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Former Chemistry Chair's Defense Could Tie Federal Charges to DOJ China Initiative, Experts Say

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Legal experts say recent court filings indicate Chemistry professor Charles M. Lieber — charged with lying to federal officials investigating his funding sources and ties to China — may try to convince jurors that he was swept up in the Trump administration’s broader anti-China campaign.

Lieber’s legal team may try to focus its defense around how Lieber’s prosecution connects to the Justice Department’s China Initiative, an ongoing series of prosecutions beginning in 2018 related to allegations that China perpetrated intellectual property theft, according to experts.

Federal authorities arrested Lieber in January on charges of making fraudulent statements to U.S. government officials who were investigating his funding sources. Officials alleged he misrepresented his affiliation with the Thousand Talents Program and failed to disclose funding from the Chinese government.

A federal grand jury indicted Lieber in June for making false statements; he pled not guilty. He was later charged in a superseding indictment with tax offenses related to the income he allegedly received from Chinese sources.

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Marc L. Mukasey, Lieber’s attorney, said during an Oct. 16 hearing that Lieber intends to bring the case to trial promptly.

“It is Professor Lieber’s desire to bring this case to trial as soon as possible,” he said.

“Professor Lieber pleaded not guilty because he is not guilty,” he added in an emailed statement Friday. “We intend to exercise our right to a speedy trial so the world can see how he’s been used as a poster boy for a twisted political agenda and that the case against him is a crock.”

China Initiative Links

The Justice Department linked the arrest of Lieber and two Chinese nationals to its China Initiative in a January press release announcing their arrests.

“These cases are part of the Department of Justice’s China Initiative, which reflects the strategic priority of countering Chinese national security threats and reinforces the President’s overall national security strategy,” the Justice Department’s January press release reads.

Lieber’s lawyers may have seized on that public statement and others made by prosecutors around the time of Lieber’s arrest as central to their strategy. In September, they filed a motion to compel production of a broad swath of materials related to the China Initiative and other Justice Department prosecutions of individuals in the Thousand Talents program.

“At the heart of the charges is what it means to participate in Thousand Talents,” Torrey K. Young, Lieber’s other attorney, said during the Oct. 16 hearing. “The government must benchmark what it means to participate in Thousand Talents.”

Young said the materials from other China Initiative cases would be necessary because it is unclear “where this line is” on behavior related to China.

“It’s a China Initiative prosecution,” she said.

They also requested grand jury minutes, and Young argued that there had been “hyperbole around this case” due to the U.S. government’s “extremely anti-China agenda.”

“We think there is enough disparity between how this case was characterized publicly and what it’s really about” to warrant releasing the grand jury minutes, she said.

Prosecutors pushed back on the links to the broader initiative, however, noting Lieber had been charged with making false statements — not directly for his participation in Thousand Talents — so the materials would not be relevant to the case.

Magistrate Judge Marianne B. Bowler sided with the government and denied the motion on Oct. 17.

Elizabeth O. McCarthy, a spokesperson for the U.S. Attorney’s Office in the District of Massachusetts, declined to comment Tuesday on questions about whether the DOJ was now trying to distance Lieber’s case from the China Initiative.

Three legal experts who have worked on similar cases concurred that the case is linked to the China Initiative, given the nature of the case and the Justice Department’s press release.

Derek Adams, a partner at Potomac Law Group in Washington, said Lieber’s team may be trying to use the case’s context within the China Initiative to argue that the professor was “swept up into this larger China initiative” and thus unfairly prosecuted.

“You’re trying to loop in this case into the bigger picture, to try to have a jury see that perhaps Charles Lieber was kind of pulled into something that’s broader than him,” he said. “That that’s effectively what the prosecution is about — this bigger initiative — rather than the specific statements that he made.”

Adams, a former Justice Department trial attorney, said that in turn, it makes sense the government may want to distance Lieber’s case from the initiative.

“With any case, they don't want to litigate their whole initiative — they want to just litigate this case, and they want to just make it about the specific false statements that they allege occurred,” he said. “You can also understand then why the defense would want to make it about a broader movement that could potentially rub some folks the wrong way in a jury.”

Unique Prosecution

Though experts agreed the case against Lieber is tied to the China Initiative, they said it differs from other China Initiative cases because Lieber is not a Chinese national, but a prominent American scientist.

Kristen M. Schwendinger — a senior counsel at Feldesman Tucker Leifer Fidell LLP specializing in practices including federal grants and government investigations — said Lieber’s case is notable for that reason.

“It stood out compared to others in a line of cases of university professors that happened to be from China, though not all cases have involved people of Chinese nationality,” Schwendinger said.

Catherine X. Pan — a partner at Dorsey & Whitney LLP and leader of the firm’s U.S.-China transactional practice — said while she does not have access to private case documents, she was “surprised” by authorities’ decision to pursue criminal charges against Lieber, rather than using other means.

Pan noted that Lieber is one of only around 30 people in history to be elected into all three National Academies of Sciences, Engineering, and Medicine, and she questioned whether the suit against Lieber helps the U.S. stay on top of the U.S.-China tech war.

“The U.S. needs to have the top talent continuing to work for the U.S. and contribute to the U.S., so I don’t know if this type of heavy-handed prosecution and criminal arrest and charges really serves that purpose,” Pan said.

Pan also said she thinks the exact amounts Lieber allegedly received from Chinese sources may have been lost in translation. While FBI special agent Robert Plumb’s affidavit states that the Wuhan Institute of Technology agreed to pay Lieber $50,000 per month, prorated according to his actual time worked at the institute, the Justice Department’s January press release alleged WIT paid Lieber $50,000 per month without such a qualification. Lieber would not have been able to work in China 12 months a year while also holding a full professorship at Harvard, Pan said.

“Amounts matter because we’re thinking whether this is material enough to be a criminal charge,” Pan said.

Civil Case ‘Consistent’ with Strategy

In early October, Lieber filed a civil case against Harvard, alleging the University broke its contract by refusing to indemnify him for his defense. Experts said Lieber’s civil suit aligns with the legal strategy that began with his not guilty plea.

Pan called the indemnification suit a “critical step” in Lieber’s legal strategy.

“I think this is a critical step in their legal strategy because without sufficient support and financial resources, lawyers can be very expensive,” she said. “Without that kind of resource and support, it would be very difficult for Professor Lieber to properly defend himself.”

Schwendinger, the Feldesman Tucker counsel, said issues of indemnity are “not uncommon” in cases against officers in any corporation.

“It is not uncommon for issues of indemnity clauses to come up in the wake of civil or criminal allegations against officers or executives in any corporation, whether or not it’s in the university context or otherwise,” Schwendinger said. “It is a matter of contract law whether or not Professor Lieber would be successful on his arguments. He certainly has a right to make this argument before the courts.”

Adams, the Potomac Law partner, added that the civil suit is “consistent” with Lieber’s position in the criminal case.

“If you’re not guilty in the criminal case, then you can understand why he would take the view, ‘well, I should be covered,’” he said.

Regardless of the outcome in the civil case, however, Adams said Lieber’s criminal prosecution may inform the actions of defense lawyers — and even federal prosecutors — in other China Initiative cases.

“If this case goes to trial, it will be a really interesting case to watch because the DOJ will be put to a task in terms of proving the case beyond a reasonable doubt,” he said. “It will probably have an influence on how some other cases are either tried, brought, not brought, whether pleas are taken or not taken.”

—Staff writer James S. Bikales can be reached at james.bikales@thecrimson.com. Follow him on Twitter @jamepdx.

—Staff writer Kevin R. Chen can be reached at kevin.chen@thecrimson.com. Follow him on Twitter @kchenx.

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