What the attorney general didn’t say: The text of Clinton’s “secret speech” was known publicly only because of hacked emails published by the WikiLeaks organization, which is being investigated by Sessions’s Justice Department.
That the top U.S. law enforcement official would use information from hacked emails that were posted on the Internet is itself noteworthy. It also highlights a debate that has for months vexed those on both sides of the aisle over when and how illegally hacked communications can be used to make political points.
While hacking is obviously a crime, publishing or citing hacked materials is typically not. Mainstream media outlets, including The Washington Post, reported on the hacked emails that showed Clinton, in closed-door speeches to Wall Street banks, talked of “open trade and open borders.”
Asked about Sessions’s apparent use of WikiLeaks material in his speech, Sarah Isgur Flores, a Justice Department spokeswoman, said, “The Attorney General was relying on Washington Post reporting when he said ‘Hillary Clinton reportedly said’ she was for ‘open trade and open borders.’”
That reporting noted it was based on hacked emails made public by WikiLeaks. WikiLeaks on Tuesday wrote on Twitter that it had first published the information the attorney general referenced.
“U.S. Attorney General Jeff Sessions republishes @WikiLeaks on DoJ website as part of his speech,” the group wrote, attaching a picture of Sessions’s prepared remarks. “Will DoJ now prosecute itself?”
Donna Brazile, the former acting chairwoman of the Democratic National Committee, said of Sessions’s comments, “As a rule, hacked stolen information from a foreign adversary should never be used in public discussions. That is beneath the dignity of his office because the Department of Justice is investigating Russian interference in the election.”
DNC emails were among the hacked materials that WikiLeaks posted online.
Federal prosecutors have long been exploring WikiLeaks as part of a criminal investigation of a 2010 leak of diplomatic cables and military documents — though the Justice Department during the Obama administration had decided it could not bring charges against its founder, Julian Assange. Doing so, officials concluded at the time, would be akin to prosecuting a news organization for publishing classified information.
That posture seemed to shift after Sessions took over as attorney general. Last year, prosecutors had even taken steps to draft a memo contemplating charges such as conspiracy, theft of government property or violating the Espionage Act against WikiLeaks members, including Assange.
Sessions has said publicly he is “not a fan of WikiLeaks” and that crimes were likely committed around their posting of hacked materials online.
“Hacking into a private person or DNC computer and obtaining information and spreading that out — that’s just not right,” he said at a 2017 congressional hearing. “And I believe it’s likely that laws were violated if that actually occurred. So it’s an improper thing.”
The debate over whether political leaders should use stolen materials dates back to the 2016 campaign, when Brazile made repeated efforts to convince the Republican National Committee to stop referencing internal Clinton campaign and Democratic Party emails that had been distributed by WikiLeaks.
“I was met with silence,” she said.
Trump, meanwhile, made the WikiLeaks disclosures a centerpiece of his presidential campaign. “Boy, I love reading those WikiLeaks,” he declared at a rally in Ohio, on Nov. 4, 2016. Weeks earlier, he complained on Twitter that the media had given the stolen documents “very little pick-up.”
After the election, in the summer of 2017, the leader of the House Democratic campaign effort, Rep. Ben Ray Luján (N.M.), sent a letter to his Republican counterpart at the National Republican Congressional Committee, Rep. Steve Stivers (Ohio), advocating they “refrain from the use of any stolen” documents in campaigns. Republican leaders have not yet agreed publicly to those terms.
“There should be no use of stolen materials, of hacked materials, and especially when it comes to foreign adversaries in any of our campaigns,” Luján argued this year at a June 7 event hosted by NBC News and the Wall Street Journal. He said decisions to use such material, including by journalists, encourages future thefts of campaign information by foreign adversaries.
Stivers, who attended the same event, argued that information was fair game if it had been publicly released, as long as it was accurate. “Once something is in the public domain, I’m not sure if you can say everybody let’s just ignore that it is out there,” Stivers said. “I’m not going to run down one of my candidates for using something that is in the public domain.”
Since then, Stivers and Luján have met privately to discuss election security, including how to handle any future cyberattacks. Spokesmen for both men said they had agreed not to comment publicly on the outcome of those conversations.
Trump expressed no qualms during his presidential campaign about using the material to his advantage. “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing,” he said in July 2016, referring to emails on Clinton’s private server that she had deleted after concluding that they were personal in nature.
Then-White House press secretary Sean Spicer later said Trump had been “joking at the time.”
The same WikiLeaks document that Sessions mentioned, an excerpt of a 2013 Clinton speech to a Brazilian bank, became an issue in an October 2016 debate between Clinton and Trump, when the moderator asked her to explain the quote.
“I was talking about energy. You know, we trade more energy with our neighbors than we trade with the rest of the world combined,” she said.
Trump dismissed the explanation. “She wants open borders. People are going to pour into our country,” he said.
Correction: An earlier headline on this post said Sessions cited material hacked by WikiLeaks. The hacked material was published by WikiLeaks.