP members of the House Intelligence Committee grilled Nakasone during a public hearing over the episode. The four-star repeatedly declined to comment on the circumstances, citing the Pentagon investigation.

The watchdog report details the two alleged security incidents involving Ellis.

One incident alleged that Ellis created or directed the copying of sensitive NSA notebooks. In the other, an NSA employee attempted to retrieve an agency document from Ellis that contained classified information. 

Ellis refused and retained it for the White House archives. However, it was placed in a container that didn’t meet security standards for such a sensitive document, according to the IG review.

“I learned … that we had questions about the way that Mr. Ellis had handled our most sensitive intelligence that deals with a foreign actor when he was in the White House,” Nakasone told investigators when asked why he benched Ellis. 

“I’m … growing concerned … I have an OGC that I’ve said is okay to be hired, now we have concerns about his clearance. We have concerns about merit. We have concerns about an ongoing inquiry by the DoD IG. And so, my sense was … let’s get this all resolved… before he actually becomes the General Counsel for the National Security Agency.”

The inspector general report includes some of the the back and forth between Nakasone and Paul Ney, then the Pentagon’s top attorney, where the four-star voiced concerns about the Ellis’ selection and the alleged security incidents. 

Ney replied that he was “disappointed” by Nakasone’s arguments and eventually recommended the acting Pentagon chief to order the four-star to install Ellis.

The inspector general concluded that the Office of the Undersecretary of Defense for Intelligence and Security should review the allegation Ellis twice improperly handled classified information and determine what, if any, further actions the NSA, or another agency, should take regarding them.

The watchdog also suggested the Office of the Under Secretary of Defense for Personnel and Readiness should request that OPM review its decision not to conduct pre-appointment reviews of hiring actions of former political appointees to intelligence community elements like NSA to “determine if they are meeting Congress’s intent for oversight of the hiring of former political appointees.”

The NSA has since re-opened its search — twice — for a top lawyer. 

"NSA welcomes the oversight and accountability from the DoD IG on this matter and others," an agency spokesperson said in a statement. "We cooperated fully throughout the process of this investigation and welcome the review offered."

Martin Matishak

Martin Matishak is a senior cybersecurity reporter for The Record. He spent the last five years at Politico, where he covered Congress, the Pentagon and the U.S. intelligence community and was a driving force behind the publication's cybersecurity newsletter.

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