Why spy cases put the government to excruciating choices in balancing justice with national security.

“Right to [um . . . expletive deleted] jail!” That’s what defense lawyer Arthur Kirkland (Al Pacino) famously said of the loathsome Judge Fleming (John Forsythe), whom he was representing in . . . And Justice for All (1979). And it’s also Luther’s justifiable sentiment regarding the three U.S. soldiers (two active duty) allegedly caught spying for China. I have to say I emphatically agree — as, more importantly, does the Justice Department, which has indicted Sergeant Jian Zhao in Tacoma, and First Lieutenant Li Tian and former soldier Ruoyu Duan in Portland, as David reported.

For reasons unclear to me, the DOJ has posted only the Zhao indictment in Washington; the Portland indictment of the other two men is summarized in a press release issued by the U.S. attorney’s office in Oregon, but the actual charging instrument is not posted.

This combined public record relates the intriguing fact that links the cases: both active-duty soldiers were stationed at Joint Base Lewis-McChord in Tacoma. It’s not clear to me from the press release whether Duan, the retired soldier, was also stationed there at some point; if the allegations are true, though, we can certainly infer that he knew highly classified information about U.S. weapons systems was stored there.

It’s disturbing that the scheme in the case of Tian and Duan is alleged to have gone on for three years (2021–24). So let’s put together three other pieces of the puzzle: (1) the Zhao case allegations also stem from 2024, (2) both cases are tied to the same military base in the northwest United States, and (3) the cases were charged by indictment (meaning there has apparently already been an extensive grand jury investigation and formal filing of charges, roughly coterminously; i.e., these guys were not abruptly arrested on criminal complaints based on information that just emerged).

All this suggests to me that the government (I’m betting the U.S. Army Counterintelligence Command and the Department of Homeland Security’s Customs and Border Protection office in Seattle — both of which are prominently mentioned in DOJ’s press release) got onto the alleged schemes in both cases sometime after July of last year (when the Zhao scheme is alleged to have begun — see indictment, p. 4). According to the Oregon press release, the Tian/Duan scheme appears to have been ended on December 19. All three arrests were made Thursday (March 6). That would have given the government more than two months’ time (between mid-December and this week) to (a) investigate and present a classified information case to the grand jury, (b) keep eyeballs on the suspects to ensure that they neither fled nor further damaged national security (on that score, it wouldn’t shock me if we learn that someone is cooperating), and then (c) make arrests based on warrants probably issued when the indictments were filed.

As is common with conspiracy cases, Tian and Duan are alleged to have confederated with “others known and unknown to the grand jury.” One of those could be Zhao. More alarmingly, however, we are left to wonder whether what we’re finding out here about Chinese penetration of our defense secrets is that these three defendants are just part of a bigger problem at Joint Base Lewis-McChord.

That’s a significant part of why, despite Luther’s righteous instincts, there will be no capital punishment in this case, which has been brought into the civilian justice system. (A question I have is why the case, at least against the active-duty soldiers, is not in the military justice system.)

At a basic level, the crimes charged are felonies that do not include the death penalty — e.g., transmitting and conspiring to transmit defense secrets (maximum 10 years’ imprisonment), bribery (max 15 years), and theft of government property (max 10 years). But there are three other important factors.

First, death-penalty jurisprudence has evolved (or devolved, depending on your perspective) to the point that, even assuming Congress has made the crime at issue death-eligible, it’s hard to imagine a federal capital case being brought unless it could be proved beyond a reasonable doubt that at least one victim’s death resulted from the crime. Second, treason is a death-eligible crime, but it requires betrayal of the country in wartime (see §2381 of the federal penal code, requiring that the accused “levies war against” the United States or gives aid and comfort to our “enemies”); China is definitely a hostile geopolitical rival, but it is not an “enemy” in the legal sense.

Third, spying cases almost always put the government to excruciating choices in balancing justice with national security. As much as we revile the defendants’ crimes, our country’s defense is a higher priority. Hence, the Justice Department typically settles for a sentence of less than death (sometimes significantly less, as I suspect will happen here) in exchange for full, verifiable cooperation that allows our intelligence agencies to comprehensively assess how vulnerable the compromise of intelligence has made us — for example: how damaged are we by the secrets China has learned, and does the exposure of those secrets potentially reveal the identities of intelligence sources (whose lives could be in danger) and intelligence methods (which may need to be shut down, and could have been used, for months or even years, to feed us disinformation).

It is maddening, but very often, the people who do the most harm to our country have the most valuable cards to play in plea negotiations.

A final point. As a former prosecutor who bears the scars of many turf wars (which the Southern District of New York tended to win, but only with a lot of hard feelings all around), I am adamant that investigations like this should be run by one U.S. attorney’s office and one FBI field office. It’s best for the case and the country to put one investigative team in charge — with all the help they can get from others, to be sure. You don’t want prosecutors and agents from different offices indulging the human proclivity to compete and work at cross-purposes. That would only benefit China. To resolve a turf battle, the Attorney General has to hurt somebody’s feelings, and that sucks, but it’s for the best.

Here, it appears that the case has been cut up so that the U.S. attorney’s offices in both Tacoma and Portland have a piece of it. In my experience, those arrangements are not ideal. To be clear, I am not saying AG Pamela Bondi has erred. She has only been on the job for a month; her deputy AG (Todd Blanch) — the post that runs DOJ day-to-day and interacts with U.S. attorneys’ offices — was just confirmed this week; and the division of labor in these cases may have been set in stone (e.g., by proceeding with separate grand juries) before the Trump administration took over. I just hope the two district U.S. attorney’s offices work cooperatively because these are very important cases.

I am also constrained to mention in closing that the first Trump administration, mainly under then-Attorney General Bill Barr and then-Secretary of State Mike Pompeo, with important national-security strategy scut work led by then-National Security Advisor H. R. McMaster, stood up a vitally important “China Initiative,” to “counter the systemic efforts by the PRC to enhance its economic and military strength at America’s expense,” as Barr put it. Maddeningly, the Biden Justice Department shut down the China Initiative in February 2022 — based on caterwauling from the Democrats’ progressive base that the effort was racist, impinged on academic freedom, etc., etc. (and pardon the cynic in me that thinks the millions of dollars Chinese agents paid into the Biden Family Influence Peddling business just might have had something to do with the former president’s calculations).

If this week’s indictments are a sign that the Trump-47 administration is reviving the China Initiative, that is good news for national security.