Evidence disclosed late Friday threatens the U.S. Department of Justice’s (DOJ) prosecution of Texas surgeon Eithan Haim, who in 2023 blew the whistle on Texas Children’s Hospital (TCH) for secretly providing gender transition procedures to minors, in violation of state law, after publicly announcing they had stopped doing so. The DOJ responded to the whistleblower’s revelations of the hospital’s conduct by investigating and then indicting him, not the hospital. Now, their sham, politicized prosecution is on the brink of disintegration.

“After the close of business this past Friday, September 13, 2024, the government disclosed new information to the defense that upends the case and vitiates the central theory of the prosecution,” Haim’s attorneys wrote in a Monday morning court filing. “The entire premise of the government’s case has been that Dr. Haim was an interloper, falsely claiming responsibility for TCH patients to hide some nefarious and malicious reason for accessing TCH records. This rested on the foundational premise that Dr. Haim treated no patients at TCH after January 2021.”

However, the DOJ disclosed last week that Haim’s relationship with TCH continued beyond that period of time. According to the hospital’s electronic medical records system, Haim entered progress notes for patients on January 30, 2021, April 19, 2021, and May 2, 2021. He entered operative notes on May 3, 2021 and November 1, 2021, and he contributed to an operative note on November 13, 2021. Haim was listed as a surgeon for a patient on records dated December 9, 2021 and December 22, 2021, and he accessed related records on December 22-23, 2021. As late as April 14, 2023, Haim was listed as a resident on an operative note.

These records may not be comprehensive, but they are sufficient to undermine the prosecution’s case, argued Haim’s attorneys. The DOJ’s indictment against Haim charges four counts of HIPAA violations. The first count alleges that Haim “obtained individually identifiable health information under false pretenses,” while the other three counts allege that he “did obtain and/or wrongfully disclose individually identifiable health information with the intent to cause malicious harm to TCH’s physicians and patients.”

Haim’s attorneys contend that Friday’s revelation completely destroys the “false pretenses” count and weakens the others. The government has now admitted evidence that Haim was legitimately involved in patient care at TCH after January 2021, which means his access to their medical database was not obtained on false pretenses. “Nearly everything the government has alleged is now proven wrong,” they declared.

Indeed, the DOJ’s handling of the case implicitly acknowledges the weakness of their legal footing. They are currently pushing to hurry the case to trial without disclosing all the evidence, while simultaneously limiting what arguments the defense is allowed to make.

The timing of the case was suspicious from the start. Federal agents served Haim at his home with notice of the criminal investigation against him on June 23, 2023, hours before his graduation from surgical training. Yet no charges were filed until May 29, 2024, nearly a year later, by which time Haim had racked up a quarter million dollars in legal fees.

It’s not like the crimes alleged require time-consuming investigations. If the government was investigating Haim for HIPAA violations in good faith, they would have already had evidence of those violations in June 2023, with little need for further investigation. Under the Speedy Trial Act of 1974, the government must file the indictment within 30 days from the service of summons.

Then comes the second twist. After slow-walking the Haim investigation, the DOJ is now insisting on a hurried, October trial date. Yet, only five weeks from the scheduled beginning of the trial, the DOJ had still not fulfilled basic discovery requests (documents that must be provided to the defendant). “This is not a simple two-day trial with just 10 witnesses as the government has previously told the Court,” protested defense counsel. “Dr. Haim has been denied crucial exculpatory evidence necessary for the preparation of his defense.”

The defense also complained that “the government seeks orders limiting Dr. Haim’s defense in nine ways. … The government’s Motion largely seeks to pre-try the case by precluding Dr. Haim from making common arguments in his defense.” They sought to force Haim to disclose documents before fulfilling his own disclosure requests, to limit testimony and argument regarding issues pertaining to transgender care,” mute criticism of its own shallow investigation, block inclusion of Haim’s own out-of-court statements, or even use prior written statements from the prosecution’s own witnesses.

Most absurdly, the government sought to veto the “most natural defense theory” — namely, that Haim was acting as a whistleblower in good faith. Despite an indictment specifically charging Haim with “intent to cause malicious harm,” the government sought to preclude the defense from providing evidence or arguments about Haim’s intent. They wanted the judge to rule, before the trial started, that the defense could not raise valid defenses “including advice of counsel or good faith defenses.” They sought to prevent any testimony “that the defendant is a good doctor.” They even sought to prevent the defense from using the word “whistleblower” during the trial.

As of Monday, the presiding judge, senior-status U.S. district judge David Hittner, seemed inclined to side with the defense, at least regarding the timing of the trial. Hittner filed a “proposed order” finding “that the ends of justice will be served by granting the continuance and such ends of justice outweigh the interests of the public and the defendant in a speedy trial.” The “proposed” nature of the order gives the government time to respond before the order is finalized.

“The issues in this case are ‘unusual and complex,’” Hittner wrote, “such that it is unreasonable to expect adequate preparation for pretrial proceedings and the trial itself within the time limits established by the Speedy Trial Act.” Under the Speedy Trial Act, the trial must begin within 70 days from when the indictment was filed. However, the trial judge may extend the time period if it would serve the “ends of justice.”

Here, the delay provides time for all relevant information to come to light. And, based upon the evidence produced so far, further revelations will not be kind to the DOJ’s politicized case. “The only ‘false pretenses’ here are DOJ’s,” concluded Ethics and Public Policy Center Fellow Ed Whelan, “specifically, DOJ’s false pretenses that, in the words of Attorney General Merrick Garland, it ‘makes decisions about criminal investigations based only on the facts and the law.’”