DOJ’s “China Initiative” Falters

DOJ’s “China Initiative” Falters

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When Anming Hu, an engineering professor at the University of Tennessee, Knoxville (“UTK”) was indicted in February 2020 on charges related to his alleged failure to disclose ties to a state-run Chinese university, the case was emblematic of those brought under the Department of Justice’s “China Initiative.” The government alleged that Hu failed to disclose his Chinese affiliation while working on a research project funded by the National Aeronautics and Space Administration (“NASA”). A little more than a year later, in June 2021, DOJ’s prosecution against Hu appears to have derailed, as a jury failed to reach a verdict in the case and the district court declared a mistrial.  

A month later, on July 15, 2021, DOJ dismissed the criminal case against Dr. Qing Wang, a researcher at the Cleveland Clinic Foundation, who was charged with wire fraud and false claims in connection with a $3.6 million grant from the National Institutes of Health (“NIH”). DOJ had alleged that Dr. Wang knowingly failed to disclose to the NIH that he had an affiliation with a university in China and had received Chinese grant funding for the same research that was being funded by the NIH. The DOJ also alleged that Dr. Wang participated in China’s Thousand Talents Plan, an effort by the Chinese government to recruit international experts in various fields of scientific research in exchange for salaries, research funding, lab facilities, support staff, and other incentives. Nevertheless, DOJ dismissed all the charges against Dr. Wang. While DOJ’s motion to dismiss provided no explanation, a DOJ spokesperson stated to the press that the decision to drop the charges was made “after a review of the case.”

A week later, on July 22, 2021, just days prior to the start of her trial, DOJ dismissed the criminal case against Dr. Juan Tang, a cancer researcher at the University of California at Davis.  Tang is a Chinese national who the government alleged lied on her visa application about her military service in the Chinese People’s Liberation Army (“PLA”). The following day, DOJ dismissed four other similar criminal cases against Chinese researchers working at Stanford University, University of California San Francisco, UCLA, and Indiana University. In a statement to the press, a DOJ spokesman stated “recent developments” had prompted a reevaluation of the cases and that the dismissals were in the interest of justice.  

While DOJ has obtained numerous convictions as part of its China Initiative, these seven recent failures highlight the challenges prosecutors face in prosecuting academic researchers for alleged undisclosed Chinese affiliations.   

The “China Initiative”

The China Initiative was launched in November 2018 by then-Attorney General Jeff Sessions to highlight DOJ’s efforts to thwart Chinese theft of trade secrets, intellectual property, technologies, or other sensitive information developed using U.S. resources. In particular, DOJ has focused on researchers at U.S. academic institutions with undisclosed ties to China, including universities, companies, talent programs, the government, or the PLA. DOJ and the FBI have termed these researchers “nontraditional collectors.” In addition, DOJ has also focused on the Thousand Talents Plan. FBI director Christopher Wray told Congress that these researchers were “exploiting the very open research and development environment that we have, which we all revere, but they’re taking advantage of it.” John Demers, the then-head of the DOJ’s National Security Division, which leads the China Initiative, described the situation as “the Chinese Communist Party’s plan to take advantage of our open society and exploit academic institutions.”

Although DOJ leadership used the language of spy craft to describe what these academics were doing, the most common charges brought so far have not been for espionage, theft of trade secrets, or acting as unregistered foreign agents. Instead, the charges have included failing to disclose Chinese ties to federal grant-making agencies or academic institutions, false statements to government authorities, and tax and visa fraud. DOJ maintains that these cases have been critical to protecting sensitive technologies. Critics counter that these prosecutions raise questions about racial profiling, academic freedom, and criminalizing routine research collaboration. 

The Anming Hu Case

Hu was an associate professor in the Mechanical, Aerospace, and Biomedical Engineering Department at UTK. Hu’s research focused on nanomanufacturing and laser-based processing, including 3D printing. NASA had awarded UTK a $50,000 grant for Hu to develop 3D printing technology to print metallic sensors, and a $60,000 grant related to Hu’s research into bringing samples from Mars to Earth. In February 2020, after a two-year investigation, Hu was indicted on three counts of wire fraud and three counts of making false statements for allegedly failing to disclose a faculty appointment at a Chinese university in his UTK conflict-of-interest forms. The indictment alleged that Hu’s failure to disclose that appointment resulted in UTK falsely certifying its compliance with federal law, which prohibits NASA from using funds on projects in collaboration with Chinese universities.  

In June 2021, the trial against Anming Hu commenced in Tennessee. During the trial, the FBI case agent testified that the FBI had investigated Hu for almost two years. The agent also testified that he had met with UTK officials and informed them that Hu had possible connections to the PLA, which he later admitted at trial was not true. When school officials asked NASA how to handle Hu’s grant proposals given the FBI tip about his Chinese affiliations, a NASA official told UTK to proceed with the grant. Hu’s counsel argued to the jury that the government had inflated the threat and that Hu could not be convicted of failing to disclose affiliations that both NASA and UTK had already known. 

After deliberating for two days, the jury announced they were deadlocked, and the court declared a mistrial. Hu’s counsel filed a motion for acquittal, which remains pending.  

The Qing Wang Case

Wang was a researcher at the Cleveland Clinic and focused on molecular medicine and the genetics of cardiovascular and neurological diseases. Wang had received a $3.6 million grant from NIH.  DOJ alleged that Dr. Wang knowingly failed to disclose to the NIH that he had an affiliation with a Chinese university and had received grant funds from a Chinese foundation for the same research being funded by the NIH. DOJ also alleged that Dr. Wang was a member of the Thousand Talents Plan. Despite these allegations, on July 15, 2021, DOJ dismissed all charges against Dr. Wang. A DOJ spokesman told the press that the case was dismissed “after a review of the case.”  

The PLA Visa Fraud Cases

One week after the dismissal of the Wang case, DOJ dismissed the criminal case against Dr. Juan Tang, a cancer researcher at the University of California at Davis. DOJ had originally alleged that Tang lied on her visa application about her military service in the PLA. For her part, Tang claimed that she served as a civilian cancer researcher at a Chinese military medical facility and had disclosed this information to UC Davis.  

The Tang case was set to go to trial in a matter of days when DOJ unexpectedly moved to dismiss the case. DOJ’s dismissal came amid revelations that FBI analysts had written internal reports that had concluded that Chinese researchers’ affiliations with the PLA in the civilian cadre did not necessarily imply military service. More significantly, the FBI analysts concluded that there was a tenuous connection between service in the PLA’s civilian cadre and any Chinese government efforts to illegally acquire U.S. technology.  

DOJ had brought four other similar criminal cases against Chinese researchers working at Stanford University, University of California San Francisco, UCLA, and Indiana University.  Following the dismissal of the Tang case, DOJ dismissed these remaining four cases as well. As the attorney for Guan Lei, a UCLA researcher, stated, “The sad thing about the case is that there was never any evidence that he was a spy and [the government] never had any evidence that he had access to classified information. He’s not a member of the military.”  

Lessons from the China Initiative Failed Prosecutions

While DOJ has had some success in bringing China Initiative cases against academic researchers, these seven recent prosecution failures demonstrate the challenges the government faces in securing convictions.

  • Alleged Government Overreach.  In both the Hu and PLA visa fraud cases, one of the central issues that arose was whether the government overstated the threat of these researchers. While it is undeniable that the Chinese government is engaged in an orchestrated effort to steal U.S. technology, the evidence that Professor Hu was part of that effort was lacking. The FBI investigated him for almost two years with little to show but incomplete grant disclosures and conflict-of-interest forms. The lead case agent made allegations to UTK about Hu’s possible affiliations with the PLA, but admitted at trial that they were untrue.  As one Hu juror described it, these mistakes demonstrated a “ruthless ambition on behalf of the FBI.”  

    Similarly, in the PLA visa fraud cases, DOJ announced these arrests to great fanfare under the headline “Researchers Charged with Visa Fraud after Lying About Their Work for China’s People’s Liberation Army.” The FBI stated that the arrests “show[] the extreme lengths to which the Chinese government has gone to infiltrate and exploit American benevolence.” But the FBI’s own internal analysts disagreed, writing that participation in the PLA’s civilian cadre “remains an unreliable indicator of nefarious obfuscation of one’s military affiliations, and even less of an indicator of technology transfer activity.”  These cases demonstrate the hazards the government faces when its theory of wrongdoing exceeds what the evidence supports.  
  • Ambiguity of the Disclosure Process. In the Hu trial, the defense argued that UTK’s policies related to conflict-of-interest disclosures did not provide sufficiently clear guidance on which types of engagements need to be disclosed. UTK employees who testified during the trial had difficulty explaining how a conflict of interest was defined.  For his part, Hu cited a university handbook that defined conflicts of interest as those involving only payments of $10,000 or more, and therefore did not require disclosure of his work at a Chinese university that paid him less. The evidence presented at trial also demonstrated that Hu had sought advice from UTK about NASA’s disclosure requirements but was given conflicting directions. Lastly, NASA itself provided unclear guidance to UTK about whether to disclose Hu’s Chinese affiliations as well.  

    These challenges are not specific to the facts of the Hu case. Instead, they represent weaknesses inherent in a research grant system that was not intended to support criminal prosecutions. Academic institutions’ conflict-of-interest policies were meant to capture researchers’ financial conflicts rather than police against theft of trade secrets or espionage.  Federal granting agency guidelines are often vague and leave room for interpretation as to what needs to be disclosed. And traditionally, both granting agencies and academic institutions relied on researchers’ judgment to determine appropriate disclosures. As they did in the Hu case, these factors work to undercut proof of any intent to defraud.  

Conclusion

As DOJ’s China Initiative against academic researchers proceed, these seven recent failures demonstrate the challenges that prosecutors will face in securing convictions in the future.  

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