Temple professor falsely accused of spying for China urges court to revive his suit against the FBI

A Temple University physics professor the Justice Department falsely accused seven years ago of being an economic spy for China returned to court Wednesday to urge a panel of federal judges to reinstate his lawsuit against the U.S. government.

Xiaoxing Xi, a naturalized U.S. citizen and world-renowned expert in the field of superconductivity, saw his life upended when he was indicted in 2015 on allegations he stole proprietary technology from a U.S. company.

But the case against him collapsed and was withdrawn within months of his arrest as his attorneys proved the government had fundamentally misunderstood the technology at the heart of the case.

» READ MORE: From 2017: Temple professor, once accused of spying for China, sues FBI agents

Though Xi filed a lawsuit in 2017 — alleging that the agent who led the investigation had knowingly misrepresented evidence that led to the indictment and had targeted him based on his ethnicity — it was dismissed last year by a federal judge who ruled that the professor was barred under the law from collecting damages from the government.

Arguing before a three-judge panel of the U.S. Court of Appeals for the Third Circuit on Wednesday, Xi’s attorneys asserted that that decision was wrong.

“The violations here had devastating consequences for Professor Xi and his family,” said lawyer David Rudovsky, whose civil rights law firm is representing Xi along with the American Civil Liberty Union. “This is a case about accountability.”

» READ MORE: Years later, Temple professor haunted by spying allegations

Much of the proceedings centered on highly nuanced discussion of legal precedents that determine the limited circumstances under which the wrongly accused are allowed to collect damages from the U.S. government, the FBI, and individual agents.

But that debate took place against the backdrop of Xi’s assertion that the bureau’s drive to indict him arose out of what critics have described as a panic over economic competition with China reminiscent of the Cold War Red scares.

Since at least the Obama administration, the U.S. Justice Department has accused Chinese spy agencies of encouraging their nation’s businesses to steal trade secrets from American corporations. Under the Trump administration, the DOJ launched what was known as the China Initiative — an initiative that led to indictments against a series of Chinese American scientists.

And while prosecutors have won convictions against researchers and businessmen who attempted to pilfer everything from fighter-jet schematics to the details on how to make the pigment used to whiten Oreo cookie stuffing, the efforts have been plagued by even higher-profile blunders.

As in Xi’s case, the government has withdrawn several such cases in recent years citing its inability to meet the burden of proof. The pattern has drawn prompted groups ranging from Congressional Asian American Caucus to the Committee of 100 — a group of influential Chinese Americans founded by the architect I.M. Pei and the cellist Yo-Yo Ma — to accuse the FBI of racially profiling Chinese Americans in science and technology fields.

The Biden administration dropped the name “the China Initiative” earlier this year, after accusations it promoted anti-Asian bias.

» READ MORE: Why Trump’s anti-spy ‘China Initiative’ is unraveling

“What happened to Professor Xi and his family is proof that biased FBI profiling didn’t start with the China Initiative, and it hasn’t stopped since the Justice Department disavowed that initiative earlier this year,” said Patrick Toomey, one of Xi’s lawyers and deputy director of the ACLU’s national security project.

Xi contends that in his case the lead investigator, FBI Special Agent Andrew Haugen, had been informed by experts that he had misinterpreted the technology at issue and willfully ignored that fact before presenting false evidence to a grand jury.

Despite evidence to the contrary, Haugen maintained that Xi had sent schematics for a sophisticated piece of equipment known as a “pocket heater” to a colleague in China.

Rudovsky told the Third Circuit’s judges Wednesday that the inventor of the “pocket heater” had reviewed the blueprints Xi shared with colleagues in China and warned the agent that they were for an entirely different device — one that Xi had himself invented.

Despite that, Haugen proceeded with the case, working with the prosecutors who eventually secured an indictment.

“Our allegation is his motive — at least in part because he was part of a unit investigating scientists sharing information with China — was based in ethnic bias,” Rudovsky said.

The government, through its attorneys, maintains that the evidence of Xi’s innocence wasn’t so cut-and-dry during the investigation and that if Haugen made mistakes, they weren’t rooted in any bias against Xi because he was of Chinese descent.

“The violations here had devastating consequences for Professor Xi and his family. This is a case about accountability.”

In court Wednesday, the Third Circuit panel appeared skeptical that — despite what might have gone on in other cases involving Chinese American scientists — Rudovsky had made out a case that racial bias had motivated Haugen’s actions.

“Is there any suggestion that a white person suspected of passing information to the Chinese government would not also have been treated this way?” Circuit Judge Stephanos Bibas asked at one point.

His colleague on the panel, Marjorie O. Rendell, chimed in. “We don’t even have any circumstantial evidence” of ethnic bias, she said. “We have only inference.”

Rudovsky countered that reinstating Xi’s lawsuit would give him the opportunity to collect more evidence to back up that claim.

In the meantime, Xi said in an interview, he’s still suffering the consequences.

Two days before he was charged, Xi said he had been offered a position as chair of Temple’s physics department. But by the time the charges were dropped and he was allowed to return to campus, the position had been filled by a colleague. (University officials have disputed that plans for Xi’s chairmanship were ever concrete.)

And even today, the professor maintains his research program has been affected by what happened to him seven years ago.

While he once led a bustling lab filled with assistants and funded by multiple government grants, Xi said he only has one other person working with him now and has limited himself to one government grant out of concern that his work might draw federal scrutiny again.

“Knowing what the government can do in using something that is nothing to charge you,” he said, “I’m scared that anything I do could be a reason for them to charge me again.”

As for his lawsuit, though, Xi vowed he won’t be cowed.

“We knew it would be hard to sue the federal government,” he said. “But we are determined to fight until the end.”

The Third Circuit is expected to issue its ruling on whether to reinstate Xi’s case in the coming months.