Feds gave grand jury false info on 'gender affirming care' whistleblower, appearing to censor him

The Justice Department tacitly admitted giving false information to a grand jury before it indicted a Texas surgeon for allegedly violating federal privacy law by giving activist journalist Chris Rufo documentation that contradicted Texas Children's Hospital's claim that it ended so-called gender affirming care for minors when The Lone Star State banned the practice.

That wasn't enough for the federal judge overseeing the prosecution of Dr. Eithan Haim, however, to give the Houston surgeon "all grand jury testimony and evidence relevant to the charges of committing" Health Insurance Portability and Accountability Act violations under false pretenses.

President George W. Bush nominee David Hittner denied Haim's motion for grand jury material Tuesday without elaboration. "We're obviously disappointed" but will raise the issue on appeal if it comes to that, Haim's attorney Ryan Patrick told Just the News on Wednesday. 

"The evidence speaks for itself and will demonstrate that Dr. Haim obtained access properly and did not violate HIPAA," lead counsel Marcella Burke later wrote in an email. They will keep "preserving error as we go along," defending him against "relentless, reckless prosecution."

Haim filed motions to dismiss and to strike on Halloween, saying the government "failed to fix" factual errors in his first indictment and "introduced new ones of even more gravity" in the superseding indictment, including charging him with violating a "nonexistent statutory provision."

"They had at least 5 lawyers on this case," Haim wrote on X that day. "None of them caught this? Have any of them actually read it or were they simply handed the indictment from somewhere else?"

Lawmakers are watching. "LAWFARE," GOP state Rep. Brian Harrison, a former Department of Health and Human Services official in the past two GOP administrations, wrote on X.

The feds are also trying to control the language Haim uses in the jury trial that starts Dec. 2. Its pretrial motions ask Hittner to ban Haim from calling himself a "whistleblower" and using "inaccurate and inflammatory" descriptions for puberty blockers, cross-sex hormones and genital surgeries, such as "sterilization" and "mutilation."

"DOJ needs a show trial to avoid confronting reality" about the nature of gender affirming care, Haim wrote on X Monday.

The feds are peeved at Haim and his lawyers for telling the media his prosecution is intended to "intimidate and/or extort the defendant and to silence whistleblowers" and saying Assistant U.S. Attorney Tina Ansari – whose law license in Texas was suspended for part of the case – is "despicable," "should be ashamed of herself" and has a "poor grasp on her own profession."  

Hittner should limit "testimony and argument regarding issues pertaining to transgender care," prohibit Haim from discussing the feds' alleged motivation and "prosecutorial misconduct" or "possible punishments or collateral consequences," exclude testimony that he's a "good doctor" and ban him from "derogatory remarks" about prosecutors and law enforcement, the filing says.

While many records in the case are sealed, the public can read the most important filings in the five-month-old case through CourtListener for free.

Haim's Oct. 18 motion argues the government's original count of "violating HIPAA under false pretenses" was based on a falsehood, that "he had no patients" at TCH after finishing a rotation in January 2021, and thus "no reason whatsoever to have access" to its electronic records.

The feds only acknowledged Sept. 13, four months after the indictment, that TCH found records showing Haim treated adult and pediatric patients "long past" his rotation's end – all the way up to April 2023 – and that he gave them those records of their treatment, the filing says.

Two days after disclosing these to Haim's team, DOJ said it had asked TCH to turn over "all records" pertaining to Haim after his rotation ended, "including but not limited to [electronic] records and badge swipes at TCH facilities," and the feds have neither told his team it "dropped this request" nor "completed such a collection from TCH."

Haim's lawyers requested a continuance Sept. 26, telling Judge Hittner the feds should have known about Haim's post-rotation procedures because its own legal discovery documented "an audit trail" showing Haim made entries for TCH patients after January 2021.

It also knew the hospital told the HHS Office for Civil Rights that Haim "appropriately had access" to the system "through the relevant times in 2023 because he was continuing to cover patients at TCH even while rotating at other hospitals," the motion says.

While it deleted allegations contradicted by TCH's records and other evidence it had in the superseding indictment, DOJ "added false pretenses to all of the charges."

Haim deserves to see grand jury materials because DOJ has "repeatedly represented" to his lawyers it has "provided full discovery of its case file of the evidence that it obtained during its investigation and the materials it intends to use at trial," the motion says.

DOJ's Oct. 25 opposition argues he has not shown "with particularity" that it "knowingly sponsored false information before the original grand jury," the motion is moot because those allegations are missing from the superseding indictment and that he can't get the new indictment transcript through "unsupported speculation about the adequacy of the evidence."

It doesn't even acknowledge making a mistake, describing the allegations it removed as "allegedly inaccurate" and saying Haim "merely speculates about what evidence and theories the Government relied on in grand jury." 

The new indictment "merely amended allegations in light of new information and narrowed the focus for trial," the opposition says, calling it "extremely common for the Government to learn new facts, or to understand evidence in a new light, during preparation for trial."

Haim responded to the opposition the same day, arguing the government falsely characterized his motion as based on "little more than assumptions and speculation."

His team actually "explained the history of the two indictments, the way the allegations changed, and the evidence the government had at various points in time" to suggest "a strong inference that the government knowingly sponsored false testimony for the superseding indictment—not to raise a moot issue as the government asserts," it says.

Prosecutors "triple down on the same claim in their second indictment without explanation or evidence," Haim responded on X Oct. 27. "The Feds are running us dry," he said, pleading for donations to show "these tyrants that the days of average people not fighting back are over."

Even with a "very slim" legal team of four attorneys and one paralegal "working at discounted rates," Haim said he's already spent "well beyond" a million dollars over 16 months to fight "unprecedented legal charges … We'll be paying off legal bills for decades."

Haim's GiveSendGo page shows he's raised about $1.16 million from nearly 14,000 people as of Thursday. Most this week are $50 and under, but two are $100 each and one $500.

Haim's wife, Andrea, is a federal prosecutor, as he has disclosed. She was six months pregnant when the first indictment was unsealed, telling Fox News she was "terrified" that her "hero" husband would miss their daughter's birth or "the first part" of her life and blasting her employer for a "baseless political prosecution for telling the truth."

Conservative pundit Mike Cernovich said the feds exposed themselves by claiming they "fell for a hoax," suggesting prosecutors cannot "suss out trut[h]ful testimony from false charges." 

The feds misjudged that Haim, "a young surgeon with a new family, would fold in an instant," Haim responded. "They obviously thought wrong."