In the Department of Justice’s outrageous prosecution of whistleblower Dr. Eithan Haim, Dr. Haim has now asked the district court to order DOJ to give him all grand-jury testimony and evidence bearing on DOJ’s claim that he committed the alleged HIPAA violations under “false pretenses.”
Once again, it seems clear that it is DOJ that is acting under false pretenses. The federal government knew on August 30, 2023—nine months before the initial indictment of Dr. Haim—that Dr. Haim had legitimate access to Texas Children’s Hospital’s electronic patient records. As Dr. Haim’s motion explains, TCH itself disclosed to the federal government that Dr. Haim was authorized to have access to the electronic records because he continued to cover patients at TCH. (The motion doesn’t state the specific date on which TCH made that disclosure, but Dr. Haim’s counsel informed the court at a hearing in September that the disclosure took place on August 30, 2023.) So the entire predicate of the grand jury’s charge in its initial indictment that Dr. Haim obtained access to the electronic patient records under “false pretenses” rests on claims that DOJ knew were false.
The superseding indictment that DOJ filed eleven days ago no longer misleads the world into thinking that Dr. Haim sneakily obtained access to Texas Children’s Hospital’s electronic medical patient files more than two years after his treatment of patients at the hospital had ended. But it continues to allege that Dr. Haim obtained HIPAA-protected information “under false pretenses.” Indeed, it now makes that “false pretenses” claim—which is the basis for enhanced penalties—in all four of its counts, whereas the initial indictment did so only in its first count. But the indictment now contains no allegations that support that claim. So what is DOJ relying on? And did it present false information to the grand jury?