Clinton Used Email In “Common” Manner That Was “Consistent” With State Department Culture

Washington Post's Ignatius: Experts Say “It's Common” And “Inevitable” That Classified Information Is Transmitted On Unclassified Systems. An August 27 Washington Post column by David Ignatius turned to “a half-dozen knowledgeable lawyers” to comment on Clinton's use of private email, concluding that “the Hillary Clinton e-mail 'scandal',” is “overstated.” Quoting Jeffery Smith, a former CIA general counsel, Ignatius explained that “it's common” and “inevitable” that people will transmit classified information using unclassified systems. A former high-level Justice Department official added that “it's common knowledge that the classified communications system is impossible”: 

“It's common” that people end up using unclassified systems to transmit classified information, said Jeffrey Smith, a former CIA general counsel who's now a partner at Arnold & Porter, where he often represents defendants suspected of misusing classified information. 

“There are always these back channels,” Smith explained. “It's inevitable, because the classified systems are often cumbersome and lots of people have access to the classified e-mails or cables.” People who need quick guidance about a sensitive matter often pick up the phone or send a message on an open system. They shouldn't, but they do.

“It's common knowledge that the classified communications system is impossible and isn't used,” said one former high-level Justice Department official. Several former prosecutors said flatly that such sloppy, unauthorized practices, although technically violations of law, wouldn't normally lead to criminal cases. [The Washington Post, 8/27/15] 

New Yorker's Toobin: Classification Rules “Have Little To Do With National Security.”  The New Yorker's Jeffrey Toobin explained in an August 18 article that “what constitutes a government secret has never been clear.”  Pointing to former longtime U.S. Sen. Daniel Patrick Moynihan's book, Secrecy: The American Experience, Toobin explained that “government bureaucracies use classification rules to protect turf” and for a number of other reasons “that have little to do with national security”: 

As Moynihan explained in his book “Secrecy: The American Experience” and explored during a lifetime in public service, the definition of what constitutes a government secret has never been clear. Classified information is supposed to be defined as material that would damage national security if released. In fact, Moynihan asserted, government bureaucracies use classification rules to protect turf, to avoid embarrassment, to embarrass rivals--in short, for a variety of motives that have little to do with national security.  

[...] 

As Moynihan noted, government bureaucracies have every incentive to over-classify. It's the risk-averse approach, and there's no penalty for erring on the side of caution. Besides, over-classification makes their work seem more important. 

In one case, according to media reports, one of Clinton's potentially classified e-mail exchanges is nothing more than a discussion of a newspaper story about drones. That such a discussion could be classified underlines the absurdity of the current system. [The New Yorker, 8/18/15]

AP: Clinton's Actions Are “Consistent” With State Department Culture “During The Past Two Administrations” And Are “Very Common.” The Associated Press reported on August 26 that Clinton's actions were “consistent” with the culture of the State Department “during the past two administrations,” and highlighted how the security breach wouldn't have been less had Clinton used her official department email. The report also explained that slippage of classified information into regular email is “very common.”

The transmission of now-classified information across Hillary Rodham Clinton's private email is consistent with a State Department culture in which diplomats routinely sent secret material on unsecured email during the past two administrations, according to documents reviewed by The Associated Press.

Clinton's use of a home server makes her case unique and has become an issue in her front-running campaign for the Democratic presidential nomination. But it's not clear whether the security breach would have been any less had she used department email. The department only systematically checks email for sensitive or classified material in response to a public records request.

[...]

Such slippage of classified information into regular email is “very common, actually,” said Leslie McAdoo, a lawyer who frequently represents government officials and contractors in disputes over security clearances and classified information. [Associated Press, 8/26/15] 

Clinton's Handling Of Email Is “Not Something A Prosecutor Would Take To Court” 

Washington Post's Ignatius: Former Prosecutors Say Private Email Use Is “Generally Seen As [An] Administrative” Matter That “Wouldn't Normally Lead To Criminal Cases.” In the August 27 column Ignatius highlighted “several former prosecutors” who note that transmitting classified information through a private e-mail server is seen as an “administrative” matter and is “not something a prosecutor would take to court”: 

Does Hillary Clinton have a serious legal problem because she may have transmitted classified information on her private e-mail server? After talking with a half-dozen knowledgeable lawyers, I think this “scandal” is overstated. Using the server was a self-inflicted wound by Clinton, but it's not something a prosecutor would take to court. 

[...]

Several former prosecutors said flatly that such sloppy, unauthorized practices, although technically violations of law, wouldn't normally lead to criminal cases. 

[...]

[P]rosecution of such violations is extremely rare. Lax security procedures are taken seriously, but they're generally seen as administrative matters. [The Washington Post, 8/27/15] 

New Yorker's Toobin: “There Is No Realistic Possibility” Clinton's Email 'Scandal' Will Turn Into A Criminal Matter. Toobin noted that finding Clinton guilty of a criminal violation is not a “realistic possibility” as such a charge would require “evidence that Clinton knew that the information was classified and intentionally disclosed it to an unauthorized person”: 

The consequences for Clinton, in the midst of a Presidential run, are far more likely to be political than legal. Criminal violations for mishandling classified information all have intent requirements; in other words, in order to be guilty of a crime, there must be evidence that Clinton knew that the information was classified and intentionally disclosed it to an unauthorized person. There is no evidence she did anything like that. This is not now a criminal matter, and there is no realistic possibility it will turn into one. [The New Yorker, 8/18/15]

Comparisons Between Clinton And Retired Gen. David Petraeus Or Former Central Intelligence Director John Deutch Are “Inapt”

New Yorker's Toobin: Comparison Between Clinton And Petraeus Are “Inapt.” Toobin called comparisons between Clinton's situation and that of retired Gen. David Petraeus -- who was convicted of mishandling classified information -- “inapt” because Petraeus “knowingly” committed the act: 

Clinton's critics have noted that General David Petraeus pleaded guilty to a misdemeanor in connection with the disclosure of classified information to his biographer. But Petraeus acknowledged both that he knew the information was classified and that his biographer was not cleared to receive it. Because Clinton has said that she did not believe the information was classified, and because she turned it over only to cleared State Department employees, the comparison is inapt. [The New Yorker, 8/18/15]

Washington Post's Ignatius: Petraeus And Deutch Cases  Are “Quite Different” From Clinton's. Ignatius explained that Clinton's email situation is different from those involving Petraeus and former Central Intelligence Director John Deutch, despite the fact they're “cited as parallels”: 

Potential criminal violations arise when officials knowingly disseminate documents marked as classified to unauthorized officials or on unclassified systems, or otherwise misuse classified materials. That happened in two cases involving former CIA directors that are cited as parallels for the Clinton e-mail issue, but are quite different. John Deutch was pardoned in 2001 for using an unsecured CIA computer at his home to improperly access classified material; he reportedly had been prepared to plead guilty to a misdemeanor. David Petraeus pleaded guilty to a misdemeanor in April for “knowingly” removing classified documents from authorized locations and retaining them at “unauthorized locations.” Neither case fits the fact pattern with the Clinton e-mails. [The Washington Post, 8/27/15]