Report on Research Compliance 21, no. 11 (November, 2024)
In recent months, NIH signaled that it, in the words of Director Monica Bertagnolli, understands the “difficult climate for our valued Asian American, Asian immigrant and Asian research colleagues who may feel targeted and alienated,” as a result of “certain government actions” to guard U.S. research from inappropriate influence by China.[1]
Bertagnolli made these observations in August as part of a four-paragraph statement—which NIH would not characterize to RRC as an apology—under the headline, “NIH supports our valued Asian American, Asian immigrant and Asian research colleagues.”
“While I fully support NIH’s efforts to address serious integrity breaches instigated by the PRC [People’s Republic of China], I believe there are opportunities to do this in a way that protects our relationships with our trusted Asian research colleagues,” Bertagnolli said.
She also used the opportunity to highlight what she called “a newly created decision matrix.” [2] as an example of NIH working with “stakeholder groups, universities and academic professional organizations to take actions that repair our relationships with these valued members of the research community.”
Yet, questions remain about whether this means NIH has changed course and is undertaking a new, perhaps more even-handed approach to investigating such cases—many of which remain open and are still being initiated. NIH did not address a series of questions RRC submitted, including whether the matrix represents a shift in how it has handled allegations of foreign interference and, if so, in what ways. NIH sent RRC a broad statement instead.
Attorney Peter Zeidenberg, who has successfully represented scores of accused researchers, remains skeptical. Asked if he expected anything to change as a result of the statement and matrix, Zeidenberg, a partner with ArentFox Schiff LLP, said he would have to “wait and see,” and he decried the lasting damage that has already been done.
“I do read it as an implicit acknowledgement that NIH’s prior approach was poorly conceived and implemented,” he told RRC. “It is indisputable that NIH’s enforcement strategy was counter-productive and unnecessarily punitive. It has driven away scores of highly productive and talented scientists.”
Bertagnolli’s statement refers to a June 4 report by an advisory panel to the Department of Homeland Security, which concluded, among other findings, that the Trump administration’s “China Initiative” and its accompanying “increased scrutiny and perceived bias against Asian-Americans has had a chilling effect on the research community.”[3]
2023, 2024 Data Missing
According to a report, Brief Summary of NIH Foreign Interference Cases, embedded in the matrix, 61 NIH investigations into foreign influence—nearly a quarter of those initiated since 2018—remain open.[4] NIH has not said publicly and would not share with RRC how many new investigations, which NIH calls “compliance reviews,” it opened in 2023 and so far this year.
The five-page summary, dated June 9, has data current as of the end of May. The summary—which somewhat follows a template of previous reports—states that, “since 2017, NIH has received allegations involving 651 scientists.” It also lists the number and year NIH contacted institutions about foreign interference in two categories: 2018-2019 (158 institutions) and 2020-2024 (100 institutions).
In contrast, the Dec. 11, 2022, summary of foreign influence cases shows that NIH contacted 88 institutions from 2020-2022; at that point, it tallied 246 cases. A year later, as shown in a Nov. 11, 2023, summary, that number was up to 255, compared to the current 258.
Although new cases are declining, it is difficult to assess NIH’s current level of activity related to foreign influence concerns, as most of the information in the summary is presented in charts and graphs that don’t contain specific numbers.
“The number of cases peaked in 2019 and has been declining since,” according to the report. “Most cases from 2018 and 2019 are closed, while the majority of more recent cases remain open.”
As noted earlier, the report shows 61 open cases, representing 23.6% of the 258 cases. Eleven cases, or approximately 21% of the cases open as of the end of May, began as referrals from the Department of Justice (DOJ) or the FBI.
RRC did not receive a response to its request for details about these cases, including the nature of the allegations.
The report includes a graph with the number of allegations NIH received each year from 2018 to 2024 and whether it did or did not contact the institution, shown in increments of 50. In 2022, it received approximately 25 and contacted perhaps a third. The number of allegations jumped in 2023 to somewhere near 40, but NIH contacted a small fraction of those. Data current as of the end of May shows perhaps 10 allegations received and, again, a small fraction of institutions contacted.
Non-Disclosure Claims ‘Specious’
Another figure in the report shows cases opened and closed from 2018 to 2022; it is plotted in increments of 30 and does not show numbers. “Data for cases opened in 2023 and 2024 are not shown due to small numbers,” the report states. RRC asked NIH for the number of cases opened and closed per year, including in 2023 and 2024, but it did not provide that information.
In the report, NIH said it found “any serious violation” in 216 of the 258 cases, or 83.7%. The summary defines this as “one or more of the following: undisclosed grant support, undisclosed talents award, undisclosed equity, undisclosed patent, or other undisclosed financial conflict of interest.”
Attorney Zeidenberg took issue with this, saying that what NIH “claims is non-disclosure is specious.”
For “virtually all of the cases NIH claims the grant recipient failed to disclose outside grants, what it really means is that NIH did not carefully read the grant application to see that the applicant disclosed the grant in other portions of the application,” he said. Investigators “were not trying to hide anything, but simply did not understand that foreign grants, which did not originate through their U.S. university, had to be disclosed,” he said. “Nonetheless, this information was almost always revealed in other portions of the grant application, such as the personal biography, which would, for example, include papers that listed the foreign grants. That is clear evidence of a lack of intent to hide anything and reveals shocking negligence on the part of NIH.”
The summary also reported the following “outcomes” or findings from NIH investigations:
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Undisclosed affiliation: 217 (84.1%)
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Undisclosed grant support: 178 (69%)
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Undisclosed talents award: 134 (51.9%)
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Undisclosed equity, patent or significant financial interest: 47 (18.2%)
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No violation: 17 (6.6%)
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Termination or resignation: 112 (43.4%)
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Institutional exclusion from grants: 55 (21.3%)
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Removed from grants: 167 (64.7%)
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Removed from peer review: 197 (76.4%)
‘Successful’ Cases Not Updated
In 48 cases, the U.S. government received or reached agreements for “repayments” of $35,879,048. This total includes DOJ’s five criminal or civil actions that resulted in payments of $17,683,600, according to the report.
NIH also did not address RRC’s request for information on the number of cases the agency may have referred to DOJ for civil or criminal prosecution. This is a data point that the National Science Foundation (NSF) Office of Inspector General, for example, includes in its semiannual reports to Congress.
The summary also names two investigators who were indicted and three who were convicted and provides links to related DOJ news releases, repeating statements from the 2022 report. However, neither indictment led to charges or convictions, which the report doesn’t mention. The investigators whose convictions NIH listed are Charles Lieber of Harvard University, Xiao-Jiang Li of Emory University and Song-Guo Zheng of The Ohio State University.
“Of the five criminal cases it identifies, DOJ dismissed two of them,” Zeidenberg said. “Li was a client of mine. His conviction was for non-payment of taxes. It had nothing to do with failures to disclose affiliations, much less improperly handling grant money. That NIH would cite it as some sort of evidence that their investigations were productive is a joke.”
He added that Lieber was “convicted of lying to the FBI and non-payment of taxes, not for any non-disclosure.” Four of the five cases show that “NIH unleashed the FBI on these scientists who then investigated the individuals, rather than the alleged crimes. Eventually, the FBI will find something on most anyone if they dig long and hard enough,” Zeidenberg said.
RRC shared Zeidenberg’s comments with NIH and asked why it had chosen these cases to highlight without updates, but it did not respond.
The report also lists three False Claims Act (FCA) settlements related to foreign interference; the most recent was with Cleveland Clinic. DOJ announced a $7.6 million settlement that includes a corrective action plan and a year of special award terms and conditions stemming from allegations that Qing Wang, Zeidenberg’s former client, had undisclosed support from a university in China.[5]
Not mentioned is that DOJ couldn’t make FCA and wire fraud charges stick against Wang, who was arrested on May 13, 2020 (but never indicted). Cleveland Clinic fired him the same day. The charges against Wang—who came to the U.S. from China in 1986 and became a naturalized citizen in 2005—were dismissed on July 21, 2021.
NIH ‘Not Involved’ in China Initiative
Zeidenberg called Wang Cleveland Clinic’s “most productive faculty member,” having published, usually as the senior author, a dozen peer-reviewed papers a year from 2008 to 2019. But his legal ordeal rendered Wang unemployable in the U.S., and he was forced to return to China, Zeidenberg said.
Asked about the timing of the August statement, NIH told RRC that Bertagnolli “wanted to recognize the concerns of and demonstrate support for the Asian research community. She also wanted to notify the larger NIH-funded community of ongoing, longstanding efforts by NIH to improve clarity of the NIH policies and procedures.”
After restating parts of Bertagnolli’s Aug. 15 statement, the reply provided to RRC noted that Bertagnolli “wants to ensure that our Asian research colleagues know how much we value and support them.”
NIH’s response to RRC concluded with the following sentence: “Finally, as a reminder, NIH was not involved in the China Initiative, which was a Department of Justice effort very specifically focused on China. NIH efforts to address foreign interference focus on specific actions and not specific countries.”
The Department of Homeland Security report noted that the China Initiative ran from November 2018 to 2022 and that it “brought several cases involving academic researchers, although very few resulted in convictions.” Among its recommendations is that the department should “engage with university and Asian-American groups to limit inadvertent harm of policies or enforcement actions on academic researchers and consider staff training opportunities.”
NIH is not the only agency that funded Asian awardees initially pursued by DOJ, who are now struggling to rebuild their lives. In August 2019, Feng “Franklin” Tao was accused of failing to disclose a position and support from a Chinese university that he received at the same time he was the principal investigator on NSF and Department of Energy awards.
Tao, also represented by Zeidenberg, was an associate professor of chemical engineering at the University of Kansas (KU). On July 11, his conviction on a single count of making a false statement was overturned by an appeals court.[6]
A jury earlier had found him not guilty of four charges and guilty on four, three of which were reversed by the trial judge. Burdened by millions in debt and without an income for four years, Tao, whose upbringing included subsisting on corn powder while living in a clay and straw cottage without running water or electricity, has been fundraising and is seeking to be rehired by KU.
1 Monica M. Bertagnolli, “NIH supports our valued Asian American, Asian immigrant and Asian research colleagues,” National Institutes of Health, Office of the Director, August 15, 2024, https://bit.ly/40dr84m.
2 “NIH Decision Matrix for Assessing Potential Foreign Interference for Covered Individuals or Senior/Key Personnel (Use for Initial Assessment), Report on Research Compliance 21, no. 11 (November 2024).
3 Homeland Security Academic Partnership Council, Foreign Malign Influence in Higher Education Subcommittee, June 3, 2024, https://bit.ly/3zVge8R.
4 Michael Lauer and Patricia Valdez, Brief Summary of NIH Foreign Interference Cases, June 9, 2024, https://bit.ly/3Aa75cr.
5 Theresa Defino, “Cleveland Clinic Pays $7.6M Related to PI Whose Charges Were Dropped; ‘He Was Treated Horribly,” Report on Research Compliance 21, no. 7 (July 2024), https://bit.ly/4d6cajJ.
6 Theresa Defino, “‘No Evidence’: Judges Toss KU Researcher’s Conviction; Reinstatement Battle Is Next,” Report on Research Compliance 21, no. 8 (August 2024), https://bit.ly/40fAEnx.
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