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Trump’s legal team divided over how to handle Mar-a-Lago case

New lawyer’s advice to seek an ‘off-ramp’ with Justice Department is not being heeded, people familiar with discussions say

Trump attorney Christopher Kise leaves the federal court in West Palm Beach, Fla., on Sept. 1. (Eva Marie Uzcategui/Bloomberg)
14 min

After attorney Christopher Kise accepted $3 million to represent Donald Trump in the FBI’s investigation of government documents stored at Mar-a-Lago, the veteran litigator argued that Trump should adopt a new strategy.

Turn down the temperature with the Department of Justice, Kise a former Florida solicitor general — counseled his famously combative client, people familiar with the deliberations said.

Federal authorities had searched Trump’s Florida residence and club because they badly wanted to retrieve the classified documents that remained there even after a federal subpoena, Kise argued, according to these people. With that material back in government hands, maybe prosecutors could be persuaded to resolve the whole issue quietly.

But quiet has never been Trump’s style — nor has harmony within his orbit.

Instead, just a few weeks after Kise was brought aboard, he finds himself in a battle, trying to persuade Trump to go along with his legal strategy and fighting with some other advisers who have counseled a more aggressive posture. The dispute has raged for at least a week, Trump advisers say, with the former president listening as various lawyers make their best arguments.

A Wednesday night court filing from Trump’s team was combative, with defense lawyers questioning the Justice Department’s truthfulness and motives. Kise, whose name was listed alongside other lawyers’ in previous filings over the past four weeks, did not sign that one — an absence that underscored the division among the lawyers. He remains part of the team and will continue assisting Trump in dealing with some of his other legal problems, said the people familiar with the conversations, who like others interviewed for this article spoke on the condition of anonymity to reveal private talks. But on the Mar-a-Lago issue, he is likely to have a less public role.

It is a pattern that has repeated itself since the National Archives and Records Administration first alerted Trump’s team 16 months ago that it was missing documents from his term as president — and strongly urged their return. Well before the May 11 grand jury subpoena, and the Aug. 8 search of Mar-a-Lago by the FBI, multiple sets of lawyers and advisers suggested that Trump simply comply with government requests to return the papers and, in particular, to hand over any documents marked classified.

Trump seems, at least for now, to be heeding advice from those who have indulged his desire to fight.

The approach could leave the former president on a collision course with the Justice Department, as he relies on a legal trust that includes three attorneys facing their own potential legal risks. The first, Christina Bobb, has told other Trump allies that she is willing to be interviewed by the Justice Department about her role in responding to the subpoena, according to people familiar with the conversations. Another, M. Evan Corcoran, has been counseled by colleagues to hire a criminal defense lawyer because of his response to the subpoena, people familiar with those conversations said, but so far has insisted that is not necessary. The third, longtime Trump adviser Boris Epshteyn, saw his phone taken as part of the Justice Department’s probe of Trump’s fake elector scheme, and appeared before a Georgia grand jury Thursday.

Kise, Bobb, Corcoran and Epshteyn either declined to comment for this story or did not respond to requests for comment. Trump spokesman Taylor Budowich replied to a detailed list of questions about their roles with a statement that did not directly answer the questions. “While the media wants to focus on gossip, the reality is these witch hunts are dividing and destroying our nation,” Budowich said. “And President Trump isn’t going to back down.”

Mar-a-Lago search appears focused on whether Trump, aides withheld items

Trying to find an ‘off-ramp’

Kise has worked for multiple elected officials in Florida and argued before the U.S. Supreme Court in his role as solicitor general and in private practice. He has long been close to Susie Wiles, a Republican political operative from Florida who plays a key role in Trump’s orbit, and Brian Ballard, a high-powered Florida lobbyist who also is close to Trump.

After the search of Mar-a-Lago, in which FBI agents seized some 11,000 government documents, about 100 of them marked classified, Wiles and Ballard were among those who recommended Kise to help defend Trump in an investigation focused on the potential mishandling or destruction of government material.

Hired in late August with an upfront retainer, which people familiar with the matter said was paid by Trump’s Save America PAC, Kise told others he wanted to de-escalate the Trump team’s pugilistic approach to federal prosecutors, according to three people familiar with his comments.

Continuing to attack the Justice Department and the FBI, he argued, was likely to cause federal authorities to be more aggressive. Kise has suggested to other Trump advisers that the best solution would be to try to find an “off-ramp” with the Justice Department before a possible indictment or trial; he has said he thinks Trump can avoid criminal charges.

In private, those familiar with the conversations say, Kise has questioned the wisdom and experience of some of his colleagues, arguing that they do not have extensive experience with this type of litigation — and could face legal trouble themselves. He also argued privately that their counsel had deepened Trump’s problems and that they would have had fewer problems had he started representing Trump earlier in the summer. Whether those lawyers were, in fact, acting on specific instructions from their client, the former president, is not yet clear.

Trump is rushing to hire seasoned lawyers — but he keeps hearing 'No'

Kise’s influence on Trump’s team can be seen by comparing some of the court filings lodged by the team. A motion filed before he was hired, asking a judge to appoint a special master to review the seized documents, mixed political and legal arguments and characterized the court-approved FBI search as a “shockingly aggressive move.”

“President Donald J. Trump is the clear frontrunner in the 2024 Republican Presidential Primary and in the 2024 General Election, should he decide to run,” the filing read.

Later filings appeared more restrained, with fewer direct attacks on the Justice Department.

“As this Court correctly observed, a criminal investigation of this import — an investigation of a former President of the United States by the administration of his political rival — requires enhanced vigilance to ensure fairness, transparency, and maintenance of the public trust,” reads a court document signed by Kise.

Even as Kise has urged moderation, his rivals have pushed Trump to maintain an aggressive stance — in part because they believe combativeness plays well with supporters and could force welcome delays. Some of Trump’s other lawyers also have badmouthed Kise to the former president, saying he is not a team player.

Among Kise’s critics, according to three Trump advisers, is Epshteyn, a longtime Trump ally who worked on his inauguration and his 2020 campaign and has grown closer to Trump in the post-presidency, helping to push false claims that the 2020 election was stolen and attempt to overturn the results.

Epshteyn, a polarizing force in Trump’s orbit and a graduate of Georgetown Law School, has taken a leading role in hiring lawyers and developing the legal strategy for the Mar-a-Lago probe, even though he has little experience battling with the Justice Department or arguing in court. Some of Trump’s advisers and other lawyers think Epshteyn empowers some of the former president’s worst instincts and have argued for months for his role to be reduced. But Trump has appreciated his loyalty, advisers to the former president say.

One potential test of Trump’s legal strategy was eliminated Thursday, when Judge Aileen M. Cannon overruled the special master she appointed, who had ordered Trump’s attorneys to state in court whether they believe FBI agents lied about the documents. Trump has said on social media and in interviews that FBI agents planted items when they searched Mar-a-Lago, and he has declared that he had declassified the materials he was keeping there. His attorneys have not directly echoed those claims in court, where they have ethical obligations to be truthful.

Special master Raymond J. Dearie’s order had threatened to put them in a legal bind until it was overruled by Cannon. If the lawyers had confirmed that the government’s inventory list is accurate — meaning that the documents were classified and that no evidence was planted — that would have exposed a gap between Trump’s public claims and the attorneys’ own assertions. But if they made statements not backed up by evidence, the attorneys would have exposed themselves to potential professional sanction.

Peril posed by a subpoena response

Kise was added to the team in part because Bobb and Corcoran were considered legally vulnerable on a different front. Together, they told the Justice Department that Corcoran had led a diligent review of Mar-a-Lago documents to respond to the May subpoena and had identified and handed over all classified records at the former president’s club.

The two attorneys met investigators there in June, giving them a taped-up file folder containing 38 documents collected in response to the subpoena.

In court documents, prosecutors have called that response “incomplete” and said they have collected evidence that “obstructive conduct” was involved with the failure to fully comply with the subpoena.

Trump and the Mar-a-Lago documents: A timeline

According to people familiar with the probe, Bobb signed a document swearing that she had been told that “a diligent search” was conducted of boxes of records shipped from the White House to Florida when Trump left office. The signed document said the file folder being handed over contained “all documents that are responsive to the subpoena.” Corcoran, the people said, then told the visiting federal officials that he had been advised that all of the records that were shipped to the club from the White House had been placed in the storage room — nowhere else — and that all available boxes had been searched in response to the subpoena.

Court documents describe the June meeting with Trump advisers and show that investigators obtained video surveillance at the club and conducted additional interviews with Trump staffers. Investigators then sought a search warrant from a judge, saying they had evidence there was still sensitive material at Mar-a-Lago and were concerned about whether it was secure. When agents searched, they found additional documents with classification markings in the storage room and Trump’s office, mixed in with thousands of other government papers, news clippings and other items.

The discovery solidified the legal peril facing Trump and his team. The Justice Department is far more likely to file criminal charges alleging that Trump illegally hoarded classified documents if they have clear evidence that he took steps to conceal or hide them in response to a grand jury subpoena demanding their return, legal experts said.

Deep inside busy Mar-a-Lago, a storage room where secrets were kept

Trump hired Corcoran in April with no vetting, after being introduced to him on a single conference call, The Washington Post has reported. Corcoran was at the time representing former Trump adviser Stephen K. Bannon, who was charged with contempt of Congress for failing to respond to a congressional subpoena in the House’s investigation of the Jan. 6 attack on the U.S. Capitol.

Bannon, who was convicted at trial in July, was one of Corcoran’s earliest clients after he joined a small Baltimore law firm last year, ending a seven-year break from working as a lawyer. During that absence from the law, he worked for Fortress Investment Group, an investment management firm.

A former congressional staffer and the son of a former Illinois congressman, Corcoran spent eight years early in his career at the U.S. attorney’s office in D.C. Lawyers who worked with him there said he was assigned primarily to handle local violent crimes. In 2000, he joined the esteemed D.C. firm Wiley Rein, where his caseload included insurance litigation involving the collapse of the World Trade Center towers in the 9/11 attacks.

He left Wiley Rein after 15 years amid financial and personal difficulties related to his pending divorce from his first wife, according to two people familiar with his departure. A Wiley Rein spokesperson declined to comment on Corcoran’s departure or his work for the firm.

Willing to cooperate

Bobb’s history with Trump goes back much further. A former lawyer in the Marine Corps, she worked as an executive secretary in the Department of Homeland Security while Trump was in office, handling classified documents that were needed for the department’s secretary to make policy decisions, said people who knew her there.

Bobb has told others close to Trump that she believes the certification she signed was accurate. She has hired her own lawyer, Tampa-based former prosecutor John Lauro, and has made it known to Trump allies that she is willing to cooperate and be interviewed by the Justice Department, people familiar with the situation said.

Asked last week whether she was negotiating to sit for an interview with prosecutors, Bobb declined to comment, saying: “I’m sorry, I’m not allowed to talk about it.”

After leaving DHS, Bobb was hired as a host for the pro-Trump One America News, starting in June 2020. Following the 2020 election, she volunteered her services to Trump’s legal team challenging the election results. Documents released through public records requests show that she exchanged emails with the president of the Arizona Senate regarding documents the Republican leader had requested of Rudy Giuliani, who was spearheading Trump’s election challenges.

An email obtained by The Post shows that Bobb also served as the note taker during a Dec. 12 call that focused on planning detailed logistics for fake electors to gather in states won by Biden and declare Trump the winner in those states. The email has been turned over to federal investigators exploring the fake-elector scheme.

On Jan. 6, 2021, Bobb huddled with Giuliani at the campaign’s informal headquarters at the Willard hotel in Washington as a pro-Trump mob stormed the U.S. Capitol, The Post previously reported.

After Trump left the White House, Bobb resumed full-time work at OAN, becoming one of the network’s most vocal on-air cheerleaders for a Republican-led effort to recount more than 2 million presidential ballots in Arizona’s largest county. She also founded a nonprofit group to raise money to fund the effort, using her on-air job to encourage viewers to contribute. And she began communicating about the effort, The Post has reported.

In March of this year, Bobb told viewers that she was leaving the network and would be doing legal work for Trump. Campaign finance records show she has been paid more than $67,000 by Trump’s Save America PAC since then. Since May, she has returned to the world of conservative broadcasting, covering Trump rallies as an on-air reporter for the pro-Trump Right Side Broadcasting Network.

Despite giving numerous interviews in the days immediately after the FBI search in which she was identified as a lawyer for Trump, Bobb told a fellow RSBN anchor during a Sept. 23 broadcast that she was not acting as a Trump attorney while serving as custodian of the records in responding to the subpoena. The difference is important: The Justice Department team investigating the handling of the documents would face few hurdles to compel her to testify if she had not been serving as Trump’s lawyer at the time.

“I think people were a little bit confused,” Bobb told her fellow anchor. “I am on President Trump’s legal team. I do work for him on election issues. I was never on the legal team handling this case, just to be clear on that. Which is why I came in as the custodian of records — because I wasn’t on that team.”

Isaac Arnsdorf, Devlin Barrett, Alice Crites, Amy Gardner and Nick Miroff contributed to this report.