Judge refers DOJ lawyers over transgender care subpoena

A federal judge in Rhode Island has referred Justice Department lawyers for possible discipline after finding they misled courts during an investigation that sought years of sensitive medical records for transgender minors treated at Rhode Island Hospital.

U.S. District Judge Mary McElroy issued the referral Friday, following a May ruling in which she quashed an administrative subpoena demanding records for every minor transgender patient who had received care at the hospital as part of a federal inquiry into gender-transition treatments. McElroy, who was appointed by President Donald Trump in 2019, found that the subpoena lacked a congressionally authorized purpose and was issued “for an improper purpose in bad faith.”

“The discrepancy between the honorable conduct expected of federal prosecutors and DOJ’s tactics in this case is unsettling,” McElroy wrote in her May opinion.

The judge said the Justice Department had sought the records under a theory involving doctors’ use of off-label medications, Talking Points Memo reported. The subpoena sought information including names, Social Security numbers, addresses and medical histories of transgender children treated at the hospital, according to the outlet.

McElroy sharply criticized the department’s conduct, writing that federal prosecutors hold “immense prosecutorial authority and discretion.”

“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.”

The dispute centered in part on the Justice Department’s decision to seek enforcement of the subpoena in federal court in Fort Worth, Texas, while discussions with Rhode Island Hospital were still underway. McElroy said Justice Department lawyers withheld information from her court and from the Northern District of Texas “in an obvious effort to shield its recent investigative tactics — previously rejected by every other court to review them — from this Court’s review, in favor of a distant forum that DOJ deems friendly to its political positions.”

In a declaration filed in Texas, Justice Department lawyer Lisa Hsiao said Rhode Island Hospital had failed to comply with the subpoena and stopped communicating with the department in February. McElroy called that statement “clearly misleading, if not utterly false,” saying hospital representatives had responded to an email from Justice Department lawyers about search terms for complying with the subpoena.

“This reckless disregard for the duty of candor owed to a federal court is appalling,” McElroy wrote.

The judge also said Hsiao did not inform the Texas court about agreements the department had reached with other hospitals that included anonymizing the data it sought, Talking Points Memo reported. McElroy wrote that Hsiao’s assertion that the department needed the identifying information was “at best, deceptive, if not intentionally and knowingly false.”

The Texas court granted the Justice Department’s request in late April and ordered Rhode Island Hospital to turn over the records covered by the subpoena. The hospital has appealed. According to Talking Points Memo, U.S. District Judge Reed O’Connor ordered the documents turned over to the court, where he said they would remain inaccessible to the government during the appeal. A Fifth Circuit panel denied the hospital’s emergency request to stay the order in a one-sentence ruling.

The Justice Department’s Civil Division denied McElroy’s allegations in a statement this week.

“Such accusations against Department attorneys are rare and serious. The Department treats them accordingly and is committed to taking all appropriate remedial action where warranted,” the division said. “The Civil Division has thoroughly reviewed the District Court’s allegations and concluded that they are without merit. Our attorneys did not misrepresent facts, withhold relevant information, or otherwise mislead the Court.”