A federal judge on Friday referred U.S. Department of Justice attorneys for potential discipline based on statements they made while trying to persuade her not to quash a subpoena forcing a Rhode Island hospital to hand over records about its provision of gender-affirming care to transgender youth.
U.S. District Court Judge Mary McElroy, nominated by President Donald Trump and approved by the U.S. Senate during Trump’s first term, made the referral after quashing the subpoena in a ruling last month.
In that ruling, McElroy said DOJ lawyers misrepresented and withheld information from courts to force Rhode Island Hospital to comply with the subpoena. It came after several other federal courts agreed to quash or limit the expansive civil subpoenas sent to more than 20 doctors and hospitals last summer.
McElroy’s decision echoed similar concerns raised by judges surrounding the expansive scope of the subpoenas, describing the DOJ as having “immense prosecutorial authority and discretion” but no longer trustworthy it will enforce its power fairly and honestly.
The DOJ’s Civil Division denied McElroy’s claims in a statement earlier this week, saying that it concluded they are “without merit” after a thorough review.
What McElroy’s May Ruling Said
“DOJ has proven unworthy of this trust at every point in this case,” McElroy wrote in the May 14 ruling.
McElroy wrote that DOJ lawyers had misrepresented and withheld information from her court as well as a federal court in the Northern District of Texas.
DOJ “did so 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,” she wrote, referring to the DOJ’s decision to seek an order from a Texas judge that would compel Rhode Island Hospital to turn over the documents sought by the subpoena last year.
McElroy wrote that a DOJ lawyer said in a declaration that Rhode Island Hospital had failed to comply with the subpoena and stopped communicating with the department in February.
That claim was “clearly misleading, if not utterly false,” McElroy wrote, because representatives from the hospital had responded to a February email from DOJ lawyers. “This reckless disregard for the duty of candor owed to a federal court is appalling,” she wrote.
According to the subpoenas, the DOJ had demanded Rhode Island Hospital hand over the birth dates, Social Security numbers and addresses of every patient who received transgender care over the past five years. It also included instructions to provide all documents detailing adverse side effects in minor patients who received gender-related care, assessments that formed the basis for prescribing puberty blockers or hormone therapy, as well as patient intake forms and guardian authorization.
The DOJ has repeatedly argued that the information sought in the subpoenas is needed to investigate possible fraud or unlawful off-label promotion of drugs. Most recently during a hearing in Rhode Island, the DOJ said that the investigation was taking place in the Northern District of Texas, where the court’s chief judge ordered Rhode Island Hospital to comply with the subpoena before McElroy’s decision voided the subpoena.
Assistant U.S. Attorney Brantley Mayers told McElroy during the hearing that the DOJ is investigating potential “misbranding” of drugs approved by the U.S. Food and Drug Administration, such as puberty blockers for young people. While off-label prescribing is legal, Mayers said that the DOJ is concerned that pharmaceutical companies are providing “financial incentives” to Rhode Island doctors to prescribe the drugs. The subpoenas were crucial in getting the names of children and their families so the DOJ could interview them.
McElroy rejected that argument.
“The administration has publicly characterized gender-affirming care for minors as abuse, directed the DOJ to bring its practice to an end, and celebrated when hospitals curtailed such programs as a result of this subpoena campaign,” McElroy wrote in her ruling.
DOJ Denies McElroy’s Claims
The DOJ has said it will appeal McElroy’s order. The department’s Civil Division denied McElroy’s claims about DOJ lawyers misrepresenting or withholding information in a statement on Wednesday.
“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 statement 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. The Department stands behind its attorneys without reservation and has appealed the District Court’s erroneous order.”
This article includes reporting by The Associated Press.
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