Biden-Harris DOJ Retreats but Won’t Surrender in Outrageous Prosecution of Child-Abuse Whistleblower

Ed Whelan has been up to his stellar standards in exposing the Biden-Harris Justice Department’s outrageous, unabashedly politicized prosecution of Dr. Eithan Haim. He is the surgeon who exposed the Texas Children’s Hospital (THC) stealth persistence in the barbarities that the radical Left describes as “sex-affirming medical interventions” for children who are confused about their sex and are thus claimed to “self-identify” as “transgender.”

This case brandishes Biden-Harris DOJ lawfare’s most noxious features: its use of legal processes as a ruinous punishment against people who frustrate the “progress” of cultural Marxism; and the resulting in terrorem effect — the unmistakable message of this bureaucratic muscle-flexing that anyone who dares cross woke progressives stands to be similarly destroyed financially and professionally, as well as imprisoned.

Ed has an important Bench Memos post on the superseding indictment that the Biden-Harris DOJ has just filed. Though they will not admit it outright, prosecutors have had to abandon a number of false allegations lodged against Dr. Haim in the initial indictment — untruths you knew about if you’d been reading Ed’s analyses.

Any reasonable person would assume that the crimes in this case must involve the fact that a medical institution, ostensibly committed to doing no harm, administered puberty blockers and cross-sex medications to, and performed “medical” procedures on, children — children who were confused about their sex and who had not yet reached a stage of mental and physical maturity at which, under our laws, they would have been permitted to make far less consequential decisions than attempting to change their sex. Crime is not a strong enough word for this.

And that, indeed, is why TCH, the largest children’s medical facility in the country, retreated when this child-abuse, cloaked in woke-progressive fanaticism, crashed into public opinion. In spring 2022, against that backlash, the TCH’s chief executive officer announced the shuttering of the hospital’s “child gender clinic” — quite naturally fretting about potential legal liability. But the announcement was not true: A number of doctors at the hospital furtively continued the “gender affirming” procedures.

Dr. Haim was a resident at THC, saw what was happening, and was repulsed. He felt a moral obligation to expose what was happening. This led him to contact the Christopher Rufo, the Manhattan Institute scholar and indefatigable defender of Western culture.

As Rufo has recounted it (see, e.g., here and here), Haim related to him that TCH had lied about terminating the transgender “medical interventions” and that “doctors were, in fact, continuing to perform sex-change procedures on children as young as 11” (emphasis added). Significantly, while the doctor provided corroborating documents to Rufo, he took pains to redact the identities of the minor patients in order to protect their privacy.

The controversy stirred by Rufo’s May 16, 2023, City Journal report — which neither identified Haim as the whistleblower, nor gave any indication that Rufo had been informed of the identities of the minors involved — prompted the hospital to backpedal and the Texas legislature to pass a bill confirming that transgender medical procedures for minors were illegal in the state.

That should have been the end of the story, except that the Biden-Harris administration, like the Obama-Biden administration before it, has transformed the Justice Department into a political weapon of its partisan Democratic base — in particular, the radical Left. DOJ scorched the earth to figure out the whistleblower’s identity and then hit Haim with a four-count indictment, charging him with felony violations of HIPAA (the Health Insurance Portability and Accountability Act).

As Ed details, the original indictment promoted the impression — a false impression — that Haim had disclosed HIPAA-protected information about the children, which Rufo proceeded to publish. But Haim did not disclose such information to Rufo, who not only didn’t publish such information but was in no position to do so (and, I should note, has not been accused of wrongdoing). Indeed, Ed is spot-on in pointing out that, by referring to the minors by their initials in the charging documents, the Biden-Harris DOJ itself has done more to reveal the identities of the patients than anything Haim and Rufo did.

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, either. Haim was still working at TCH during the relevant time and had legitimate access to the relevant database.

The superseding indictment filed this week quietly drops those claims. But it continues the main thrust of the charges, namely, the claim that Haim acted maliciously.

That is absurd on its face: 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.

And why all the legerdemain about malice in the a case where there is none (at least on the part of the accused)? Because this is the political-hardball, process-is-the-penalty Biden-Harris DOJ we’re talking about. Under the relevant statute, malice is the exacerbating factor. As Ed points out, the charges in the superseding indictment expose Haim to penalties of up to ten years’ imprisonment and fines of up to $250,000. That’s why prosecutors won’t let it go. They are trying to ruin this guy’s life for lifting the veil over the monstrousness they like to call “gender-affirming care” — and if by wielding the heavy charges they can browbeat him into pleading guilty to lesser charges, they’ll be happy to declare victory.

If Dr. Haim had blown the whistle on execrable conduct that undermined a cause dear to the Left, he wouldn’t be prosecuted in a million years — even if he had technically violated a law to do it (which there’s no reason to believe he did). You’re not prosecuted if you, say, demonstrate outside the homes of conservative Supreme Court justices because you’re upset over the potential overturning of Roe v. Wade, or cause damage rioting for “racial justice” because you’re upset over police altercations with law-breakers. Sure there are a criminal laws against such protests and rioting, but the Biden-Harris administration will hail you as a hero — after all, you’re upset about all the right things.

It is a disgrace that Attorney General Merrick Garland, who purports to run a nonpartisan Justice Department notwithstanding mountains of evidence to the contrary, is allowing this case to continue — even as his subordinates have had to correct misstatements in their original indictment. The malice here is in the prosecution.