Federal Judge Finds Trump Most Likely Committed Crimes Over 2020 Election

“The illegality of the plan was obvious,” the judge wrote in a civil case. Separately, the Jan. 6 panel voted to recommend contempt of Congress charges for two former Trump aides.

Published March 28, 2022Updated Oct. 13, 2022

The actions taken by President Donald J. Trump and the lawyer John Eastman after Mr. Trump’s election loss amounted to “a coup in search of a legal theory,” a federal judge said. Audra Melton for The New York Times

Follow live updates on the House committee hearing on the Jan. 6 attack on the Capitol.

WASHINGTON — A federal judge ruled on Monday that former President Donald J. Trump and a lawyer who had advised him on how to overturn the 2020 election most likely had committed felonies, including obstructing the work of Congress and conspiring to defraud the United States.

The judge’s comments in the civil case of the lawyer, John Eastman, marked a significant breakthrough for the House committee investigating the Jan. 6 attack on the Capitol. The committee, which is weighing making a criminal referral to the Justice Department, had used a filing in the case to lay out the crimes it believed Mr. Trump might have committed.

Mr. Trump has not been charged with any crime, and the judge’s ruling had no immediate, practical legal effect on him. But it essentially ratified the committee’s argument that Mr. Trump’s efforts to block Congress from certifying Joseph R. Biden Jr.’s Electoral College victory could well rise to the level of a criminal conspiracy.

“The illegality of the plan was obvious,” wrote Judge David O. Carter of the Central District of California. “Our nation was founded on the peaceful transition of power, epitomized by George Washington laying down his sword to make way for democratic elections. Ignoring this history, President Trump vigorously campaigned for the vice president to single-handedly determine the results of the 2020 election.”

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The actions taken by Mr. Trump and Mr. Eastman, Judge Carter found, amounted to “a coup in search of a legal theory.”

The Justice Department has been conducting a wide-ranging investigation of the Capitol assault but has given no public indication that it is considering a criminal case against Mr. Trump. A criminal referral from the House committee could increase pressure on Attorney General Merrick B. Garland to do so.

The judge’s ruling came as the committee was barreling ahead with its investigation. This week alone, people familiar with the investigation said, the panel has lined up testimony from four top Trump White House officials, including Jared Kushner, the former president’s son-in-law and adviser, whose interview was scheduled for Thursday.

The committee also voted 9 to 0 on Monday night to recommend criminal contempt of Congress charges against two other allies of Mr. Trump — Peter Navarro, a former White House adviser, and Dan Scavino Jr., a former deputy chief of staff — for their participation in efforts to overturn the 2020 election and their subsequent refusal to comply with the panel’s subpoenas. The matter now moves to the Rules Committee, then the full House. If it passes there, the Justice Department will decide whether to charge the men. A contempt of Congress charge carries a penalty of up to a year in jail.

But Judge Carter’s decision was perhaps the investigation’s biggest development to date, suggesting its investigators have built a case strong enough to convince a federal judge of Mr. Trump’s culpability and laying out a road map for a potential criminal referral.

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Judge Carter’s decision came in an order for Mr. Eastman, a conservative lawyer who had written a memo that members of both parties have likened to a blueprint for a coup, to turn over more than 100 emails to the committee.

A lawyer for Mr. Eastman said in a statement on Monday that he “respectfully disagrees” with Judge Carter’s findings but would comply with the order to turn over documents.

In a statement hailing the judge’s decision, the chairman of the House committee, Representative Bennie Thompson, Democrat of Mississippi, and its vice chair, Representative Liz Cheney, Republican of Wyoming, said the nation must not allow what happened on Jan. 6, 2021, “to be minimized and cannot accept as normal these threats to our democracy.” Mr. Trump made no public statement about the ruling.

Many of the documents the committee will now receive relate to a legal strategy proposed by Mr. Eastman to pressure Vice President Mike Pence not to certify electors from several key swing states when Congress convened on Jan. 6, 2021. “The true animating force behind these emails was advancing a political strategy: to persuade Vice President Pence to take unilateral action on Jan. 6,” Judge Carter wrote.

One of the documents, according to the ruling, is an email containing the draft of a memo written for another one of Mr. Trump’s lawyers, Rudolph W. Giuliani, recommending that Mr. Pence “reject electors from contested states.”

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“This may have been the first time members of President Trump’s team transformed a legal interpretation of the Electoral Count Act into a day-by-day plan of action,” Judge Carter wrote.

Mr. Eastman had filed suit against the panel, trying to persuade a judge to block the committee’s subpoena for documents in his possession. As part of the suit, Mr. Eastman sought to shield from release documents he said were covered by attorney-client privilege.

In response, the committee argued — under the legal theory known as the crime-fraud exception — that the privilege did not cover information conveyed from a client to a lawyer if it was part of furthering or concealing a crime.

The panel said its investigators had accumulated evidence demonstrating that Mr. Trump, Mr. Eastman and other allies could be charged with criminal violations including obstructing an official proceeding of Congress and conspiracy to defraud the American people.

Judge Carter, who was nominated by President Bill Clinton, agreed, writing that he believed it was “likely” that the men not only had conspired to defraud the United States but “dishonestly conspired to obstruct the joint session of Congress on Jan. 6, 2021.”

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“Dr. Eastman and President Trump launched a campaign to overturn a democratic election, an action unprecedented in American history,” he wrote.

In deciding that Mr. Trump and Mr. Eastman had “more likely than not” broken the law — the legal standard for determining whether Mr. Eastman could claim attorney-client privilege — Judge Carter noted that the former president had facilitated two meetings in the days before Jan. 6 that were “explicitly tied to persuading Vice President Pence to disrupt the joint session of Congress.”

At the first meeting, on Jan. 4, Mr. Trump and Mr. Eastman invited Mr. Pence and two of his top aides, Greg Jacob and Marc Short, to the Oval Office. There, Judge Carter wrote, Mr. Eastman “presented his plan to Vice President Pence, focusing on either rejecting electors or delaying the count.”

That meeting was followed by another, Judge Carter wrote, on Jan. 5, during which Mr. Eastman sought again to persuade Mr. Jacob to go along with the scheme.

Mr. Trump continued to pressure Mr. Pence even on Jan. 6, Judge Carter wrote, noting that the former president had made several last-minute appeals to Mr. Pence  on Twitter. Mr. Trump called Mr. Pence by phone, Judge Carter wrote, and “once again urged him ‘to make the call’ and enact the plan.”

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While the House committee has no authority to directly bring charges against Mr. Trump, and Mr. Trump was not a party to the Eastman civil case, Judge Carter’s ruling on Monday underscored the persistent questions of whether Mr. Trump could face criminal culpability for both his business dealings and his efforts to reverse the outcome of the election.

Last week, The New York Times reported that a prosecutor in New York City who was investigating Mr. Trump’s financial dealings believed the former president was guilty of “numerous felonies” in how he handled his real-estate and business transaction before taking office. The assessment of Mr. Trump by the prosecutor, Mark F. Pomerantz, came in a letter last month in which Mr. Pomerantz announced he was resigning from the Manhattan district attorney’s office, which had stopped pursuing an indictment of Mr. Trump.

Mr. Trump is also facing investigation from the district attorney in Atlanta who recently convened a special grand jury to help probe the former president’s attempts to overturn the 2020 election results in Georgia.

That inquiry centers on Mr. Trump’s actions in the two months between his election loss and Congress’s certification of the results, including a call he made to Brad Raffensperger, Georgia’s secretary of state, to pressure him to “find 11,780 votes” — the margin by which Mr. Trump lost the state.

The House committee has been seeking to assemble a definitive account of Mr. Trump’s efforts to hold on to the White House and how they led to the assault on the Capitol. Among the documents the committee will now receive from Mr. Eastman is an email that sketched “a series of events for the days leading up to and following Jan. 6, if Vice President Pence were to delay counting or reject electoral votes,” Judge Carter wrote.

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The email “maps out potential Supreme Court suits and the impact of different judicial outcomes” were Mr. Pence to enact the plan.

The committee will also get documents related to state legislators who were involved in the effort to persuade Mr. Pence not to certify some electoral votes. One of them, Judge Carter wrote, is a letter from the Republican members of the Arizona legislature to Mr. Pence. Two others are letters from a Georgia state senator to Mr. Trump.

The committee has already heard from more than 750 witnesses. John McEntee, the former president’s personnel chief, testified Monday; Anthony Ornato, the former White House chief of operations, was scheduled to testify Tuesday; and Matthew Pottinger, former deputy national security adviser, will do so at a later date, those familiar with the investigation said.

Both Mr. Navarro and Mr. Scavino have argued they are prevented from testifying by Mr. Trump’s assertions of executive privilege, and that President Biden — who waived executive privilege for both men — does not have the authority to waive executive privilege over the testimony of a former president’s senior aide.”

Letter sent to Bragg follows a wave of threats and highlights the security nightmare of a Trump indictment

“Law enforcement may not only have to deal with the practicalities of potential mass gatherings at the courthouse, but also with threats against judges and prosecutors.

March 24, 2023, 3:50 PM EDT / Updated March 24, 2023, 5:50 PM EDT

NEW YORK — A grand jury indictment of former President Donald Trump over the hush money payment made to Stormy Daniels could set off an unprecedented security challenge for law enforcement, according to law enforcement and security analysts.

There are the practical logistics, of course, involving security around the courthouse if Trump makes an appearance — an event that could draw crowds of supporters and detractors. An indictment would spark long-term issues, like responding to possible threats against law enforcement and judicial officials, as has occurred in other cases involving Trump.

The security challenges came into sharp view on Friday, as the FBI and the New York Police Department investigated a death threat and white powder sent to Manhattan District Attorney Alvin Bragg, whose office is leading the Trump hush money investigation. The DA's office said that the substance was not determined to be dangerous, but, according to law enforcement sources, it accompanied a letter that read, "ALVIN: I AM GOING TO KILL YOU!!!!!!!!!!!!!"

Police this week set up bike rack barricades — the same kind that a pro-Trump mob dispensed with in seconds on Jan. 6, 2021 — around the New York courthouse where a grand jury is deliberating and where the indictment could come down. Capitol Police, who were overwhelmed by the mob on Jan. 6, also said they are on the lookout for threats and told staffers that they may see an increased law enforcement presence, as NBC News previously reported.

NBC News reported last week that New York law enforcement officials had already begun preparing for a possible indictment and that security discussions included the NYPD, New York State Court Officers, the U.S. Secret Service, the FBI’s Joint Terrorism Task Force and the Manhattan District Attorney’s Office.

During those meetings, officials have discussed possible routes of arrival for the former president should he be flown to New York to face any charges.

Multiple law enforcement sources told NBC News that there have been discussions about additional security measures for the judge assigned to the Trump case as well as the prosecutors involved. There have been several hundred threats to Bragg, the DA’s office and others in recent weeks, a senior New York law enforcement official said. A few dozen are considered directly threatening serious harm to Bragg.

Trump still has the ability to assemble large crowds at a given location. While Trump has called for supporters to "PROTEST, PROTEST, PROTEST," he has not yet given his followers a time and place to assemble. Security officials worry that if he does, that could spell trouble, just as it did on Jan. 6. 

Researchers who monitor the online spaces where far-right groups organize say that while efforts to coordinate a large protest have largely fallen flat so far, users are still calling for the assassination or capture of Democratic political figures.

“I want every traitor hanging from a rope when all this ends. EVERY TRAITOR. They can all die,” one person wrote in an online forum used by Trump supporters. 

“Now it’s time we Americans need to go in guns blazing I’m willing to risk my life to show biden crimes are far worse. Civill war is now if he arrested,” a user wrote on Truth Social, the former president’s social media platform.

Daniel J. Jones, head of the nonpartisan, nonprofit online tracking firm Advance Democracy, said that “Trump’s calls to ‘protest’ in response to his reported impending arrest have led to threats of violence against government officials and law enforcement.”

Jones noted that users on the Trump-owned Truth Social and the pro-Trump forum TheDonald, where users shared travel plans and pictures of weapons ahead of the Jan. 6 riot, were posting threats of violence targeting Bragg.

Police try to hold back protesters as they storm the Capitol on Jan. 6, 2021.Kent Nishimura / Los Angeles Times via Getty Images file

Users on TheDonald threatened to “blow up” the DA’s office and “take out” Bragg. Others on Truth Social implored others to “take out [left-wing megadonor George] Soros” and “run [him] through a tree limb chipper,” urging one another to “go in guns blazing” and start a “civil war now if [Trump] is arrested.”

On Tuesday, a bomb threat was called into the New York State Supreme Court building ahead of proceedings in a separate case against Trump. The case, which is underway in lower Manhattan, is a $250 million lawsuit brought by New York Attorney General Letitia James against Trump.

Trump had posted about James on his Truth Social that afternoon.

“While Congress is at it, they should look at the Corrupt Attorney General of New York State, Letitia James, who got elected solely on a ‘I WILL GET TRUMP’ platform,” he wrote.

Supporters have largely responded to the call for protests by arguing amongst themselves that federal law enforcement will infiltrate their demonstrations, dubbed “fed traps.” Many of Trump’s most strident supporters on Truth Social and TheDonald falsely believe that Jan. 6 itself was an elaborate scheme by Antifa and the FBI to entrap Trump supporters.

A planned protest outside of Manhattan Criminal Court on Monday organized by the New York Young Republicans Club drew around three dozen Trump supporters, who were quickly surrounded by national media.

Those seeking to gain information about the protest, including its location, had to sign up for an email list to receive it. The exact location of the protest wasn’t publicly known until about an hour before it began, potentially dampening turnout.

Advance Democracy’s Jones warned that his analysis shows considerably more threats of acts of violence by lone actors than large-scale groups.

“While we have not yet identified specific plans to engage in large-scale violence, we remain concerned about singular acts of political violence occurring in the days ahead,” Jones said.

In August, a Truth Social user named Ricky Shiffer posted to his account shortly after attempting to shoot into an FBI field office in Ohio. Shiffer —who had been at the Capitol on Jan. 6 — had written in a post that “we must not tolerate this one” after federal agents raided Donald Trump’s home in a separate federal investigation into the former president. Shiffer died after a manhunt by police.

One of the very first rioters to breach the Capitol on Jan. 6 — a man many Trump supporters believe was antifa — was Trump supporter Edward Kelley, who jumped through a broken window and then helped bust open a door for other rioters while he was wearing a sweatshirt for the Church at Planned Parenthood, an anti-abortion group, video shows. After his arrest, federal officials later alleged Kelley plotted to kill the FBI special agents who investigated him. He was picked up on those new charges in December and is currently being held awaiting trial.

The FBI currently has the identities of hundreds of additional Jan. 6 participantswho could face charges for their actions during the Capitol attack but who have not yet been arrested, including more than 100 who are seen on video engaged in violent activity. It is unclear if the bureau has sought to prioritize the arrests of those individuals who have already proven themselves willing to commit political violence on Trump's behalf. “

The FBI declined to comment on its preparations for a potential Trump indictment.

Jonathan Dienst and Ben Collins reported from New York, Reilly reported from Washington.

Federal Judge makes NEW RULING that spells BAD NEWS for Trump

Transgender patients face discrimination during health care visits - Washington Post

For trans people, medical visits can be more traumatizing than healing

"Trans patients share their stories of subtle discrimination, outright hostility and ill-informed medical professionals

Fenit Nirappil

(Natalie Vineberg/Washington Post illustration; Photos by Carolyn Van Houten/The Washington Post; iStock)

One trans woman recalled a doctor calling her “it.” A nonbinary person was grilled about their use of “they/them” pronouns during an ultrasound. A trans-masculine person moved out of Tennessee, fearing they would lose access to hormone therapy as legislators passed bills restricting gender-affirming care.

Transgender Americans often face subtle discrimination, outright hostility and ill-informed medical professionals in their interactions with the health-care system, according to a poll by The Washington Post and KFF, a nonprofit focused on national health issues.

Challenges arise during routine medical visits as well as when transgender people seek hormone therapy and other forms of gender-affirming care.

Nearly half (47 percent) of trans adults say the health-care providers they have come in contact with know “not too much” or “nothing at all” about providing health care to trans people. Just 10 percent say the health-care providers they have come in contact with know “a lot” about caring for trans people. About 4 in 10 (37 percent) trans adults say it is “somewhat” or “very” difficult to find a health-care provider who treats them with dignity and respect; while about a quarter (24 percent) of cisgender adults say the same. Just over half (53 percent) of trans adults say it is easy to find health care they can afford, less than the 63 percent of cisgender adults who say the same.

Activists say a welcoming health-care system would include affordable access to gender-affirming care from counseling to surgery. Good care also includes professionals treating transgender people with respect, using their preferred pronouns and not being quick to blame hormone treatment for unrelated medical problems.

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About 3 in 10 trans adults say they have had to teach a doctor or other health-care provider about trans people so they could get appropriate care, had a doctor or other health-care provider refuse to acknowledge their preferred gender identity and instead refer to their sex assigned at birth, or been asked unnecessary or invasive questions about their gender identity unrelated to the medical reason for their visit. About 1 in 6 trans adults say they have had a doctor or other health-care provider refuse to provide them with gender-affirming care, such as hormone treatments.

The Post-KFF poll is the largest nongovernmental survey of U.S. trans adults to rely on random sampling methods. It builds on a body of research that has often demonstrated poor access to health care for transgender people but with limited data.

“LGBTQ+ people experience high levels of stigma and discrimination and victimization that persists across the lifetime, and this new work amplifies that,” said Lindsey Dawson, director of LGBTQ Health Policy at KFF.

“To have your gender affirmed and to be in an inclusive environment where you have to be quite vulnerable about gender identity can be quite meaningful,” Dawson said. “To have negative experiences might dissuade somebody from accessing health care in the future."

As Republican state lawmakers mobilize to restrict access to gender-affirming care for children — and in some cases, adults — the poll offers a reminder of the basic struggles transgender adults face in medical environments.

The poll finds trans people’s ease of access to health-care providers who treat them with dignity and respect is not significantly different in states that former president Donald Trump won compared with states President Biden won. The survey also finds that trans adults in urban areas are more likely to report having to educate health-care professionals (38 percent) than those in suburban/rural areas (23 percent) — challenging perceptions that more liberal areas are havens for tolerance and inclusivity.

In follow-up interviews, five transgender and nonbinary Americans who responded to the poll elaborated on their experiences:

Corey Brooks (they/them)

25, Pittsburgh

Even the name of the place Corey Brooks frequented for routine medical care — Magee-Womens Hospital — felt alienating.

Patients donned pink gowns. Cutouts of pink bras were plastered on the walls. A sign urged patients to “fight like a girl.”

“Things like that are just incredibly disorienting for someone going into those spaces who is always being reminded, hey, this wasn’t designed for you,” Brooks said. “You’re not really sure if you should disclose to these people that you’re trans or not.”

Brooks identifies as nonbinary and transgender, but as someone who was assigned female at birth, they share similar health needs as cisgender women for gynecologic care and screenings for chest health as they age.

Brooks was used to uncomfortable visits to the doctor, based on their college experiences when university health services staff peppered them with questions about birth control and sexual activity, assuming they were a cisgender heterosexual woman. They wrote their senior thesis on health access issues for transgender people and avoided the doctor for a few years after graduation.

The worst experience came while undergoing an ultrasound on their chest at the women’s hospital in Pittsburgh. The doctor paused and stared at Brooks’s medical file, spotting a note that they use they/them pronouns.

“What does that even mean?” Brooks recalled the doctor asking in a tone dripping with hostility rather than curiosity.

“As a trans person, that’s unfortunately not uncommon where you’re expected to provide all of this education for your providers,” Brooks said. “You wouldn’t expect a patient who is diagnosed with diabetes to have to educate their doctor on what diabetes is.”

Suzanne Rathburn (she/her)

70, Weed, Calif.

In the 1980s, a psychiatrist pushed his chair away from his desk and abruptly ended a meeting after Suzanne Rathburn explained she was trans. In 2012, a Veterans Affairs doctor referred to her as “it.”

In hundreds of medical visits over decades of navigating gender-affirming care and a rare genetic disease, Rathburn said she’s only had a few doctors she considers “good.”

As she began her transition in the 1980s after leaving the Air Force, Rathburn turned to the library to learn more about gender dysphoria and to find a therapist. She received a vaginoplasty. At the Oakland VA where she underwent hormone therapy, Rathburn said just one of the doctors treated her with respect, while others were dismissive of her medical needs or made negative comments about her gender identity — despite being in the LGBT-friendly San Francisco Bay Area.

Fed up after repeated indignities, Rathburn filed a discrimination complaint against another VA hospital that declined to perform a Pap test after several years of her requests. She said the VA eventually referred her to a doctor outside the system, and her complaint remained unresolved.

It wasn’t until she moved to rural Weed near the Oregon border in 2011 at age 59 that Rathburn experienced some of the best medical care of her life. A medical practice she visited near Medford, Ore., changed its intake forms when she pointed out gender questions were binary. A doctor in the nearby town of Mount Shasta, Calif., treated her trans identity as no big deal and spent time researching her genetic disease. Her therapist, also in Mount Shasta, specializes in supporting trans patients.

“I don’t have to explain it to her,” Rathburn said. “We talked about stuff I haven’t talked about with other therapists or to the psychiatrists I’ve had over 20 years.”

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Hans Dirkmaat (they/he)

29, Longmont, Colo.

Hans Dirkmaat knew the nurse practitioner was ill-suited to care for transgender people when they had to explain what top surgery was.

During the primary-care visit, the provider marveled at why someone would want to remove their breasts. She asked, “When are you going to get a penis?”

Another medical professional in the room mouthed, “I’m sorry.”

Dirkmaat, who identifies as trans-masculine and nonbinary, didn’t have many choices for medical care that were in their insurance provider network when they lived in Nashville. They hoped the provider would have been more sensitive because she had mentioned having a lesbian daughter during their first appointment.

But tolerance for gay people does not mean a medical provider is attuned to the health-care needs of trans people. Transgender people weigh the risks and benefits of different aspects of gender-affirming medical care, and most have not received hormone therapy or transition-related surgeries.

Dirkmaat was wary of taking testosterone because of a heightened risk of cardiovascular complications. Their mother had died of heart disease at 41.

But that same nurse practitioner declined to prescribe medication to treat their high cholesterol because it could create pregnancy complications. The fact that Dirkmaat is married to a cisgender woman and has no plans to have children did not sway the provider. She said she would only authorize the pills if Dirkmaat were to undergo testosterone treatment.

“It’s very frustrating,” Dirkmaat said. “Like I can’t make decisions for me.”

The climate for transgender people in Nashville was starting to feel more unsafe, they said. The clinic specializing in transgender care where they received chest masculinization surgery became a magnet for right-wing protests, forcing the clinic to close on some days to protect patients. They drew more disgusted looks on the streets.

Tennessee GOP lawmakers joined the vanguard of a national movement to restrict care for transgender people, passing legislation to ban gender-affirming care for minors. Activists fear care for adults is next, noting legislation introduced to prohibit the state Medicaid program from working with insurers that cover gender-affirming care.

As Dirkmaat weighed whether to take hormones, they feared such therapy could be banned next.

So they moved to a suburb of Boulder, Colo., where a doctor who specializes in hormone therapy and its effects on the cardiovascular system is just an hour drive away.

Ezekiel Scott (he/they)

31, Columbus, Ohio

When Ezekiel Scott left Minnesota to attend college in Ohio last year, he brought six months’ worth of hormone medication just in case he ran into trouble resuming care. It wasn’t enough.

Administrators at Ohio State University assured Scott, who identifies as transgender and nonbinary, that hormone therapy would be covered under student health insurance. But first he needed to reestablish care with a doctor — and that proved to be a challenge.

He didn’t want to go to just any doctor, but one familiar with treating transgender patients. He had had negative experiences with doctors who were quick to blame the hormone therapy for mundane medical conditions, including one whosuggested ending it to address a rash on his arm.

“That’s the first thing we’re going to try? Not like, I don’t know, a skin cream?” Scott said.

The hormones were essential to feeling comfortable in his own skin and affirming his gender identity, but the treatment was cast as cosmetic and unnecessary. “It’s like being told to stop having your own face,” he said.

It took four months to get an appointment at a university health clinic. After obtaining authorization to receive testosterone, a national shortage of the intramuscular injections further delayed his access to treatment as he exhausted his previous supply.

For several months, he had to ration weekly hormone injections that helped him develop facial hair and a deeper voice in line with his gender identity. And because he had had his ovaries removed, the absence of natural hormones risked his heart health.

His depression and anxiety grew worse, and he experienced suicidal ideations. Medication management for ADHD, once balanced with the hormone therapy, became complicated. He experienced hot flashes, an apparent result of early menopause caused by hormones not coming in properly.

Months later, he found a walk-in clinic recommended by a nonbinary friend. He got hormones that same day, eight months after he moved. His mental health improved, he could focus in school again, and the hot flashes ended.

“All of it is back in balance,” Scott said.

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Richael Faithful (they/them)

37, Washington, D.C.

Richael Faithful is no stranger to cringeworthy moments during visits to the doctor.

Staff at some offices would misgender them. The first dermatologist they saw appeared nervous and avoided eye contact after Faithful disclosed being trans. One lung specialist they saw for breathing issues who seemed well-meaning shared a story about knowing “a transgender.”

“Once folks have bad experiences, it’s really hard to trust the health-care system again,” said Faithful, a D.C. resident who identifies as nonbinary and trans-masculine. “But I do want other trans folks and other cis folks to know there are good providers out there providing high-quality care.”

Faithful does not identify as a woman but is not transitioning to be a man either. For them, gender-affirming care means presenting more masculine to the world.

Faithful considers themselves part of the top 1 percent in being able to access gender-affirming care because they have the financial means and emotional support network to do so.

Faithful sought hormone therapy through a nurse practitioner at a medical concierge service with a reputation for being trans friendly and where membership costs $300 a year. They pay $265 every month and a half for hormones. They were able to travel with their partner to Florida for two weeks to undergo chest reconstruction surgery from a well-known plastic surgeon who does not accept health insurance and charges $15,000, paid in advance.

The staff at another dermatology practice where Faithful received acne treatment used the correct pronouns and showed a nuanced understanding of the relationship between hormone treatment and acne.

Faithful said they could afford these services as a consultant for social justice organizations who receives health insurance through their partner’s plan — while other Black transgender people living in the poorest parts of the city struggle to access basic gender-affirming care.

“My stress level is just kind of lower because I notice I’m not navigating even seemingly small things that just are distracting or annoying when they continue to happen,” Faithful said.

Scott Clement and Emily Guskin contributed to this report."

Transgender patients face discrimination during health care visits - Washington Post

Opinion | There’s a Problem With Banning TikTok. It’s Called the First Amendment. - The New York Times

There’s a Problem With Banning TikTok. It’s Called the First Amendment.

March 24, 2023

Photo illustration by Leslie dela Vega/The New York Times; photograph by Nikolai Mentuk/Getty Images

By Jameel Jaffer

"Mr. Jaffer is a lawyer and the executive director of the Knight First Amendment Institute at Columbia.

The First Amendment has so far played only a bit part in the debate about banning TikTok. This may change. If the U.S. government actually tries to shut down this major communications platform, the First Amendment will certainly have something to say about it.

Perhaps the reason First Amendment rights haven’t received more attention in this debate already is that TikTok is a subsidiary of ByteDance, a Chinese corporation that doesn’t have constitutional free speech rights to assert. But setting aside the question of TikTok’s own rights, the platform’s users include more than 150 million Americans, as TikTok’s chief executive testified at a contentious congressional hearing on Thursday. TikTok’s American users are indisputably exercising First Amendment rights when they post and consume content on the platform.

Six years ago, in Packingham v. North Carolina, the Supreme Court struck down a law that prohibited convicted sex offenders from using social media, reasoning that these websites had become “integral to the fabric of our modern society and culture.”

A half century before that, the Supreme Court decided a series of cases recognizing that the First Amendment protects not only the right to speak but also the right to receive information, including the right to receive information and ideas from abroad. In one of those cases, Lamont v. Postmaster General, the court invalidated a federal law that barred Americans from receiving “communist political propaganda” from foreign countries unless they specifically asked the Postal Service to deliver it. The court held that the law was an impermissible attempt “to control the flow of ideas to the public.”

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So there’s really no question that government action whose effect would be to bar Americans from using a foreign communications platform would implicate the First Amendment. That’s exactly what one federal court held two years ago when it blocked President Donald Trump’s attempt to ban WeChat, the Chinese messaging app.

Of course, to say that a ban on TikTok would implicate the First Amendment is not to say that it would violate it. But a ban would have to satisfy First Amendment scrutiny to survive a constitutional challenge.

Indeed, there’s a strong argument that the government would have to satisfy the most stringent form of First Amendment review because the ban would operate as a prior restraint on the speech of TikTok’s would-be users. At the very least, the government would have to show that the ban is substantially related to important governmental interests.

The principal interests the government has invoked thus far involve protecting Americans’ data and depriving the Chinese government of a tool that could be used to spread disinformation. Even if we assume that these are important interests (the first plainly is; the second raises more difficult questions, as the Lamont case shows), it seems doubtful that the U.S. government would be able to establish that a categorical ban is tailored to them.

For one thing, the Chinese government can obtain private data about Americans without relying on TikTok. It can simply purchase the data from data brokers, as Glenn Gerstell, the National Security Agency’s former general counsel, explained a few weeks ago in a Times Opinion guest essay.

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Also, as many digital rights advocates have pointed out, the federal government could protect Americans’ privacy much more effectively — and without the necessity of a categorical ban on a communications platform used by millions of Americans — by enacting comprehensive privacy regulation. As to fears relating to disinformation, the U.S. government has not pointed to evidence that the Chinese government has forced TikTok to align its algorithm with the imperatives of the country’s disinformation efforts. Given all of this, it’s difficult to see how a ban could survive First Amendment review. A broad coalition of free speech organizations — including PEN American Center, the Center for Democracy and Technology and the Knight First Amendment Institute, which I direct — made essentially this observation in a letter sent to Congress in advance of Thursday’s hearing.

None of this analysis changes simply because the government says it is acting for national security reasons. The Supreme Court and lower courts have held repeatedly that the mere invocation of national security is insufficient to justify the suppression of First Amendment rights. In court, the government will have to introduce evidence that the threats it is addressing are real, and not merely conjectural, and that the proposed ban would actually address those threats. The evidence assembled so far is not likely to be sufficient.

All of this will no doubt be frustrating to some policymakers, including to some who are commendably focused on the very real risks that social media companies’ practices pose to Americans’ privacy and security. But the legitimacy of our democracy depends on the free trade in information and ideas, including across international borders. Except in the most extreme circumstances, citizens should be able to engage freely with the communications platforms of their choice.

Perhaps there are contexts in which a ban on a social media platform could be reconciled with democratic values. It’s conceivable that the U.S. government will eventually be able to establish the necessity of a ban on TikTok, even if it hasn’t done so yet. But the First Amendment would require the government to carry a heavy burden of justification. This is an important feature of our system, and not a bug.

Jameel Jaffer is a lawyer and the executive director of the Knight First Amendment Institute at Columbia University."

Opinion | There’s a Problem With Banning TikTok. It’s Called the First Amendment. - The New York Times