By Sara Kropf

This week, the Department of Justice announced that it was dropping charges against MIT professor Gang Chen. It had accused him of hiding his ties to China and indicted him for wire fraud, failing to report a foreign bank account, and making a false statements to a federal officer. This isn’t the first time DOJ has dismissed these types of charges. Last summer, it dismissed charges against five other researchers, including one that was scheduled for trial a few days later.

Here is the entirety of what the government said in its filing about its dismissal of the charges against Dr. Chen:

Pursuant to Fed. R. Crim. P. 48(a), the United States of America hereby dismisses the Indictment in this matter charging Gang Chen with wire fraud, in violation of 18 U .S.C. § 1343, failure to report a report of foreign bank and financial account, in violation of 31 U .S.C. §§ 5314 and 5322, and making a false statement, in violation of 18 U .S.C. § 1001. As a result of our continued investigation, the government obtained additional information bearing on the materiality of the defendant’s alleged omissions. Having assessed the evidence as a whole in light of that information, the government can no longer meet its burden of proof at trial. Dismissal of the Indictment is therefore in the interests of justice.

It’s an objectively good thing for prosecutors to drop cases if there is not sufficient proof to win at trial.

But it’s not enough.

What Has Dr. Chen Gone Through Since He Was Indicted?

A grand jury indicted Dr. Chen in January 2021. Assuming his case was like most, though, it started long before then—maybe a year or so earlier. That means that Dr. Chen spent over two years facing charges that could bring years in prison.

Here’s just a few things Mr. Chen went through:

  1. He was not allowed to self-surrender but was instead arrested at his home without notice.
  2. Although he was likely not held for very long, he would have been processed and detained in a local jail until his first hearing in front of a judge. That’s often the next day after arrest.
  3. He had to provide a $1 million secured bond to be released pretrial and used his Cambridge house as security. If he didn’t show up for a court hearing or committed any other violations of his bond conditions, then he could lose the house. Even if he violated a minor provision of the bond conditions, he could lose his house.
  4. He surrendered his passport and could not travel outside of Massachusetts without permission.
  5. He paid lawyers from a big law firm to represent him, which could have run hundreds of thousands of dollars. His lawyers had to review a terabyte of data.

These are just the straightforward parts of being indicted. None of them take into account the fear that goes along with it. Imagine waking up every day for two years afraid that you could ultimately spend years in prison. Imagine the embarrassment of having friends, family, and colleagues know that you are charged with a crime.

Keep in  mind that about 97% of cases result in a guilty plea. DOJ may have offered to dismiss most of the charges if Dr. Chen pleaded guilty to just one of them to reduce his sentencing exposure. Of course, pleading guilty to even one charge has incredible collateral harm to one’s career and finances.

Even after it dismisses cases against people, DOJ leaves the initial press release–with all of the now-dismissed allegations–on its website for anyone to find in a Google search. It doesn’t update its old press releases to say that the charges were dropped. Don’t believe me? Here’s the still-live January 2021 press release, which states that “a professor and researcher at Massachusetts Institute of Technology (MIT) was charged and arrested today in connection with failing to disclose contracts, appointments and awards from various entities in the People’s Republic of China (PRC) to the U.S. Department of Energy.”

There’s no mention that DOJ dropped the charges.

The Weak Charges Here

From reading some of the filings in the case, these charges were deeply flawed from the start. The government’s case rested on Dr. Chen’s failure to disclose funds from China on a Department of Energy disclosure form. But the disclosure form changed after he made his disclosure to require additional disclosures that were not required on the form he actually signed.

I’d also like to know when DOJ “obtained additional information bearing on the materiality of the defendant’s alleged omissions” that caused it to dismiss the charges. Did it have the information the whole time and finally focused on the fact that it would lose at trial? Or was it really newly discovered? If DOJ had this information the whole time, it is inexcusable to keep someone under indictment.

DOJ Shouldn’t Bring Close Cases

Given the harm that indictments cause, DOJ should not bring close cases like this one. In November 2021, Deputy Attorney General Lisa Monaco gave a speech in which she said that although “cases against corporate executives are among some of the most difficult that the department brings, and that means the government may lose some of those cases,” she explained that “the fear of losing should not deter [prosecutors].”

David Markus, a first-rate criminal defense lawyer in Miami, wrote an excellent rejoinder to Ms. Monaco’s comments. He noted that

The fear of losing is exactly what should deter prosecutors from bringing the weight of the criminal justice system against an individual. The mere filing of a criminal case against a corporate executive will likely lead to that person’s firing, financial ruin, inability to work, reputational harm, emotional scarring, and the like — even if the individual is eventually exonerated. Filing a criminal case should be no small matter.”

There were other options here for the federal government if it believed Dr. Chen or MIT had lied on disclosure forms. For example, it could have sought to suspend or debar the professor or institution from federal contracts or grants in the future. It could have brought a civil False Claims Act case against them. In sum, the government could have sought a punishment that didn’t involve threatening to throw a well-respected professor in prison.

This case received a lot of media attention. The U.S. Attorney gave a press conference at the start, maximizing the reputational harm to Dr. Chen. Higher profile cases put a lot of pressure on people to plead guilty too.

I wish I could tell you that there’s some way that Dr. Chen could fight back against these weak charges, now that DOJ has basically admitted it didn’t have the evidence to prove them. There is a statute called the Hyde Amendment that can permit a defendant to get back his attorney’s fees, but it does not apply here because Dr. Chen was not acquitted. Plus, the statute sets an impossibly high standard in other ways.

DOJ can file a one-paragraph dismissal and walk away. It’s not so simple for the wrongly accused.