Ex-Trump White House lawyer who was involved in the Mueller investigation called the judge's order at Mar-a-Lago 'fundamentally unhinged' and said it could be a reason for the judge to step back from the case because it is embarrassing

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A lawyer from the White House who represented Donald Trump during Robert Mueller's Russia investigation strongly criticized the judge overseeing Trump's Espionage Act case, suggesting that her perplexing interpretation of the law could lead to her disqualification.

During an appearance on CNN's 'Erin Burnett OutFront,' Ty Cobb pointed out that U.S. District Judge Aileen Cannon had previously made a flawed decision that had to be corrected by the U.S. Court of Appeals for the 11th Circuit. during the special master phase of the Mar-a-Lago saga. He suggested the 11th Circuit’s next task could very well be removing Cannon from the case.

Cobb criticized Cannon's recent order on proposed jury instructions, calling it 'absurd' and lacking 'legal support.' He emphasized that the Presidential Records Act did not allow Trump to treat classified documents as personal items to be kept in a Mar-a-Lago bathroom and shower. Cobb noted that any suggestion that Trump had such authority, such as a jury instruction claiming so, is an embarrassing and bewildering position.“This is a remarkable misunderstanding of the applicable law. It’s embarrassing. She’s been struggling so dramatically in this case ever since the start, when she was — she butchered the special master decision and the 11th Circuit took her to task for it,” Cobb said, before adding: “First, she appears to believe that the Presidential Records Act is actually consequential in the case, which it is not. This is an Espionage Act case. This is not a presidential records violation act case.” Cobb believes that Cannon's 'fundamental error' is indicative of bias, providing a potential reason for the judge's recusal, although it may not be conclusive. The former White House lawyer thinks that Cannon, a Trump appointee, made “such a fundamental error” which is “so reflective of bias” that the special counsel Jack Smith has a “basis” to seek the judge’s recusal, even though it's not a definitive reason.

Cobb mentioned other recent criticisms of Cannon in the media, particularly comments from former federal judge Nancy Gertner in the Washington Post regarding a surprising jury instructions order

Gertner called the ruling “very, very troubling” — in that Cannon is “giving credence to arguments that are on their face absurd” — and troubling that so many other “equally absurd” motions remain unresolved. Cobb believes the slow burn is deliberate, citing the lack of a trial date. the Washington Post in response to a Monday jury instructions order that astonished lawyers. Critics called the move “the most bizarre order I’ve ever seen issued by a federal judge,” an act of “legal inanity,” “legally insane,” “nutty,” and a possible path forward to acquittal based on a misstatement of what the law says.

The critics described the order as “the most bizarre order I’ve ever seen issued by a federal judge,” an act of “legal inanity,” “legally insane,” “nutty,” and a possible path forward to acquittal based on a misstatement of what the law says.

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“She will decide on a trial date at some point. Any other judge in the country would have already announced a trial date and then simply rescheduled it. I don’t think she intends to let this case go to trial before the election or before the inauguration, which may not matter if Trump loses because the case would eventually go to trial,” he said. “But if he wins, it’s very important because he’ll have the ability to dismiss it.”

While some lawyers have recommended that Jack Smith should seek mandamus from the U.S. Court of Appeals for the 11th Circuit, Cobb argued that the “fundamentally unhinged” ruling could be a “reason” to seek her recusal, setting up another possible rejection from the U.S. Court of Appeals for the 11th Circuit.

“She simply is the wrong judge. I wish the chief judge of the district court there would intervene or the 11th Circuit would intervene sua sponte, as we say — on their own initiative — and act,” he said.

Although judges can disqualify themselves sua sponte (or on their own motion), usually litigants will bring a motion to disqualify under 28 U.S.C. § 455(a), a federal law which says that “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

The argument, as outlined by Cobb, would be that Judge Cannon’s rulings have been so flagrantly and obviously incorrect as a matter of law — and one-sided — that it would be reasonable for an observer to question her ability to fairly act as trial judge in the case.

Cobb also issued a parting shot at the end of the segment.

“Unhinged.” Former Trump WH lawyer Ty Cobb on the “totally baffling” order by Judge Aileen Cannon in Trump’s Mar-a-Lago classified documents case. “To her credit, she could merely be incompetent.” pic.twitter.com/x49JQcXvGI

— Erin Burnett OutFront (@OutFrontCNN) March 22, 2024

“To her credit, she could simply be incompetent,” he said of Cannon.