As part of its outrageous transgender crusade against whistleblower Dr. Eithan Haim, the Department of Justice has recently moved for a gag order against Dr. Haim and his counsel and has made several filings “under seal”—that is, out of public view. I’ll address the ridiculous motion for a gag order more fully soon. For now, I’d like to highlight the motion to unseal the sealed filings that the media outlet Not the Bee filed today. Some excerpts from that motion:
This case warrants maximum transparency. The unprecedented investigation and prosecution of Dr. Eithan Haim has been covered by many media outlets and news websites, including Not the Bee, and is a topic of conversation among prominent politicians, intellectuals, and legal commentators, as well as the public at large. The press and public have demonstrated substantial interest in Dr. Haim’s whistleblowing, the medical procedures on minors that are the subject of his revelations, the misconduct by the government in pursuing this prosecution, and the various setbacks that the government has faced in attempting to criminalize Dr. Haim’s efforts to bring to light the illegal conduct of Texas Children’s Hospital….
None of [the Sealed Filings] were submitted in connection with a motion to seal, and none provide a public explanation of why there is good cause to seal the document. The Sealed Filings inhibit the public and press’s ability to access judicial records, in violation of their constitutional rights. The government fails to establish that there is a compelling government interest in secrecy, or that the proposed protective order is narrowly tailored to protect that interest – indeed, the government makes no sealing argument at all.
On DOJ’s successful sealed motion to withdraw Tina Ansari as counsel:
The docket already reflects that Assistant U.S. Attorney Tina Ansari was terminated as counsel for the government the same day that the Court granted this motion to withdraw, so as a practical matter, the sealing is not protecting the identity of the withdrawing attorney – nor is the withdrawal of lead counsel on a criminal case something that warrants protection from public scrutiny, in any case. The public has a right to know why Mrs. Ansari withdrew from this case. If the motion contains no further information, there is no basis at all to seal it, and it should be publicly known that the government provided none. If the document contains additional details about the reasons for the withdrawing government attorney, those should be in the public record. Either way, the sealing was nigh frivolous and frustrates the integrity of the judicial process.
On the sealed filings accompanying DOJ’s motion for a gag order:
As the motion for the gag order states, the documents simply contain “public postings” to social media. Indeed, the government’s argument is that those posts are so public that they risk “tainting the jury pool.” [Italics in original.] Because these documents are already freely accessible by the public, there is nothing gained by, nor warranting, sealing them.
The government also argues that the “inflammatory posts encourage the online bullying of prosecutors and create heightened safety risks, serving as invitations to members of the media and the public to harass prosecutors.” In other words, the government admits that it intends to impede the newsgathering function of the press by withholding the specific posts from public view. Moreover, the government characterizes the posts as “inflammatory” and containing “inaccurate and inflammatory descriptions of pretrial proceedings” without providing any details that would enable the public to determine whether the government is itself being accurate.
I’ll just say now that it’s beyond appalling that the same federal prosecutors who have done so much to try to inflame public sentiment against Dr. Haim and to incite threats against him (by, for example, initially propagating the false notion that Dr. Haim disclosed private patient information) would complain that Dr. Haim and his counsel have made “inflammatory posts” in his defense on social media. More on this soon.