Charles Lieber’s Conviction as a ‘Victory’ for the China Initiative

Dr. Charles Lieber, the former Chair of Harvard University’s Chemistry and Chemical Biology Department, was convicted yesterday of six criminal charges. The Department of Justice (DOJ) proved to the jury beyond a reasonable doubt that Lieber intentionally made false statements, filed false tax returns, and had an unreported bank account in China.

I was struck by initial media reports on how this result was a government ‘win’ or ‘victory’:

• Wall Street Journal: “A jury on Tuesday found Harvard professor Charles Lieber guilty on six counts related to payments he received from a Chinese government talent program, delivering a win for the U.S. government.”
• New York Times: “Dr. Lieber’s conviction is a victory for the China Initiative, an effort launched in 2018, under the Trump administration, to root out scientists suspected of sharing sensitive information with China.”
• Washington Post: “A Harvard University chemistry professor was convicted in federal court on Tuesday of concealing his ties to China, securing a victory for the Justice Department’s controversial and faltering initiative to address accusations of “Chinese economic espionage” in the United States.”
• GBH News: “The verdict is widely seen as a victory for the U.S. government, which has been targeting academics who take funding from China.”
• The Crimson: “Lieber’s conviction marks a high-profile victory for the Department of Justice’s China Initiative . . . .”

I understand why this framing is common given the adversarial nature of the trial process with vigorous cross-examination and contrasting views of a case presented in the prosecution’s and defense’s opening statements and closing arguments.

I recognize too that I used ‘victory’ in a tweet on Dr. Anming Hu’s September acquittal in a case that the DOJ described as “part of [its] China Initiative.”  From the defendant’s perspective, I stand behind ‘victory’ as accurate to describe the vindication of a full acquittal after facing felony charges of defrauding the government. It was a hard-won outcome, and one that came at great personal cost as Hu recently described during an Asian American Scholars Forum webinar.

But prosecutors and defendants are different, with the former wielding tremendous power. Seeing China Initiative cases as marks on the government’s scorecard shifts the framing to binary wins/losses from the fundamental question of what is a just outcome when the government decides whether to put a person’s liberty (as well as reputation, immigration status, employment, and/or finances) at stake.

As explained by the Supreme Court in 1935 in Berger v. United States:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.

Moreover, if the DOJ ‘wins’ with a conviction, the implication is that others lose and here not just the defendant. I worry that the narrative becomes that critics of the China Initiative also ‘lose.’ I have been one of those critics since then Attorney Sessions Jeff Sessions announced its creation over three years ago. The reason that I have poured so much time, and ink, into this issue is that I hold prosecutors to a high standard, as they do for themselves.

The United States can and should do better in identifying, articulating, and responding to national security threats. Many individuals and groups are trying to work with the government (not against it) to do this. The goal is a collective ‘win’ in collaboration with the government to achieve an outcome that best serves the United States’ interests.

And there is much work to be done, as was highlighted during Lieber’s trial. This statement as retold by a reporter for Harvard’s The Crimson stopped me in my tracks.

Pressed by Mukasey, DOD investigator Mousseau said an official from the Naval Research Laboratory raised concerns about the number of Chinese students working in Lieber’s lab, which played a role in the decision to investigate Lieber.

To what extent is the ‘China Initiative’ putting people under government scrutiny—consciously and/or unconsciously—because of connectivity to ‘China’ based on nationality, national origin, ethnicity, or other ties?  The DOJ’s Justice Manual is clear in listing factors that should not influence prosecutions, including ethnicity and national origin, and in explaining that the factors are listed “not because it is anticipated that any attorney for the government might allow them to affect his/her judgment, but in order to make clear that federal prosecutors will not be influenced by such improper considerations.”

Lieber’s trial also underscored questions about when criminal penalties (including prison) should be used as a means of enhancing research security. Congress passed the laws for which Lieber was convicted, but DOJ has tremendous discretion in enforcement. How should that discretion be used? To what extent is criminal punishment deserved for individual wrongdoing? And how effective are prosecutions and convictions in deterring others from engaging in illegal conduct? How can that deterrence be crafted so that illegal behavior is checked while desired research continues (as compared with over-deterrence that has a sweeping chilling effect)?

The job of the jurors in Lieber’s trial was to be the finders of fact in an individual criminal case, not to determine the fate of the China Initiative. There are legitimate concerns about Beijing’s tactics in the growing economic competition between the United States and China. Lieber’s case should push us to grapple with how to navigate that competition in a way that protects American interests while upholding American values. The jury is still out on how the United States will perform in achieving that goal.