The Department of Justice recently caught my eye, and made headlines, when it announced that it had issued subpoenas to doctors and clinics involved in providing medical care to transgender minors. Attorney General Pam Bondi said in her statement that “medical professionals and organizations that mutilated children in the service of a warped ideology will be held accountable by this Department of Justice.”
Putting aside the AG’s inflammatory rhetoric, I wondered if DOJ was breaking any rules by announcing these subpoenas. After all, there are rules about what DOJ can and cannot publicly disclose about ongoing investigations, and we’ve seen this Administration’s DOJ play faster and looser with the rules than any other one.
The DOJ Announcements
On April 22, 2025, the AG issued a memo that directed multiple DOJ divisions to investigate and prosecute providers of transgender medical care to minors across several legal theories. First, she directed the Civil Division’s Consumer Protection Branch to investigate violations of the Food, Drug, and Cosmetic Act by pharmaceutical companies making allegedly false claims about puberty blockers and hormones used for gender transition. Second, she directed the Civil Division’s Fraud Section to pursue False Claims Act investigations of healthcare providers who allegedly bill federal programs for transgender-related procedures while misrepresenting the purpose or nature of the treatment to federally funded healthcare programs. Third, she directed USAOs to investigate suspected cases of female genital mutilation under federal criminal law, equating gender-affirming care to genital mutilation.
Then, on July 9, 2025, DOJ announced that it had sent more than 20 subpoenas to doctors and clinics involved in “performing transgender medical procedures on children.” The very brief press release said that DOJ’s investigations “include healthcare fraud, false statements, and more.” The press release did not say who had issued the subpoenas though there were reports that the Consumer Protection Branch had been the issuing entity.
The Grand Jury Secrecy Problem
DOJ can issue grand jury subpoenas to support an ongoing criminal investigation. But from the jump, it seemed unlikely that (even this) DOJ would violate grand jury secrecy rules by announcing subpoenas for a criminal investigation.
Grand jury secrecy is one of the foundational principles of federal criminal procedure. The key rule governing grand jury secrecy is Federal Rule of Criminal Procedure 6(e), which prohibits prosecutors from disclosing any “matter” in front of a grand jury. Grand jury subpoenas would fall into that category.
If you want to read more about grand jury secrecy, here’s my previous post about it.
To be clear, although Rule 6(e) has several exceptions, there’s no exception that permits DOJ to announce the issuance of grand jury subpoenas for political or policy purposes.
If DOJ is conducting a criminal investigation using grand jury subpoenas—as the reference to “healthcare fraud” and “false statements” suggests—then this announcement violates Rule 6(e).
The False Claims Act Problem
If they weren’t grand jury subpoenas, maybe they were issued by DOJ’s Civil Division in connection with an investigation of a civil False Claims Act case?
The problem there is that FCA complaints are under seal. And DOJ cannot disclose matters under seal either.
What about HHS-OIG?
There is another part of the federal government that regularly issues subpoenas in health care fraud investigations: Department of Health and Human Services’ Office of Inspector General (HHS-OIG).
Just last week, DOJ and HHS announced the creation of a new False Claims Act Working Group to combat healthcare fraud, with membership including leadership from HHS, Center for Medicare and Medicaid Services (hi Dr. Oz!), HHS-OIG, and DOJ’s Civil Division.
HHS-OIG has broad authority to issue administrative subpoenas (sometimes called civil investigative demands) in connection with its oversight responsibilities. Unlike grand jury subpoenas, there’s no secrecy requirement for HHS-OIG subpoenas, although HHS-OIG does not announce its investigations. So this would be a “permissible but unusual” situation.
Consumer Protection Branch Investigation . . . HIPAA Subpoenas (?!?!)
There were some media reports that the DOJ’s Consumer Protection Branch had issued the subpoenas. The Consumer Protection Branch often works in parallel with the Criminal Division on criminal investigations, but can also conduct civil investigations. Grand jury secrecy wouldn’t preclude the announcement of a civil investigation.
I couldn’t figure out if the CPB could issue subpoenas directly beyond an FCA case. So I reached out to my good friend Arun Rao, who is the former Deputy Assistant Attorney General for the Consumer Protection Branch, to ask what the authority for these subpoenas could be. He immediately pointed me to the possibility that they were HIPAA subpoenas.
What the heck are HIPAA subpoenas? (This is why I love my work–there is always ALWAYS something new to learn.)
HIPAA Subpoenas
It turns out that in healthcare investigations, DOJ has yet another arrow in its quiver, the HIPAA subpoena. They are administrative subpoenas authorized under 18 U.S.C. § 3486. They work like a grand jury subpoena but without the grand jury secrecy limitation. In other words, there can be information sharing between the criminal and civil sides of DOJ.
The statute is extremely broad, authorizing the issuance of a subpoena in “any investigation of . . . a Federal health care offense.” HIPAA subpoenas require the production of documents and testimony by document custodians to authenticate the documents protected (but not testimony on any topic).
These types of subpoenas can be challenged. For example, it’s not clear what the “Federal health offense” is here since there is no federal statute prohibiting provision of care to transgender minors. There are state limitations in place. It is also key to evaluate whether a subpoena can be challenged as not supporting a genuine criminal investigation.
Using Announcements of Subpoenas as Intimidation, Not Investigation
Let’s be clear: This announcement is not about conducting a real investigation into criminal conduct. It is about trying to intimidate doctors who provide health care to transgender minors and adults. DOJ does not announce “real” investigations when they start. It doesn’t want to tip off the targets of their investigations. Instead, DOJ investigations operate covertly for as long as possible so DOJ can develop its case without worrying that a target is deleting documents or otherwise obstructing it.
The violation of this DOJ best practice is why the motivation behind the subpoenas is clearly political and not investigative. The announcement serves to send a clear message to healthcare providers: if you provide gender-affirming care to minors, you’re now on the government’s radar. The vague nature of the allegations—”healthcare fraud, false statements, and more”—only adds to the chilling effect.
To be clear, DOJ uses public announcements to deter bad conduct. It announces inter-agency “strike forces” or “task forces” that will focus on certain industries or practices. And DOJ has long made public announcements of indictments, plea agreements, convictions, and sentences as a way to deter bad conduct as well.
What is unusual here is an open effort to use government investigations, whether criminal or civil, to serve ideological purposes. These subpoenas target medical care that is supported by major medical associations like the American Medical Association and the American Academy of Pediatrics. It’s hard to believe the AMA or AAP would support care that “mutilated children.”
Gender affirming care is controversial, but it is undoubtedly legal in many places. Since we don’t know whether the health care providers were located in states where gender affirming care is legal or not, it’s hard to tell whether this is a serious investigation or simply political theater.
One thing that is clear is that the announcement alone may cause substantial harm to these medical providers. If the names of the recipients are released, patients may seek care elsewhere, insurance companies may drop providers, and medical staff may leave for less controversial positions.
As Marshall McLuhan said in 1964, “the medium is the message.” The medium (a DOJ press release) sends its own message about intimidation and political theater, regardless of the specific content about the investigations. The choice to announce these subpoenas publicly—rather than conducting investigations quietly—is itself the message: “we’re watching you.”