The Gravity of Michael Ellis’ Promotion to Senior Director for Intelligence at the White House

Michael Ellis, a White House lawyer accused of serious ethical misconduct in the Ukraine scandal, has been picked by President Donald Trump to be senior director for intelligence on the National Security Council (NSC). He reportedly started the job this week, replacing a career official who served in that role. What makes the elevation of Ellis to this new post especially surprising is that the most specific charges against Ellis in the Ukraine matter involve his allegedly abusing the government’s national security classification system in a manner that not even Republicans in Congress were willing to defend.

The role of senior director for intelligence can be a pivotal one within the Intelligence Community. Brett Holmgren, who held the position under President Barack Obama, told Just Security, “The position serves as the focal point for coordination between the White House and the [Director of National Intelligence (DNI)] on a range of issues — from setting the president’s intelligence priorities and providing guidance to the DNI on policy matters, to determining who in the U.S. government is granted access to covert action programs and other sensitive operations.” Ellis will now be working hand-in-hand with acting Director of National Intelligence Richard Grenell, as well as Kash Patel, who recently moved from the NSC to the DNI’s office.

Both Patel and Ellis previously worked for Rep. Devin Nunes (R-Calif.), as staffers on the House Intelligence Committee. In March 2017, Ellis became caught up in the White House scandal of sharing intelligence information with Nunes in an apparent effort to discredit the Russia investigation. At the time, Ellis was deputy legal adviser to the NSC and an associate involved in the scandal was reportedly Ezra Cohen-Watnik, the Senior Director for Intelligence at the time. “Though neither has been accused of breaking any laws, they do appear to have sought to use intelligence to advance the political goals of the Trump administration,” the New York Times reported (see also Wall Street Journal and Washington Post). Cohen-Watnik’s attorney, Mark Zaid denied his client’s role (Zaid later became the Ukraine whistleblower’s attorney). [Update: The New York Times subsequently changed, or at least elaborated, its account of Cohen-Watnik’s role, but strengthened its account that Ellis had used intelligence for political purposes. A year later, the Times reported that Cohen-Watnik, acting “at the instruction of two senior White House officials, helped print intelligence reports that later served as Mr. Nunes’s proof,” and that “Cohen-Watnick did not provide the intelligence reports to Mr. Nunes.” As for Ellis, the subsequent Times report said, “Nunes and one of the aides, Michael Ellis, a lawyer in the White House Counsel’s Office, were using intelligence to advance political goals.”]

The Ukraine cover-up

The allegations against Ellis in the Ukraine matter are potentially even more serious. In reporting on his latest move to the senior director position, CNN wrote, “Acting on orders from top NSC lawyer John Eisenberg — Ellis told officials in the NSC’s executive secretariat to move the transcript of Trump’s now infamous July 25 call with the Ukrainian president to a more highly classified server, according to testimony from Lt. Col. Alexander Vindman.”

But that’s not fully accurate. Vidman’s testimony was even more damning for Ellis.

According to Vindman’s first-hand account that he provided to Congress under oath, it was Ellis who came up with the idea of moving the memorandum of the phone call to the highly classified server. After the Ukraine call, Vindman and his brother (an ethics lawyer on the NSC) had an urgent meeting with Ellis and Eisenberg. Vindman testified that he told the lawyers that he thought what happened on the call was “wrong,” that Ellis first raised the idea of placing the call summary into the highly classified system, and that Eisenberg as the senior official in the room signed off on the idea giving it “the go-ahead.” (Vindman deposition transcript, 123-24).

Former intelligence and national security officials have noted “red flags” that indicate serious wrongdoing on the part of Ellis and Eisenberg in this matter.

First, this was a highly unusual role for the lawyers to play in decisions over classification, Just Security’s Tess Bridegman — who held the same position as Ellis of deputy legal adviser to the NSC under Obama —explained in an interview in September when the revelations first came to light. It is worth reading her explanation at length:

Putting these records of phone calls that the president has with other foreign leaders into this stand-alone system for especially classified compartmented code word information is deeply troubling because it seems to indicate an apparent attempt to hide that information either because there is misconduct on the part of the president or even potential criminal wrongdoing.

That`s obviously deeply concerning from a national security perspective as well because it could indicate that there is even a counterintelligence concern at the highest level in the office of the president.

Lawyers from the White House Counsel’s office or the National Security Council legal office are not usually who make the call about the level of classification of a document or what system that document needs to be stored in.

So, that’s the first thing I would note is amiss here. But second obviously, if they were involved in directing that this be put into a different system for the purpose of hiding information that is politically damaging to the president, not because it’s national security sensitive information.

That represents an abuse of that system and potentially an attempt to actually cover up wrongdoing or criminality. So, it’s not at all unusual that the lawyers would be involved in providing advice to National Security Council staff for example or coordinating legal views among the inner agency. That’s their job. But directing either a level of classification or the storage of that information in this special system particularly if the intent was to hide information that’s damaging to the president, that’s highly unusual and deeply concerning.

Second, the actual call memorandum shows that it did not meet the standards for heightened classification. Larry Pfeiffer, who held senior White House security positions in both the Obama and George W. Bush administrations, told the New York Times, “You read this conversation and there is nothing ‘compartmented’ from an intelligence perspective … Anyone with half a brain can read it and understand why they wanted to protect the distribution.”

Third, using the classification system for the purpose of hiding politically damaging or embarrassing information would seem to violate a standing executive order. Adopted on December 29, 2009, Executive Order 13526 states categorically:

In no case shall information be classified, continue to be maintained as classified … in order to:

(1) conceal violations of law, inefficiency, or administrative error;

(2) prevent embarrassment to a person, organization, or agency;

(3) …

(4) prevent or delay the release of information that does not require protection in the interest of the national security.

For more on how Ellis and Eisenberg’s alleged actions violated this executive order, read analysis by April Doss, former associate general counsel for Intelligence Law at the National Security Agency, and analysis by Kim Wehle, a former assistant U.S. attorney and a former associate independent counsel in the Whitewater investigation.

Notably, Republican members of Congress who defended the president during the impeachment investigation were apparently not willing to suggest that the use of the highly classified server for the Ukraine call was appropriate. In the final report from the House Judiciary Committee, the Minority’s dissenting views maintain instead that placing the record on the system was a result of “administrative error.”

That’s an alternative fact.

The dissenting views rely upon the testimony of Tim Morrison, who was then the NSC’s top Russia official. But Morrison said the staff of the NSC’s Executive Secretariat specifically told him, “John Eisenberg had directed it be moved to a different server.” Morrison said he could not understand the reason for that decision: “If that was the judgment he made, that’s not necessarily mine to question but I didn’t understand it.” When Morrison confronted Eisenberg, the legal adviser denied he issued the direction. Eisenberg later returned to Morrison telling him that moving the call record was a “mistake” – namely, the Executive Secretariat misunderstood his direction. But if it was that kind of mistake, it should have been undone. The standing executive order, for example, states: “In no case shall information … continue to be maintained as classified” for illicit purposes. Even without the executive order, there’s no good reason for keeping the memorandum on the server from that point onward. Yet, that’s where it remained. As the Judiciary Committee’s Majority report notes, “Even after Mr. Eisenberg stated that the call record was moved to the highly classified system by ‘mistake,’ it nevertheless remained on that system until at least the third week of September 2019, shortly before its declassification and public release.” What’s more, Vindman’s deposition testimony indicates it was no mistake at all, but rather the deliberate plan on the part of Ellis and Eisenberg. Vindman was also specifically asked about this during his public testimony:

GOLDMAN: But it was your understanding that it was not a mistake to put it on the highly classified system, is that right?

VINDMAN: I’m not sure I understand.

GOLDMAN: Was it intended to be put on the highly classified system by the lawyers or was it a mistake that it was put there?

VINDMAN: I think it was intended. But, again, it was intended to prevent leaks and to limit access.

The original whistleblower’s complaint, which was extensively corroborated, also stated, “White House officials told me that they were ‘directed’ by White House lawyers to remove the electronic transcript from the computer system in which such transcripts are typically stored.”

What’s more, Eisenberg’s claiming it was a “mistake” and telling another NSC official (Morrison) that he did not direct the Executive Secretariat to place the memorandum on the highly classified server, if anything, suggests consciousness of guilt. After the whistleblower complaint became public, the Trump administration even appeared to acknowledge the NSC lawyers’ actions in a statement to CNN, or at least the statement left it deliberately ambiguous (see, CNN’s “White House says lawyers directed moving Ukraine transcript to highly secure system”).

Ellis’ role in the Ukraine matter does not end with the placement of the call record on the highly classified server. By all public accounts, including other testimony in the impeachment proceedings (see Fiona Hill and Tim Morrison), Ellis worked closely alongside Eisenberg as his deputy. Both men were briefed by Morrison after Ambassador Gordon Sondland told Morrison that he relayed an explicit quid pro quo for security assistance to Ukrainian officials. Both were routinely briefed by Fiona Hill, who was the NSC’s top Russia official before Morrison, about her concerns involving the Ukraine affair. And, Eisenberg reportedly helped lead the effort to prevent the IC inspector general’s report about  the whistleblower’s complaint from reaching Congress, despite a federal statute clearly requiring the report be sent to Congress within seven days. And, both men were ignominiously named in the Articles of Impeachment in failing to comply with lawful subpoenas to appear before Congress.

In short, it appears that Ellis was centrally involved in the Ukraine affair. And it is worth recalling that a bipartisan majority of senators found the House Managers’ factual allegations in the Senate trial true and the president’s conduct wrong.

The power of senior director for intelligence

I asked former National Security Council spokesperson, Ned Price, about Ellis’ potential influence as senior director for intelligence. In an email, Price wrote:

The Senior Director for Intelligence serves as the linchpin between the worlds of policy and intelligence. Ellis will be responsible for coordinating the authorization and implementation of our most sensitive covert action programs, but what especially worries me about him in this role is what he’ll seek to do vis-a-vis sensitive intelligence reporting. His will be a critical voice when it comes to what to share with Congress and the American people regarding what we’re learning about foreign efforts to interfere in the 2020 election. He also will be in a position to prevent dissemination of foreign intelligence that paints an especially unflattering portrait of Trump. Chairman Schiff’s public comments give us reason to suspect the administration is preventing NSA and CIA from sharing with Congressional oversight committees reports that capture Ukrainian officials’ private reactions to Trump’s attempted shakedown. My suspicion is that our intelligence agencies have and, going forward, will collect even more information from foreign officials pointing to Trump’s wrongdoing in his interactions with them. With Ellis in this role, we can expect Congress and the American people will be left in the dark.

Congress should ask now to speak with Ellis. His earlier objection to appearing — that he could not bring “relevant executive branch agency counsel to attend any deposition” — should not pose an obstacle. A reason for denying such counsel at the time was to protect the integrity of the impeachment investigation. At a minimum, Ellis owes Congress and the public an explanation given the public trust required for his current position. 

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). Follow him on Twitter (@rgoodlaw).