In a positive development, DOJ is taking control of espionage cases after a string of high-profile prosecutions that had to be dismissed. Over the last year federal prosecutors around the country have dismissed a string of cases against Asian Americans and Chinese nationals after first trumpeting the arrests as critical to protecting American interests. Because none of the defendants were charged as spies – but rather, using more traditional statutes like wire fraud, and the Economic Espionage Act – DOJ’s national security division was not involved.
One of those cases – a prosecution for economic espionage in Iowa – was handled by several of my partners. After FBI agents arrested a mother in front of her young children and proudly announced it to the world, my firm later secured a complete dismissal of all charges against her.
The problems caused by economic espionage – whether sponsored by foreign states or corporations – can hardly be argued with. But my firm’s experience – and the experience of other defense lawyers as well – shows that in the rush to garner headlines the hard work of building a solid case for prosecution and carefully choosing who to charge sometimes get overlooked.
Part of the reason may be that unlike regular white collar investigations, those involving economic espionage are usually conducted covertly. That means that – unlike in the typical case where an individual or entity knows they are under investigation and can engage with the Government to head off an unjust prosecution – in an economic espionage case, defense lawyers like me do not have chance before indictment to challenge the Government’s case by explaining clients’ conduct or pointing out weak spots in the evidence.
Given these realities, the new policy demonstrates that “Main Justice” (read: Washington D.C.) is grabbing control of all prosecutions which touch on national security issues, giving them greater scrutiny before charges are filed. While local U.S. Attorney’s offices will continue to drive these cases forward, at least now there will be more stringent oversight before innocent people’s lives are ruined.
Incidentally, two of my partners wrote an authoritative article on how to litigate these types of cases. Check it out here.