2016 Postmortem
In reply to the discussion: I have two questions about the email controversy [View all]pnwmom
(109,032 posts)However, U Michigan law Professor Richard Lembert, whose experience is noted below, explains that the regulations do not say that any information is so sensitive it must be classified, or, in your words, is born classified.
http://prospect.org/article/why-hillary-wont-be-indicted-and-shouldnt-be-objective-legal-analysis
What follows reflects the knowledge and experience I have gained from working at the Department of Homeland Security from 2008 until 2011. While there, I took the lead in drafting a security classification manual for one of the divisions of the DHS science and technology directorate. In this discussion, I offer answers to questions about the former secretary of states email that have not been frequently asked, but should be.
SNIP
These standards make it difficult to conclude that Clinton violated any law regarding the disclosure of classified information. As indicated by the word may, which I italicized, the regulations do not require that any information, no matter how sensitive, be classified. They also indicate that when in doubt information should not be classified or should be classified at the lowest level consistent with national security. Not only was Secretary Clinton the ultimate authority within the State Department to determine whether State Department information should be classified, but she was also the ultimate authority in determining whether classified information should be declassified. Moreover, declassification when done at the highest level appears to require no formal procedure. Indeed, we have a history of high-level officials engaging in instant declassification, most notably by leaking classified information to the press for political or strategic advantage. Since the leakers are typically speaking off the record or on deep background, some disclosures may have been made by people lacking the authority to declassify information, instantly or otherwise. No such leaker has been criminally prosecuted, and so long as the authorization to reveal classified information was approved at the cabinet level, it is unlikely that anyone could be.