The subject of professors as a national security threat has continued to stay in the news. The prosecutions were part of the previous administrations China Initiative policy, in which failing to disclose a relationship with China on United States academic research paperwork. Make no mistake: these cases are different than someone specifically caught engaging in espionage, which are not nearly as common.

Franklin Tao

The most recent court ruling involves Franklin Tao, a University of Kansas professor who specialized in renewable energy research. Tao was born in China, but he became a U.S. Citizen and a permanent resident. He has lived in the United States since 2002, as either a student or faculty. In 2020, Tao was charged with seven counts of wire fraud and three counts of false statements by the Department of Justice (eventually the charges at the beginning of trial were six counts of wire fraud and two counts of making false statements.. The predominate basis of those charges, which has become common in similar professor cases, was a failure to disclose foreign activity, while applying for or participating in a National Science Foundation-funded research grant.

The overt acts in Tao’s case were the relationships he had with academic institutions in China, most notably Fuzhou University, where he apparently worked in 2018 and 2019 while still being employed by the University of Kansas, as evidenced by numerous emails the prosecution produced at trial. The foreign activity named in the complaint also included working on two government-funded grants (one in China and one in the United States), which constituted a conflict of interest. Tao’s defense counsel argued that there was no intent to defraud, nor was the non-disclosure by checking the wrong boxes tantamount to a federal crime. In April of this year, after a day and a half of deliberation, the jury found Tao guilty of three counts of wire fraud and one count of making a false statement. However, the trial judge in the matter did not set a sentencing date. She asked the defense to file additional documents.

Sentencing and Legal Nuances

There is an oft used (but rarely successful) part of the Federal Criminal Code titled Rule 29: Motion for a Judgment of Acquittal. It actually allows to trial judge, if properly requested by the defense, to change the ruling of the jury if the defendant is found guilty of any of the charges, if the evidence simply does not support the jury findings. It is not commonly granted, as judges are not particularly fond of second guessing juries, unless necessary. However, in the Tao case, the uncommon happened, as in late September, the trial court judge found him not guilty of everything but one count of making a false statement, noting that evidence presented did not show his conduct “amounted to a scheme to deprive KU, DOE, or NSF of money or property”.

Whether the China Initiative is or was a deterrent to espionage, which seemed to be the underlying objective, is a subject of debate. However, between light sentences and acquittals of those charged, the actual punitive results have not been particularly successful. Tao was all over the news for a few months, and while some outlets covered his trial, it was not leading anywhere. When his conviction was set aside on most of the counts, I actually came across that bit of information accidentally while looking for something else.

So back to Franklin Tao….his sentencing will take place most likely in January. His legal team then can appeal. Based on my experience, you may have to search deeply to find the results.

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Joe Jabara, JD, is the Director, of the Hub, For Cyber Education and Awareness, Wichita State University. He also serves as an adjunct faculty at two other universities teaching Intelligence and Cyber Law. Prior to his current job, he served 30 years in the Air Force, Air Force Reserve, and Kansas Air National Guard. His last ten years were spent in command/leadership positions, the bulk of which were at the 184th Intelligence Wing as Vice Commander.