In a major development on the Clinton email scandal, the New York Times is reporting that the inspectors general for the State Department and the intelligence community have asked the Justice Department to open an investigation into whether there was mishandling of classified information by Hillary Clinton using a personal email account while secretary of state. While the newspaper referred to the action as a criminal referral, the Administration quickly moved to counter the story and insist that it is not technically a criminal referral. We have previously discussed this story and the insistence of Clinton that she did nothing wrong in maintaining a private email system and that none of the emails were classified. I disagreed with both premises as well as expressed great skepticism over Clinton’s insistence that she was really not trying to control her emails and insulate them from review but rather simply did not want to carry around two phones. According to the New York Times, investigators believe that Clinton’s email archive contained “hundreds of potentially classified emails.” Nevertheless, the Justice Department appears to be moving to counter any expectation of a criminal investigation against the former Secretary of State under Obama. We have previously discussed the special treatment historically given powerful figures in violating national security rules or practices.

That is if anything a conservative estimate. 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.

The Justice Department has confirmed that it has a request for an inquiry and I fail to see any basis upon which it would not open an investigation. This is a major escalation and will make it more difficult for Clinton to maintain the past spin on the scandal as a purely political hatchet job.

It will also make Clinton’s order to destroy thousands of emails even more problematic. Those emails might now be considered to be potential evidence of a crime like destroying classified papers that you improperly brought home and than insisting that you judged them to be unclassified. The investigation could also expose her aides to criminal questioning under the threat of 18 U.S.C. 1001. That could lead to disclosure of what they were told and what they saw in the emails. It also means that the continued refusal of Clinton to turn over the server will be increasingly difficult to maintain.

As impressive as this exclusive statement is for the Times, there is a controversy over changes made at the request of the Clinton campaign that were not disclosed. Politico is reporting that the Clinton campaign insisted on a change of a line that read that the inspector generals asked for an investigation “into whether Hillary Rodham Clinton mishandled sensitive government information on a private email account she used as secretary of state.” That was changed to “into whether sensitive government information was mishandled in connection with the personal email account Hillary Rodham Clinton used as secretary of state.” The headline was also changed from “Criminal Inquiry Sought in Hillary Clinton’s Use of Email” to “Criminal Inquiry Is Sought in Clinton Email Account.” Both changes are obviously designed to give Clinton a little deniability as to her own role and accountability. However, she has never denied being fully aware that she was electing to circumvent the State Department account for her communications. Indeed, she has indicated that it was a conscious decision based on her earlier views of convenience and multiple phones. 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.

If there is an investigation, this means that Clinton will have to continue much of her campaign facing a possible criminal indictment and subject to questioning from investigators. It will also mean that media will be hard pressed to ignore the story or accept the past soundbites on convenience or political motivations. It also means that, while Clinton has described the release of the emails as “kind of fun,” it is about to get a lot less fun.