A former Department of Justice attorney said Tuesday Hillary Clinton's actions regarding her use of private email can lead to criminal prosecution, regardless of the FBI's decision to not recommend charges.
Jacob Frenkel told CNBC he disagrees with FBI director James Comey regarding a key piece of the puzzle: intent.
"What I found a little bit more troubling is the continued and repeated reference to intent," Frenkel said. "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.
"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."
Frenkel argued that Clinton's pattern of mishandling classified information — Comey said the FBI found 110 emails that contained classified information — shows a level of intent to disobey the law.
"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," Frenkel said. "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.