Former New York City Mayor Rudy Giuliani said that any decision to appoint a special prosecutor to investigate Hillary ClintonHillary Diane Rodham ClintonRepublicans seem set to win the midterms — unless they defeat themselves Poll: Democracy is under attack, and more violence may be the future Popping the progressive bubble MORE's use of a private email server while secretary of State should come from an independent counsel, not a Cabinet appointee.

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"And I’m going to make a guess, not a definitive statement, I would think if you had to make a decision like that, you’d give it, you’d give that to an independent counsel. You wouldn’t make it as the appointee of the new president," Giuliani told George Stephanopoulos on ABC's "This Week."

President-elect Donald TrumpDonald TrumpJan. 6 panel faces double-edged sword with Alex Jones, Roger Stone Trump goes after Woodward, Costa over China Republicans seem set to win the midterms — unless they defeat themselves MORE has said that Clinton would be in jail if he was elected. A popular chant at his rallies was "lock her up," in reference to Clinton.

"As a lawyer, I hate to use the 'on the one hand, but the other,' but on the one hand, you don’t want to disrupt the nation with what might look like a vindictive prosecution, even though it might not be," Giuliani said.

"On the other hand, you want equal justice under the law, and if she has violated the law — you know, the FBI never completed the [Clinton Foundation] investigation," he added.