Last week, Harvard University chemist Charles Lieber became the first academic scientist targeted by the U.S. government’s controversial 3-year-old China Initiative to be found guilty by a jury. He may also be one of the last, says Andrew Lelling, the former U.S. attorney who charged Lieber nearly 2 years ago with lying about his research ties to China.
Under the China Initiative, the government has prosecuted some two dozen academic scientists it says abetted Chinese attempts to steal U.S.-funded technology by not disclosing their ties to research programs funded by the Chinese government. Proponents say the campaign helps maintain U.S. preeminence in science, whereas critics say it has criminalized bookkeeping mistakes by otherwise blameless academic researchers.
Now in private practice at Jones Day, Lelling still defends the initiative. But he thinks the Department of Justice (DOJ) will “raise the bar” for prosecuting cases. And he predicts that new approach, combined with increased doubts among defense attorneys that a jury will acquit their clients, may prompt five scientists now awaiting trial (see table, below) to negotiate a plea bargain rather than risk an adverse verdict.
Critics of the China Initiative would also like to see fewer cases go to trial. But Lieber’s conviction hasn’t altered their stance that the campaign has actually slowed the pace of U.S. innovation by scaring scientists away from engaging in important research collaborations between the two countries. “Does taking [Lieber] down do anything to protect U.S. national interests?” asks one lawyer who requested anonymity because he works with other scientists facing similar charges. “I don’t think so.”
On 21 December, a federal jury in Boston took less than 3 hours to find Lieber guilty of lying to federal research agencies about his participation in a Chinese foreign talent recruitment program, failing to report any income from the program on his tax returns, and failing to disclose a Chinese bank account used to pay him. His fate now rests with U.S. District Judge Rya Zobel, who will hear from both sides before imposing a sentence that could stretch up to 5 years in prison and a fine of $250,000.
Legal experts are still parsing the impact of the verdict, but here are nine emerging takeaways from the 6-day trial.
Was it a victory for the government?
The China Initiative has two prongs, says Lelling, who was part of a team at DOJ’s national security division that managed the China Initiative under former President Donald Trump. The first, to protect U.S. innovation against Chinese threats, wasn’t an issue in the Lieber prosecution because he was never charged with misdirecting his research to help China, much less with theft of intellectual property or economic espionage. But according to Lelling, the conviction did serve what he says is the initiative’s second purpose, “to insist on transparency and openness by academic researchers” about the sources of their funding. “That point has been made,” he adds.
But the prosecution of Lieber comes at an unacceptably high price for the country and the U.S. research establishment, says Peter Zeidenberg, a lawyer with Arent Fox who has defended several scientists charged under the China Initiative. “Yes, it’s been a deterrent, just like cutting off the hands of thieves. But it’s also been terrifying. And it is not justice, nor is it of value to society.”
Margaret Lewis, a law professor at Seton Hall University, objects to calling Lieber’s conviction a victory for the government. The goal of the legal system should be a just outcome, she argues, not simply a conviction or an acquittal. A self-professed critic of the China Initiative, Lewis thinks the U.S. government “needs to do a better job of identifying and responding to national security threats.”
Does the guilty verdict even the score?
The government has had a mixed record in its China Initiative cases. In eight cases, academics have pleaded guilty and received prison sentences of up to 37 months. But the government dropped its prosecution of seven other scientists. And federal prosecutors lost the first case that went before a jury: In September, a federal judge in Tennessee acquitted Anming Hu, a former mechanical engineering professor at the University of Tennessee, Knoxville, of charges he lied to NASA about his work with Beijing University of Technology. U.S. District Judge Thomas Varlan had previously declared a mistrial after the jury deadlocked.
Given that history, most media reports depicted Lieber’s conviction as a come-from-behind victory for the China Initiative. “He’s a prominent academic who broke the law [on disclosure] and also cheated on his tax returns, so yes, it puts the government back on the scoreboard,” agrees one defense attorney. But legal experts dismiss the idea that every verdict in the China Initiative carries equal weight. The problem with keeping a running tally, they say, is that each case is unique, with a different judge, jury, and charges against the defendant.
How might it affect the China Initiative?
Lelling expects the Biden administration’s leadership team at DOJ, including Matthew Olsen, the new head of the department’s national security division, to “recalibrate” the China Initiative in the wake of Lieber’s conviction in favor of “quality over quantity.” That would mean pursuing fewer “technical fouls,” his phrase for cases involving a scientist’s failure to disclose research ties, and putting more resources into pursuing alleged theft of intellectual property, trade secrets, and other forms of economic espionage. “What’s to be gained by targeting additional investigators for breaches of research integrity?” he asks. “You’re not going to be getting additional deterrence. That message has already been received.”
Critics of the China Initiative say erasing its harmful effects on U.S. science and national security will require wholesale policy changes by the Biden administration. They want clearer and more consistent rules about what researchers need to disclose, a more sophisticated approach to handling trade disagreements with China, and a better understanding of the U.S. innovation system by law enforcement agents tasked with sniffing out alleged economic espionage.
Some of those changes are already underway and won’t be affected by the Lieber verdict, Lewis says. “There’s a chance for a more overarching view of how to maintain important legal principles in the course of advancing U.S. interests,” she says. “Remember, the goal of the China Initiative was to improve our economic position, not to send scientists to jail.”
Will the verdict influence pending cases?
Some observers, including Lelling, think Lieber’s conviction will make other defendants think twice about taking on the enormous cost and risks of a jury trial. But Zeidenberg, who is defending University of Kansas chemist Franklin Tao against charges of hiding his ties to Fuzhou University, says the Lieber verdict won’t affect his client. “The two cases are very different,” Zeidenberg says. “The outcome will depend on the facts, and the allegations are so different.” Tao was arrested in August 2019 and his trial is scheduled to begin on 18 April 2022, although Zeidenberg has pushed for an earlier date.
Lewis says she wouldn’t be surprised if federal prosecutors in the Lieber case are asked by colleagues in other jurisdictions “to share tips on what seemed to work with the jury and what didn’t work. But the government still needs to prove guilt beyond a reasonable doubt.”
The China Initiative on trial
These six academics are preparing to defend themselves in court
|Name and institution*||Charges||Arrested||Trial date||University status after arrest|
|Charles Lieber (Harvard University)||False statements to Department of Defense (DOD) and National Institutes of Health; false reporting||January 2020||14 December 2021||Suspended with pay|
|Simon Ang (University of Arkansas)||Wire fraud on NASA and DOD grants; false statements||May 2020||7 February 2022||Terminated|
|Zhengdong Cheng (Texas A&M University)||Defrauding NASA and false statements||August 2020||4 April 2022||Terminated|
|Franklin Tao (University of Kansas)||Wire fraud on Department of Energy (DOE) and National Science Foundation (NSF) grants; false statements||August 2019||18 April 2022||Suspended without pay|
|Gang Chen (Massachusetts Institute of Technology)||Wire fraud on DOE grant and false reporting||January 2021||Not scheduled||On leave with pay|
|Mingqing Xiao (Southern Illinois University)||Wire fraud on NSF grant and false reporting||May 2021||25 April 2022||Suspended without pay|
Does it change the political rhetoric?
Probably not. Senator Rob Portman (R–OH), who has led efforts in Congress to toughen sanctions against scientists who don’t disclose ties to foreign funders, said shortly after the verdict that “Dr. Lieber is a clear example of China’s continued attempts to steal our taxpayer-funded research.” And Lelling’s former colleague and head of FBI’s Boston office, Joseph Bonavolonta, declared that Lieber’s conviction “reinforces our commitment to protect our country’s position as a global leader in research and innovation and to hold those accountable who exploit and undermine that position through dishonesty.”
But Bonavolonta works for DOJ, and Lelling thinks he may adopt a different stance if the Biden administration shifts its approach to prosecuting academics. “When the policy changes at the top,” Lelling says, “then the rhetoric coming from the bottom will change, too.”
Why did the verdict come so quickly?
“The charges [against Lieber] were very straightforward,” Lewis says. “The government had to prove intentionality, and it was able to present evidence that was quite striking.” Much of it came from a video that prosecutors played in court of Lieber’s 3-hour interrogation by FBI agents after his arrest on 28 January 2020, including Lieber’s observation that the agents had “damning” evidence against him.
“I may have signed a document that was in Chinese that I shouldn’t have signed,” Lieber says at one point. At another point, Lieber acknowledges the money he received from the Wuhan Institute of Technology (WUT) should have been declared and that he had failed to do so. Lieber also offers an unflattering motive for the collaboration: “This is embarrassing. Every scientist wants a Nobel Prize.”
Lelling says Lieber’s denials about participating in China’s Thousand Talents foreign recruitment program were “demonstrably false” and also showed “bad intent.” Zeidenberg agrees that Lieber was evasive in answering FBI questions, but he’s not sure his words proved intent. “What was clear is that [Lieber] was a member of the Thousand Talents program,” Zeidenberg says. “But what is less clear to me is what questions he had been asked [by FBI].”
Lieber’s attorney, Marc Mukasey, said after the verdict that he planned to file an appeal, which is standard practice. But Lewis says it’s hard to see on what basis the conviction could be overturned.
Why didn’t Lieber testify?
Defense lawyers are usually leery of putting their clients on the stand because of the uncertainty of how they would respond to hostile questions and the potential negative impact of their words on the jury. Lieber didn’t testify, which one defense lawyer thinks was the right call: “He would have made a horrible witness and been crucified on cross [examination].”
In contrast, most legal experts believe Hu bolstered his case by defending his actions in court testimony, and Hu says he did so because he had nothing to hide. “I didn’t believe that I had done anything wrong, so I wanted to speak up,” he said at a recent webinar sponsored by the Asian American Scholars Forum that examined his case. “I knew it was a big risk, but it was hard for me to stay silent when there was so much at stake.”
Are there any lessons for researchers?
Lewis says the video and other testimony presented during the Lieber trial make it clear why defense attorneys usually tell their clients: “Don’t talk to the government without a lawyer.” Hu reinforced that advice in describing an interview with FBI agents who showed up at his home in 2018 looking for incriminating evidence. “You should be silent and contact legal counsel immediately,” Hu said during a webinar. “They want you to talk about your research so they can find something that you did wrong.”
Lewis says the Lieber and Hu cases are also a reminder that “the interests of the university and the scientist are not always aligned.” Lieber, who was suspended with pay after his arrest, has sued Harvard for refusing to pay his legal fees; Harvard officials say he breached his contract by giving them false information about his ties to WUT.
Hu, a Canadian citizen, was suspended without pay and later fired, although University of Tennessee officials said it was because they could no longer employ him after his indictment led to the cancellation of his visa. During the trial, it was revealed that university officials had voluntarily shared personal information about Hu with FBI months before his arrest in February 2020. (After Hu’s acquittal, the university made an offer to rehire him and help rebuild his lab, which he is considering.)
Will Lieber go to prison?
The next step in Lieber’s case is likely a presentencing hearing for the judge to learn, in Lewis’s words, “who this person is.” The prosecution will ask for a sentence based on federal guidelines that involve the nature of the crime as well as the defendant’s criminal history, the acceptance of culpability, and a willingness to cooperate with the government. The defense can then argue for leniency based on extenuating circumstances.
In Lieber’s case, Lelling says, those factors are likely to include his ongoing treatment for cancer, his exemplary scientific record, and his remorse. “I think you’ll hear him say, ‘I screwed up, and I shouldn’t have done it,’” Lelling predicts. “And that matters to judges. You’d be surprised at how many defendants do not show any remorse.”
Lelling’s bottom line: “I think it is highly unlikely that the government will seek jail time to Lieber. And it is equally unlikely that he will get any.”