We have previously discussed the series of scandals in Washington where powerful individuals have been spared serious sanctions for acts where ordinary people have faced long and unrelenting prosecution. (here) It is part of America’s Animal Farm system where some individuals are more equal than others. That concern is even greater this week with the combination of the disclosure that Hillary Clinton did use a personal email system for classified communications and most media outlets appear to be ignoring the obvious import of that fact.

From the outset of this scandal, I have noted that the suggestion that such a system could be used without risking the release of classified information is facially absurd. I have had a TS/SCI clearance since Reagan due to my national security work and have lived under the restrictions imposed on email and other systems. The system is so stringent that just last month I had to personally deliver a routine motion in a national security case that was clearly unclassified because there was a concern about sending it by email for a review of the security officer. It dealt with changing a scheduling date. Violations of such rules are treated harshly and can easily result in criminal prosecution.

For the Secretary of State, a great percentage of material passing through her office is treated as presumptively classified. The idea of using a personal email system for such a high official in such a highly classified office is otherworldly. Moreover, few people buy the argument that this was not done to control information but to avoid carrying multiple phones, as suggested by Clinton. This would seem one area where the Clintons (often criticized for making their own rules) would seem bound to follow security protocols. Clinton insisted that no material was classified and that this was not an effort on her part to insulate her communications from outside review.

Now the State Department has marked at least a couple dozen emails as classified. We will likely never know how many of the thousands of deleted emails were classified and possibly subject to foreign surveillance. A State Department official has admitted that 25 emails were deemed classified. This would seem to contradict Clinton’s assurance to the public that she “did not email any classified material to anyone” on her personal account and “There is no classified material. So I’m certainly well aware of the classification requirements and did not send classified material.”

The best defense is that this material was not technically classified at the time that it was sent. Thus it was not “classified” information. The problem is that it was not reviewed and classified because it was kept out of the State Department system. Moreover, most high-level communications are treated as classified and only individually marked as classified when there is a request for disclosure. For example, there is not a person standing next to the President with a classification stamp in the Oval Office. However, those communications are deemed as presumptively classified and are not disclosed absent review. Under the same logic, the President could use a personal email system because his text messages by definition are not marked as classified. This is the whole reason that Clinton and others were told to use the protected email system run by the State Department. We have spent hundreds of millions of dollars to secure such systems.

The State Department appears intent to avoid a conflict with Clinton over this circumvention of their secure system. Indeed, there appears to be a general and concerted effort to avoid the obvious in this scandal: clearly some of this material was classified and Clinton intentionally used a system to be under her control and not the government. I view that as quite serious — as I do the relative avoidance of the implications by many in the media. At best this shows appalling judgment while at worse it shows a knowing risk or exposure of presumptively classified material to foreign interception. The public can judge for itself if Clinton is being truthful in saying that she never sought to create a system that would be under her control and simply did not want to carry two phones or devices. That is a political question. The active circumvention of a secure system and possible exposure of classified information is a legal question . . . and a rather important one.