The guilty verdict against Harvard University chemistry professor Charles Lieber, who was convicted in December as part of the US Department of Justice’s controversial China Initiative, should be overturned for two reasons, Lieber’s attorneys argued in court on March 31. One reason is because that program was flawed, and the other is because prosecutors failed to follow the letter of the law in making their case, the attorneys claimed.
“The landscape of this case has really changed since trial,” lead defense attorney Marc Mukasey told Judge Rya Zobel. For instance, in January the government dropped charges against Massachusetts Institute of Technology mechanical engineer professor Gang Chen, who had been charged with failure to disclose research funding from China. That was just one of several instances in which cases brought under the program, created under the Trump administration, were dropped or dismissed.
Then, in February, the DOJ announced it would drop the name China Initiative and refocus the program on espionage and away from academic researchers. The initiative had drawn complaints that it was promoting racial bias against Asian scientists, discouraging legitimate international cooperation, and failing to promote US security interests. “Over the past 2 years cases brought under this China Initiative have turned out to be an embarrassment for the DOJ,” Mukasey said.
Yet even with the “twisted and perverse” China Initative revamped, Mukasey said, “nobody seems to care here that Professor Lieber remains the victim of this twisted, misguided program.” Lieber sat silently between his attorneys during the hearing, which lasted roughly an hour.
Another of Lieber’s attorneys, Kenneth Caruso, argued that the government failed to prove some of the charges it made against Lieber. For example, prosecutors had said Lieber lied to the government when he told Harvard that he was not involved in China’s Thousand Talents Program (TTP), information that the university then passed on to the US National Institutes of Health. But what Harvard told the NIH was that “Lieber has represented that he was not a member of the Thousand Talents Program.” That statement, that Lieber had denied his involvement, was true, even if the denial was not, Caruso argued. “It’s not a crime to lie to Harvard,” Caruso said.
Similarly, when Lieber told federal investigators who asked if China considered him part of the TTP that he did not know how they categorized him, that statement was literally true, and “they” might have been the TTP, not China, the word the prosecutors used. He also argued that statutory language about requirements to report foreign financial accounts did not cover the bank account Lieber had in China.
Because prosecutors offered more than one theory on which the jury might find Lieber guilty, and the jury did not say which it had relied on, a fatal flaw in any of the theories necessitates throwing out the entire verdict, Caruso said.
US Attorney Donald Lockhart responded that the context in which the categorization question was asked made it clear that “they” referred to China. Lockhart also said that the statute clearly included foreign bank accounts as reportable. He called Caruso’s arguments that the government had not proven that the statements were literally false “wordplay.” In any case, he said, the time for the defense to raise those objections was before trial. Caruso replied that nothing about his objections precluded him from raising them now.
Lockhart said the the China Initiative alterations were not relevant to the case. Lieber was convicted of lying to investigators and failing to report a foreign bank account and income to the Internal Revenue Service, and nothing in the DOJ’s change of course “would remotely suggest that this sort of case would not be done today,” Lockhart said.
Both sides submitted lengthy briefs with their arguments. As part of the mostion to acquit Lieber, his attorneys asked that if the court does not do so, that he at least be given a new trial. Zobel did not indicate when she might rule on the motion.