Bloomberg Law
Jan. 21, 2022, 9:00 AM

The Lieber ‘China Initiative’ Verdict Is a Loss for the U.S.

Peter R.  Zeidenberg
Peter R. Zeidenberg
ArentFox Schiff

The Department of Justice’s “China Initiative” has been thought by many to be on its last legs, as it absorbed one body blow after another. In the summer of 2021, the DOJ voluntarily dismissed five initiative cases and, a short time later, a federal judge in Tennessee acquitted Anming Hu in the first trial brought pursuant to the initiative.

That is where things stood as the trial of Charles Lieber, the former chair of Harvard University’s chemistry department and a world-renowned expert in nanotechnology, unfolded in a federal courtroom in Cambridge, Mass., shortly before Christmas.

Lieber stood accused of lying to the government about his involvement in a Chinese talent program and failing to report income on his taxes.

If the government once again failed in securing a conviction, critics of the China Initiative held out hope that the DOJ would recognize that “failure to disclose” cases like Lieber’s were a lost cause and should no longer be pursued. On the other hand, a win in the Lieber case might reinvigorate the flailing initiative and encourage the DOJ to continue to investigate and prosecute similar cases.

Headlines Say a Win—But Was It?

But after less than three hours of deliberation, the jury found Lieber guilty of all counts against him. Predictably, the headlines touted the verdict as a “win for the Department of Justice and the China Initiative.” But is this “successful” prosecution a win for the U.S.?

To assess this question, one must consider the purported goals of the China Initiative. At the time it was announced, in November 2018, then-Attorney General Jeff Sessions remarked that “Chinese economic espionage has been increasing—and it has been increasing rapidly. Enough is enough. We’re not going to take it anymore.”

Sessions then announced a task force dedicated to rooting out the suspected malefactors who were targeting American intellectual property.

If the target of initiative were those engaged in theft of intellectual property, then the initiative has badly missed the mark. Neither Lieber nor other professors being prosecuted pursuant to the initiative were accused of stealing any intellectual property or improperly sharing anything with anyone in China.

Instead, Lieber and many others stood accused simply of failing to disclose affiliations with China—and in Lieber’s case, actually lying about those affiliations when asked about them and failing to report foreign income on his taxes.

Initiative Reveals Critical Misunderstanding

The targeting of college professors like Lieber and others by the DOJ reveals a critical misunderstanding of the nature of fundamental research. The vast majority of scientists working at U.S. universities are not involved in any proprietary technology or intellectual property.

They are, instead, involved in fundamental research whose aim is to improve scientific theories for better understanding. The results of this research is published, with the goal to disseminate the findings as widely as possible into the scientific community so that others can build upon it. In that sense, it is the exact opposite of intellectual property, whose value is maintained by keeping it secret.

In other words, while it may well be the case that Lieber lied when asked about his involvement in a Chinese talent program, this entire prosecution—like the vast majority of cases brought under the initiative—was misguided from the start, in that it was not targeted at someone who was alleged to have misappropriated anything from anyone.

Climate of Fear

The predictable result from prosecutions like Lieber’s is to create a climate of fear on college campuses among the scientists who have made the U.S. the world’s scientific powerhouse. Until very recently, elite graduate students from around the world and, most prominently, China, sought to come to the U.S. to pursue their studies because it was deemed to have the best research universities and an open and welcoming climate.

Unfortunately, that is no longer the case. Many of the best students are avoiding the U.S. out of fear that they will be unfairly targeted. On top of that, outstanding scientists who have spent their careers in the U.S. are departing for other countries, primarily China, because of fear of prosecution by the DOJ.

It is indeed ironic that the China Initiative is causing the very brain-drain it was meant to prevent. Instead of protecting U.S. intellectual property from China, it is incentivizing some of our most outstanding scientists to return to China where, ironically, they feel safer from persecution.

No one should lie to investigators and taxes need to be paid, so the DOJ may well be congratulating itself for its “win” in the Lieber trial. But the continued targeting and prosecution of U.S. scientists under the China Initiative is a loss for the rest of us.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Peter R. Zeidenberg is a partner in Arent Fox’s Government Enforcement & White Collar practice. He defends scientists, individuals, and companies in white collar criminal matters involving contracting fraud, trade secret theft, economic espionage, export violations, and espionage-related offenses.

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