Federal prosecutors seek to silence Eithan Haim and his attorneys after they exposed major problems in the Biden Administration’s criminal targeting of the Dallas surgeon who blew the whistle on the mutilation of minors.

Last week, federal prosecutors filed a Motion to Gag both Dr. Haim and the lawyers defending him against criminal charges the Department of Justice filed against the Texas physician in May 2024. The Biden Administration indicted Dr. Haim on spurious grounds after he leaked evidence a year earlier to journalist Christopher Rufo that the Texas Children’s Hospital was removing the healthy breasts and genitals of children. 

Currently, Dr. Haim faces five criminal counts of violating the Health Insurance Portability and Accountability Act, or HIPAA, brought by a Second Superseding Indictment. Federal prosecutors filed a Second Superseding Indictment after the first two indictments against Haim included glaring mistakes — ones Haim and his counsel pointed out in various X posts.

Those posts caught the ire of the Department of Justice, with the federal prosecutors arguing in their Motion to Gag  that the posts on X “could interfere with a fair trial or otherwise prejudice the Government or the administration of justice because they discuss and characterize the substance of pretrial proceedings that would ordinarily be excluded from consideration by the jury, and disparage the prosecutors and the case in inflammatory language.” 

To support the motion, government lawyers filed two exhibits, including various threads posted on X, but inexplicably filed the materials under seal even though the posts appeared on the social media platform. That prompted the should-be-satirical-but-isn’t news aggregator, Not the Bee, to file a Motion to Intervene and Motion to Unseal. In addition to the two sealed exhibits of X posts, Not the Bee also sought the unsealing of two other court filings, one providing notice of an intent to seek a Second Superseding Indictment and the second related to the withdrawal of an Assistant U.S. Attorney from the case.

Long-time federal judge David Hittner, a Ronald Reagan appointee, denied Not the Bee’s Motion to Intervene, but granted its motion to unseal the filings, revealing the supposedly disparaging and inflammatory language prosecutors claim supports a gag order. 

A review of the various posts, however, shows Dr. Haim and his lawyer merely reiterating the same legal points made in briefing and argument before the court.

While the Department of Justice spins the posts as creating a substantial likelihood of “prejudicing the Government, further tainting the jury pool, and impeding the Court’s ability to hold a fair trial,” federal prosecutors revealed their real beef earlier in the motion: There, the government noted that it “is concerned that such 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.”

Apparently, the criminal targeting of a whistleblower on trumped up charges isn’t bullying, but complaining about it, and attempting to raise money to forge a legal defense, is. And to add to the federal prosecutors’ chutzpah, in their Motion to Gag, they accuse Haim’s attorney Ms. Burke of violating Texas Disciplinary Rules of Professional Conduct — an apparent effort to bully the Defendant’s attorneys into silence.

The Fifth Circuit, in which the Texas federal district court resides, takes a dim view of gag orders, however, holding gag orders “face a well-established presumption against their constitutionality.” Accordingly, a court should only “gag” a party or his attorney if there is a “substantial likelihood” that extrajudicial commentary will undermine a fair trial, and only then if the order is narrowly tailored and represents the least restrictive means available to protect the integrity of the trial.

Haim’s counsel presents a strong argument against the gag order, and in doing so provides a devastating review of all of the missteps and abuse prosecutors have meted out against the Texas doctor — explaining that the only power Haim has to defend himself and his reputation against the Goliath of the government is to exercise his right to free speech.

In making this argument, Haim found support from X, which on Tuesday filed a Motion to Intervene and in Opposition of the Motion to Gag, arguing: 

“Stripped of its rhetoric, the Government’s Motion for an order gagging the public speech of Defendant Eithan Haim and his counsel seeks to accomplish one goal: to suppress public reaction to the Government’s use (or abuse) of prosecutorial discretion in this action. This high-profile criminal case has attracted sharp criticism (including by Dr. Haim and his counsel) of the Government’s decision to prosecute a lone Texas physician for blowing the whistle on a medical scandal – criticism that the Government now characterizes as ‘the online bullying of prosecutors.’”

Given the district court denied Not the Bee’s Motion to Intervene, it seems likely Judge Hittner will deny X’s attempt to inject itself in the case — but that doesn’t mean he won’t read the social media giant’s argument against entering a gag order. And given the presumption against constitutionality that governs in the Fifth Circuit, it seems likely the district court will deny the Department of Justice’s Motion to Gag Haim and his lawyers.

That won’t end the criminal prosecution for Haim, however, but the Texas doctor’s attorneys have already sought dismissal of the previously filed indictments, so another motion to dismiss seems likely to follow soon.

Margot Cleveland is an investigative journalist and legal analyst and serves as The Federalist’s senior legal correspondent. Margot’s work has been published at The Wall Street Journal, The American Spectator, the New Criterion, National Review Online, Townhall.com, the Daily Signal, USA Today, and the Detroit Free Press.

She is also a regular guest on nationally syndicated radio programs and on Fox News, Fox Business, and Newsmax. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals.

Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. Cleveland is also of counsel for the New Civil Liberties Alliance.

Cleveland is on Twitter at @ProfMJCleveland where you can read more about her greatest accomplishments—her dear husband and dear son. The views expressed here are those of Cleveland in her private capacity.