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Former Intelligence Official Sues NSA, DOD for Ignored FOIA Requests

Michael Ellis, a former top intelligence official during the Trump administration, sued three federal agencies for not responding by statutory deadlines to Freedom of Information Act (FOIA) and Privacy Act requests pertaining to what he argued was political persecution against him by the Biden administration.

Earlier this week, Ellis filed a complaint against the National Security Agency (NSA), the Department of Defense (DOD), and the DOD Office of the Inspector General (OIG) for not yet complying with his FOIA request within the time period required by the law.

Ellis — a Navy reservist, Yale Law School graduate, and Jeopardy! winner — was selected during the Trump administration to serve as general counsel at the NSA towards the end of the Trump administration after an extensive vetting process by a panel of non-partisan civil servants.

Despite the position being a civil service position that would continue into the Biden administration, Ellis was placed on administrative leave a day after he assumed the position on January 19, 2021 — the day before President Joe Biden’s inauguration. In the months before that, Democrats in Congress who opposed having Ellis — a former staffer to then-Rep. Devin Nunes (R-CA) — in the position, had pressed the DOD OIG to investigate his hiring.

According to CNN and other establishment media reports, Democrats’ concerns were that Ellis allegedly overruled career officials when reviewing former National Security Adviser John Bolton’s book for classified information, that he was allegedly in the room when ex-NSC staffer Alexander Vindman reported his concerns about former President Donald Trump’s call to the Ukrainian president, and his alleged role in informing Rep. Devin Nunes (R-CA) that U.S. intelligence had swept up Trump’s campaign team during foreign surveillance.

NSA Director Gen. Paul Nakasone placed Ellis on indefinite administrative leave just hours after Biden was inaugurated, reportedly pending the outcome of a DOD OIG inquiry into his hiring. The general also claimed there were two incidents involving the handling and storage of classified materials, but there appeared to be no effort to investigate those alleged incidents.

At the time, two former officials who spoke to Breitbart News called Ellis an “outstanding guy” known for being a “straight shooter,” and said he would have been in the job sooner had the NSA not dragged its feet under pressure from Democrats.

Ellis ultimately resigned from the position and is now the general counsel for Rumble. The DOD OIG subsequently determined that there was no improper political influence in Ellis’s hiring for the position and that Nakasone had improperly relied on the DoD OIG investigation as grounds for placing Ellis on indefinite administrative leave.

Ellis later submitted several FOIA requests regarding Nakasone putting him on indefinite administrative leave, including one to the DOD OIG on August 4, 2022, and to the DOD and the NSA on November 7, 2022, but he has not received a substantive response from the DOD OIG and has not received any response from the DOD or the NSA.

Ellis noted in his complaint:

FOIA requires agencies to respond to requests within 20 days, excluding the weekends and legal holidays. … DOD and NSA were required to decide whether to comply with Mr. Ellis’s November 7, 2022, request and to notify him of that decision by Wednesday, December 7, 2022. DoD and NSA failed to respond by December 7. Neither has responded as of the filing of this Complaint.

DoD OIG was required to respond to Mr. Ellis’s August 4, 2022, request by Thursday, September 1, 2022. Its response on August 17, 2022, acknowledged receipt of the request but did not include any substantive response. DoD OIG has not responded substantively as of the filing of this Complaint.

In addition, Ellis’s complaint notes:

The Privacy Act requires DoD, DoD OIG, and NSA to give Mr. Ellis access to his records and to information pertaining to him. … Neither DoD nor NSA has provided any records or information to Mr. Ellis in response to his November 7, 2022, request. DoD OIG has not produced any records to Mr. Ellis in response to his August 4, 2022, request.

Ellis first joined the Trump administration in March 2017, as a special assistant to the president and the NSC’s deputy legal adviser.

Prior to that, he had served as the general counsel on the House intelligence committee under then-chairman Rep. Devin Nunes (R-CA). Ellis had worked on the committee since 2015, and before that had worked as counsel for the committee’s previous chairman, Rep. Mike Rogers (R-MI), from 2013 to 2015.

Nunes excoriated Nakasone during a hearing last year, telling him, “You ruined the career of a lieutenant commander, naval officer for political reasons. You accused him of handling, mishandling classified information. So hopefully you can get those names to the committee.”

Nakasone was appointed to NSA under the Trump administration, but spent much of his senior military career under the Obama administration. According to a WIRED article, Nakasone was a “longtime friend” of former President Barack Obama’s chief of staff, Denis McDonough, who now serves as Secretary of the Department of Veterans Affairs.

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