Marc Mukasey Featured in The Harvard Crimson, Lieber Prepares for Impending Trial on Federal Charges As He Battles Incurable Cancer

Posted by Mukasey Young LLP | Apr 09, 2021


Attorneys defending former Chemistry department chair Charles M. Lieber, who was charged with lying to federal authorities examining his ties to China, said during a status conference last month that Lieber's cancer diagnosis and deteriorating health call for an expedient trial.

As the trial looms, legal experts spoke with The Crimson about Lieber's possible defense strategies, which might implicate Harvard and draw attention to University policies around foreign funding disclosure.

Federal authorities arrested Lieber in January 2020, alleging that he made fraudulent statements to officials investigating his funding sources. Lieber reportedly lied to the Defense Department and the National Institutes of Health about ties he allegedly had to China's Thousand Talents Plan, a talent recruitment program.

Last June, a federal grand jury indicted Lieber on charges of making false statements, to which he pled not guilty. The next month, Lieber was additionally charged with four tax offenses for failing to report income he allegedly received from Chinese sources.

Marc L. Mukasey, one of Lieber's attorneys, said in a Feb. 26 hearing that Lieber had eliminated the potential of a plea deal and would be pursuing a trial.

“At this time, Your Honor, there is no possibility of a plea and there will be a trial,” Mukasey told Magistrate Judge Marianne B. Bowler of the U.S. District Court of Massachusetts at the February status conference.

‘Fighting for His Life'

“He is fighting for his life while also fighting the government,” Mukasey added in a Tuesday statement. “He is eager to show the world at trial how the government has it wrong.”

In a public letter released last month, 41 professors — including seven Nobel laureates — from several American universities questioned Harvard's decision to not recoup Lieber for his legal costs, especially after he had been diagnosed with “an incurable lymphoma.”

“Our efforts are all the more urgent as Professor Lieber is fighting for his life on another front,” the letter reads. “Instead of devoting what may be the final months of his life to fulfilling his scientific and educational calling, he is tackling the monumental task of restoring his reputation.”

Lieber filed suit against Harvard in Middlesex County Superior Court in October 2020, alleging that the University broke its contract with him by refusing to reimburse him for his criminal defense.

Previously, Harvard officials have pointed to provisions in the University's indemnification policy excluding individuals who have been “determined not to have acted in good faith” as justification for refusing reimbursement.

In the status conference, Mukasey said indemnification was necessary for Lieber's health.

“We're fighting Harvard in state court so that Lieber can afford experimental treatment to keep him alive,” he said.

Kristen M. Schwendinger — a senior counsel at Feldesman Tucker Leifer Fidell LLP specializing in practices including federal grants and compliance matters — said Lieber's health condition would not stop the government from pursuing its case.

“I don't think that usually stops a trial from occurring entirely,” she said. “I do think it absolutely factors into sentencing.”

‘So Much Ambiguity”

Derek Adams — a partner at Potomac Law Group in Washington who regularly defends clients facing Department of Justice investigations — said based on case filings, Lieber's defense team will likely contend that Lieber was “sucked into” the federal government's pre-existing efforts to combat intellectual property theft by Chinese state actors.

“The defense is going to be very focused on the bigger picture — the anti-China movement that's happened over the last three or four years — and try to take the focus away from the specific statements and more generally paint this as part of a broader brush that the government has been taking,” Adams said.

“This case has been painted as an espionage case and a case about theft of intellectual property or other materials from the U.S., when in fact it's just about allegedly a false statement to the government,” he added.

A federal charge for making false statements allows for a sentence of up to five years in prison, three years of supervised release, and a $250,000 fine.

Schwendinger said that there are “pretty standard defense arguments” for false claims charges.

“Usually it tackles whether or not the statement was done knowingly and willfully,” she said. “There's another standard defense, and that's when you respond ‘no' to something in a very quick response, but you unpack what the question was and what the answer really meant at the time.”

Adams added that the false claims charges against Lieber allege that Lieber willfully lied when he informed the Department of Defense and National Institutes of Health that he was “not involved in a foreign talent plan in any way.”

“One of the defenses is going to be that there's so much ambiguity in terms of whether somebody is truly a member in a foreign talent program or not, that it could have just not been clear to Charles Lieber what the question was being asked and whether his answer was accurate or not,” Adams said. “They're probably going to take the position that he thought his answer was accurate.”

‘Going Back in Time'

In the March status conference, Mukasey alluded to how a trial might implicate Harvard in the Lieber case, saying there are those “who do not want their own misconduct to be laid bare at trial.”

“The indictment references Harvard 33 times,” he added in an emailed statement. “It's hard to imagine a trial where Harvard will not be at the forefront.”

Peter R. Zeidenberg — a partner at Arent Fox specializing in espionage-related offenses and trade secret theft — said many universities do not clearly delineate guidelines for reporting foreign collaboration.

“Relationships like the Thousand Talents Program were something that universities thought were a good thing, and they were encouraged,” he said. “Then you have a complete lack of training by either the granting agencies or the universities to their staff on what the rules and requirements are of disclosure, and very vague definitions and explanations of what needs to be disclosed.”

Though he declined to comment specifically on the Lieber case, Zeidenberg said it was “completely unfair and unjust” for the Department of Justice to “change the rules in the middle of the game” in enforcing disclosure.

“[The Department of Justice is] going back in time, and they're looking at disclosures made in 2016, '17, '18, and even further back and saying, ‘You didn't do this,'” Zeidenberg said. “It's a retroactive application of new standards.”

Schwendinger said Lieber could argue he was not fully aware of the required disclosures in his situation.

“One of the things that could be part of his overall defense is to say: what you're talking about happened in an era where it was not clear what I needed to share,” she said.

Adams said Harvard would “come into the trial one way or another” due to its role in facilitating Lieber's grant applications to the National Institutes of Health.

“[Harvard] definitely could come in, in terms of the way that they go about their due diligence on statements like this and on their internal policies and practices as it relates to foreign disclosures,” Adams said.

However, both Schwendinger and Adams said they were wary about the efficacy of such a defense.

“He actually may have violated some of Harvard's policies that are more clear,” Schwendinger said. “It's easier to make an argument that you might've been confused if it's very clear that you were making an effort to follow all those policies.”

University spokesperson Jonathan L. Swain and FAS spokesperson Anna G. Cowenhoven declined to comment for this story.

‘Ghastly, Barbaric and Unnecessary'

Adams and Zeidenberg said they would like to see a shift in how the Department of Justice handles cases of individuals failing to disclose foreign funding. Zeidenberg specifically said the China Initiative — a Department of Justice task force targeting intellectual property theft by China — had “gotten badly off track.”

“It's going after people who have not even a hint of allegation that they transferred any technology or intellectual property to anybody,” he said.

Mukasey maintains Lieber had no involvement in transferring proprietary knowledge.

“Through the DOJ's China Initiative, the government wanted to root out spies and those who might be compromising American knowledge, intellectual property and intelligence,” he wrote. “There is nobody on earth who thinks Charlie Lieber was involved in that kind of activity and there is not a speck of evidence in that regard.”

Adams said, however, that a shift in policy around enforcing foreign funding disclosures would be unlikely to affect Lieber's case.

“I hope we see some shifts to there being less criminal cases and more issues dealt with at the administrative or civil level under the new administration,” he said. “But this case has already been charged; it's already moving forward.”

Schwendinger said the trial would prove instructive for future cases alleging academic espionage.

“It's incredibly unfortunate that things have to go to a full trial, but I think all of us involved in this challenging era area of law will learn a lot from his outcome,” she said. “There is no precedent for a trial like this, and so we'll all learn a lot from its outcome.”

Mukasey wrote that the U.S. government had overzealously executed its China Initiative, and in doing so, unfairly targeted Lieber.

“The entire prosecution of an innocent man dying of cancer is ghastly, barbaric and unnecessary,” he wrote.

Elizabeth O. McCarthy, a spokesperson for the U.S. Attorney's Office in the District of Massachusetts, declined to comment, citing the pending trial.

Lieber's next pretrial status conference has been tentatively scheduled for April 28.

—Staff writer Andy Z. Wang can be reached at [email protected].

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