Biden-Harris DOJ Continues Prosecution of Eithan Haim for Exposing ‘Gender-Affirming Medical Treatments’ on Children

Nearly two weeks ago, I lauded Ed Whelan’s insightful analysis — and added some of my own — regarding the Biden-Harris Justice Department’s outrageous prosecution of Dr. Ethan Haim for the “crime” of revealing that Texas Children’s Hospital (TCH) was lying when it claimed to have shut down the gruesome forms of child abuse that the radical Left labels “gender-affirming medical treatment.”

Having been a federal prosecutor for nearly 20 years, I am dismayed at how politicized the Justice Department has become. And although progressive administrations are quite content to wield DOJ’s power punitively against ideological foes, the government does not like to lose cases — especially cases it has trumpeted — so I am baffled that prosecutors will not simply drop the Haim case when key allegations in their indictment have proved to be false . . . thanks to information in their own files, provided to the defense in pre-trial discovery.

For exposing that TCH was performing “medical interventions” on “transgender” children as young as eleven, Dr. Haim is charged with violating the privacy protections of HIPAA (the Health Insurance Portability and Accountability Act). This is a peculiar allegation, especially given that Haim did not reveal the children’s private identifying information; in marked contrast, the Justice Department has referred to the children by their initials in its indictment, thus doing more to violate their privacy than the man they have accused of doing so.

I noted in the column that, in its initial indictment,

DOJ’s essential position was that Haim illegally obtained the HIPAA information by, as Ed puts it, “sneakily obtain[ing] access to [TCH’s] electronic medical patient files more than two years after his work at the hospital ended.” That isn’t true. . . . Haim was still working at TCH during the relevant time and had legitimate access to the relevant database.

Despite being wrong about this key point, the Biden-Harris DOJ, rather than drop the charges, superseded the indictment (relying on a new, bizarre theory, which I’ll come to). With Dr. Haim about to be arraigned this week on the superseding charges, he has posted on X/Twitter a statement from one of his attorneys, Ryan Patrick, a former federal prosecutor (Patrick was the Trump-appointed U.S. attorney for the Southern District of Texas):

Tomorrow, my client Dr. Eithan Haim must appear for arraignment on his superseding HIPAA indictment. How we’ve gotten to this place is beyond bizarre and in my nearly 20 years practicing criminal law, I have never seen a case play out like this.

The new indictment proves everything our legal team has said in open court and in motions so far has been conceded by the government. Last month the government was 100% certain that Dr. Haim never saw a patient at TCH after his January 2021 rotation. They called him a trespasser.

But what we have shown, and the government finally disclosed to us on Friday September 13th were multiple patients he treated and saw at TCH after January 2021. One of the now abandoned allegations was Dr. Haim lied to get urgent access to the records system in April 2023. What the government should have known is that he scrubbed into a surgery that day!

And why should they have known this? Because the digital audit trail leading us to these patients was in their own discovery they gave to me back in June. The FBI agent on this case told me in a face-to-face meeting in July that an “asteroid would have to strike Galveston Bay” for Dr. Haim to be called into cover a surgery at TCH. That’s how certain he was of his own case. I guess the agent failed to look at the audit trails in the discovery folder titled “FBI” on the USB drive.

Given that the government had in its own possession information that established the falsity of its indictment’s allegations, it is natural to infer that the grand jury that approved the indictment may have been misled by prosecutors. Haim’s defense is therefore seeking to examine transcripts of the grand-jury proceedings.

With its initial assumptions proved wrong, the Justice Department nevertheless continues to claim that Haim acted maliciously — in the absence of any malice evidence. To reiterate what I said in the column about DOJ’s new theory of the case:

Haim has been emphatic that he believed it was his “moral responsibility to expose what was happening to these children.” There is no reason to doubt this, prosecutors haven’t come close to indicating that they can prove malice. In fact, Ed observes that the DOJ has watered down its original allegation that Haim “caused malicious harm” to TCH’s patients and physicians; the superseding indictment now alleges, instead, that Haim acted with “intent” to “cause malicious harm,” not to the minor patients — you know, the people HIPAA is meant to protect — but to the hospital itself and the doctors, who were performing the procedures that TCH had told the public were not being performed.

On that score, I’d note that Dr. Haim has also posted a statement from another of his stellar attorneys, Marcella Burke:

We have dismantled the U.S. Department of Justice’s case once, and soon to be twice. They have had to rescind their initial indictment after having to admit its allegations were completely false. Its reindictment asserts a flaccid argument that on its face is farcical.

Any other self-respecting career prosecutor would have folded up their tent and moved on quietly with some face-saving public comment by now, but this crew is now ignoring what is drilled into every prosecutor’s head – they are there to seek justice. We look forward to taking this to trial.

I understand why Marcella feels that way. As a veteran of the Justice Department — and one who’d like to believe that the same institution is still in there someplace — I can only say that seeking justice should mean dropping this prosecution so it never gets to trial.