Prosecutors in Boston this week sent a dismissal memo to the Justice Department headquarters in Washington, which has not yet signed off, but is expected to, the people said. It would mark arguably the most high-profile setback of the Justice Department’s China Initiative, a wide-ranging and sometimes controversial effort launched in 2018.
Christina Sterling, spokeswoman for the U.S. attorney’s office in Boston, which is prosecuting the Chen case, declined to comment on the matter.
Robert Fisher, Chen’s attorney, said, “We stand by his innocence.”
Chen was indicted a year ago on charges of wire fraud, making a false statement on a tax return and failing to file a report of a foreign bank account. In 2017, he applied for an Energy Department grant to support his program as then-head of MIT’s mechanical engineering department.
Chen, who became a U.S. citizen in 2000, is not accused of stealing secrets and sharing them with China, which is a central thrust of the China Initiative. But his case was brought as part of the program, which Justice officials describe as an effort to counter the Communist Party-led government’s widespread theft of the United States’ know-how and strategic technologies.
The criminal case against Chen began to falter in December, when prosecutors, under pressure from Chen’s attorneys, turned over evidence that the defense considered exculpatory, according to the people familiar with the situation. But what tipped the scale was new information that prosecutors obtained last week that substantially weakened their case against Chen, they said.
The decision to move toward dismissing the charges comes amid a department review of the China Initiative, which has been criticized by some lawmakers and activists as engaging in ethnic profiling of academics.
Grant fraud cases such as Chen’s have been the Achilles’ heel of the initiative. They turn on information included in federal grant applications that are often confusing and vague. Proving an academic knowingly omitted relevant information is difficult.
Chen’s case stands in contrast to another highly publicized case of an academic, this one involving Harvard University chemistry professor Charles Lieber. Last month, Lieber was found guilty of lying to the government about receiving payments from China’s Wuhan University of Technology, falsifying his tax returns and failing to report foreign finances.
At trial, prosecutors played for jurors a videotape of FBI agents confronting Lieber with a copy of a contract he had signed with the Wuhan university, which called for him to receive $50,000 a month plus $158,000 in expenses.
“That’s pretty damning,” Lieber is shown saying.
He has not yet been sentenced.
Chen and Lieber are among about 20 academics and researchers prosecuted in the past three years under the China Initiative. Most were charged with making false statements or failing to disclose ties to Chinese institutions on federal grant forms or visa applications, rather than intent to spy. All but a few of those targeted are of Chinese descent.
At least eight defendants had their charges dropped or were acquitted over the past year, amplifying critics’ concerns that prosecutors are bringing cases without compelling evidence that the researchers pose a danger to the United States. Five of those were researchers affiliated with the Chinese military and accused of visa fraud.
Prosecutors alleged Chen failed to disclose ties to the Chinese government and a technology university in Shenzhen. But when they interviewed MIT grant administrators in early 2021, after the charges were filed, those officials said the application form Chen filled out in 2017 did not require disclosures such as ties to foreign institutions, according to one person.
“The MIT officials undercut their theory of the case,” the person said.
Prosecutors also accused Chen of seeking to hide his membership in various talent recruitment programs funded by the Chinese government. They said Chen was an adviser to a talent program at a middle school in Chongqing. They also cited a WeChat communication between Chen and a colleague in which he asks her to strike language from a proposed draft contract with the Wuhan city government suggesting he would be willing to join a talent program. The colleague later told investigators that she was unaware of Chen having any involvement with any talent program, the person said.
“This is Brady material,” the person said, referring to a term for information that is exculpatory or can help prove a defendant’s innocence, and by law must be disclosed. The government did not disclose the information to the defense until December. “But they had it for quite a while,” the person said.
Then, last week, prosecutors interviewed a senior Energy Department official, who, even more than the MIT administrators, was in a position to determine what disclosures were material on grant forms, the person said.
That official confirmed that the 2017 form did not require disclosures of Chen’s ties to the technology university or other Chinese government organizations and programs, the person said. A second person familiar with the situation described the conversation with the Energy Department official as key to the decision to drop the charges against Chen.
The case stirred controversy from the start, when then-U.S. Attorney Andrew Lelling unveiled the charges at a news conference in Boston on the last full day of the Trump administration.
“It is not illegal to collaborate with foreign researchers. It’s illegal to lie about it,” Lelling said then. “The allegations in the complaint imply that this was not just about greed, but about loyalty to China.”
His remarks prompted Chen’s attorneys to seek a reprimand of Lelling for making “highly inflammatory” statements that amount to “speculation” about Chen’s loyalty in violation of local judicial rules. They noted that Chen was not accused of treason, violating export control laws or passing classified information to a foreign country.
In July, in a written order, Magistrate Judge Donald L. Cabell admonished Lelling for his remarks, saying they were “not well-advised,” but said he did not find they warranted a sanction.
Lelling, now in private practice, has since told The Washington Post and other news outlets that he favors ending the initiative’s focus on prosecuting nondisclosure cases, saying the program has served as a deterrent.
He was succeeded as a prosecutor by Rachael Rollins, who was sworn in on Monday and is the first Black woman to serve as U.S. attorney for the District of Massachusetts.
Prosecutors also alleged that Chen and his research group received $19 million from China’s Southern University of Science and Technology. In response, MIT President L. Rafael Reif took the unusual step of issuing a public letter stating that the Chinese money was not for an individual collaboration but “a departmental” one.
“In other words,” Reif wrote, “these funds are about advancing the work of a group of colleagues, and the research and educational mission of MIT.”
Reif also sought to reassure MIT’s Chinese and Chinese American students and faculty, many of whom he said had expressed unease with “a growing atmosphere of mistrust and suspicion.”
He told them “you are essential and integral members” of MIT and “we value your contributions … and we value you personally as friends — just as we value every member of the global family of MIT, including Professor Chen and his family.”
Chen has been on paid leave since he was arrested last January. MIT has been footing his legal bill.
The China Initiative has sparked anger from Asian American lawmakers and community leaders, who have accused the department of ethnic profiling of academics of Chinese descent.
Attorney General Merrick Garland has directed Matthew G. Olsen, the head of the Justice Department’s national security division, to review the program, and changes are expected.