Appearing on Wednesday's At This Hour with Berman and Bolduan on CNN to discuss the latest revelations that some of the email on former Secretary of State's server was considered highly classified, CNN legal analyst Jeffrey Toobin ended up downplaying her culpability in her behavior as he asserted that she was "suffering from" the tendency of government agencies to "overclassify" information.
Toobin: "She is now suffering from that because people are saying there's all this classified information she's dealing with, but there is not a bright line between classified and unclassified, and you can see, at least to a certain extent, why she was not clear on what was what."
After Toobin explained that, even if classified information was not marked as classified, she could still be prosecuted if she should have known it was classified, co-host Kate Bolduan followed up:
And that question almost depends on who you're talking to. Because when you talk to the Hillary Clinton campaign, they point out that this kind of gets to the heart of where this has been dispute between the State Department and the intelligence community over what was classified and what should have been classified at what point. I mean, this really gets into the weeds. At the end of the day, I'm left wondering who's going to decide. Who gets to decide?
The CNN legal analyst called the overclassification of information a "minor but real scandal" as he began his response:
Well, the FBI is going to decide if she's prosecuted. I mean, ultimately, that's the decision I think everybody cares about. I mean, one of the, you know, minor but real scandals in the U.S. government has been for decades is that people overclassify things, is that a lot of information that is not all that sensitive is treated as classified.
He then suggested an excuse for Clinton as he added:
She is now suffering from that because people are saying there's all this classified information she's dealing with, but there is not a bright line between classified and unclassified, and you can see, at least to a certain extent, why she was not clear on what was what.
Bolduan recalled the Clinton spin as she concluded the segment:
Even if it's not legally clear, we'll see what the political ramifications are with all of this coming out. And definitely the campaign has been pointing out, they believe this is an inspector general with an axe to grind, is kind of the way they're pointing to it.
Below is a transcript of the relevant portion of the Wednesday, January 20, At This Hour with Berman and Bolduan on CNN:
11:43 a.m. ET
JOHN BERMAN: Jeffrey Toobin, I want to bring you into this. More sensitive than top secret. Those are tough words.
JEFFREY TOOBIN, CNN LEGAL ANALYST: Yes, indeed.
BERMAN: Which have some political baggage with them just weeks before Iowa and New Hampshire. Where's the line between this being a political problem and a legal problem?
TOOBIN: Well, the Clinton campaign and her representatives have said all along that she has never mishandled information that was marked, that she was told was classified. Now, if you take classified information and put it in an email and send it to someone, it's not marked classified, but it's still classified. You get the distinction?
KATE BOLDUAN: Yes.TOOBIN: Her problem now is, is that if this information is so highly classified the government, the FBI may say, "Well, you should have known, even though it wasn't marked." If someone hands you a diagram for how to make a nuclear weapon, and it's not marked classified, you should know that. Now, the question is, is this information so obviously classified that she should have known and treated it as classified and not handled it on the server?
BOLDUAN: And that question almost depends on who you're talking to. Because when you talk to the Hillary Clinton campaign, they point out that this kind of gets to the heart of where this has been dispute between the State Department and the intelligence community over what was classified and what should have been classified at what point. I mean, this really gets into the weeds. At the end of the day, I'm left wondering who's going to decide. Who gets to decide?
TOOBIN: Well, the FBI is going to decide if she's prosecuted. I mean, ultimately, that's the decision I think everybody cares about. I mean, one of the, you know, minor but real scandals in the U.S. government has been for decades is that people overclassify things, is that a lot of information that is not all that sensitive is treated as classified.
She is now suffering from that because people are saying there's all this classified information she's dealing with, but there is not a bright line between classified and unclassified, and you can see, at least to a certain extent, why she was not clear on what was what.
BOLDUAN: Even if it's not legally clear, we'll see what the political ramifications are with all of this coming out. And definitely the campaign has been pointing out, they believe this is an inspector general with an axe to grind, is kind of the way they're pointing to it.
