"marked as classified" isn't what matters. It's misdirection.
The standard is that she had reason to believe that the email contained classified information.
Consider something obvious, like full details of an ICBM including plans for the nuclear warhead and decoys. You get a copy without markings. I hope you wouldn't imagine it to be unclassified just because it isn't "marked as classified at the time".
Some of her email contained information that she got from other government agencies; she knew it was classified and had no authority to declassify it. Some of her email actually was marked classified; we can assume she believed it to be classified. There is even a lovely case where she tells a subordinate to REMOVE THE MARKINGS and then send insecurely.
For issues with classified information, intent doesn't normally matter. This isn't libel. The rules are different. It's more like strict liability.
I don't know why you think proof has not been found. Is it because prosecution hasn't started? You can bet that many FBI and DOJ employees are struggling with the realization that prosecuting her would likely get them fired. The stress must be enormous.
My point is, ICBM hyperbole aside, it's going to be very easy for Clinton to claim that she did not know something was classified if indeed it was not officially classified at the time, and only reclassified later. A suspicion that she might be guilty is not going to cut in the courts.
> Some of her email contained information that she got from other government agencies; she knew it was classified and had no authority to declassify it. Some of her email actually was marked classified; we can assume she believed it to be classified. There is even a lovely case where she tells a subordinate to REMOVE THE MARKINGS and then send insecurely.
You'll need citations for these claims. Nothing I've read indicates any of that is true. The last example proves nothing because 1) the subordinate sent the material by secure fax in the end after all, and 2) there is no indication it was classified (http://www.cbsnews.com/news/state-department-releases-more-c...).
The standard is that she had reason to believe that the email contained classified information.
Consider something obvious, like full details of an ICBM including plans for the nuclear warhead and decoys. You get a copy without markings. I hope you wouldn't imagine it to be unclassified just because it isn't "marked as classified at the time".
Some of her email contained information that she got from other government agencies; she knew it was classified and had no authority to declassify it. Some of her email actually was marked classified; we can assume she believed it to be classified. There is even a lovely case where she tells a subordinate to REMOVE THE MARKINGS and then send insecurely.
For issues with classified information, intent doesn't normally matter. This isn't libel. The rules are different. It's more like strict liability.
I don't know why you think proof has not been found. Is it because prosecution hasn't started? You can bet that many FBI and DOJ employees are struggling with the realization that prosecuting her would likely get them fired. The stress must be enormous.