Former New York City Mayor Rudy Giuliani said he's "disappointed" in FBI Director James Comey's decision not to charge Hillary Clinton for her use of a private email server when she was secretary of state, but that doesn't mean the presumptive Democratic Party nominee for president will escape prosecution if Trump is elected president.

Appearing on Fox News' "The Real Story," Giuliani, a former U.S. prosecutor who served in the Justice Department with Comey, took issue with Comey's claim "no reasonable prosecutor" would indict Clinton.

"It would be unreasonable for a prosecutor not to go forward and almost an abdication of duty," said Giuliani, adding it would have been a "no-brainer" during his time at the Department of Justice.

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"She violated 18 USC section 793" by mishandling classified information on her unsecured server, he added, noting that the statute makes no mention of intent. Noting Comey's criticism of Clinton for being "extremely careless," Giuliani said with classified material, there is no difference between being "extremely careless" and acting with "gross negligence."

Calling the circumstantial evidence against Clinton "overwhelming," Giuliani noted that is precisely the kind of evidence prosecutors use to show intent, since direct evidence of intent is usually lacking.

"Here's the biggest piece of the circumstantial evidence: the destruction of the 34,000 emails," he said, noting that a prosecutor would have been permitted to instruct the jury that the mass deletion "infers guilty knowledge."

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"I am so disappointed in this," Giuliani said, but added the case is still not closed.

"Now the interesting thing is the statute of limitations will not have run out on this," he said. "If Trump should win and appoint an attorney general who has the courage to do it, they could bring this indictment."

"I don't have any doubt I can win this case in front of a jury." he said.

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"I worked in the Justice Department for 15 years. For four or five of those years, I had a high security clearance and I would approve FISA applications for national security. I never left the Justice Department wing, I stayed until 4:00 in the morning and I locked them in the safe. If I had done something like this, there is no doubt in my mind the next Justice Department or my boss — I would have been indicted. I would have been indicted for it. It is so discouraging to someone who loves the Justice Department to see a decision like this," Giuliani said.

"If you took his report and made it an FBI background check, she couldn't get any kind of sensitive job in the government," he said.

"She should at least resign as candidate on the grounds that, if she can't pass a top security clearance, she can't be president of the United States."