Hillary Clinton probably did mishandle classified information as Secretary of State, but what exactly does that mean in a system where secrecy is often motivated by bureaucracy, not security? Photograph by Sean Rayford / Getty

Hillary Clinton’s classified-information nightmare is just beginning—as her predecessor in the United States Senate might have warned that it would. As was often the case, Daniel Patrick Moynihan was ahead of all of us.

As the world now knows, Clinton used a private e-mail address and server to conduct official business as Secretary of State. That in itself was certainly unwise and perhaps a violation of State Department policy. The more significant question now, though, is whether Clinton improperly passed national-security information—that is, classified information—over this private, non-secured connection. Her answer to that question has evolved. Clinton first said, “I did not e-mail any classified material to anyone on my e-mail. There is no classified material.” More recently, she said, “I did not send nor did I receive material marked classified.” Clinton’s quasi-official defenders at Media Matters have seized on this distinction as well. They argue that she is in the clear because she never disclosed information that was designated as classified. But information can be classified whether it is marked that way or not. So what, exactly, is classified information?

As Moynihan explained in his book “Secrecy: The American Experience” and explored during a lifetime in public service, the definition of what constitutes a government secret has never been clear. Classified information is supposed to be defined as material that would damage national security if released. In fact, Moynihan asserted, government bureaucracies use classification rules to protect turf, to avoid embarrassment, to embarrass rivals—in short, for a variety of motives that have little to do with national security. As the senator wrote, "Americans are familiar with the tendency to overregulate in other areas. What is different with secrecy is that the public cannot know the extent or the content of the regulation. Thus, secrecy is the ultimate mode of regulation; the citizen does not even know that he or she is being regulated!”

It’s not only the public who cannot know the extent or content of government secrecy. Realistically, government officials can’t know either—and this is Hillary Clinton’s problem. In investigating only a small portion of her e-mails, government investigators have already flagged more than three hundred that are potentially classified. They will surely find more. As Moynihan noted, government bureaucracies have every incentive to over-classify. It’s the risk-averse approach, and there’s no penalty for erring on the side of caution. Besides, over-classification makes their work seem more important.

In one case, according to media reports, one of Clinton’s potentially classified e-mail exchanges is nothing more than a discussion of a newspaper story about drones. That such a discussion could be classified underlines the absurdity of the current system. But that is the system that exists, and if and when the agencies determine that she sent or received classified information through her private server, Clinton will be accused of mishandling national-security secrets.

The consequences for Clinton, in the midst of a Presidential run, are far more likely to be political than legal. Criminal violations for mishandling classified information all have intent requirements; in other words, in order to be guilty of a crime, there must be evidence that Clinton knew that the information was classified and intentionally disclosed it to an unauthorized person. There is no evidence she did anything like that. This is not now a criminal matter, and there is no realistic possibility it will turn into one. (Clinton’s critics have noted that General David Petraeus pleaded guilty to a misdemeanor in connection with the disclosure of classified information to his biographer. But Petraeus acknowledged both that he knew the information was classified and that his biographer was not cleared to receive it. Because Clinton has said that she did not believe the information was classified, and because she turned it over only to cleared State Department employees, the comparison is inapt.)

Still, the investigative wheels are now turning, and the process is out of Clinton’s control. In most political controversies about documents, the best response for a politician is simply to disclose them in order to diffuse the issue. But that option is not available to Clinton. The relevant agencies are now reviewing the documents in order to determine whether they contain classified information; if they find that to be the case (and they will), Clinton will not have the right to make those documents public; the public will never know whether she was discussing newspaper stories or the identity of covert assets. With many agencies reviewing thousands of documents, this process is guaranteed to take months rather than weeks. Thus, the process—and the attention to the issue—will drag on.

Could this issue cripple Clinton’s candidacy? Certainly it’s no help, especially for a candidate who has had trouble earning the trust of voters. Still, it’s hard to imagine that voters will be focussed on this issue six months from now, to say nothing of Election Day, which is more than a year away. But it may not be too much to hope that if Clinton does surmount this controversy and take over in the Oval Office, she will recognize, as Moynihan did, the folly of our system of over-classification and take steps to reform its obvious excesses.