DOJ Forum Shops Harassment Campaign Against Trans Kids And Their Doctors

Everything's bigger in Texas, including the bullshit.

Image Credit: Michael Tubi / Shutterstock.com

Last week the ballroom plaintiffs suggested that a federal judge should consider Rule 11 sanctions for the top three lawyers at the Trump Justice Department. After publicly demanding that the National Trust for Historic Preservation withdraw its opposition to Trump’s Mar-a-Lago replica, the DOJ submitted a filing so packed with falsehoods that the Trust’s attorney Greg Craig (himself a former White House Counsel) suggested that some sort of consequence might be in order.

This is not a one-off. More than a year ago, Deputy Assistant Attorney General Drew Ensign lied to Chief Judge James Boasberg’s face about the flights taking off from Texas to CECOT in El Salvador. And since Acting AG Todd Blanche took over for the ousted Pam Bondi, the pace of these false representations seems to be picking up.

In the past two weeks alone, Blanche got caught telling lies about the Southern Poverty Law Center’s previous cooperation with law enforcement in the “fraud” case against the storied civil rights organization; and a federal judge in Rhode Island referred the chief of the Civil Division at the US Attorney’s Office, Roger Bolan, for a misconduct investigation due to lack of candor to the court.

And now the Civil Division at Main Justice seems to be lying about both the facts and the law in an effort to invade the medical privacy of thousands of trans kids. In so doing, they’ve kicked off a cross-country battle that’s already raging in three separate courts.

When every other court says no, try Texas

The story begins in July of 2025, when the Enforcement and Affirmative Litigation Branch (EALB, formerly the Consumer Protection Branch) served administrative subpoenas on more than twenty hospitals and clinics around the country, demanding patient records for every minor who had been prescribed puberty blockers or hormone therapy for gender affirming care. The subpoenas purported to be investigating mislabeled drugs in violation of the Food, Drug, and Cosmetic Act (FDCA). Court after court quashed them, characterizing the subpoenas as overbroad, legally deficient, or issued in bad faith to accomplish a policy goal rather than to investigate actual crimes.

Counsel for Rhode Island Hospital (RIH), affiliated with Brown University Health, immediately began entering negotiations with the DOJ to narrow the scope of the subpoena. Per the hospital’s motions, lawyers from EALB said they didn’t believe RIH had engaged in any criminal wrongdoing and agreed that the August 7 subpoena deadline was flexible. RIH sent proposed search terms on February 4, 2026 and received no response until April 28, when a DOJ attorney emailed to set up a “conference this week regarding status.” Instead the DOJ filed a petition to enforce the subpoena in Fort Worth, Texas.

Texas is clearly an inappropriate venue for an enforcement action against a hospital 1,700 miles away. But the District Court in Rhode Island would likely have quashed the subpoena, as would the District Court for the District of Columbia, where EALB is located and where RIH had been instructed to send its patient records. And so the DOJ got creative.

Stating in conclusory fashion that the investigation was being carried out in the Northern District of Texas, it filed a motion in Fort Worth, where it was virtually guaranteed to draw either Judge Reed O’Connor or Judge Mark Pittman — rabid conservatives whose dockets are a magnet for rightwing litigants looking to tee up a favorable ruling for the Fifth Circuit. That same day, without waiting for any response from RIH, Judge O’Connor signed DOJ’s proposed order verbatim, giving the hospital fourteen days to hand over years of sensitive patient records or face contempt.

Three court circus

Judge O’Connor’s order set off a multi-state litigation brushfire.

The Child Advocate for the State of Rhode Island, legally designated to protect the interest of children in foster care, sued in the District of Rhode Island to block the subpoena. RIH has moved to intervene in that case.

And in Texas, RIH appealed the order to the Fifth Circuit on due process grounds and requested an emergency stay, while petitioning Judge O’Connor to stay his March 14 deadline during the pendency of the appeal.

The DOJ has now represented to multiple courts that this investigation is really being conducted in Texas. Sure the subpoena was issued from DC and demanded production to EALB’s office in DC; every DOJ attorney who negotiated with RIH works in DC; and RIH has no connection to Texas. But in an ex parte declaration filed under seal — i.e. not shared with RIH — the government pinky swears that “there is substantial operational and decision-making control of the investigation being exercised at the U.S. Attorney’s Office in the Northern District of Texas, along with several subjects and potential targets of the investigation located here.”

As the Child Advocate points out, the relevant question isn’t where this investigation is now, but where it was in July when the subpoenas issued. But more to the point, it takes chutzpah to self-righteously demand that the court accord due deference in a case where the DOJ has behaved in such outrageous bad faith.

EALB, which is part of the Justice Department, assured RIH that the August deadline was flexible, and then sued while the hospital was earnestly negotiating compliance. In its motion to enforce, the government omitted to mention those negotiations, implying that the hospital simply blew off the subpoena. The DOJ characterized the motion as “fulsome” since it fulfilled its duty of candor by informing the court in a footnote that “a handful of mistaken district judges” had rejected identical subpoenas.

It blatantly forum-shopped the case to a friendly conservative judge, and then, when called out, indignantly insisted that the investigation had always been located in Texas.

The DOJ even misstates the law it relies on to invade these children’s medical privacy and menace their healthcare providers. EALB’s theory is that drug manufacturers may be violating the FDCA by encouraging doctors to prescribe hormones for off-label uses. But as the Child Advocate notes in her motion to quash, off-label prescribing is perfectly legal. The FDCA explicitly states that “[n]othing in this chapter shall be construed to limit or interfere with the authority of a health care practitioner to prescribe or administer any legally marketed device to a patient for any condition or disease within a legitimate health care practitioner-patient relationship.”

That’s why all those doctors who prescribed ivermectin to treat coronavirus aren’t in jail now!

In 2019, Trump’s own Office of Legal Counsel defended the off-label use of barbiturates to execute prisoners, writing that, “[W]hile the FDCA bars a manufacturer or distributor from selling any drug or device for an unapproved use, physicians may, with limited exceptions, prescribe and administer FDA-approved drugs and devices for unapproved uses.”

And while the government states that it “has reason to suspect that RI Hospital employees might have engaged in false billing concerning patients suffering from gender dysphoria,” it took the exact opposite position last year when it tried to protect the big pharma company Janssen from a $1.6 billion civil verdict for encouraging off-label use of HIV drugs.

“Off-label prescription of a drug can sometimes be both medically accepted and reasonable and necessary for a given patient” it told the Third Circuit, adding that the FDCA’s “misbranding provisions govern how drugs may be marketed; they do not govern whether federal healthcare programs will reimburse for the drugs, as prescribed for particular patients.”

That brief was signed by Brett Shumate, the head of the Civil Division at Main Justice— the same Brett Shumate whose name is on the enforcement filings in the RIH subpoena cases.

In short, literally everything about this filing shows why the DOJ is not entitled to the presumption of regularity in this case or any other.

BFFR

No one really believes that the administration currently leaping in to save Janssen is actually concerned about accurate drug labeling. Just a week into his second term, Trump signed an executive order targeting gender affirming care for minors. Since then, he’s continued his war against “mutilization” by threatening hospitals who treat trans kids with the catastrophic loss of federal funds.

In a gleefully vicious memo last April, Bondi announced that she was “directing the Civil Division's Consumer Protection Branch to undertake appropriate investigations of any violations of the Food, Drug, and Cosmetic Act by manufacturers and distributors engaged in misbranding by making false claims about the on- or off-label use of puberty blockers, sex hormones, or any other drug used to facilitate a child's so-called ‘gender transition.’”

“Even if otherwise truthful, the promotion of off-label uses of hormones—including through informal campaigns like those conducted by sales reps or under the guise of sponsored continuing medical education courses—run afoul of the FDA's prohibitions on misbranding and mislabeling,” she warned.

Subpoenaing children’s medical records is crucial to the plan to cut off access to care by terrorizing doctors and hospitals, all while leaving drug manufacturers unharmed.

The Child Advocate put it plainly: “If accepted, DOJ’s theory would criminalize virtually all off-label prescribing through the back door. If a hospital’s act of dispensing an FDA-approved drug pursuant to a physician’s off-label prescription automatically renders the drug ‘misbranded’ because its labeling lacks directions for the off-label use, then every hospital that fills an off-label prescription, a routine and pervasive practice across American medicine, would be committing a federal crime.”

Courts have thus far been an impediment to DOJ’s efforts to trawl through children’s medical records. And so the DOJ is resorting to self help, running to one of the only judges in the country who would countenance such a legally and procedurally improper maneuver.

Ignoring the ample evidence of the Justice Department’s bad faith, Judge O’Connor denied RIH’s request to stay compliance. The order is a masterclass in circular reasoning. The judge simply credited DOJ’s claim that “substantial operational and decision-making control of the investigation” was being exercised inTexas. And he sneered at the suggestion that RIH could possibly suffer irreparable harm from being forced to produce records “as part of a lawful criminal investigation,” adding that “RIH has not shown how it would be harmed rather than its patients, who are third parties.”

Contrast this scornful contempt with Judge Mary McElroy in Rhode Island, a Trump appointee. She denied the DOJ’s request to transfer the Child Advocate’s case to Texas, finding that the parties weren’t the same — the children whose privacy rights were at stake were never before the Texas court and had no opportunity to be heard there.

God only knows what the Fifth Circuit will do with this insanity.

Meanwhile, Trump’s DOJ continues to write checks on the accumulated reserve of DOJ credibility, even as it empties the account with shoddy, mendacious filings and transparent forum shopping. Bondi, Blanche, and their minions have destroyed the presumption of regularity, once a load-bearing pillar of the federal legal system.

An administration that cannot win on the law tells lies about the facts. An administration that cannot win on the facts lies about the law. And when courts push back, it runs to the one courthouse in the country where it knows it can pound the table and get whatever it wants.