The China Initiative’s first academic guilty verdict raises more questions than it answers
Less than three hours after a jury in Boston began deliberating the fate of Harvard chemistry professor Charlies Lieber, the verdict was in: he was found guilty on Tuesday of six felony counts, including false statements and tax fraud, that stemmed from his failure to disclose affiliations and funding from a Chinese university and talent recruitment program.
Lieber's trial was closely watched not only for what it would mean for the star scientist, but also for any indications on the future of the controversial-and increasingly beleaguered-China Initiative, under which he was charged.
Launched in November 2018 by the Department of Justice, the China Initiative was meant to counter the threat of Chinese economic espionage but has, in practice, increasingly focused on academics accused of research integrity issues and has disproportionately targeted individuals of Chinese heritage, as an investigation by MIT Technology Review found. Lieber was only the second academic charged under the initiative to face a jury-and the first to be convicted by one.
From the beginning the initiative has been criticized for facilitating racial profiling, and in recent months, it has suffered a series of setbacks stemming from the government's own prosecutorial missteps. Over the summer, five cases against academics, mostly for alleged visa fraud, were dismissed without explanation. Then the trial of University of Tennessee-Knoxville professor Anming Hu, the first research integrity case to go to trial, led to a mistrial followed by a full acquittal-and accusations of misconduct by the investigating FBI agent.
Recently former DOJ officials involved in the program, among others, have called for an end to the effort or a significant change in its focus. Testifying on the matter before Congress, Attorney General Merrick Garland promised that the Justice Department would be carrying out a review of the program.
Given this context, if there had been an acquittal in this [the Lieber] case, it would have looked bad for the government," says Seton Hall University law professor Margaret Lewis, who has written extensively on the initiative.
But the underlying facts of the case were strong-especially given the video footage of Lieber admitting to FBI agents that he received cash from a Chinese university, had a Chinese bank account, and hadn't been (in his own words) completely transparent by any stretch of the imagination" when asked about these and other issues by Harvard administrators and government investigators.
These facts made the Lieber case an outlier" among China Initiative cases, according to one defense lawyer who followed the case for clues for his own client's upcoming trial. While it's not particularly useful for predicting how the government might handle future research integrity cases under the initiative, it has raised questions about a crucial component to the investigations-the talent recruitment programs.
Unanswered questions on the Thousand Talents Program
The question of Lieber's innocence may be resolved, at least for now-his attorney, Marc Mukasey, told reporters that they respect the verdict but will keep fighting," suggesting a potential appeal-but the trial has brought up additional questions about the China Initiative itself and, specifically, the Chinese talent programs" that prompted such scrutiny.
Talent programs are government-sponsored recruitment plans designed to attract overseas experts (a.k.a. talents") to work in China. While collaboration with Chinese universities, including collaboration through talent programs, was long encouraged by US institutions, the federal government has become increasingly concerned about them in the past few years.
A 2019 Senate report found that China funded over 200 talent programs that had collectively recruited over 7,000 participants. The report also warned that talent programs incentivized its members to lie on grant applications to US grant-making agencies, set up shadow labs' in China working on research identical to their US research, and, in some cases, transfer US scientists' hard-earned intellectual capital."
Part of what made Dr. Lieber a person to be interviewed was that he had many Chinese students, right?"
-Marc Mukasey, Lieber's defense attorney
MIT Technology Review's data investigation found that 19 of the 77 known China Initiative cases (25%) were prompted by suspicions that defendants had participated in Chinese talent programs. Fourteen of these talent-program cases, meanwhile, alleged research integrity issues stemming from failures to disclose all affiliations to Chinese entities on grant documentation. None of the 14 cases involves charges that the scientist in question transferred US intellectual property to China.
Despite the government's suspicion of talent programs, it is still not entirely clear whether disclosing participation in them is considered material or immaterial to the federal government.
This was a question that the defense attorney for the other China Initiative case, who was following the trial to better prepare his own client's case and did not want to be named so as not to jeopardize it, hoped would be clarified in the course of the trial. Without that clarification, he said, some defendants could argue that they had not known it was material to report talent-program participation itself.
In the end, this was a moot issue in Lieber's trial: he had covered up his participation, and income, both to Harvard University officials and then to government investigators, and the prosecutor did not have to clarify on the record whether participation in the Thousand Talents Program did or did not have to be reported.
My ears perked up"
On the fifth day of the trial, Mukasey, Lieber's defense attorney, asked Department of Defense investigator Amy Mousseau a series of questions about her motivations in investigating the chemist. Was it true, Mukasey asked, that the Naval Research Laboratory informed Mousseau that Lieber had too many Chinese students in his lab?"
Yes," Mousseau responded.
US Attorney James Drabick objected to the question, however, so Mukasey rephrased it. Part of what made Dr. Lieber a person to be interviewed was that he had many Chinese students, right?"
The trial was about individual guilt ... not a policy discussion on the China Initiative."
-Seton Hall University law professor Margaret Lewis
When Mousseau did not immediately answer, he continued, Did it come to your attention in connection with the investigation that Dr. Lieber had many Chinese students working in his lab, yes or no?"
Yes," Mousseau responded.
A courtroom tweet summarizing the exchange made my ears perked up," said Lewis, the law scholar, because it goes to this fundamental question of To what extent does the government, and US society more generally, see connectivity to China as a reason for enhanced suspicion?'"
It displays a bias," she adds, that goes against what the Justice Department has long claimed: that their actions are purely based on what people have done, their conduct, and not by ethnicity, race, nationality, national origin, or any of those factors."
But racial bias, which is well documented within the FBI and DOJ, according to Michael German, a former FBI special agent turned whistleblower and a fellow with the Brennan Center for Justice, is not the only type of bias that this trial reveals. Another issue that he sees is selective prosecution.
I'm sure if the Justice Department focused the same resource on investigating corporate executives rather than academics, they could find far more people who didn't properly report all of their income," he says. Tax evasion"-the subject of two of the charges that Lieber was ultimately convicted of-is a problem, but it isn't the problem the China Initiative was intended to solve."
For many critics of the China Initiative, there are broader and more fundamental questions that each case-regardless of outcome-highlights.
Are years in prison the penalty that we, as society, think is appropriate for these kinds of disclosure violations?" asks Lewis, the law scholar. The verdict also doesn't say anything, she adds, about another concern: that the China Initiative creates a larger threat narrative attached to people with connections to China."
That these issues remain unresolved at the end of Lieber's trial is to be expected, according to Lewis. The trial was about Lieber's individual guilt," she says, not a policy discussion on the China Initiative."
There's also the question of what message the verdict is sending, says Aryani Ong, a civil rights attorney and the cofounder of Asian American Federal Employees for Nondiscrimination, given the widespread chilling effects that the initiative has had on scientists. The China Initiative has always been part coordination of agency efforts related to the PRC" and part politics, or more precisely, public signaling," she says. I see this case being used more as a warning ... that US-China interactions are under intense scrutiny than as a thwarted act of actual espionage."
Until those policy decisions are made, the China Initiative, and its prosecution of academics, will continue-five more research integrity cases are scheduled for trial next year.
Like Lieber-and like Anming Hu-all five defendants are charged with making false statements.
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Additional reporting by Brandon Kingdollar
Correction: This article initially quoted Mukasey as saying Naval Research Laboratory informed you that Lieber had too many Chinese students in his lab?'" This was a paraphrased version of his question. The article has been updated.