The “In Terrorem Effect”

Andrew C. McCarthy in National Review tells about the case of Dr. Eithan Haim, a surgeon at Texas Children’s Hospital in Houston.  Reports came out that the hospital’s “child gender clinic” was performing “gender-reassignment” surgeries and hormone treatments on children as young as 11.  An uproar ensued–including the Texas Attorney General ruling that the treatments constitute child abuse–whereupon the hospital shut down the clinic and announced that it was stopping the procedures.  It turned out, though, that the hospital continued to perform the procedures anyway.

Dr. Haim saw that this was happening and blew the whistle, sending the proof to investigative reporter Christopher Rufo, whose report led to an even greater uproar, culminating in the Texas State Legislature passing a law forbidding transgender treatments for minors.

Whereupon the Biden-Harris Department of Justice, under Attorney General Merrick Garland, indicted the whistleblower, charging Dr. Haim with four felony counts of violating patient privacy laws by illegally accessing medical records and publishing private medical information.  Conviction of these crimes could bring a penalty of 10 years in prison and a $250,000 fine.

It turns out, though, Dr. Haim as a hospital physician had legal access to those records.  And he didn’t violate the patients’ privacy, since he edited out their names.  And he didn’t publish the records, since Rufo used them in his investigation but did not publish any of them.  The justice department’s case fell apart.  But instead of dropping the matter, the administration is charging Dr. Haim with something else, with “intent to cause malicious harm”–not to the children who were actually being harmed–but to his colleagues who were doing the clandestine treatments and the hospital that was lying about them!

So Dr. Haim is still in legal jeopardy, even though “intent” and “malice” are nearly impossible to prove in court and what he was exposing is now an illegal activity.  And here is where McCarthy give us a name for what the justice department is doing.  He writes:

This case brandishes Biden-Harris DOJ lawfare’s most noxious features: its use of legal processes as a ruinous punishment against people who frustrate the “progress” of cultural Marxism; and the resulting in terrorem effect — the unmistakable message of this bureaucratic muscle-flexing that anyone who dares cross woke progressives stands to be similarly destroyed financially and professionally, as well as imprisoned.

In terrorem is Latin for “so as to produce terror.”  The legal definition of the phrase is “by way of threat or intimidation.”  It has been used to describe certain provisions in wills and contracts.  For example, a will that states that any heir who contests this will shall receive no inheritance.  Lawyers describe that as an in terrorem provision, intended to cause fear in anyone who would dare to contest the will.  Some jurisdictions allow this sort of thing, while others do not.  (And, of course, if someone successfully contests the will, the document will be thrown out, along with the in terrorem clause.)  But you get the idea.  In terrorem makes people afraid of the law, so as to control their behavior, regardless of the merits of their case.

McCarthy may be stretching the typical use of the term, but we need a name for that manipulation of the legal system in which, to use another of his useful formulations, the “process is the penalty.”

This is what is still happening to Lutheran Christians Dr. Päivi Räsänen and Bishop Juhana Pohjola, who were charged by Finnish prosecutors for the “hate crimes” of criticizing the state church for sponsoring a gay pride parade and for publishing a tract on what the Bible says about homosexuality.  A court found them not guilty.  Whereupon the prosecutors, unencumbered by our Constitution’s prohibition of “double jeopardy,” appealed the ruling.  The appeals court found them not guilty.  Whereupon the prosecutors appealed again to the Supreme Court.  If they still don’t get a conviction, prosecutors can have another chance by appealing to the European Court of Human Rights.  These Christians have been subjected to trials for five years, and their legal inquisition continues.

This is what is still happening to Jack Phillips, the Colorado baker indicted for refusing to decorate a wedding cake for a same-sex marriage on the grounds that doing so would violate his Christian convictions.  His conviction and appeals led to the Supreme Court which ruled that he had been mistreated, which sent the case back to be retried.  Prosecutors tried again and again the case reached the Supreme Court, which vindicated the baker on religious liberty grounds.

But two Supreme Court decisions in his favor were not enough to deter prosecutors from their resolution to punish Phillips for his traditional Christian beliefs.  This time a transgendered lawyer brought another case against Phillips for his refusal to bake a cake that was pink on the inside and blue on the outside to celebrate the lawyer’s “transition.”  Once again, he had to go through various commissions, courts, and appeals.  According to the latest report on Phillips’ ordeal, on October 9, the Colorado Supreme Court dismissed the case on a technicality, while stating that it was not ruling on the merits of the case, allowing prosecutors to go through it all again if they choose to do so.

The trials are the punishment.  This kind of harassment is a gross abuse of the legal system.  In terrorem is a form of terrorism.

Illustration:  Courtroom by Firkin (1868) via OpenClipArt.  Public Domain.