Judge Aileen Cannon (U.S. District Court for the Southern District of Florida), Ty Cobb appears on CNN on March 21, 2024 (CNN/screengrab)
A White House lawyer who represented former President Donald Trump during special counsel Robert Mueller’s Russia investigation issued a searing criticism Thursday of the judge presiding over his ex-client’s Espionage Act prosecution, opining that the Mar-a-Lago case jurist’s “baffling” understanding of the law may be enough for Jack Smith to seek her recusal.
Ty Cobb, appearing on CNN’s “Erin Burnett OutFront,” began by pointing out that U.S. District Judge Aileen Cannon “butchered” a decision before and 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.
For Cobb, Cannon’s latest order on proposed jury instructions was “absurd on its face” and devoid of “legal support.” The Presidential Records Act (PRA) did not entitle Trump to turn classified documents into personal effects to be kept in a Mar-a-Lago bathroom and shower, Cobb noted, and any hint that he had such power — such as a jury instruction claiming as much — is an “embarrassing” and “baffling 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.”
The former White House lawyer thinks that Cannon, a Trump appointee, made “such a fundamental error” which is “so reflective of bias” that special counsel Jack Smith has a “basis” — albeit “not a dispositive basis” — to seek the judge’s recusal. He referred to other recent criticisms of Cannon in the media, particularly the remarks former federal judge Nancy Gertner made in 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.
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.
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“She will announce a trial date at some point. Any other judge in the country would have long ago announced a trial date and then simply moved it. I don’t think she has any intention of letting this case come to trial before the election or before the inauguration, which may not matter if Trump loses because the cause would ultimately get to trial,” he said. “But if he wins, it’s highly consequential because he’ll have the ability to dismiss it.”
While some attorneys have suggested 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 “basis” to seek her recusal, setting up another possible rebuke from the U.S. Court of Appeals for the 11th Circuit.
“She just is the wrong judge. I wish the chief judge of the district court there would step in or the 11th Circuit would step in sua sponte, as we say — on their own volition — and act,” he said.
Although judges can recuse themselves sua sponte (or on their own motion), typically litigants will bring a motion to disqualify under 28 U.S.C. § 455(a), a federal statute 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 previewed by Cobb, would be that Judge Cannon’s rulings have been so egregiously and obviously erroneous 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 merely be incompetent,” he said of Cannon.
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