Who Watches the Watchers? Congress, Jack Smith, and the Constitutional Cloak

There is something particularly uncomfortable about a prosecutor being questioned about whether the government crossed a constitutional line.

The government investigates. Congress investigates the government. And eventually, the investigator himself becomes the subject of the investigation.

That is roughly where former Special Counsel Jack Smith finds himself.

The controversy concerns an FBI investigation known as Arctic Frost, which began in April 2022 and was later folded into the investigation overseen by Smith after he was appointed special counsel in November 2022. Among other things, investigators obtained telephone records belonging to members of Congress, including numerous Republican lawmakers, during an investigation into efforts to interfere with the 2020 presidential election.

The records were generally described as toll records: information showing numbers called, numbers received, dates, times, and duration—not the substantive content of the calls. That distinction matters. 

So does something else.

The Constitution has a provision specifically designed to prevent the executive branch from using its investigative power to interfere with Congress's legislative work.

It is called the Speech or Debate Clause and it is hiding in plain sight.

So, uh, the Speech or Debate Clause. What's That?

The Speech or Debate Clause is found in Article I, § 6, cl. 1 of the United States Constitution.  It provides:

“for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place.”

The provision is not merely a constitutional version of parliamentary courtesy.  It is a separation-of-powers provision.

The Framers understood the danger of allowing the executive or judiciary to intimidate legislators for doing the job the Constitution assigned to them. The Supreme Court has therefore interpreted the clause broadly enough to protect more than words spoken on the House or Senate floor.

In Gravel v. United States, 408 U.S. 606 (1972), the Supreme Court explained that the protection extends to acts that are an integral part of the deliberative and communicative processes by which members participate in congressional proceedings.

In Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975), the Court likewise recognized congressional investigation—including the issuance of subpoenas—as falling within the legitimate legislative sphere when Congress is exercising its investigative authority.

The principle is therefore broader than:

“Congressmen can't be sued for something they say during a speech.”

Rather, it is closer to:

“The other branches generally cannot interfere with legitimate legislative acts simply because they dislike, disagree with, or want to investigate those acts.”

That distinction becomes important when the government's investigative machinery begins examining a congressman's communications.

So, Does the Clause Protect a Congressman's Phone Records?

This is where the story gets considerably more complicated.  The answer is not automatically.

The Speech or Debate Clause does not place every piece of information belonging to a member of Congress inside a constitutional vault.

The Supreme Court's test is functional and examines whether the particular activity was a legislative act?

That question was squarely presented when the government seized Representative Scott Perry's cellphone during the January 6 investigation.

In In re Sealed Case, 80 F.4th 355 (D.C. Cir. 2023), the D.C. Circuit held that the Speech or Debate Clause required a fact-specific examination of Perry's communications. Some communications concerning legislative activity—including communications with other members about the 2020 election-certification vote—could be protected. Other communications were not automatically protected merely because Perry was a member of Congress.

That case is important because it prevents an overly simplistic argument.  So, the constitutional question isn't:

“Was the person a member of Congress?”

But is:

“What was the member doing, and was that activity legislative?”

The D.C. Circuit put it plainly: the inquiry must be conducted communication by communication under the test established in Gravel.

And that brings us back to Arctic Frost.

The Arctic Frost Phone Records

During the investigation, federal investigators obtained telephone records relating to members of Congress.  Some requests covered a relatively narrow period surrounding January 6, 2021. Others reportedly covered considerably longer periods.

The government's stated investigative interest was not simply whether members of Congress were talking to someone. Investigators were attempting to determine who was communicating with whom concerning efforts to influence the electoral-certification process.

That provides the government's side of the constitutional argument.

If investigators were attempting to determine whether a crime had been committed, and the telephone records merely established communications between individuals, the government could argue that it was obtaining ordinary investigative evidence rather than interrogating a member about a legislative act.

But there is an obvious constitutional problem on the other side:  Who a legislator communicates with (and when) can reveal what is happening inside the legislative process.

A phone record showing that a senator spoke with a particular person immediately before a congressional vote does not tell the government what was said.  But it may tell the government something about the legislator's legislative activity.  That is precisely why the Speech or Debate Clause exists.

And it is why the issue is not nearly as simple as saying either “phone records aren't protected” or “Congressmen's phone records are absolutely protected.”

The existing case law requires a much more precise inquiry.

Then Jack Smith Had to Explain It to Congress

Jack Smith was subpoenaed by the House Judiciary Committee and ultimately gave a closed-door deposition on December 17, 2025.  During that deposition, Smith defended the acquisition of toll records and maintained that his office took the Speech or Debate Clause seriously.

He also maintained that the toll records themselves did not contain the content of calls or messages.  That distinction would become extremely important.  Because the controversy eventually moved beyond what the government obtained to what Smith told Congress about what the government obtained.

In July 2026, Chairman Jim Jordan referred Smith to the Department of Justice for possible prosecution. The referral alleges that Smith's sworn testimony created the impression that neither he nor his team had obtained or reviewed the contents of lawmakers' text messages.

Subsequently released records, according to the committee, indicated that Smith's investigative team had in fact accessed the content of messages involving more than 40 members of Congress and White House personnel, including material that had been subject to a DOJ “filter team” intended to screen potentially privileged material.

Smith's attorneys dispute that characterization, arguing that the questioning concerned particular subpoenas and toll records rather than every source of information that investigators might have possessed.

And that distinction is legally significant. Because being incomplete, evasive, confusing, or even misleading is not automatically the same thing as committing perjury or making a prosecutable false statement.

The government would have to prove the elements of an actual offense.

What Law Makes Lying to Congress a Crime?

There are several possibilities.  The most obvious is perjury.

Under 18 U.S.C. § 1621, a person who, after taking an oath to testify truthfully, willfully makes a material statement that the person does not believe to be true can be convicted of perjury and face up to five years' imprisonment.

There is also 18 U.S.C. § 1001, the federal false-statements statute.

This statute is particularly interesting because Congress specifically amended it in 1996 to cover false statements made in matters within the jurisdiction of Congress and the legislative branch.

The basic requirements are not simply:

“Someone said something wrong.”

The government generally must establish a knowingly and willfully false statement concerning a material matter within the statute's jurisdiction.  That is a substantially higher bar than proving that congressional testimony was inaccurate.

And that is where the word “knowingly” becomes the star of the show.

If Smith misunderstood a question, forgot something, answered a narrower question than the questioner intended, or accurately described one category of records while failing to volunteer information about another, that is one thing.

If, on the other hand, the evidence established that he knew a material statement was false and deliberately made it anyway, the legal landscape would be very different.

What About Contempt of Congress?

There is another misconception worth clearing up.  Congressional contempt is not simply the statutory penalty for lying.

Under 2 U.S.C. § 192, a witness who is summoned before Congress and willfully refuses to testify or refuses to answer a pertinent question can commit a misdemeanor.  In other words, contempt traditionally concerns things such as:  I refuse to answer.  

It is not simply:  I answered, but Congress believes I lied.

False testimony presents a different legal problem.  Congress can refer alleged criminal conduct to the Department of Justice. It can also use its institutional powers to investigate and, under certain circumstances, employ its contempt authority.  

But a congressional committee does not simply declare:  You lied. You're guilty because criminal guilt remains a matter for the criminal-justice system.

So Should Jack Smith Have Been Sanctioned?

This is where the answer needs a lawyer's annoying but necessary qualifier:

If the evidence establishes that Smith knowingly made materially false statements under oath, then there were (and are) legal mechanisms for holding him accountable.

The existence of those mechanisms is not hypothetical. The House Judiciary Committee has already used one of them: a criminal referral to the Department of Justice.

But whether Smith actually committed perjury or violated § 1001 depends upon facts that must be established, not merely upon the existence of conflicting descriptions of his testimony and the underlying records.

That distinction matters because the law does not criminalize every misleading statement.

For perjury, the government would need to prove the necessary elements, including the oath, falsity, materiality, and the requisite knowing and willful state of mind.  For § 1001, the government would likewise have to establish a materially false statement made knowingly and willfully.

The question therefore isn't simply:  Did Jack Smith mislead Congress?  Rather, the legally useful question is: Did Jack Smith knowingly and willfully make a materially false statement to Congress?

Those are two very different questions.

And Then There Is the Bigger Constitutional Question

The most fascinating part of this story may actually be separate from whether Smith's congressional testimony was truthful.  It is whether the government's acquisition of congressional communications properly accounted for the Speech or Debate Clause in the first place.

The D.C. Circuit's decision in In re Sealed Case demonstrates why.

The constitutional protection is functional. Some congressional communications are protected because they are legislative acts. Others are not.  And when government investigators seize or obtain communications that may contain protected legislative material, the Constitution requires more than simply saying:  Trust us. We'll sort it out later.

In United States v. Rayburn House Office Building, Room 2113, 497 F.3d 654 (D.C. Cir. 2007), the D.C. Circuit held that the Executive Branch had to provide a member an opportunity to assert Speech or Debate protection before reviewing materials likely to contain privileged legislative material.

That principle became part of the procedural backdrop to the Perry litigation and is one reason the constitutional issue deserves more attention than the shorthand phrase “phone records.”

Because the real question is not merely whether the government knew who called whom.  It is whether the government's investigative process intruded upon the constitutional sphere Congress is entitled to occupy without executive interference.

The Irony of the Constitution

There is a delicious constitutional irony here.

The Speech or Debate Clause was designed to protect Congress from the other branches.

Congress investigates the Executive Branch.  The Executive Branch investigates people connected to Congress.  Congress then investigates the Executive Branch's investigation. And eventually the investigator is subpoenaed by Congress to explain what happened.

That circularity is not necessarily a constitutional defect.  It is, in part, the constitutional system doing what it was designed to do:  checking power with power.

But the same system also demands something less exciting and considerably more important:  evidence.

The constitutional question surrounding the congressional phone records deserves serious examination and so does the question of whether congressional testimony crossed the line from an incomplete explanation into a knowingly false statement.

Those questions should not be answered by political allegiance. They should be answered by the Constitution, the statutes Congress enacted, and the evidence.

And those three things don't always produce the answer social media wants.

An Uncomfortable Reality Check

The Speech or Debate Clause isn't a congressional invisibility cloak. It doesn't mean a member of Congress can commit a crime and announce, “I'm legislating.” But neither is a congressional badge a constitutional bullseye.

The Framers deliberately built a wall around legitimate legislative activity because they understood that a legislature cannot remain independent if the executive branch can investigate the legislators every time it dislikes what they are doing.

And there is an equally important rule on the other side of that wall:

If you voluntarily walk into Congress, raise your hand, swear to tell the truth, and start answering questions, the Constitution does not hand you a magic eraser for inconvenient facts.

For Jack Smith, that may ultimately be the more uncomfortable constitutional question.  The man who once stood on the government's side of the subpoena is now on the receiving end of one.

And this time, Congress is holding the subpoena.

 

Word of the Month for March 2026: Fake News

I know you've heard the term Fake News.  It was Trump's rallying cry for several years and he says it whenever any news organization reports something he really (or marginally) doesn't like.

That's not what we're talking about here.  

What I'm looking at here are those cases where the plaintiff (or defendant) is being castigated by the press notwithstanding the fact that the plaintiff (or defendant) in a real case actually has a legitimate claim but the press is pushing the narrative against that of the defendant (or plaintiff).

So, let's dispense with pleasantries and define Fake News in this context.

FAKE NEWS constitutes a subset of intentionally or negligently disseminated pseudo-journalistic content, characterized by the deliberate fabrication, distortion, or strategic omission of verifiable empirical data, disseminated via digital or traditional media channels under the guise of legitimate reportage, with the intent or foreseeable consequence of influencing cognitive biases, socio-political perceptions, or behavioral responses within target populations, thereby undermining the epistemological integrity of information ecosystems and the democratic discourse reliant upon them.

Ummmmmm, sorry about that.  My inner-journalist generator took over for a second.  Let's try that again:

FAKE NEWS is false or misleading information presented as news, typically to influence public opinion, generate clicks, or cause confusion.

OK, that's better - a story used to generate or cause confusing information - sounds about right.

So, how might this apply in real life?  Remember a few years ago, the media flipped out on a story about a bunch of kids and some Indians marching in D.C.?

In January 2019, Nick Sandmann, a Covington Catholic High School student, was filmed wearing a MAGA hat while standing face-to-face with Native American elder Nathan Phillips during the March for Life in Washington, D.C. A short video clip went viral, with media outlets and social media users accusing Sandmann of mocking or intimidating Phillips.

Later, fuller video footage showed that Sandmann was standing silently and that Phillips had approached Sandmann, while a different group (Black Hebrew Israelites) was yelling insults at the students.

Sandmann filed defamation lawsuits against major media outlets (CNN, Washington Post, NBC, etc.), claiming the coverage was "false and damaged his reputation." Several settlements were reached and Sandmann’s case became a key example in debates over media bias, viral outrage, and defamation.

See, that's what we're talking about.  Instead of reporting the actual events, news media is going around reporting lies and misstatements - instead of what is actually happening.

Another example?  

Recently, a Minnesota family, the Moedings, were sued by their neighbors, the Ramoses, over the location of their basketball hoop and the subsequent retrieval of balls that bounced into the Ramos' yard.  The lawsuit, which included claims of trespass and a request for an injunction to prevent the hoop's use, was ultimately dismissed by a judge. 

On first read (and media makes it look like), this sounds like a petty case where an older couple is trying to keep kids from using their (clearly) portable basketball hoop.  However, this case had little to do with basketball as much as the Ramoses were trying to keep the kids from trespassing on their land.  

See, the kids would play on their side of the property line but, as kids are wont to do, the ball would get away from them, bounce/roll to the Ramoses property and the kids would run across the property line trampling grass, flowers, whatever else is in their way to get their ball.

From a property owner standpoint, that would piss me off and if you know anything about getting old and how little things really annoy, it really rakes the nerves.  Anyway, the court eventually dismissed the case leaving the Ramoses little recourse but to sit and fume.  

While an easy remedy would be to have the Moedings install a net/fence behind the basketball hoop to keep the balls on their side of the property line - but that would be admitting fault. 

Some other cases found in the annals of history include: 

Richard Jewell - Atlanta Olympic Bombing (1996)
Plaintiff: Richard Jewell (security guard wrongly suspected).
Claim: Defamation against media outlets (NBC, Atlanta Journal-Constitution, CNN).
Media narrative: Initially pushed the FBI and law enforcement leaks implying Jewell was the bomber.
Reality: Jewell was innocent and later cleared, but the press framed him as seeking attention.
Outcome: Jewell settled with NBC and CNN; won undisclosed settlements.
Press alignment with defendant narrative: The FBI’s suspicion narrative was amplified despite thin evidence, harming Jewell’s life while media framed him as the villain.

Gibson’s Bakery v. Oberlin College (2019) 
Plaintiff: Gibson’s Bakery (family bakery in Ohio).
Claim: Defamation and tortious interference.
Media narrative: Many outlets leaned toward framing the bakery as racially discriminatory after an incident with Black students.
Reality: The students had shoplifted; evidence showed no racial discrimination.
Outcome: Jury awarded $44 million (later reduced to about $25 million) to Gibson’s Bakery.
Press alignment with defendant narrative: Several academic and progressive outlets pushed Oberlin’s framing that the bakery was targeting students based on race, despite facts supporting Gibson’s position.

Rolling Stone “A Rape on Campus” Defamation (2016)
Plaintiff: Nicole Eramo (UVA dean) and fraternity members.
Claim: Defamation over false rape allegations reported in Rolling Stone.
Media narrative: Rolling Stone and supporting outlets pushed the narrative of institutional coverup and fraternity violence.
Reality: The story was fabricated; no evidence supported the claims.
Outcome: Eramo won $3 million; fraternity settled for $1.65 million.
Press alignment with defendant narrative: Rolling Stone and sympathetic media initially defended the article despite growing evidence of its falsehood, framing plaintiffs as silencing victims.

Duke Lacrosse False Allegation (2006–2007)
Plaintiff: Three lacrosse players—Reade Seligmann, Collin Finnerty, and David Evans
Claim: Defamation of false rape allegations reported by CBS News.
Media narrative: In March 2006, Crystal Mangum, an exotic dancer hired to perform at a Duke University lacrosse team party, was raped by the three boys.
Reality: The story was fabricated and in December 2024, Mangum publicly admitted on a podcast that she had fabricated the rape allegations.
Outcome:

1. Prosecutor Mike Nifong aggressively pursued the case but withheld exculpatory DNA evidence.  
2. On April 11, 2007, North Carolina Attorney General Roy Cooper dropped all charges.  
3. The team’s season was canceled. 
4. Coach Mike Pressler was fired.
5. Nifong was later disbarred and convicted for misconduct.  
6. The players sued Duke and the city, reaching settlements. 
7. Mangum never faced charges for the false claims.  
8. Nifong served a day in jail for contempt.

Press alignment with defendant narrative: The charges triggered intense media coverage and national outrage, with debates over race, class, and campus culture fueling the story.

I guess the moral to this story is: Take everything big media says with a grain of salt realizing that the press is in the game to make money.  

...and, as it appears, the only way the Press can make money is to make-up stuff to stir up the blood of their victims (in this case, victim=anyone willing to listen).

Word of the Month for February 2026: AI

 

OK, OK, so "AI" is not, per se, a word so much as it is an acronym for "Artificial Intelligence."

Great and with that out of the way, what is AI (or artificial intelligence)? 

An overly complex definition of AI is: Artificial Intelligence (AI) is a multidisciplinary domain within computer science and cognitive science that involves the design, development, and analysis of computational systems capable of performing tasks traditionally requiring human cognitive processes such as perception, reasoning, learning, decision-making, and natural language understanding. It encompasses the creation of algorithms and models that enable machines to acquire representations of their environment, generalize from data, adapt to new information, and exhibit goal-directed behavior under varying conditions of uncertainty. AI draws on subfields including machine learning, knowledge representation, heuristic search, and robotics, leveraging statistical methods, neural architectures, and symbolic reasoning to enable autonomous or semi-autonomous systems to optimize actions in complex, dynamic environments while adhering to constraints defined by computational, ethical, and social considerations.

Got all that?

In more simplistic terms, AI is basically a fancy robot brain that tries to fake being smart so you don’t have to be.

That better?

Essentially, Artificial Intelligence is like building a mechanical apprentice that learns by watching, listening, and practicing, just as a human would, so it can help us carry out tasks.

For example:  Imagine teaching a child to sort laundry by colors: you show them examples, correct mistakes, and eventually, they learn to do it on their own.  AI works similarly, but instead of a child, it’s a computer system that learns from examples, patterns, and feedback so it can make decisions, recognize speech, translate languages, or drive a car.

It’s not truly “thinking” like a human, but it mimics parts of human learning and decision-making to help us do things faster, more consistently, and often on a much larger scale.

Still unclear how it works in "real" life?  

Say you're looking to write draft a professional resume for a sales professional (selling cars) and where you only have a few key skills that might be useful and you've worked at McDonald's slinging burgers for the last few years.

AI can crank a really nice one page resume, based on those parameters, for you.  Of course, I'd suggest you take the time to make small edits - but it will look sharp.

Maybe the resume you submitted above landed you an interview in front of 21 people.  While only 4 people asked you questions, you still need to send a thank-you letter to all 21 people.  I've done this and it took me 4 days to make each one a little different but relatable using notes I took during the interview(s).

AI can crank out those 21 unique and professional letters just based on their titles alone and do it in under 2 minutes flat and make you look like a superstar.

Maybe you're a lawyer and you need help with your lawyer stuff.  How might AI help you?

• Streamlined Legal Research:  AI can quickly analyze vast amounts of legal data, identify relevant precedents, and suggest potential arguments, saving lawyers significant time and effort. 
• Automated Contract Review:  AI tools can scan contracts for key clauses, potential risks, and inconsistencies, accelerating the review process and improving accuracy.
• Enhanced eDiscovery:  AI can help manage and analyze large volumes of data during litigation, identifying relevant information more efficiently and reducing costs associated with discovery. 
• Improved Risk Assessment:  AI-powered tools can analyze historical case data and predict potential outcomes, enabling lawyers to better advise clients and mitigate risks.
• Drafting Legal Documents:  AI can assist in drafting initial versions of motions, briefs, contracts, and other legal documents, saving time and improving consistency.

Heck, I used to consult for Anylaw.com where AI is a huge part of it.  In fact, Anylaw.com uses AI to generate the holdings for each case searched.  

Pretty slick!

Anyway, and as all of that looks great, a HUGE drawback with using AI (particularly in law) in the generation of legal documents is that AI tools, particularly generative AI, can sometimes produce inaccurate or fabricated information (hallucinations), requiring careful human review.

 

Wait, what?

 

Yeah.  There are a plethora of examples where lawyers used artificial intelligence search engines to find cases or even write whole briefs only to find out later that the cases cited therein don't exist.

 

For example:  

Say a lawyer uses an AI tool (like ChatGPT OR Microsoft Copilot OR Google Gemini OR Chatsonic OR Grok OR any AI legal assistant) to draft a legal document. The AI is asked:

“Provide cases supporting the argument that emotional distress damages are recoverable in breach of contract cases in Utah.”

The AI responds with:

“Yes, see Smith v. Jones, 456 P.3d 789 (Utah 2019), where the Utah Supreme Court held that emotional distress damages were recoverable in a breach of contract case.”

However:

• Problem: Smith v. Jones does not exist.  Well, it might exist somewhere but not with that citation or set of facts or holding or, even at all.  In this example, the AI generated a citation that sounds real but is entirely fabricated (“hallucinated”), including a made-up volume, page number, and holding.

• The AI pulled patterns from similar cases but created a false case to fit the prompt.

• If the attorney includes this citation in a filed brief, Attorney could (and probably should) face serious court sanctions, reputational damage, and ethical violations under ABA Model Rule 1.1 (Competence) and Rule 3.3 (Candor Toward the Tribunal).
  

Can you say oops?  

Two real-world examples of attorneys using hallucinated cases from AI engines include Mata v. Avianca, Inc. (S.D.N.Y., 2023) (aka the “ChatGPT Case”).  I know I've already blogged about this case in an earlier post but it's fun to talk about this stuff and these guys were really reckless.

 

In this case, attorneys Steven A. Schwartz and Peter LoDuca of Levidow, Levidow & Oberman used ChatGPT to draft a brief in a personal injury case against Avianca Airlines.

 

The brief included six non-existent cases generated by ChatGPT, such as: Varghese v. China Southern Airlines, Martinez v. Delta Airlines, and Miller v. United Airlines.

The attorneys asked ChatGPT if the cases were real, and ChatGPT falsely assured them they were, even providing fabricated excerpts.

Thing is, had they just Shepardized the cases, they would have discovered the discrepancies and avoided the penalties of being sanctioned with a $5,000 fine and ordered to notify the real judges falsely cited in their brief

In the second REAL case of Park v. Kim (N.Y. Sup. Ct., 2023) – (aka the "Second ChatGPT Sanction Case"), a lawyer in New York used ChatGPT to draft an opposition brief in a personal injury case.  

The brief included false citations to non-existent cases.  Opposing counsel flagged the citations as untraceable. The lawyer admitted to using ChatGPT without verifying the citations (i.e. he didn't Shepardize the cases).

In this second case, the court issued sanctions against the attorney and the lawyer was ordered to pay legal fees to opposing counsel and faced professional embarrassment (basically, he was laughed at all all future bar meetings).

Other cases where attorneys used A.I. to improperly draft legal documents (and were caught) include:

1) United States v. Hayes

• Jurisdiction: U.S. District Court, Eastern District of California (2005)

• What happened: A defense lawyer submitted a motion containing a fictitious case and quotation that appeared to be AI-generated. The court ordered the attorney to pay $1,500 and circulated the ruling to local bars and judges.

2) Butler Snow Attorneys (Disqualification Order)

• Jurisdiction: U.S. District Court, Northern District of Alabama (2025)

• What happened: Three attorneys from Butler Snow submitted filings with fabricated AI-generated citations in defending Alabama prison officials. The judge found the conduct improper, disqualified the lawyers from the case, and referred the matter to the Alabama State Bar.

3) Indiana Hallucination Citations (Ramirez)

• Jurisdiction: U.S. District Court, Southern District of Indiana (2024-25)

• What happened: In briefs for a case involving HoosierVac, an attorney filed multiple briefs with made-up AI-generated case citations. The magistrate judge recommended a $15,000 sanction and noted the lawyer failed to check the AI output.

4) Eastern District of Michigan — Sanctions for AI-Related Errors

• Jurisdiction: U.S. District Court, Eastern District of Michigan (2025)

• What happened: Plaintiffs’ counsel included in their responsive briefs real case names with fake quotes or misleading parentheticals that appeared to result from AI hallucinations. The court found Rule 11 violations and imposed monetary sanctions to deter future AI misuse.

5) Sanction (Southern District of Indiana — $6,000 Fine)

• Jurisdiction: U.S. District Court, Southern District of Indiana (2025)

• What happened: A federal judge fined an attorney $6,000 for filing briefs that included citations to nonexistent cases generated by an AI tool, emphasizing that such “hallucination cites” must be verified by counsel.  

6) In re Kheir (Bankr. S.D. Tex. 2025) 

• What Happened: A bankruptcy court found plaintiff’s counsel used generative AI to “manufacture legal authority,” resulting in sanctions including fees, continuing legal ed., and referral to disciplinary counsel.

 

7) In re Marla C. Martin — U.S. Bankruptcy Court, N.D. Ill. (2025)

• A bankruptcy court found that counsel filed a brief containing fabricated case citations generated by AI (e.g., In re Montoya, In re Jager, etc.) in a Chapter 13 proceeding.

• The attorney admitted he used ChatGPT for legal arguments and did not verify the generated citations.  The court held this violated Federal Rule of Bankruptcy Procedure 9011 and sanctioned the lawyer and firm with a $5,500 fine and required attendance at an AI education session.

8) Ford v. James Koutoulas & Lgbcoin, Ltd., No. 2:25‑cv‑23896‑BPY, 2025 U.S. Dist. LEXIS 234696 (M.D. Fla. Dec. 2, 2025)

• What happened: In this federal case, the defendants’ summary judgment motion “contained several citations that the court and the plaintiffs suspected were GenAI hallucinations, where the court was unable to locate the cited authorities.”

In most of these cases, the attorneys faced stiff fines, humiliation at the hands of their peers and public, and some were referred to the State Bar for discipline.  

What is key to note is that prior to 2023, there are no recorded instances where attorneys were caught improperly using AI.

Why?

Simply because the technology wasn't available until around 2023.  Prior to late 2022, there was no generative AI (like ChatGPT) capable of producing case citations.  

Earlier "AI" tools (like Westlaw's KeyCite or Lexis's Shepards) were search and analysis tools (meaning humans searched and analyzed when they got) - not generative drafting tools and neither KeyCite or Shepards produced hallucinated citations.

I suspect what happened is that law students and, subsequently, attorneys got lazy and stopped relying on their own efforts to draft legal documents expecting that computers would continue to be reliable and not churn out non-existant
citations.  

Who knew people would program AI search engines to be deceitful (because algorithms are only as trustworthy as the people who programmed their parameters).

The bottom line to all this here is that as great and helpful and fast as AI is, it is not 100% accurate.  

Consequently, AI should never replace basic legal research practices (including cite checking using Shepards or Key Cite) or remove the human element (i.e. personally editing your own work).

Word of the Month for December 2025: Constitutional Republic v. Democracy

Ever since the election in November 2024, I've been hearing the terms "Constitutional Republic" and "Democracy" getting batted around like beach balls at a Beach Boys concert.  

What is bothersome is that because so many people of importance (self, or otherwise) have been mixing these terms, there is a risk that both or either of the terms will be as generalized and common as "statutes" and "code" (which are NOT the same thing).

Wait, generalized?  What do you mean by that?

Well, certain formerly trademarked terms have, over the years, become so overused that they've become part of the public domain and are no longer protected under Trademark laws.

You've heard these terms but you may not know that what you are saying was once trademarked or otherwise important terms that have become more common over time.  Some better known examples include:

See what I'm talking about?  If nothing is done to ensure that terms like "Constitutional Republic" and "Democracy" maintain their distinctive meanings, then we the people will become no more unique than Jolly Old England (from which we split back in the 1700 's).

So, before we get too far into this, let's define each of these terms.  

A Constitutional Republic is a form of government in which citizens elect representatives to make decisions on their behalf, and the government's power is limited and defined by a written constitution. 

This constitution establishes the fundamental principles and laws, protects individual rights, and outlines the separation of powers among the executive, legislative, and judicial branches to prevent any one branch from gaining too much control.

Key features of a Constitutional Republic include:

• Elected leaders (including the head of state, often a president) rather than hereditary rulers

• A system of checks and balances to balance power and prevent tyranny, especially protecting minority rights from majority rule

• Government authority derived from and limited by the constitution, ensuring rule of law applies equally to all citizens

• Citizens participate indirectly by voting for representatives rather than directly on all laws, distinguishing it from a direct democracy

A Democracy is defined as: a system of government in which supreme power resides with the people, who exercise that power either directly or through elected representatives under a free and fair electoral system. The term literally means "rule by the people" (from Greek demos "people" and kratos "power").  Essentially, the majority rules.  A person's individual rights are secondary to the majority rule.

Key characteristics of democracy include

• Popular sovereignty: The people hold ultimate authority and govern themselves.

• Political equality: Every citizen’s vote or voice has equal weight in decisions.

• Participation: Citizens participate either by voting directly on laws (direct democracy) or by electing officials to represent them (representative democracy).

• Rule of law and protection of individual rights: Democracies typically uphold laws that protect freedoms, equality before the law, and minority rights, preventing unchecked majority rule.

• Mechanisms for accountability: Fair elections, freedom of speech, and peaceful transfer of power allow citizens to hold officials responsible.

The primary difference between the two is that a Constitutional Republic is governed by a foundational document (a Constitution) that limits government power to protect individual and minority rights.  A pure democracy operates on the principle of majority rule with fewer inherent protections for the minority. 

A key problem with mixing up or watering down the terms "Constitutional Republic" and "Democracy" can be problematic is because it obscures critical distinctions that affect how people understand government structure, individual rights, and the protection against majority tyranny.

A pure democracy centers on majority rule which can risk the tyranny of the majority where the majority may impose laws or policies detrimental to historical minorities or to people who don't want to do what the majority wants them to do.

"So what," you might say?  

Even though we are a Constitutional Republic, there are a number of times when Majority Rule (i.e. Democracy) took over, over the years.  For example: if you're old enough to remember, in the 1950's-60's, blacks and Mexicans were regarded as less than due to Majority Rule.  

Railroad companies imported thousands of Chinese workers to build railroads networks that crisscrossed America and then exiled them to slums when the work was done or prohibited Chinese from immigrating to the U.S. due to Majority Rule.  

While those of Japanese descent were carted off to internment camps after the attack on Pearl Harbor, I can't remember any internment camps for those of German descent when Hitler declared war on America - all thanks to Majority Rule.

So, "so, what"?!  The "so what" is that if there is no distinction between "Constitutional Republic" and "Democracy," the vocal minority will overtake the will of the silent majority in no time, flat!

What is particularly annoying is that notwithstanding the important distinction between the two concepts, there are a number of modern politicians who seemingly disregard the importance of the difference between a Constitutional Republic and a Democracy, such as:

Joe Biden (former POTUS)

“We have to defend democracy. That’s who we are as Americans.”
— Biden, Speech in Philadelphia, September 2022

“Democracy is on the ballot.”
— Biden, November 2, 2022, speech on threats to democracy

“Democracy is more than a form of government; it’s who we are.”
— Biden, Inaugural Address, January 20, 2021

Analysis: Biden consistently frames the United States as a democracy in identity and governance, emphasizing threats to “democracy” but not distinguishing it from the U.S. being a constitutional republic.

Kamala Harris (Former Vice President)

“We must defend our democracy, protect our democracy, and strengthen our democracy.”
— Harris, Speech in Selma, Alabama, March 5, 2023

“We are a democracy, and our democracy is strongest when everyone participates.”
— Harris, July 2022, National Urban League Conference

Analysis: Harris regularly equates America’s system with “democracy” in public speeches, using it to describe the system itself rather than acknowledging its republican constitutional structure.

Barack Obama (Former POTUS)

“Democracy does not work if people do not vote.”
— Obama, Speech at University of Illinois, September 7, 2018

“We are the only advanced democracy that deliberately discourages people from voting.”
— Obama, August 28, 2020, eulogy for John Lewis

“Our democracy is at stake.”
— Obama, various campaign speeches 2020–2022

Analysis: Obama frequently uses “democracy” as shorthand for the American system and for electoral participation, with no distinction from the structural identity as a constitutional republic.

Nancy Pelosi (Former Speaker of the House)

“We have to fight for our democracy.”
— Pelosi, January 6, 2022, Capitol Remembrance

“The sanctity of the vote is the foundation of our democracy.”
— Pelosi, July 2021, on voting rights legislation

Analysis: Pelosi consistently frames the U.S. system as “our democracy,” emphasizing voting as its foundation, without reference to constitutional republican principles.

Hillary Clinton (Former Secretary of State)

“Our democracy is under assault.”
— Clinton, October 2020 interview with The Atlantic

“We need to protect our democracy.”
— Clinton, various campaign appearances 2016–2020

Analysis: Clinton, like other modern Democrats, uses “democracy” to describe the American system, focusing on electoral participation without acknowledging the U.S. as a Constitutional Republic.

OK, OK, enough with the political rhetoric, what I want to know is how distinguishing between a Constitutional Republic and a Democracy actually helps the modern attorney and/or legal system under which we now operate.

As it happens, there are a number of reasons why it is important to distinguish between a Constitutional Republic and Democracy for the modern lawyer.  

Lawyers Operate Under a Constitutional Framework, Not Pure Majority Rule

In a constitutional republic, laws, policies, and government actions must comply with the Constitution.  So, even if a majority of voters or legislators support a law, if it violates constitutional rights (e.g., First Amendment, due process), lawyers can challenge it in court.  This means lawyers can protect minority rights and individual liberties against majority preferences.  

 

For example, even if 80% of voters passed a state law banning certain speech, lawyers can still challenge it as unconstitutional.  In a pure democracy, that law would stand because it reflects the majority’s will.

 

Judicial Review Exists Because We Are a Constitutional Republic

Presently, lawyers have the ability and opportunity to argue constitutional challenges in federal and state courts (e.g., using the Supremacy Clause, the Bill of Rights, the 14th Amendment).  Under a Constitutional Republic, courts have the authority to strike down laws that violate constitutional principles, regardless of how popular the law is. 

 

If we were purely a democracy without constitutional limits, lawyers would have no basis to overturn laws simply because they violate individual rights.

 

Protection of Clients' Rights Against Government Overreach

Lawyers rely on constitutional protections to defend clients against unlawful government action.  For example, in criminal cases, defense lawyers often use the 4th, 5th, 6th Amendments to challenge unlawful searches, coerced confessions, or unfair trials.  

 

Civil rights lawyers use 1st and 14th Amendments to challenge discriminatory laws.  These protections only exist because the Constitution is a higher law than that of the will of the majority.

 

Constitutional Limits Guide Legislative and Executive Actions

Lawyers advising government agencies, legislators, or executives must ensure policies conform to constitutional standards, not just public opinion.  

 

For example, election laws must comply with Voting Rights Act and other constitutional protections.  Also, criminal statutes must meet due process and equal protection standards.

Finally, in a constitutional republic, powers are divided between the federal and state governments as specified in the United States Constitution.  

 

Lawyers use these principles to challenge federal overreach under the 10th Amendment, assert state sovereignty, and determine jurisdictional questions in litigation.  In a pure democracy, there is no guaranteed distribution of powers between federal and state levels.

 

Bottom line is that lawyers function as our last line of defense defending the Constitutional order and our individual rights (like free speech, gun rights, voting rights) - which ONLY exist because we live in a Constitutional Republic.

 

That's the "so what"!