Criminalizing China.

• Author: Lewis, Margaret K.

INTRODUCTION 146 I. INTERACTIONS BEFORE THE INITIATIVE 154 II. THE CHINA INITIATIVE 161 A. Design 161 B. Implementation 163 III. CRIMINALIZING CHINA 169 A. The PRC Party-State 175 B. PRC Nationals and National Origin 179 C. Chinese Ethnicity 189 D. Acquired China-ness 197 IV. PUNISHING CHINA 200 A. Deterrence 201 B. Incapacitation 212 C. Rehabilitation 215 D. Retribution 217 E. An Initiative By Any Other Name 221 CONCLUSION 224 INTRODUCTION

On November 1, 2018, Attorney General Jeff Sessions launched the China Initiative: "Chinese economic espionage against the United States has been increasing--and it has been increasing rapidly. Enough is enough. We're not going to take it anymore."(1) In October 2020, the Department of Justice (DOJ) released an updated information sheet with dozens of examples of "China-related" cases since April 2018. (2) More cases are in the pipeline. In June 2020, Christopher Wray, the director of the Federal Bureau of Investigation (FBI), said that there were "more than 2,000 active investigations that link back to the Chinese government." (3) This is a marked increase from Director Wray's statement in February 2020 that there were "about a thousand investigations involving China's attempted theft of U.S.-based technology in all fifty-six of our field offices and spanning just about every industry and sector." (4)

There is overwhelming evidence that persons--both natural and legal--with connections to the governing party-state structure of the People's Republic of China (PRC) have engaged in trade secret theft and other crimes under U.S. law. (5) There is also clear evidence that the PRC government and intertwined Chinese Communist Party (CCP, and the collective ruling entity best termed the PRC party-state) are incentivizing and even recruiting people at home and abroad to acquire intellectual property in contravention of U.S. laws. (6) The July 2020 closure of the PRC consulate in Houston underscored intellectual property as a national security concern: the Trump administration's stated reason was "to protect American intellectual property and [Americans'] private information." (7) In short, the DOJ is not making up a threat. (8) However, it is framing that threat in a problematic way. It is constructing a criminal justice initiative under the umbrella of "China" and criminalizing that concept in a way that is in tension with foundational principles of the United States' criminal justice system.

China is itself of course not a defendant in any cases. (9) Federal prosecutors--supported by the FBI and other law enforcement agencies' (10)--must prove each element of the charged offenses beyond a reasonable doubt against the specific person accused of criminal conduct. Because the Initiative's framing does not alter that ultimate standard for conviction, some may argue that the label "China Initiative" is mere branding to heighten awareness, (11) or that creation of this project is simply a savvy move to obtain greater fmancial resources.' (12) This Article argues that the use of "China" is far more meaningful. It permeates into the cases and connects those cases into a larger whole. Although China is not the subject of criminal conviction and punishment directly, not only does the Initiative's framing cause Chinaness to become imprinted as a shared characteristic across cases, but also the language anthropomorphizes China into a condemned form: "If you are an American adult, it is more likely than not that China has stolen your personal data." (13)

Nor do interspersed assurances that the Initiative is not targeted at "Chinese" people provide an effective antidote to this framing.' (14) The overarching narrative of a China threat undercuts such assurances. For instance, FBI Director Wray stated in February 2020:

Confronting this threat effectively does not mean we shouldn't do business with the Chinese. It does not mean we shouldn't host Chinese visitors. It does not mean we shouldn't welcome Chinese students or coexist with China on the world stage. But it does mean that when China violates our criminal laws and international nomis, we are not going to tolerate it, much less enable it. (15) There are times when the shorthand "China" is appropriate, such as when discussing foreign affairs between the United States and the PRC acting as sovereign states. For example, the two countries' governments concluded a trade agreement titled the "U.S.-China Phase One Trade Agreement." (16) Criminal law, in contrast, is based on the premise that guilt is individual, not by association with an entity--China--that does not exist in a form that the government can directly prosecute. Yet, the government discusses China as if it is a perpetrator. John Demers, Assistant Attorney General in the National Security Division and chair of the China Initiative steering group, said at the Initiative's launch that, "[w]ith the Attorney General [Session's] initiative, we will confront China's malign behaviors and encourage them to conduct themselves as they aspire to be: one of the world's leading nations." (17) In February 2020, Attorney General William Barr noted that the DOJ "launched its China Initiative to confront China's maligned behaviors and to protect U.S. technology." (18)

Although this Article is focused on criminal law, the China Initiative is not just about criminal law. (19) The DOJ has stressed that "[c]riminal charges are only one of our tools." (20) For example, the Initiative includes working with the Department of the Treasury to develop regulations. (21) More generally, the Trump administration emphasized a "whole of government effort" to confront the PRC. (22) This Article went to press shortly after the United States elected Joe Biden, at which point it was unclear what aspects of the China Initiative--and U.S.-China policy more generally--his administration would change.

A "whole of government effort" should not lose sight of the distinct roles of different parts of the government. Policies that might fit more comfortably within the State Department, National Security Council, or other segments of the executive branch can raise concerns when transplanted into the world of individual criminal prosecutions. The China Initiative emanates from the DOJ, (23) and core to the Initiative's goals is using criminal law to combat a "China" threat. (24) It is important to ask how the Initiative reflects the standard principles of criminal liability and justifications for punishment.

The DOJ has articulated considerations that apply any time a decision is being made whether to prosecute, including the nature and seriousness of the offense, the deterrent effect of prosecution, and the person's culpability in connection with the offense. (25) This combination of utilitarian (e.g., deterrence) and retributive (e.g., blameworthiness) considerations carries through to the sentencing stage if a prosecution leads to a conviction. Federal judges are tasked with crafting a sentence that reflects four primary purposes: retribution, deterrence, incapacitation, and rehabilitation. (26) Particularly because the DOJ itself decided to amalgamate dozens (and counting) of prosecutions as reflecting a common threat, an important question that has not been asked--or at least not publicly debated--is how the "China Initiative" framing interacts with these basic principles. This Article posits that the "China Initiative" construct is problematic when viewed from the perspective of these criminal law principles that undergird the DOJ's work, and the implementation of the Initiative has borne out these concerns.

The DOJ's Justice Manual sets forth not only principles that should guide decisions to prosecute but also considerations that are impermissible, including a person's ethnicity and national origin. (27) This Article does not claim that the DOJ is intentionally prosecuting people because of their ethnicity, national origin, or both. But it does argue that the DOJ's initiative against "China," at a minimum, undermines the spirit of nondiscrimination that the Justice Manual extols. There are also other concerns about the China Initiative, such as how it might run afoul of the Fifth Amendment's guarantee of equal protection in the context of people's ability to enter and remain in the United States. (28) But this Article's focus is on how the U.S. government enforces criminal laws. It calls for a country-neutral framing of DOJ initiatives and, when a case does have a nexus to the PRC, greater precision in how the DOJ addresses that connection. One of the DOJ's goals is to "reinforce the trust that leads to cooperation with law enforcement, (29) yet the current framing instead undermines trust.

Part I of this Article provides a brief historical backdrop of ways that China played into the DOJ's criminal cases prior to 2018. Part II introduces the design and implementation of the China Initiative. Part III analyzes how "China" is portrayed in the China Initiative context and argues that the term lacks clear boundaries: it conflates ideas of government, party, nationality, national origin, and ethnicity and melds them into an amorphous threat. Under the banner of the China Initiative, not only has "China" taken on a criminal taint, but people--both natural and legal--who are viewed as possessing some level of China-ness are likewise stigmatized. The United States' criminal justice system does not allow guilt by association. (30) But the China Initiative has created threat by association.

Part IV applies the lens of criminal law theory to the DOJ's emphasis on "China" as integral to this group of cases. It takes questions usually focused on individual defendants (e.g., how might prosecuting this person deter potential criminal conduct?) and also asks them of the China Initiative as a whole (e.g., how might the China Initiative deter potential criminal conduct?). This is an unorthodox mode of critique, but it is...