U.S. District Judge Mary McElroy, a Trump appointee, on Friday referred Justice Department lawyers for disciplinary proceedings after writing that the attorneys’ “reckless disregard for the duty of candor owed to a federal court is appalling.”
The order stems from the Trump administration’s attempt to trawl for sensitive information about trans kids by subpoenaing hospitals that provide gender affirming care. Some hospital systems — including the University of Michigan’s, as TPM first reported in August — stopped providing care altogether rather than fight the subpoenas. But others spawned lawsuits.
McElroy, a judge in the District of Rhode Island, had ruled in mid-May to quash the Rhode Island Hospital subpoena, shooting down the DOJ’s thin argument that doctors’ use of off-label medications entitled the government to the names, social security numbers, addresses and medical histories of trans children who’d been treated there.
In that ruling, she traced the DOJ misconduct that led her to Friday’s order. Courts, at least up until the second Trump administration, operated under the “presumption of regularity,” in which government officials are presumed to have acted in good faith and followed proper procedure until proven otherwise. That presumption no longer holds, McElroy wrote.
“As citizens, we trust that federal prosecutors, when wielding this awesome power against a state, a company, or certainly against vulnerable children, will play fair and be honest with its counterparts and the judiciary,” she wrote. “DOJ has proven unworthy of this trust at every point in this case.”
Soon after it received the subpoena, the hospital engaged in active negotiations with the DOJ to try to narrow its scope. The Justice Department attorneys suddenly went quiet on the hospital, later discovered to have asked a friendlier court in the Northern District of Texas to force the production of documents that the parties were in talks over. The Child Advocate for the State of Rhode Island subsequently went to McElroy’s court to quash the subpoena, putting the case on two parallel tracks.
And in Texas, the lead DOJ attorney, acting director of DOJ’s Enforcement and Affirmative Litigation Branch Lisa Hsiao, did not inform the court about deals the department had come to with other hospitals that included anonymizing the data it sought.
“Her assertion that DOJ needed this information was therefore, at best, deceptive, if not intentionally and knowingly false,” McElroy wrote.
Meanwhile, the U.S. District judge in Texas — Reed O’Connor, a Trump administration favorite — immediately granted the DOJ’s request to enforce the subpoena without even notifying the hospital or giving it a chance to respond.
A Fifth Circuit Court of Appeals panel of one Clinton appointee and two Trump ones denied the hospital’s emergency request to stay O’Connor’s order during appeal in a one sentence order. O’Connor has ordered the hospital to turn over all the documents the subpoena compels it to provide to the court, where he said they will be inaccessible to the government during the appeals process.
Judges across the country have balked at misconduct by Trump DOJ lawyers. In a major case involving the prosecution of the Chicago “Broadview Six” ICE protesters, a judge found last month that the DOJ attorneys had retracted portions of a grand jury transcript to mask egregious misbehavior, including dismissing jurors who disagreed with the government’s case. Defense attorneys for the protesters are now seeking sanctions.
“The discrepancy between the honorable conduct expected of federal prosecutors and DOJ’s tactics in this case is unsettling,” McElroy wrote in the May opinion. “The Court cannot help but share the sentiment that ‘[t]he presumption of regularity that has previously been extended to [DOJ] that it could be taken at its word — with little doubt about its intentions and stated purposes — no longer holds.’ It is regrettable that this is now the case.”
