Bloomberg Law
Jan. 28, 2021, 9:01 AM

Biden’s DOJ Needs to End War on Chinese-American Scientists

Peter R.  Zeidenberg
Peter R. Zeidenberg
ArentFox Schiff

For the past two years, the Department of Justice has waged a short-sighted and highly counter-productive war against Chinese-American scientists.

The stated purpose of this assault was to stop the theft of intellectual property from the U.S. by China. But the impact has landed on dedicated, talented and patriotic Chinese-American scientists who, despite having stolen nothing, are being summarily dismissed from tenured positions and prosecuted for what amounts to paperwork errors.

The ironic result is that these American scientists, rendered unemployable in the U.S., have little professional alternative but to move back to China to do their research—a result that benefits China at the expense of the U.S.

DOJ Targeting Chinese-American Professors Absent Evidence

The roots of this debacle go back to 2018, and culminated in the announcement by then-Attorney General Jeff Sessions of the so-called “China Initiative.” Under the China Initiative, federal prosecutors and agents were given marching orders to prosecute instances of economic espionage by the “communist regime in China.” John Demers, the assistant attorney general for the National Security Division, said he expected prosecutions to be brought in each of the 94 U.S. Attorney’s offices around the country.

The problem for federal prosecutors was that there was no evidence that economic espionage by and for China was rampant across the country.

Confronted with marching orders to bring cases involving economic espionage involving China and finding few such cases to prosecute, prosecutors instead began targeting Chinese-American professors even absent evidence that they improperly shared any intellectual property with China.

Instead, cases are brought based on paperwork errors made by scientists understandably preoccupied with science, not paperwork, and who are untrained about the complex grant application process.

Paperwork Errors, Lack of Training

Research scientists in the U.S. are funded with grants provided by U.S. government agencies such as the National Institutes of Health, Department of Energy and the National Science Foundation. This grant money is the life-blood for scientists. Without it, researchers cannot run their labs. Not surprisingly, the paperwork associated with a grant application is lengthy and complicated, and the agency instructions are often unclear and poorly understood.

Also not surprising is that scientists are notoriously bad about paperwork. (The cliché of the “absent-minded professor” exists for a reason.) When combined with the fact that universities and research facilities provide no meaningful training or guidance on the application process, it is wholly unsurprising that there are frequently errors made in grant applications, often pertaining to a failure to disclose affiliations the professor may have in China.

The reason for these possible disclosure failures is rarely because of an intent to deceive or defraud; it is almost always the result of ignorance. University professors are almost all paid based on a nine-month calendar with summers off. Rather than spend their summer months relaxing, most scientists instead take this time to collaborate overseas.

Chinese-American scientists, who typically studied in China before immigrating to the U.S., frequently travel to China during the summer to visit family, write papers, conduct research, and lecture. Oftentimes, they will receive a small stipend or other compensation for this work. And this is where the unwary scientists get into trouble. Because frequently the work done in China over the summers is not reported to the satisfaction of agents looking to find cases to make.

How trivial are these paperwork errors? Astonishingly so. Even though the scientist might neglect to identify “how I spent my summer vacation” on one portion of the application, in another section on that same application the professor will list their papers published collaboratively in China which identify their Chinese-funded support. What self-respecting fraudster or spy would voluntarily inform the granting agencies of papers—available for the world to see on the internet—that list Chinese affiliations if the goal was to hide that very same affiliation?

But rather than treat these omissions as innocent mistakes, the DOJ—under marching orders to bring cases—all too frequently treats them as the basis for charging wire fraud and false statements, subjecting the scientist to lengthy prison sentences.

And even when not prosecuted criminally, these professors are being summarily fired from tenured positions. Sadly, rather than standing behind their professors, universities—terrified of losing millions of dollars a year in federal grant money—all too often throw their professors under the bus, preferring to blame them of deceit rather than acknowledging their own failure to implement any compliance training on grant applications.

The job prospects for even the most brilliant scientist who cannot attract grant funding are dim. So, inevitably, these now unemployable scientists—with the greatest of reluctance and regret—have little choice but to leave the U.S. and return to China, the country they voluntarily and happily left decades earlier, so that they can resume their research. And, just like that, the U.S. has done China’s work for it, by chasing our best and brightest right back into the arms of the Chinese government.

Hopefully, the Biden Justice Department will reevaluate the China Initiative and refocus its enforcement priorities on the harm it was meant to address—the theft of trade secrets by China—and the harassment of this country’s supremely talented Chinese-American scientists will cease.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Peter R. Zeidenberg is a partner in Arent Fox’s Government Enforcement & White Collar practice. He defends scientists, individuals, and companies in white collar criminal matters involving contracting fraud, trade secret theft, economic espionage, export violations, and espionage-related offenses.

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