By: Paul Sperry
While Special Counsel Robert K. Hur has raised the issue of mental deterioration in explaining why he declined to prosecute 81-year-old Joe Biden for illegal retention and sharing of classified documents, the president chose another rationale to declare himself not culpable: He shifted the blame to the staffers who boxed up his records as he left the vice president’s office in 2017.
At a press conference hastily assembled after the report’s release, Biden said he assumed his aides had shipped “all" the documents to the National Archives in College Park, Md. “I wish I had paid more attention to how the documents were being moved and where,” he said. “I thought they were being moved to the Archives. I thought all of it was being moved [there].”
The president’s explanation does not address how and why he shared classified material with a ghostwriter, but it shines a light on the longtime assistant who was in charge of packing his papers, Kathy S. Chung.
Chung, an old friend of Hunter Biden, began working for Joe Biden in 2012 when he was vice president. She told investigators she oversaw the transfer of the contents of Biden’s file cabinets and desk drawers into 15 boxes when he moved out of the West Wing in January 2017. While other office material did go to the National Archives, Hur rebuked Biden for keeping more than 600 pages of classified information – including military secrets and intelligence sources and methods – in unlocked and unauthorized containers at multiple locations, including a tattered box in the garage of Biden’s Delaware home. The stash included information marked “top secret” involving Iran, China, Afghanistan, and Ukraine. Some of the secrets are compartmented by codewords and can only be stored and read in a secure facility known as a SCIF.
The Biden documents that Chung herself packed, unpacked, and repacked “are the most highly classified, sensitive and compartmented materials recovered during our investigation,” Hur wrote.
Yet the prosecutor let Chung as well as Biden off the hook in also declining to press charges against her, explaining that he found plausible her account that she packed and kept the classified papers “by mistake, ”even though she had prior government experience handling and identifying classified information and was told in a Jan. 3, 2017, National Security Council memo to be sure to remove "only unclassified personal records," and despite providing inconsistent answers to investigators.
After the election, Biden appointed Chung to a top Pentagon position serving as assistant to Defense Secretary Lloyd Austin, where she has access to the nation’s most sensitive military secrets.
Hur also went to great lengths to protect her identity in his 388-page report. He refers to her only as “Executive Assistant” and her face is deliberately blurred through pixilation in a photo he published of her sitting in front of a file cabinet in her West Wing office, where she stored Biden’s secret papers.
Lt. Gen. Michael Flynn, who served as President Barack Obama’s Defense Intelligence Agency director and President Donald Trump's national security adviser, is among those who believe Chung deserves far more public scrutiny. “What is very clear is Chung needs to be further investigated,” Flynn told RealClearInvestigations. “She should have her clearance immediately suspended and probably revoked completely.”
This is not the first time Chung has been found to have mishandled sensitive government documents. In the late 1990s, when she worked with Hunter Biden at the Commerce Department as an administrator, she and her boss Melissa Moss were cited by a federal judge for failing to turn over documents sought in a Freedom of Information Act case, as RealClearInvestigations first reported. They were accused of withholding and even destroying key documents in a search that the judge ruled “grossly inadequate” and “unlawful."
A lawyer for Chung did not respond to requests for comment.
Chung was interviewed twice by FBI agents: once on Jan. 4, 2023, and again on Sept. 28, 2023. Details of Chung’s key role in one of Washington's worst violations of laws safeguarding national security secrets are reported here for the first time. Hur’s own report, however, undermines his conclusion that Chung was likely unaware of the voluminous classified material she repeatedly handled.
The record shows that Chung personally dispersed the sensitive material to at least three locations in the years when Biden was out of office, 2017-2021 – including two temporary office sites before they were “discovered” in 2022 at the Penn Biden Center in D.C. in an unlocked office frequented by visitors. She routinely retrieved files Biden requested – some stamped with the label “EYES ONLY” which she knew to mean the contents inside were classified. And many of the classified folders include markings in her handwriting. She also helped identify material in 2022, when the president’s retention of classified documents became an issue after his Department of Justice raided Donald Trump’s Florida home in search of secret material.
The path that the highly sensitive national security documents took from the White House is a circuitous one fraught with potential breaches of security.
'Eyes Only'
In the last days of Biden’s vice presidency, Chung packed up his files from his West Wing suite, the bulk of which were stored in the front office she manned. She said she packed the materials in boxes provided by the General Services Administration in an operation that took “a couple of days” in January 2017. Chung told investigators she “did not believe the files contained classified documents.” She claimed she did not pay close attention to what she was packing, because she was in a hurry. However, she also said she knew at the time that Biden "was going to write a book,” which she helped him research.
Chung first shipped the 15 boxes to a nearby “transition office” leased by the GSA, where some of the boxes were unpacked and where she met with Biden over the next six months. At the same time, Biden rented a home in McLean, Va., where Hur said some of the classified materials appear to have ended up in Biden’s basement office.
It’s unclear if Chung had a role in moving any of the boxes to the McLean rental, but after the GSA lease expired in May 2017, she reloaded the boxes in her car and moved them to a private office that she leased in D.C., according to a partial transcript of her closed-door testimony before the House Oversight Committee. “It was near Chinatown,” she told lawmakers during her April 4, 2023, deposition.
The boxes containing highly classified papers remained at the site for several months. Curiously, Hur mentions this location only in passing, even though it was an important link in the chain of custody. It does not appear that he investigated the security system there. Nor does it appear that Chung was asked what she or Biden did with the files while they were stored there. In a footnote, Hur noted that Biden met with the former prime minister of Ukraine at that temporary office space in May 2017.
Then in October 2017, Chung relocated the 15 boxes a few blocks away to the newly built Penn Biden Center on the sixth floor of another D.C. office building, where she unpacked Biden’s White House documents – including some marked “top secret” – and placed them into a three-drawer filing cabinet in her outer office adjoining Biden’s office, which was designed to resemble his old West Wing suite. Other documents were left in boxes stacked in an unlocked storage closet, refuting initial White House claims they were stored in a “locked closet." Remarkably, the entire office suite was never locked up, which meant virtually anybody who got past the security guard in the lobby of the building had access to the classified files stored there.
“Mr. Biden’s office did not lock,” Hur noted in his report, "and the adjoining outer office where Mr. Biden’s executive assistant maintained his files was always accessible through Mr. Biden’s office.” In a footnote, Hur added that “the Vice President’s office could only be locked from the inside using a panic button."
Office security got even more “relaxed” in early 2019, Hur revealed, when visitors to the Penn Biden Center no longer needed a key fob or an escort to access the sixth floor of the building. Biden’s office, filled with secret government documents including high-level memos on China, was left virtually open to the public – including University of Pennsylvania students who took classes at the center and were allowed to work in the office space during the day.
The center is hosted by the University of Pennsylvania, which has received several million dollars from anonymous Chinese donors since opening the center. In 2020, the center hosted a symposium featuring Chinese communist officials.
It’s not known if Hunter Biden – who introduced Chung to his father in 2012 and got her the job in his White House office – escorted any of his Chinese business partners to the sixth floor. But Hunter had access to the center. The Chinese nationals, who paid Hunter millions of dollars, have been connected to Chinese military intelligence. One of them, Chi Ping “Patrick” Ho, who was the subject of an FBI counterintelligence investigation and later convicted of bribery, kept an office in the D.C. area.
Hur said his team was unable to determine exactly who may have had access to the loosely stored intelligence papers and whether they passed through foreign hands: “We cannot account for all visitors to the center.” Why? The security contractor deleted all the visitor logs for the years 2017 through 2021, he explained.
Chung claimed she doesn’t remember seeing any classified papers or any classified markings on the documents she packed, unpacked, and ultimately repacked – at the request of Biden’s lawyers – in 2022.
“The executive assistant did not specifically recall any of the folders containing classified documents, although she acknowledged that they could have been files she maintained for Mr. Biden in the West Wing,” Hur wrote in his report.
Chung was quite familiar with their contents, however. Many of the file folders were marked with her handwriting. Numerous files also contained handwritten notes from Biden advising Chung that he wanted the contents “saved” or “filed,” rather than archived, in case he wanted them later.
“Mr. Biden occasionally asked his executive assistant to retrieve material for him from the files she maintained,” Hur noted, including classified material.
For example, on Dec. 12, 2015, then-Vice President Biden wrote a note to Chung in the corner of a classified paper requesting another classified document he wanted saved for his records. Clearly marked “SECRET,” the document was a "call sheet” detailing the purpose of a call between the then-Ukrainian prime minister and Biden, along with Biden’s talking points for the call. Biden instructed Chung to “[g]et copy of this conversation from Sit Rm [the Situation Room] for my Records please.” Chung, in turn, obtained the transcript Biden ordered and filed it along with the classified call sheet inside a folder labeled “VP Personal,” and stored the folder in a credenza behind her desk, according to the special counsel’s report, which includes an appendix inventorying all of the classified materials investigators recovered from Biden’s sprawling collection.
The Secret Call Sheet
GOP lawmakers leading an impeachment inquiry of Biden want to get their hands on the call sheet and the transcript of Biden’s conversation with the Ukrainian leader, because the conversation took place around the time Biden pressured him to fire a Ukrainian prosecutor investigating a Ukrainian oligarch who was paying his son Hunter millions of dollars to sit on the board of his energy conglomerate, Burisma Holdings.
On Monday, House Oversight Committee Chairman James Comer sent a letter to Garland asking for the materials by Feb. 19 or he would compel their production through a subpoena. “There is concern that President Biden may have retained sensitive documents related to specific countries involving his family’s foreign business dealings,” Comer explained.
FBI agents asked Chung how she could miss so many classified documents in the files she repeatedly handled. She told them she was trained to identify classified documents by the orange or red coversheets that were “usually always” included with such papers. And the classified documents that were recovered did not have such covers, she said, and were mixed in with unclassified materials, so they did not jump out at her.
But the classified Ukraine materials were contained in an envelope marked “EYES ONLY,” as were classified CIA materials she handled concerning the 2015 Iran nuclear deal. Still, the envelopes were not technically marked classified, she told the investigators; and besides, she never saw the “EYES ONLY” stamps while packing, unpacking, and repacking the envelopes.
Hur accepted her explanation. “Even if she had seen the envelope,” he wrote, "it is reasonable to believe she did not know the contents were classified and would not have looked inside to check because of the EYES ONLY stamp.” Therefore, he concluded, there was "insufficient evidence" to charge Chung with willful retention of the classified documents in the EYES ONLY envelopes recovered at the Penn Biden Center.
However, in her congressional testimony Chung indicated that she did know that an EYES ONLY stamp on an envelope meant the contents were classified. After a House Oversight Committee staffer asked her, “Can you describe for me how you might know a document’s classified?" Chung replied: “Things that I’ve come across always had a cover on it. It was either orange or red, or it was in an envelope, and those were usually for EYES ONLY.”
At the time of her April 4 testimony, congressional investigators did not know what classified materials had been recovered by the FBI. They did not know she had handled the EYES ONLY Ukrainian and Iranian materials.
Cutting Chung Slack
When Hur’s team interviewed Chung several months later, they had access to the transcript of her earlier testimony. Apparently, Hur never challenged her to explain the inconsistency between what she was telling his investigators and what she told congressional investigators.
Chung had another reason to recognize the classified nature of the Iran nuclear files she maintained: She was directly involved in their production and delivery. The documents were part of a CIA briefing Biden had requested for a closed-door White House breakfast meeting with U.S. senators he held in January 2015 to lobby for their support for the Iran nuclear deal. Before the meeting, Chung worked with a military aide to deliver the Iran briefing papers to the vice president, according to emails.
“Can you pls put note on the docs he [Biden] was asking about to highlight it,” Chung wrote the military aide, who replied, “They just went up [to Biden] and the document said for VP eyes only.”
FBI investigators were able to confirm with the CIA that the Iran “EYES ONLY” package Chung secured and filed for Biden was the same manilla envelope of materials recovered from the Penn Biden Center. Inside the envelope were the CIA briefing papers clearly marked “TOP SECRET” and “INTELLIGENCE ASSESSMENT.” It also contained about 10 pages of handwritten notes Biden took regarding the briefing, all of which were deemed classified.
Nonetheless, Hur said he found her actions “innocent,” and that she removed the highly classified materials from the White House “unwittingly.” He said the same thing about her retaining classified White House memos about China.
“In her interview with the Special Counsel’s office,” he concluded, "she credibly stated that she did not know the files she maintained included marked classified documents.”
Hur even offered “the possibility that the executive assistant and Mr. Biden simply forgot about them.”
Regarding the unlawful retention of the Iran documents, Hur asked Biden about his 2015 meeting with senators over the Iran nuke deal and his CIA briefing notes during his two-day interview with the president last October. “Mr. Biden had no recollection of the breakfast or the handwritten notes,” the prosecutor reported. Yet in his own 2017 memoir, Biden states that the Iran deal “may be the most momentous” event of the eight years he and Obama were in office. And he specifically boasted of his "effort to convince Congress to sign off on the pact."
After leaving office, Biden had a continuing interest in the Iran nuclear deal, including defending it against criticism by President Trump, who threatened to pull out of the pact and did so in 2018. In response, Biden prepared speeches and memos with Penn Biden Center staff advocating for the deal. They also developed talking points on the subject for Biden’s meetings with Israeli leaders at the center. Holding on to the Iran intelligence and notes would have helped Biden formulate such arguments and been useful source material for his memoir.
As the guardian of his files, Chung helped Biden research the book, “Promise Me, Dad.” It’s not known if Biden or Chung referenced any of the materials from the boxes in the original manuscript of his book, which was published in November 2017 and revealed insider accounts of Biden’s various roles in U.S. foreign policy, including Ukraine. It also mentioned the Iran nuclear deal, but did not go into detail about the negotiations. Biden listed Chung first among people he acknowledged for their contributions: “Thank you for all of this, and more, to Kathy Chung.”
Chung also worked with Biden’s ghostwriter Mark Zwonitzer. In February 2017, about a month after Biden left office, Hur said Biden discussed a classified memo on Afghanistan with Zwonitzer while they met at his McLean, Va., rental home. Zwonitzer taped their conversation, and though he deleted his recordings after learning a special prosecutor had been appointed to investigate Biden’s classified docs scandal, Hur was able to get FBI computer-forensics experts to restore the audio. (Hur declined to prosecute Zwonitzer because he said he couldn’t be sure he was trying to obstruct his investigation.) On the tapes, Biden can be heard saying he had “just found all the classified stuff downstairs.” Downstairs from where they met was Biden’s office, where he stored his papers.
Hur believes Biden was referring to the same marked classified documents about military and foreign policy in Afghanistan that FBI agents found in 2022 in his Delaware garage. (He moved the files he kept in his private office in McLean to Wilmington in 2019.) Biden last week denied sharing any classified intelligence with his ghostwriter, and he asserted he has no idea how the classified papers on Afghanistan military strategy and troops wound up in a box in his garage.
Also part of Biden's book team was Biden’s personal lawyer Bob Bauer, who brokered the contract with the publisher Flatiron Books, an imprint of MacMillan Publishers. Bauer happened to be one of the lawyers who tried to ship Biden’s Penn Biden stash of documents to his home in Wilmington and to a law office in Boston just a few months before the Justice Department raided Trump’s Mar-a-Lago estate looking for classified documents.
In effect, Hur exonerated Chung and Biden over the highly classified documents that were stashed in closets, credenzas, and cabinets at the Penn Biden Center. He concluded that the boxes of secret White House papers simply ended up there “by mistake."
“The evidence suggests that the marked classified documents found at the Penn Biden Center were sent and kept there by mistake,” he concluded in his report. “Therefore, we decline any criminal charges related to those documents."
The Department of Justice gave former President Trump and his aides no such benefit of the doubt concerning the classified documents found at Mar-a-Lago. Special Counsel Jack Smith indicted Trump for "willful retention of classified documents,” among other alleged crimes. He also charged two Mar-a-Lago employees with conspiracy to conceal classified records and obstruction of justice.
Trump is expected to file a motion to dismiss the DOJ’s case against him, arguing “selective prosecution” based on DOJ declining to indict Biden over similar allegations. His lawyers have until Feb. 18 to file such pretrial motions.
