BELLE PLAINE, Kan. (AP) — The prosecution of a Kansas researcher ensnared in a U.S. government crackdown on Chinese economic espionage and trade secret theft opens the door to criminalizing workplace disagreements, his attorneys argued Friday in a motion asking a court to throw out the charges.
Feng “Franklin” Tao is charged with not disclosing on conflict-of-interest forms work he was allegedly doing for China while employed at the University of Kansas — something federal prosecutors have portrayed as a scheme to defraud the university, the U.S. Department of Energy and the National Science Foundation.
In their request to dismiss the case, defense lawyers Peter Zeidenberg and Michael Dearington wrote that the government seeks to use Tao's prosecution as a potential new model for the Justice Department to prosecute professors “without having to produce evidence of intellectual property theft or export control violations.”
The motion takes aim at the broader China Initiative announced by the Justice Department in 2018 to counter the threat of Chinese espionage and intellectual property theft, including on American college campuses. Since then, federal prosecutors have charged Chinese academics across the country of failing to disclose foreign sources of funding and lying about their links to China.
The Trump administration, meanwhile, has escalated its rhetoric against Beijing and taken steps to confront China, including by shutting down the Chinese consulate in Houston and through executive actions that ban dealings with the Chinese owners of TikTok and WeChat. FBI Director Chris Wray said in a speech last month that the bureau opens a new counterintelligence case linked to China about every 10 hours.
The indictment against Tao alleges that the Lawrence man's motive was to help China by participating in its “talent plan,” which prosecutors contend is designed to encourage the transfer of original ideas and intellectual property from U.S. universities to Chinese government institutions.
Prosecutors accuse Tao of not informing the University of Kansas that he was selected for the Changjiang Professorship or the salary for his appointment to Fuzhou University in China.
In their motion, his lawyers warn that the case would open the door to criminalizing employment disputes that are better resolved by a human resources department. Tao faces 10 counts, including seven counts of wire fraud, based on two conflict-of-interest forms he submitted to the university.
“The Department of Justice is not the Ministry of Truth, and it lacks authority to regulate routine, private miscommunications between employees and employers regarding employee activities," the motion says.
The motion presents hypothetical scenarios in which an employee who misleads an employer could wind up prosecuted, rather than simply reprimanded or fired by an employer. It raises questions about whether a doctor’s office employee in Missouri who falsely calls in sick from his home in Kansas could be charged with wire fraud if he continues to collect his salary, or prosecuted with false statements if the office receives Medicaid reimbursements from the federal government.
“This is because the Indictment equates dishonesty in the workplace with fraud, merely because all employees receive salary from their employers, and false statements, merely because an employer receives federal funding,” the lawyers wrote.
“If the Court permits this Indictment to proceed to trial, it would open the floodgates to a vast range of federal prosecutions for garden-variety employment disputes that otherwise would have, at most, subjected the employee to administrative discipline at work," they added. "This government overreach would not be limited to university professors.”
Tao, an associate professor of engineering, was born in China and moved to the United States in 2002. He has been employed since August 2014 at the University of Kansas' Center for Environmentally Beneficial Catalysis, which conducts research on sustainable technology to conserve natural resources and energy.
Justice Department prosecutors in recent years have been particularly focused on Chinese government initiatives that recruit professors in specialized areas in the United States to work in China.
A professor who has worked at the University of Arkansas was indicted last month on charges of wire fraud and passport fraud for allegedly failing to disclose ties to the Chinese government and Chinese companies when he received grant money from NASA.
Also last month, a rheumatology professor and medical researcher who worked at schools including Ohio State University was charged with using millions of dollars in grant money from the U.S. government to help China develop expertise in rheumatology and immunology.
Tucker reported from Washington.