Despite the determination of investigators at the State Department and intelligence agencies that Hillary Clinton did use her personal email system to handle confirmed classified information (and potentially compromised “hundreds of classified emails”), Clinton dismissed such allegations and assured the public that it is “pretty clear” that there was no classified information on her personal email system — a system that she used rather than the secure State Department system.

Clinton portrayed the recent bombshell report of the allegations of the Inspector General as simply some bureaucratic infighting: “What I think you’re seeing here is a very typical kind of discussion, to some extent disagreement among various parts of the government, over what should or should not be publicly released.” (Notably, the State Department itself confirmed specific classified emails on the system).

I think that it is much more than that, though the Obama Administration has been quick to downplay any suggestion of a criminal investigation and has stressed that the letter from the Inspector General was not technically a criminal referral.

Again, Clinton is stressing that she did not send or receive any material marked classified. I have previously discussed why that explanation is less than compelling, particularly for anyone who has handled sensitive or classified material. As I discussed earlier, virtually anything coming out of the office of the Secretary of State would be considered classified as a matter of course. 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 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. You do not generate material as the Secretary of State and assume that it is unclassified. You are supposed to assume and treat it as presumptively classified. Otherwise, there would be massive exposure of classified material and willful blindness as to the implications of the actions of persons disregarding precautions. 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.

Clinton portrayed the dispute as entirely removed from her controversial decision to use a personal server — a move that gave her total control of the server and ultimately allowed her staff to delete thousands of emails before turning over emails to the State Department: “They can fight over it or argue over it. That’s up to them. I can tell you what the facts are.”

Clinton continues to struggle with her spin that she wanted to use her own server to avoid multiple devices (which has been widely ridiculed) as well as her insistence that she never received a subpoena. Her repeatedly claim that she was never subject to a subpoena has been described as false by media like CNN after it was disclosed that she had indeed been given a subpoena for the emails.

I would be surprised if the Administration opened a criminal investigation into the matter given the treatment of other high-ranking officials in such cases by the Justice Department in the past. However, to kill any investigation after this letter would be viewed as unusual and biased by many in the intelligence area. First and foremost, Clinton may have to yield to long-standing demands for access to this server. For the moment, she is clearly maintaining the original position that there was no problem so long as her communications were not marked as classified at the time — a rather preposterous suggestion since no one sits next to a Secretary of State and stamps every line as classified in communications. The use of private server obviously placed these communications at greater risk of interception, which is the whole reason we have spent hundreds of millions on the secure system for communications. I do not see how Clinton will be able to maintain her conduct as justified or responsible in the face of the overwhelming view of experts as well as prior internal memoranda on the subject.