Joe diGenova, former U.S. attorney for the District of Columbia, and Victoria Toensing, a former senior official at the Department of Justice, criticized a magistrate judge's rebuke of the department on Newsmax on Tuesday.
On "The Chris Salcedo Show," the duo argued that Judge William Fitzpatrick's concerns about gross mishandling of evidence and possible misstatements by the lead prosecutor in the grand jury case of former FBI Director James Comey are "sophomoric" and "nonsensical."
Comey is accused of lying to Congress.
"This is a magistrate judge, not a federal judge, and this ruling by this judge has already been put on hold by the judge who is supervising the case, [U.S. District] Judge [Michael] Nachmanoff," diGenova said.
"He's asked for pleadings from the government and the defense by the end of the week and then he's going to rule on this stuff."
DiGenova said he reviewed the magistrate's order and found it far outside the norm for federal proceedings.
"I've read the magistrate's ruling," he said. "It is sophomoric. It is incendiary.
"It's nonsensical. It's written by someone — no real federal judge writes a ruling like this in a case like this."
He added that he believed Fitzpatrick was compromised from the beginning.
"I think he's prejudiced," diGenova said. "I think he previously had made up his mind.
"I think he's been swayed by publicity and that's why he's a magistrate judge and not a real federal judge."
When asked if the case could get thrown out, Toensing said, "It could," before suggesting that the Virginia case could complicate a larger effort underway.
"That wouldn't be altogether bad because there's supposed to be a grand jury in Fort Pierce, Florida, looking into a grand conspiracy, and it could be that if Comey went to trial and got acquitted in Virginia, that he could argue double jeopardy," she said.
Double jeopardy refers to the legal principle that prevents a person from being tried twice for the same crime after either an acquittal or a conviction.
"So, the gods are in charge," she added.
DiGenova echoed her point, noting that a dismissal might strengthen the broader case in Florida.
"It wouldn't bother me if it were thrown out because I'm worried, like Victoria is, that if he's acquitted, they may not be able to include him in the conspiracy case that we read is being done in Florida," he said.
Still, diGenova said it was difficult to predict what might happen, given the jurisdiction of the case.
"It's hard to tell because this district, there's a Biden judge in charge of the case, very unfriendly jurisdiction, bad jury pool, bad grand jury pool," he said. "Anything could happen."
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