An Uncertain Future for a Chinese Scientist Accused of Espionage

Last Thursday, a federal jury in Kansas City delivered its verdict in the case of Franklin Tao, a professor of chemistry at the University of Kansas. Tao, who is fifty years old, had been investigated under the Department of Justice’s China Initiative, a now defunct program that scrutinized scientists for alleged failures to properly disclose their ties to China. He was charged with six counts of wire fraud and two counts of making false statements to the government. Although Tao’s wife, Hong Peng, had told me that they considered a full acquittal to be the most likely outcome—the worst-case scenario, she said, would be a hung jury—Tao was found guilty on four charges. But the district judge overseeing the trial, Julie Robinson, did not set a sentencing date and said that she had found “significant issues” with the government’s case. Robinson directed the defense to submit a briefing on its motion for judgment of acquittal, which argues that the evidence was insufficient for a rational jury to find guilt beyond a reasonable doubt. Acquittal despite a guilty verdict is rare, but is a real possibility in this case.

Prosecutors argued that Tao employed “concealment and deceit” in order to defraud the University of Kansas and federal agencies that provided him with research grants. Their evidence included an unsigned employment contract with Fuzhou University and e-mails in which Tao discussed setting up a lab there. The defense maintained that Tao had not taken a job at that institution, was not paid, and had publicly disclosed the connections he did have to Fuzhou University—publishing articles under dual affiliations, for example.

The China Initiative was set up by Donald Trump’s D.O.J., in 2018, not long after the then President reportedly told guests at a Mar-a-Lago dinner that “almost every student that comes over to this country [from China] is a spy.” The D.O.J. never clearly defined the scope and standards of investigations under the initiative, which drew on the coöperation of other federal agencies. The F.B.I. says that they have launched thousands of investigations under the auspices of the China Initiative. As recently as this January, the F.B.I. director, Christopher Wray, said that the Bureau was “opening new cases to counter their intelligence operations, about every twelve hours or so.” Dozens of researchers were charged with crimes such as wire fraud, making false statements, and failure to file a disclosure of a foreign bank account. Ninety per cent of the defendants in these cases are of Chinese heritage.

While the program’s original aim was to root out economic and technological espionage, it ended up focussing on academic research integrity. A year into the initiative, Michael Lauer, the head of the National Institutes of Health’s extramural research program, said that his staff found potential subjects for investigation by looking up published papers with Chinese affiliations. “We are especially interested in cases in which the Chinese affiliation is listed first,” Lauer said. By 2020, according to an M.I.T. Technology Review analysis, more than half of new China Initiative cases centered on improper disclosure of affiliations.

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Several attorneys told me that the N.I.H. was especially aggressive in pursuing investigations, which rarely led to prosecution but often derailed careers. One example was that of Guan Yongtao, an assistant professor who studies statistical genetics at Duke University. Guan said that, under pressure from the N.I.H., Duke started an investigation into his collaboration with a diagnostic lab in Beijing, even though he had previously disclosed the research and the university had confirmed that the work was free of any conflict of interest. As a result of the investigation, Guan lost his tenure-track job and has been effectively barred from applying for N.I.H. grants or participating in N.I.H.-funded research, a status that makes him largely unemployable. (Duke declined to comment.)

The intense focus on the failure to disclose affiliations was “entirely new,” Beth Margolis, a labor and employment attorney with three decades of experience in higher education, told me. Before 2018, she said, she had “never had a case involving accusations of violations of research improprieties because people didn’t reveal information on disclosure forms.” One of Margolis’s clients is at a university that suspended his grants and prohibited him from conducting research for a year because he failed to ask for permission to give two talks on his published work during a trip to China.

After years of heavy criticism from academics, congresspeople, and civil-rights advocates, the China Initiative ended on February 23rd. In a statement, Assistant Attorney General Matthew Olsen said that “by grouping cases under the China Initiative rubric, we helped give rise to a harmful perception that the department applies a lower standard to investigate and prosecute criminal conduct related to that country or that we in some way view people with racial, ethnic, or familial ties to China differently.” (At the request of the government, mention of the China Initiative was barred during Tao’s trial, which precluded any claim that Tao’s defense might have made of selective prosecution.) Olsen vowed that the D.O.J.’s future investigations and prosecutions of cases involving academic integrity would require a higher threshold of “evidence of intent and materiality” and show a clear national-security interest. He announced a new enterprise called Strategy for Countering Nation-State Threats. (“We see nations such as China, Russia, Iran, and North Korea becoming more aggressive and more capable in their nefarious activity than ever before,” Olsen said in a statement.)

Academics and civil-rights advocates hoped to glean signs of the D.O.J.’s newly reformed approach from watching Tao’s prosecution. “It’s a mystery why the Justice Department has continued to pursue this flawed prosecution,” Patrick Toomey, a senior attorney at the A.C.L.U., told me. “The case fits none of the criteria that officials said would govern the Justice Department’s decisions going forward.” Following the verdict, the D.O.J. stated that Tao faces up to decades in federal prison.

As far as attorneys I spoke with knew, none of the charges had been dropped since the end of the initiative. Peter Zeidenberg, Tao’s defense attorney, told me that he is handling multiple China Initiative cases that are still at the U.S. Attorney’s office. Robert Fisher, who defended the M.I.T. scientist Gang Chen, whose case was dismissed in January, thinks that the same efforts continue under a different name. “Just based on the amount of professors who have reached out since we won Gang’s case, I can say the government is absolutely still investigating these types of cases,” Fisher told me.

It is difficult to fully measure the chilling effect that these investigations have had on academic fields and Chinese communities. On the one hand, academic institutions, especially those that rely heavily on federal funds, are “emboldened to pursue, administer and sanction against conflicts of interest,” Jenny Lee, a University of Arizona professor who studies the impact of geopolitics on academia, told me. On the other hand, Lee said, “Oftentimes, institutions are pressured to police rather than educate” scientists on issues related to disclosure and conflicts of interest. Last October, Lee and her collaborators published the results of a national survey showing that, although a vast majority of scientists recognize the importance of collaborations with Chinese scholars and institutions, the current climate made it more likely that they would limit such collaborations and rely instead on published research and U.S.-based teams. Lee said that scientists have to consider questions like “Is the study worth going to jail? Can I continue to have a very productive career by using open data?”

Tao has been on unpaid leave from the University of Kansas for the past two years, and Peng is working three jobs to support her husband and their two teen-agers. The family is deep in debt, with more than $1.3 million in legal fees. To date, more than four thousand people have donated to Tao’s legal fund. I talked to two Chinese Ph.D. students at the University of Kansas who had made donations. They said that Chinese students and scholars are feeling increasingly targeted and unwelcome at the school. “I’m very disappointed that the university never issued a statement in support of Tao,” one of the doctoral students told me.

After the verdict, Tao and Peng, who had spent three weeks in Kansas City, returned to their life in Lawrence. Peng works in hospitals as an imaging technician. “When I’m at work, I don’t think about the case so much,” she told me, “but Franklin is stranded at home all day, and he tends to obsess about it.” When I spoke to Tao, he emphasized the work ethic that he had brought to his job at the University of Kansas: sixteen hours a day, seven days a week, one week of vacation in twenty years. If he wanted money, he said, he’d have accepted an industry job long ago. But, he said, “I just wanted to be an American scientist.”