How Did a Trump Loyalist Come to be Named NSA General Counsel—And What Should Biden Do About It?

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 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 non-political 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 non-permanent 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 actually 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 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 Counse

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