FBI Director Comey: It is possible hostile actors gained access to Clinton's email account.

So, it wasn't bad judgment. How do you explain it?

JAMES COMEY: There are two things that matter in a criminal investigation of a subject: What did the person do and, when they did that thing, what were they thinking. When you look at the 100 years plus of the Justice Department's investigation and prosecution of the mishandling of classified information, those two questions are, obviously, present. What did the person do, did they mishandle classified information? And when they did it, did they know they were doing something that was unlawful? That has been the characteristic of every charged criminal case involving the mishandling of classified information.

I'm happy to go through the cases in particular. In our system of law, there's a thing called mens rea. It's important to know what you did, but when you did it, this Latin phrase, mens rea, means what were you thinking? We don't want to put people in jail unless we prove that they knew they were doing something they shouldn't do. That is the characteristic of all the prosecutions involving mishandling of classified information.

There is a statute that was passed in 1917 that on its face makes it a crime, a felony for someone to engage in gross negligence. So that would appear to say, well, maybe in that circumstance you don't need to prove they knew they were doing something that was unlawful, maybe it's enough to prove that they were just really, really careless beyond a reasonable doubt. At the time Congress passed that statute in 1917, there was a lot of concern in the House and the Senate about whether that was going to violate the American tradition of requiring that before you're going to lock somebody up, you prove they knew they were doing something wrong. So there was a lot of concern about it. The statute was passed.

As best I can tell, the Department of Justice has used it once in the 99 years since, reflecting that same concern. I know from 30 years with the Department of Justice they have grave concerns about whether it's appropriate to prosecute somebody for gross negligence, which is why they have done it once that I know of in a case involving espionage. And so when I look the facts we gathered here, as I said, I see evidence of great carelessness, but I do not see evidence that is sufficient to establish that Secretary Clinton or those with whom she was corresponding both talked about classified information on email and knew when they did it they were doing something that was against the law. So given that assessment of the facts, my understanding of the law, my conclusion was and remains: No reasonable prosecutor would bring this case. No reasonable prosecutor would bring the second case in 100 years focused on gross negligence. And so I know that's been a source of some confusion for folks. That's just the way it is. I know the Department of Justice, I know no reasonable prosecutor would bring this case. I know a lot of my former friends are out there saying where they would. I wonder where they were the last 40 years, because I'd like to see the cases they brought on gross negligence. Nobody would, nobody did. So my judgment was the appropriate resolution of this case was not with a criminal prosecution. As I said, folks can disagree about that, but I hope they know that view -- not just my view, but of my team -- was honestly held, fairly investigated and communicated with unusual transparency because we know folks care about it. [House Oversight and Government Reform Committee hearing, 7/7/16]

On July 7, The New York Times reported on testimony FBI Director James Comey gave to the House Oversight and Government Reform Committee about the FBI’s recently closed investigation of Hillary Clinton’s email use as secretary of state. Comey discussed the apparent contradiction between Clinton’s public statements that her private email did not contain emails “marked classified” and the director’s July 5 statement to the contrary. But missing from the Times’ report were the facts that two of these emails were reportedly mistakenly classified and that, in his testimony, Comey explained that it was not “reasonable” to assume even an “expert” would have realized they were classified at all because they were incorrectly marked.

In its report, the Times failed to note that on July 6, State Department spokesperson John Kirby explained to reporters that two emails with a “C” notation, denoting “confidential” material, were marked as such in error. On July 7, before the committee, Comey further testified that the mistaken marking of those emails as classified was also incorrectly performed, as they lacked necessary headers. Comey said that because of this incorrect procedure, it would be “reasonable” to infer that even an “expert at what is classified and what's not classified” would not have realized the email was classified.

Despite describing the apparent contradiction between Clinton’s statement and Comey’s July 5 claim that a small number of her emails “bore markings indicating the presence of classified information,” the Times failed to report on either Kirby or Comey’s explanation for why the former secretary may have repeatedly claimed she did not send or received emails “marked classified” on her private email account.

Asked if it was possible, Comey said it was. Asked if hostile actors actually gained access, Comey said no.