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Washington • After nearly five hours of grueling testimony, FBI Director James Comey offered a complete admission.
"I've had to go to the bathroom for an hour," he said.
"Don't worry," responded Rep. Jason Chaffetz, "we're halfway done."
The Utah Republican was joking, offering a light moment in an otherwise tense congressional hearing as Republicans quizzed Comey on why his agency did not recommend criminal charges against presumptive Democratic presidential nominee Hillary Clinton.
As chairman of the Oversight and Government Reform Committee, Chaffetz led what was sometimes angry questioning from congressmen, arguing that the FBI had set a double standard by not pressing charges for Clinton's use of a personal email server that held, in some cases, classified information while she was secretary of state.
"It seems to a lot of us that the average Joe — the average American — that if they had done what you laid out in your statement, that they'd be in handcuffs," Chaffetz said. "There is a legitimate concern that there is a double standard."
"It wasn't just an innocent mistake," Chaffetz added, "this went on for years."
Comey defended the decision — backed by U.S. Attorney General Loretta Lynch — not to prosecute Clinton over her email setup. The FBI was critical of Clinton's use of a private email server, but it said the act was not criminal. The State Department said Thursday that it had reopened its investigation into Clinton's email use.
A misdemeanor statute requires the mishandling to be intentional, Comey said. A law that permits felony prosecution due to gross negligence has been used only once in the 99 years since it was enacted — and that was in a case involving espionage.
"We don't want to put people in jail unless we prove that they knew they were doing something they shouldn't do," Comey said. "That is the characteristic of all the prosecutions involving mishandling of classified information."
Clinton had not lied to investigators, Comey said under questioning. He also disputed the "double standard" charge.
"I've heard it a lot," he said. "It's not true, but I've heard it a lot."
He also said the FBI's yearlong investigation was above politics.
"Our folks did it in an apolitical and a professional way," Comey said.
Chaffetz pressed the FBI director on whether Clinton gave access to classified information to "noncleared people," and Comey said she had.
But he added that it would be too difficult to press charges against Clinton for having her attorneys review the materials.
"I think it would be a very tall order in that circumstance," Comey said. "I don't see the evidence there to make a case that she was acting with criminal intent in her engagement with her lawyers."
Clinton spokesman Brian Fallon tweeted that Clinton's lawyers who reviewed the emails had "top secret-level clearance."
Comey said "we have no basis" to believe Clinton lied to the FBI, but when pressed on whether Clinton lied to Congress in answering questions about her email setup, Comey said the agency had not been asked about that.
"I don't think there's been a referral from Congress," Comey said.
"Do you need a referral?" Chaffetz said.
"Sure do," he responded.
"You'll have one," Chaffetz said.
Chaffetz took a bit of criticism himself during the hearing from the nonvoting delegate from the District of Columbia, Eleanor Holmes Norton, who noted that Chaffetz had listed a gmail address on his business cards at one point and not his official congressional email.
"No one says that's wrong," Norton said. "I don't know if it's wrong or right because there is no guidance."
Chaffetz did not respond to that point.
— The Associated Press contributed to this story