Hillary’s defenders are claiming that our national secrets are over classified and thus, irrespective of any finding that she handled and retained classified information, it is unimportant. It is all a tempest in a teapot according to David Brock of Media Matters and Matthew Miller at Politico. Ed Morrissey deals with this new spin at Hot Air:
This glosses over a couple of very important points. First, the proper way to reclassify material is to have the issuing authority review it. That duty does not fall to the Secretary of State or her aides, but to the agencies that produced the data, and their direct chain of command, all the way to the President. Not even Congress can declassify material, at least not directly. Users of this material have a positive responsibility to protect it, are briefed constantly on how to handle it while it remains classified, and face severe consequences for violating those protocols and laws, most definitely including prosecution when it involves willful violations or gross negligence (18 USC 793, especially in (f)(1), the application of which is not limited to classified material).
Second, while much of the e-mails flagged (so far) are classified at Confidential and Secret levels — where overclassification is a chronic issue — two e-mails contained information that the issuing agencies considered Top Secret and compartmented. That data came from the NSA and other signals intelligence operations, including satellite-gathered data. Those kinds of information carry high classifications for very substantial reasons, including the protection of our methods of collecting it.
Finally, all of this starts and ends with the exclusive use of an unsecured and unauthorized communications system located in Hillary Clinton’s house, effectively an unauthorized retention of classified material (a crime under 18 USC 1924). There is no valid reason for a federal official with compliance requirements not just for secure transmission of sensitive materials but also with the Federal Records Act to conduct official business through a home-brew server. It was a deliberate attempt to circumvent both responsibilities, and largely succeeded at the latter until the existence of the server became public. As a result, the State Department made numerous misrepresentations in courts in response to FOIA demands that involved communications from Hillary and her team that were required to be part of the public record.
Classifications are not “elastic” either, not to those who handle the material, and especially not when it comes to signals intelligence. They are required to handle it according to the markings no matter what they personally think of its necessity. If Hillary and her staff had a problem with the classification levels cited, then they should have requested a review of the material — and there is no indication that anyone ever did. Even if they had, Hillary and her team were still were required to comply with the laws and protocols while the material was still classified.
Overclassification may be a problem, but it’s not this problem. This problem is that a high-ranking public official secretly evaded legitimate constitutional oversight from Congress and the courts with this e-mail system, which recklessly endangered US national security for four years to service her own personal motives.
Jefferey Toobin raises a very closely related defense at The New Yorker that is deserving of its own fisk. Toobin is supposedly a legal analyst and a lawyer. One could not tell from his recitation of the facts and the law. If he were to make this argument in Court on Hillary’s behalf, he would be eaten alive for misstating the facts and the law.