Schwartz, the acting chief of Energy’s Office of Basic Energy Sciences, told the team pursuing Chen’s case that the professor’s alleged omissions about ties to China were either not required to be disclosed at the time or would not have impacted the department’s decisions on grants funding Chen .
During a 20-minute telephone interview with three prosecutors and two investigators, Schwartz seemed to dismantle the prosecution’s case point-by-point.
When prosecutor Timothy Kistner asked if Chen was obliged to report that he served on the advisory board of China’s Southern University of Science and Technology in Shenzhen, Schwartz “stated that he did not think it was necessary to report and that many applicants don’t include their advisory board positions.”
Chen and many others targeted by US prosecutors are part of Chinese government-sponsored programs, often referred to as “Thousand Talents” or by similar names. But when prosecutors asked Schwartz if Chen needed, in 2019, to disclose that he was a “Top Talent Wuhan City Partner,” the answer undercut the government’s case.
“Dr. Schwartz stated that he did not think so, as he did not think the 2019 periodic report required a Current and Pending Support page,” the report says.
Schwartz also noted that some applications included a “biosketch” that is supposed to include all “professional roles,” but the Energy Department official said it was impractical to do so. “He believed the form was limited to two pages while many professors have curriculum vitae of 20 or 30 pages,” the report says.
In at least one instance, Schwartz was emphatic in disputing elements of the prosecution’s case. When Schwartz was asked whether Chen needed to report that he served as a “review expert” for the National Natural Science Foundation of China, according to the report, the Energy Department official replied: “Definitely not.”
Schwartz also said that Chen had disclosed, in 2017, roles as a Chinese government consultant, “it would be unlikely to alter the decision of [Schwartz’s] offices.”
The details of Schwartz’s remarks about the Chen case arose Friday in connection with the Justice Department’s prosecution of Franklin Tao, a University of Kansas chemical engineering professor who is facing trial next month in Kansas City on charges that he also failed to disclose his connections to China on various applications.
Lawyers for Tao filed the report on Schwartz’s views in connection with a bid to seek similar information that officials at the Energy Department and the National Science Foundation might have about the significance or lack of significance of Tao’s alleged omissions. Generally, prosecutors have to show that a false statement or omission was material to some future government decision or action in order to be unlawful.
“The requested evidence… would at least give rise to reasonable doubt whether Dr. Tao made knowingly false and material statements to DOE and NSF by allegedly failing to disclose foreign talent plan participation and work,” Tao’s attorney Peter Zeidenberg wrote in a motion filed Friday with the judge handling that case. “A fair trial requires the jury to see all evidence—favorable and unfavorable to the government—not evidence cherry-picked by the prosecution from its sister agencies to which only the prosecution has access before trial.”
The motion from Tao’s attorneys says prosecutors claimed that the memo containing Schwartz’s comments did not represent exculpatory evidence that Tao’s defense would be entitled. Prosecutors also said they were not obliged to search for similar evidence that might pertain to Tao directly, the motion says.
Tao’s lawyers contend that government agencies tightened their policies in 2020 and 2021 to require broader disclosure of foreign ties, while earlier requirements were mostly focused on whether researchers had other US government contracts, not foreign ones. But the charges in Tao’s case relate to the earlier period. Last week, prosecutors dropped two of the 10 pending felony charges in Tao’s case, but the government appears to be pressing forward with a trial on the remaining counts.
The Wall Street Journal reported last month that an unnamed Energy Department official’s recent statements that Chen’s alleged omissions wouldn’t have mattered had delivered a “deathblow” to the government’s case, but did not offer further details.