Clear Dr. Haim

National Review Online

Thursday, January 16, 2025

 

Donald Trump and his attorney general will be bombarded with requests for pardons, reversals of course in legal cases, and other executive actions from the moment that Trump returns to the Oval Office. He should put clearing Dr. Eithan Haim near the top of his list. While he’s at it, that list should extend to nonviolent pro-life protesters and other targets of the ceaseless and indefensible culture war waged by the Justice Department under Merrick Garland. Some of those deserve pardons. Dr. Haim just needs the government to stop persecuting him.

 

In March 2022, facing scrutiny from the state’s Republican government, Texas Children’s Hospital (TCH) publicly announced that it was shuttering its “gender clinic” and would no longer be offering transgender drugs and surgeries to minors — an effort to forestall government action. But it didn’t really stop. The hospital lied to the public and kept going. It “secretly continued to perform transgender medical interventions, including the use of implantable puberty blockers, on minor children,” treating kids as young as eleven years old. That’s a scandal worthy of public attention.

 

It took a courageous whistleblower, Dr. Haim, to contact the press and bring the truth to light. After City Journal’s Christopher Rufo reported what he learned from Dr. Haim, Texas legislators changed the law — a step upheld in June by the Texas Supreme Court — to outlaw the use of transgender drugs and surgeries in pediatric medicine. That line from reporting to lawmaking is the central artery of democratic self-governance.

 

It wasn’t so long ago in America that this sort of thing would make Dr. Haim a hero to the free press, maybe even the subject of a hagiographic Hollywood film. In more recent years, he’d have been at legal risk only if he lived in a deep-blue state such as California, where then–attorney general Kamala Harris initiated the yearslong prosecution of David Daleiden for doing hidden-camera journalism exposing malfeasance at Planned Parenthood. But something was new about the Garland era at the DOJ: Instead of an outlier state government, it was the federal government that brought criminal charges against Dr. Haim for daring to reveal the truth so that the people’s representatives could act on it.

 

The pretext for the prosecution was that Dr. Haim violated the Health Insurance Portability and Accountability Act (HIPAA), which is designed to safeguard from public disclosure the identities and confidential medical information of patients. The Biden administration has been highly selective in its concern for HIPAA violations. For example, when ProPublica published the personal medical histories and photos of women who died after abortion treatments — in an effort to discredit state pro-life laws — Harris publicly led crowds in chanting the names of those patients. Dr. Haim was treated differently. Federal agents showed up at his door the day he was set to graduate from the hospital’s residency program.

 

No confidential patient information was in Rufo’s reports (which were public record), and there was no evidence that Dr. Haim ever provided such information to Rufo. In fact, the good doctor was charged under a section of HIPAA that doesn’t address disclosures. In a superseding indictment, DOJ abandoned even the implication that Dr. Haim had revealed such information to anyone. The DOJ, which identified minor patients by their initials in its indictment, disclosed more than the defendant ever did.

 

The DOJ alleged that Dr. Haim had improperly obtained patient files remotely while he was no longer working at the hospital. That claim, too, had to be walked back when it was revealed that Dr. Haim was still seeing patients at TCH two years longer than the DOJ had originally alleged — and that the FBI had known this all along.

 

The original indictment claimed that Dr. Haim should face up to ten years in prison for acting for the purpose of “malicious harm” to patients. Only someone thoroughly marinated in gender ideology could believe this of a doctor who was just trying to raise the alarm about deceit in the treatment of children. Yet again, the superseding indictment dropped that claim and fell back on the argument that Dr. Haim intended malice toward TCH and its doctors. The same could be claimed in any case where a whistleblower reveals wrongdoing, knowing that this might have consequences for the wrongdoers.

 

The prosecution has been a tragedy of errors. The lead prosecutor stayed on the case after being suspended by the state bar for nonpayment of dues, in violation of court and DOJ rules. She later withdrew when it came out that her family’s company (of which she was a former executive) co-sponsored two fundraisers for TCH while the case was pending. The response from the Justice Department was not a humble apology but a request for a gag order to prevent any of this from being reported. Our Ed Whelan and Andy McCarthy have done yeoman’s work in ensuring that a story the DOJ wanted buried would see the light of day.

 

This prosecution is not just an abuse of the prosecutorial power to wage culture war in aid of the abuse of children; it’s also a menace to democracy and a free press. The new leadership of the Justice Department should end it at once, and it should investigate and publicly expose how it came to be brought. Trump can go further by offering to Dr. Haim a full public apology, and perhaps the sort of show of solidarity that he gave to Daniel Penny. While he’s at it, he should instruct the pardon office at the DOJ to compile a list of other cases, including those of peaceful pro-life protesters, who were likewise subjected to culture-war lawfare.