‘Troubling and scary’: DOJ cries victim while hunting whistleblower surgeon
The US Department of Justice has asked a federal judge to gag a whistleblower doctor it is prosecuting, complaining that his criticism of the government is “problematic.”
Dr. Eithan Haim is a surgeon who blew the whistle on Texas Children’s Hospital last year for secretly operating a gender clinic for kids. Children who came to the hospital with anxiety or depression were diagnosed with gender dysphoria and administered puberty blockers and cross-sex hormones. These interventions, which cause irreversible conditions like sterility, castration, and osteoporosis, are referred to by many ethical doctors as medical mutilation.
The DOJ had Dr. Haim indicted on four counts of privacy violation but has had a thorny time making them stick. Its first indictment was so flawed, for example, that it was forced to bring a second one to replace it — and even that contained significant errors. It has since replaced its lead prosecutor, Tina Ansari, whose family has close financial ties to the hospital exposed by Dr. Haim.
These missteps and others — like the DOJ threatening Dr. Haim with a felony without first reviewing the evidence — have drawn criticism from observers, who accuse the DOJ of targeting Dr. Haim because he exposed gender ideology's threat to health care.
“Although the whistleblower redacted all personal information and remained within the bounds of federal privacy laws, the Biden Administration wanted to make a point: those who challenge trans orthodoxy will be punished by the state,” wrote journalist Christopher Rufo, who first published the exposé on Texas Children’s Hospital based on Dr. Haim’s information.
DOJ: Surgeon’s posts are ‘troubling and scary’ for the government
The public’s criticism has displeased the Justice Department. Last month, the prosecutors asked the presiding judge, David Hittner, to issue a gag order against Dr. Haim and his attorneys, claiming their “inflammatory” statements about the case are “problematic.”
At a hearing on the gag order motion last week, Assistant US Attorney Jessica Feinstein tried to paint DOJ prosecutors as innocent victims of Dr. Haim’s speech.
“We've been content to focus on our job and to put our noses down,” said Feinstein, who complained that Dr. Haim’s comments on X are “getting basically elevated in all of these news articles and [social media] likes.”
She read to the court some tweets that Dr. Haim and his attorney, Marcella Burke, have posted since the indictment.
"This perfectly encapsulates the defining feature of the modern-day woke aristocrat,” Dr. Haim wrote on November 24th about the DOJ’s motion for a gag order. “They zealously deploy the threat or the outright use of state-sanctioned violence against those who challenge their political ideology yet cast themselves as the victim when regular citizens stand up, take notice, and utilize their First Amendment right to criticize their tyrannical behavior." Feinstein complained this tweet was "inflammatory and prejudicial.”
"The prosecutorial team is a clown car of incompetent midwits," read another tweet, which sources say triggered laughter from court attendees when Feinstein read it aloud.
The prosecution was also offended by a tweet from Burke about the case, which read: "Typical of the bungling, illicit, twitching pile of catastrophe that this [case] is.”
At one point, Feinstein complained that Dr. Haim had retweeted a post containing a photo of FBI Agent Paul Nixon, who was assigned to gather evidence against Dr. Haim. When Nixon visited the home of a former hospital employee to question them, the doorbell camera snapped a photo of him and the homeowner posted it online. Feinstein used this to suggest that Dr. Haim has DOJ employees fearing for their lives.
“We find this really troubling and scary for those of us involved here, in particular for the FBI agent who has to continue going out and doing his job,” she told the court.
Dr. Haim’s attorneys argued against a gag order on several grounds, most notably his First Amendment right. They pointed to a previous case, Marceaux v. Lafayette City-Parish Consol. Gov’t, where the judge refused to gag a defendant who was publishing commentary about a certain case on his website. Although the prosecution argued it might taint the jury pool, the court decided that a gag order would violate the defendant’s right to free speech.
The court makes a bizarre decision
Judge Hittner neither granted nor denied the motion for a gag order. Instead, he told the parties he would keep the motion open but threatened to issue a ruling if Dr. Haim or his attorneys engage in "similar conduct." He made a point of reading aloud all the punishments Dr. Haim and his attorney could expect if he were to violate such an order.
A court transcript of the hearing reveals that Judge Hittner used ominously vague wording, such that even the prosecution had to seek clarification. This has raised concerns that the judge is keeping his options open to punish Dr. Haim and his attorneys, who have not been given any guidelines for what constitutes “inflammatory” speech. Instead, the hearing suggests Dr. Haim and his legal team would be best off self-censoring any criticism of the government.
In a tweet Wednesday, Dr. Haim's wife Andrea said the judge's decision was "arguably worse" than if he had granted the gag order.
"The court’s instruction to avoid 'similar conduct' leaves unclear what kind of speech represents a violation (presumably that which the DOJ doesn’t like? . . . ) and what the consequences would be – imposition of a gag order merely being one of them," she explained.
Furthermore, she said, "By leaving the matter undecided, the court is shielded from public criticism and appellate review (where it would likely be overturned as unconstitutional in the Fifth Circuit). As a result of this 'non-gag gag order,' the onus is on the defense to muzzle themselves. It’s an unconstitutional prior restraint of someone who needs free speech the most: the criminal defendant David facing a corrupt government Goliath."
Andrea, an attorney, was herself targeted by the DOJ during the investigation. At the time, she was going through the process to become an assistant US attorney, which involved a background check. When she advised her husband not to speak to investigators without his attorney, the DOJ's lead prosecutor on the case accused her of interfering with the investigation and threatened to sabotage her background check if she became "difficult."
In her tweet, Andrea noted that while her husband's right to free speech may be endangered, hers is not, and promised to continue posting updates about the case.
Dr. Haim's trial has been set for February.
