A federal judge has excluded expert testimony in the upcoming trial of a University of Kansas chemistry professor on the grounds it risks fanning anti-Chinese sentiment, dealing a blow to the government’s case.
Senior U.S. District Judge Julie Robinson issued the order Thursday ahead of the scheduled March 21 trial of Feng “Franklin” Tao, who is charged with seven counts of wire fraud and three counts of making false statements.
Tao, a full-time professor and researcher at KU, is accused of scheming to defraud the university, the National Science Foundation and the U.S. Department of Energy by concealing his employment at a university in China and his funding by the Chinese government.
Tao has denied the charges and pleaded not guilty. His lawyers have mounted an aggressive defense, seeking to exclude wide swaths of government testimony. In her 39-page ruling, Robinson granted some of those requests and denied others.
Most noteworthy was her agreement with Tao’s lawyers that much of the government’s proposed expert testimony should be excluded because its value is outweighed “by a danger of unfair prejudice, confusing the issues, and misleading the jury.”
The expert witness in question, Dr. Glenn Tiffert, is a China expert, with a master’s degree in East Asian Studies from Harvard University, a doctorate in history from the University of California-Berkley and a post-doctoral fellowship at the Center for Chinese Studies at the University of Michigan. He was expected to testify on three main topics: the Chinese government’s industrial policies; the Changjiang Scholars Program, which is sponsored by the Chinese government to attract and recruit scientific talent; and academic institutions, academic bureaucracy and censorship in China.
But while Robinson agreed Tiffert's testimony might be relevant and helpful, she said any testimony about the Chinese government’s efforts to acquire foreign technology to further its industrial policy objectives “risks misleading the jury into thinking this case is actually an economic espionage or theft of trade secrets case.”
“But this is not an espionage prosecution,” Robinson continued, “and the Government may not color the trial with national security overtones. This testimony also poses a significant risk of stoking Sinophobia, especially given that Defendant, who is Chinese, faces trial amid increasing reports of anti-Asian discrimination and violence since the outbreak of the COVID-19 pandemic — and evoking exactly the kind of negative emotional response that might ‘lure the [jury] into declaring guilt on a ground different from proof specific to the offense charged.’”
Robinson’s ruling comes a week after the Justice Department dismissed a similar case against Gang Chen, a professor of mechanical engineering at the Massachusetts Institute of Technology. The government said it had obtained new information indicating that the Chinese affiliations at the center of the case were not of material importance to the funding agency, the Department of Energy, according to the New York Times.
Both Tao and Chen are among about two dozen academics charged since 2019 under a Trump administration effort dubbed the China Initiative meant to combat China’s efforts to steal American technology and trade secrets. But in many cases, rather than charge them with espionage, the government has charged them with the more narrow crime of concealing their Chinese ties in grant proposals and from their American employers.
The initiative has been criticized for overreach and for straying far from its initial purpose. An investigation last year by the MIT Technology Review found that, instead of focusing on economic espionage and national security, “the initiative now appears to be an umbrella term for cases with almost any connection to China, whether they involve state-sponsored hackers, smugglers, or, increasingly, academics accused of failing to disclose all ties to China on grant-related forms.”
The Wall Street Journal reported last week that a Department of Energy official told prosecutors the agency didn’t believe Chen was required to disclose the posts he was accused of hiding and didn’t believe the department would have withheld a grant to him if they had known about them.
That could bolster Tao’s case, since he, too, received grants from the Energy Department.
The ten counts Tao is charged with are based on government allegations that he was employed as a Changjiang Distinguished Professor at Fuzhou University through the Changjiang Scholars Program and failed to inform KU.
While disallowing elements of Tiffert’s and other testimony, Robinson also barred Tao’s attorneys from referring to the China Initiative.
“According to the U.S. Department of Justice, the China Initiative ‘reflects [its] strategic priority of countering Chinese national security threats’ by ‘identifying and prosecuting those engaged in trade secret theft, hacking, and economic espionage,’” Robinson wrote. “The Court agrees with the Government that ‘[t]he Department of Justice’s strategic priorities and Defendant’s views on that topic are not proper issues for the jury to consider.’ This trial is about Defendant’s guilt or innocence, and it should not involve a policy discussion on the China Initiative.”
Tao, 50, has taught at KU since 2014. Attorneys with Arent Fox in Washington, D.C., one of the law firms representing Tao, declined to comment on the case.
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