Does Hillary Clinton have a serious legal problem because she may have transmitted classified information on her private e-mail server? After talking with a half-dozen knowledgeable lawyers, I think this “scandal” is overstated. Using the server was a self-inflicted wound by Clinton, but it’s not something a prosecutor would take to court.

“It’s common” that people end up using unclassified systems to transmit classified information, said Jeffrey Smith, a former CIA general counsel who’s now a partner at Arnold & Porter, where he often represents defendants suspected of misusing classified information.

“There are always these back channels,” Smith explained. “It’s inevitable, because the classified systems are often cumbersome and lots of people have access to the classified e-mails or cables.” People who need quick guidance about a sensitive matter often pick up the phone or send a message on an open system. They shouldn’t, but they do.

“It’s common knowledge that the classified communications system is impossible and isn’t used,” said one former high-level Justice Department official. Several former prosecutors said flatly that such sloppy, unauthorized practices, although technically violations of law, wouldn’t normally lead to criminal cases.
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