Retired Assistant Director Kevin Brock says FBI didn't exhaust other means or appear to have established probable cause for search.
The FBI's former intelligence chief declared Friday the agency should not have criminalized the records dispute between Donald Trump and the National Archives and that the bureau appears to have failed to meet the probable cause standard for the invasive search of the former president's Florida estate.
"I think they're going to regret this," retired Assistant Director Kevin Brock told the "Just the News, Not Noise" television show after reviewing a heavily redacted affidavit the FBI used to persuade a judge to allow the Aug. 8 search at Mar-a-Lago.
Brock, ordinarily an ardent defender of his former agency, has raised concerns for several days that the bureau did not exhaust other means to resolve the dispute over presidential and alleged classified records Trump kept. He said he did not believe the FBI adequately considered the possibility that Trump had wide latitude to declassify records and declare them personal.
He said Friday his concerns were only heightened by the court-ordered release of the search warrant affidavit, which he noted was still heavily redacted.
File gov.uscourts.flsd_.617854.102.1_1.pdf "I will caveat all of this by saying we can only see what we can see, but the first thing that jumped out to me is that the probable cause statement focuses on the nature of the documents, and where they are," said Brock, a respected three-decade agent who rose to become the bureau's first intelligence chief under Director Robert Mueller. "But it doesn't, at least in the unredacted portion, address the main element of the criminal federal statutes that they cite.
"The FBI should not have participated in this investigation. It is something that needs to be settled along established routes in that regard that we traditionally used. There was no need for law enforcement involvement in this. And there was certainly no need for an invasive search for the residence. I think they're going to regret this."
Brock defends the agency often but has also criticized — like many — the bureau's failures in the Trump-Russia collusion probe. And his assessment about the Trump search earlier this month is certain to carry weight with agents inside the bureau as well as retirees.
He said the threshold the FBI should have met under its own standards for a search warrant was to show Trump had records he was not authorized to keep and that were illegal to possess.
Brock noted the affidavit even acknowledged the president had the power to declassify and did not call the documents in dispute classified but rather documents with classified markings.
"From what I can see, that's not established in the probable cause," he said. "And there's an allusion to the argument from the Trump advocates that the former president has was within his authority to declassify and to establish what a presidential record is."
Brock said if the redacted sections of the affidavit don't lay out evidence that Trump's possession of the documents was clearly illegal, then "basically we have a search of the man's residence without cause being stated as to why something illegal happened."
Asked if he were still in the FBI whether he would have authorized the search warrant, Brock answered: "No, frankly not."
"And it's puzzling to a lot of folks who have been involved in search warrants for much more serious disputes, in white collar crimes where these things are settled in attorneys' offices, and you don't have to go in with an invasive search, contrary to the attorney general's statement during his press conference that they've exhausted all other means," he continued.
Brock said the FBI could have continued with negotiations, given that Trump's team had returned requested documents at least twice before, or asked a judge to enforce a grand jury subpoena previously issued in the case.
"This is not anything that rises, or passes the no smile test, that rises to the level where you would actually do a search with armed agents of almost any other federal employee, let alone the former president of the United States," he said.