Jacob Frenkel, a former Department of Justice attorney, said on CNBC Tuesday that he believed that Hillary Clinton could have been prosecuted over her email practices on CNBC.
After giving deference to FBI Director James Comey, Frenkel then said what he found disturbing with the FBI's findings. Comey said Clinton was "extremely careless" with classified material but that he would not recommend charges be brought.
"What I found a little bit more troubling is the continued and repeated reference to intent. They found no evidence of intent. There was one other point that he made during the press conference that I found a little bit troubling, which was they could not find any other such case historically," Frenkel said. "As to the issue of intent, he did describe what I would call a significant pattern, a significant practice, that there is a substitute in the law for criminal intent."
"In lay terms, it's the ostrich head in the sand. In legal terms, it's called deliberate ignorance or willful blindness or conscious avoidance. That is a point that he did not address and it certainly sounds like the type of situation that a reasonable prosecutor in other circumstances involving somebody who is not the secretary of state may well have considered finding that there is a legal substitute for criminal intent. As to not find such a case historically, that to me, flies somewhat in the face of a lot of other aggressive prosecution theories that the Department of Justice always does not hesitate to reach out and bring."
After saying again that he would defer to Comey, Frenkel added that there are a lot of questions that are still unanswered.
"I think the Department of Justice, senior prosecutors, certainly can review this and I think there is a basis for the Department of Justice to come to a different conclusion," Frenkel said.