WASHINGTON -- Experts in government secrecy law said they see almost no possibility of criminal action against Hillary Rodham Clinton or her top aides in connection with now-classified information sent over unsecure email while she was secretary of state, based on the public evidence thus far.
The State Department, meanwhile, planned to release about 7,000 pages of Clinton's emails Monday night, including about 150 that have been censored because they contain information that is now deemed classified.
Some Republicans, including presidential candidate Donald Trump, have called Clinton's actions criminal and compared her situation to that of David Petraeus, the former CIA director who was prosecuted after giving top secret information to his paramour. Others have cited the case of another past CIA chief, John Deutch, who took highly classified material home.
But in both of those cases, no one disputed that the information was highly classified and, in many cases, top secret. Petraeus pleaded guilty to a misdemeanor; Deutch was pardoned by President Bill Clinton.
By contrast, there is no evidence that emails stored in Hillary Clinton's private server bore classified markings. State Department officials said they don't believe that emails she sent or received included material classified at the time. And even if other government officials dispute that assertion, it is extremely difficult to prove anyone knowingly mishandled secrets.
"How can you be on notice if there are no markings?" said Leslie McAdoo, a lawyer who handles security-clearance cases.
Clinton's critics have focused on the email server Clinton used while in office and suggested that she should have known that secrets were improperly coursing through an unsecure system, leaving them easily accessible to foreign intelligence agencies. But to prove a crime, the government would have to demonstrate that Clinton or aides knew they were mishandling the information -- not that she should have known.
A case would be possible if material emerged that is so sensitive that Clinton must have known it was highly classified, whether marked or not, McAdoo said. But no such email has surfaced.
State Department officials said the information redacted from the emails released Monday night was classified in preparation for public release and was not identified as classified at the time Clinton sent or received the messages. All the censored material in the latest group of emails is classified at the "confidential" level, not at higher "top secret" or compartmentalized levels, they said.
"It's somewhere around 150 that have been subsequently upgraded" in classification, State Department spokesman Mark Toner said.
Toner insisted that nothing encountered in the agency's review of Clinton's documents "was marked classified."
Clinton, a Democratic presidential candidate, now says her use of the home email server for government business was a mistake. She has provided about 30,000 emails to the State Department.
Two government inspectors have told Congress that they found material in the emails that was secret at the time it was sent to Clinton and "never should have been transmitted via an unclassified personal system."
At least one email involved CIA drone strikes, government officials have said. Another email appeared to reference a highly classified matter, the officials said, though there was some question about whether the information was sent through classified or open channels.
Emails posted on the State Department's website, made public under the Freedom of Information Act, show diplomats commonly slipping and discussing classified information over email. Unlike an intelligence agency, the department seeks to operate in the open when it can.
But arguing that violations are common isn't a valid defense for ordinary government employees, said Bradley Moss, a lawyer who often represents such people. They face discipline "all the time, in far more nuanced disputes than this," he said.
Although the Clinton dispute has centered on her use of private email instead of an unsecured government account, the distinction matters little in the context of classified information.
But another law could be relevant. Under the Federal Records Act, destroying official records can be a crime. Clinton had about 32,000 emails deleted from her server because she said they were personal. The server was then wiped, making the emails irretrievable.
"If one person has a copy of one of those deleted emails, and it was about government business, the whole game changes," said Kel McClanahan, a lawyer and expert in government records.
Information for this article was contributed by Matthew Lee of The Associated Press.
A Section on 09/01/2015