[gormo2]

>And the article lists various reasons why none of those would likely apply to her.

I guess we have different definitions of "likely" since the only reasons given are:

(1) Clinton and her aides have insisted that she didn't. They say none of her emails included material that was marked as classified at the time.

(2) She says she didn't, and there's no known evidence that she did.

(3) "If all she was doing was exchanging emails with her staff, I don't think they can prove that she had the intent to retain anything," a former top government lawyer told me.

Like I said, those are hardly unbiased or definitive assessments. Clinton and her aides have every reason to say that there was no wrongdoing. The government lawyer quoted even says "If" acknowledging that it is an assumption. As for the IG report, if it had said the violation was minor and mostly because of regulations implemented only after she left office, which had been claimed before, then it would be looking really good for her. As it stands, there is still an FBI investigation looming.

[zaroth]

Does "not marked as classified at the time" mean what I think it does?

Obviously she did not change her automatic email footer to "Top Secret - Do not distribute - Thanks, H ;-)"

So of course none of her emails were marked - that's like saying "I am commiting a crime right here" since of course the server was insecure.

Is the content classified at the time, or even derived from a classified source? My understanding is there are perhaps thousands of emails to which this might apply, and the law needs only one. So it seems to me hopeless for Hillary to think the FBI would not recommend charges.

The bigger question is will the (current) AG decline to prosecute, and what about the next one?

[argonaut]

1) That's because it's fact that none of her emails were marked as classified at the time. Not an opinion!

2) Her email exchanges are public. You would think they would have found proof of willful communication by now. They have not.

3) Requires intent, which is generally, objectively difficult to prove (see: libel laws).

[burfog]

"marked as classified" isn't what matters. It's misdirection.

The standard is that she had reason to believe that the email contained classified information.

Consider something obvious, like full details of an ICBM including plans for the nuclear warhead and decoys. You get a copy without markings. I hope you wouldn't imagine it to be unclassified just because it isn't "marked as classified at the time".

Some of her email contained information that she got from other government agencies; she knew it was classified and had no authority to declassify it. Some of her email actually was marked classified; we can assume she believed it to be classified. There is even a lovely case where she tells a subordinate to REMOVE THE MARKINGS and then send insecurely.

For issues with classified information, intent doesn't normally matter. This isn't libel. The rules are different. It's more like strict liability.

I don't know why you think proof has not been found. Is it because prosecution hasn't started? You can bet that many FBI and DOJ employees are struggling with the realization that prosecuting her would likely get them fired. The stress must be enormous.

[argonaut]

My point is, ICBM hyperbole aside, it's going to be very easy for Clinton to claim that she did not know something was classified if indeed it was not officially classified at the time, and only reclassified later. A suspicion that she might be guilty is not going to cut in the courts.

> Some of her email contained information that she got from other government agencies; she knew it was classified and had no authority to declassify it. Some of her email actually was marked classified; we can assume she believed it to be classified. There is even a lovely case where she tells a subordinate to REMOVE THE MARKINGS and then send insecurely.

You'll need citations for these claims. Nothing I've read indicates any of that is true. The last example proves nothing because 1) the subordinate sent the material by secure fax in the end after all, and 2) there is no indication it was classified (http://www.cbsnews.com/news/state-department-releases-more-c...).

[Natsu]

> That's because it's fact that none of her emails were marked as classified at the time. Not an opinion!

Given her habit of asking staffers to remove the classification markings, that's a bit facile.

[argonaut]

You'll need a citation for that. If you're talking about this exchange: http://www.cbsnews.com/news/state-department-releases-more-c..., it was sent securely in the end, not over email. Also no part of that exchange indicates the material was classified.