A Houston judge declined to rule on federal prosecutors’ request to bar a Dallas surgeon and one of his attorneys from making statements that could prevent a fair trial and might endanger law enforcement.
But U.S. District Court Judge David Hittner said he would not hesitate to revisit the matter should Eithan Haim and his attorney, Marcella Burke, fail to dial back their criticism of the government’s case.
“Let’s just try this in a courtroom. That’s what it’s here for,” Hittner, a Reagan appointee, said at the conclusion of a nearly two-hour hearing on Tuesday. Hittner added that in his more than four decades as a state and federal judge, he has never issued a gag order.
Haim is under federal indictment for charges of illegally obtaining private information on patients from Texas Children’s Hospital who were not under his care and sharing that information with a conservative activist. Haim has called himself a whistleblower on transgender care for minors.
Prosecutors had asked for a “narrowly tailored” gag order because they feared Haim and Burke’s “inaccurate and inflammatory descriptions of pretrial proceedings” could harm their ability to seat an impartial jury.
Ryan Patrick, a former state prosecutor, judge and U.S. attorney for the Southern District of Texas who is also representing Haim, scoffed at that notion, noting the district covers millions of people. Patrick is the son of Texas Lt. Gov. Dan Patrick.
Jessica Feinstein, who last month became the case’s lead prosecutor after Tina Ansari withdrew from the case, spent about an hour Tuesday walking Hittner through social media posts she and her team viewed as problematic.
Ansari withdrew from the case last month amid allegations that she had been practicing with a suspended law license and that her family has conflicts of interest with Texas Children’s Hospital. The U.S. Attorney’s Office for the Southern District has given no reason for her withdrawal.
Since his indictment in May on four counts of wrongful disclosure of individually identifiable health information, Haim has not been shy about his disdain for the case against him, granting interviews with conservative media outlets and making near-daily posts on X, formerly known as Twitter.
In one post, Haim asserted that Ansari had presented false information to the grand jury that returned an indictment against him. In another, he accused Ansari of failing to review the underlying evidence before deciding to bring charges.
Feinstein called the statements false and misleading, adding that “we believe that a line has now been crossed.” Feinstein, who previously worked for the Southern District of New York, also called attention to an interview Haim did with the Canadian psychologist Jordan Peterson in which he called her team “evil.”
“It’s based on nothing and they will become princes and princesses in this new empire of lies,” Haim said to Peterson in June. “Their loyalty to the cause to go after an innocent person is like their own blood sacrifice. If they protect this evil ideology, if they can protect the harming of these children, then they are demonstrated to be loyal subservients (sic).”
As Feinstein read aloud some of Haim’s tweets to Hittner, Haim, seated between Patrick and Mark Lytle, an attorney with Nixon Peabody, nodded his head in agreement with what he heard.
Feinstein also argued that Haim and Burke’s social media use could put the safety of her team and the FBI agents who investigated Haim at risk. In a since-deleted X retweet, Haim identified one of the agents by name. Burke also retweeted a post that featured a picture of Ansari.
As part of her argument for a gag order, Feinstein accused Burke of violating professional standards of conduct, pointing to an X post in which Burke called the case against Haim a “bungling, illicit, twitching pile of catastrophe.”
“As an officer of the court, she should know better,” Feinstein said.
Burke, who at some point last month deleted her X account, told Hittner that she disagreed her posts would harm the jury selection process. “I urge my respect for the court and the process,” she said, reading from a small handwritten note.
Burke recently founded her own law firm and, according to her bio, worked for the Trump administration in various roles at the Environmental Protection Agency and the Interior Department. She and Patrick declined to comment on the outcome of the hearing.
Court filings containing screenshots of the X posts prosecutors contended were inflammatory were initially filed under seal on Nov. 20. They were unsealed six days later after Haim and his attorneys criticized the move.
During Tuesday’s hearing, Patrick argued that Haim has a First Amendment right to complain about what he views as unfair treatment. “Dr. Haim has the right to remain silent. That doesn’t mean he has the ability,” Patrick said.
Patrick also argued that Haim has successfully used social media to gain support for his cause, pointing to a June announcement by Texas Representative Chip Roy that the U.S. House Subcommittee on the Constitution and Limited Government was investigating Haim’s prosecution. In a letter to U.S. Attorney Merrick Garland, Roy said the Justice Department’s actions toward Haim raised concerns that the department was misusing its authority to “advance left-wing policy goals.”
The case against Haim, 34, has become a flashpoint in the debate over transgender care for minors. Haim has also received widespread attention from conservative media outlets that have promoted his claim that he is being prosecuted for political reasons.
Haim was a resident at the Baylor College of Medicine from 2018 through 2023 and worked at Texas Children’s Hospital during that time. A second superseding indictment filed last month alleges Haim was granted access to TCH’s electronic records but was only allowed access to review the records of patients under his care. In April 2023, Haim reactivated his log-in credentials, which had expired due to inactivity, and obtained the personal information of patients not under his care, including names, treatment codes, dates of service and attending physicians, the indictment says.
The second superseding indictment, which replaced a superseding indictment from October – one that prosecutors said contained minor errors and unnecessary language – alleges that Haim disclosed a portion of that information to the conservative activist Christopher Rufo, who published a story in May 2023 that Texas Children’s was secretly providing gender-affirming care for minors.
Haim has acknowledged providing the information to Rufo and said he did so to catch the nation’s largest children’s hospital in a lie. But he maintains that he did not violate the Health Insurance Portability and Accountability Act, known as HIPAA.
In March 2022, the hospital announced that it had stopped providing gender-affirming therapies after Texas Gov. Greg Abbott ordered the state’s child welfare agency to investigate reports of gender-affirming care for kids as abuse. While Haim contends Texas Children’s continued to provide such care in secret, the hospital said in an August statement that it had resumed providing gender-affirming care a few days after the announcement once it confirmed it was in compliance with existing law.
Texas Children’s stopped prescribing medications for gender dysphoria in September 2023 after Texas lawmakers banned transgender care for minors, the statement read. That law, which prevents transgender people under 18 from accessing hormone therapies, puberty blockers and transition surgeries, was upheld in June by the Texas Supreme Court.
As of Tuesday, Haim had raised nearly $1.2 million as part of a legal defense fund. Hittner has set a trial date of Feb. 10. If convicted, Haim faces up to ten years in prison and up to $250,000 in fines.
Monroe Trombly is a public safety reporter for the Landing covering the federal courts in Houston. Find him @monroetrombly on X, or reach him directly at monroe@houstonlanding.org.
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