Why Isn't There A Federal Bar?

Here's a comment at Volokh: There isn't really a "federal bar" that has jurisdiction over "federal legal representation". I mean, there's the DC Bar, but that's not quite the same thing.

I'm not saying that Trump's EO is sane, proper, or justified, but it does raise a hypothetical question....Let's imagine that POTUS really did have clear evidence that a specific Big Law firm based in, say, Chicago, Illinois, really was willing to do anything and everything to assist their foreign governmental clients in the Chinese Communist Party, up to and including disclosing US classified information to them at every opportunity, and filing dubious-premise lawsuits solely for the purpose of acquiring MORE classified information to feed to the CCP later.And let's imagine that, through a remarkable coincidence, the procedures for the Illinois bar association really don't address that specific kind of attorney misbehavior. And even the vaguer rules that MIGHT be bent to address that sort of misbehavior can only be used if the members of the Illinois bar association WANT to bend the rules that way, and they have been very clear that they DON'T want to bend the rules that way, and that generally speaking, the Illinois Bar Association doesn't care WHAT happens between Chicago law firms, the CCP, and federally classified documents. Not an Illinois problem.In that situation, what recourse WOULD the President have? He can't file a complaint to the Federal Bar, because there isn't one. Bringing actual federal charges would take forever to actually secure a conviction beyond a reasonable doubt, and would involve huge problems with sequestering privileged attorney-client material. Asking every single individual federal judge to censor every single individual member of the Big Law firm in question sounds like an administrative nightmare.The President has to have SOME ability to protect national secrets in that situation, and he has to be able to do so quickly, and to do so using some standard of evidence a lot weaker than "beyond a reasonable doubt."So even if Trump's particular EO's in this particular case are totally unjustified... what WOULD a justified EO in a different situation actually look like?
GROK: Your hypothetical raises a thorny issue: what happens when a Big Law firm engages in egregious misconduct—like funneling classified U.S. information to a foreign adversary such as the Chinese Communist Party (CCP)—and local bar associations, like the Illinois Bar, refuse to act, while no centralized "federal bar" exists to step in? The absence of a unified federal bar with jurisdiction over attorneys practicing in federal courts does complicate things, and the scenario you describe highlights the gaps in the current system. Let’s break it down and explore what a justified Executive Order (EO) might look like in such a case, contrasting it with the implied issues of Trump’s EO (which I’ll assume refers to a real or hypothetical action, as you haven’t specified one).

The Problem

In your scenario:

• A Chicago-based Big Law firm is actively betraying U.S. national security by disclosing classified information to the CCP and filing frivolous lawsuits to fish for more secrets.
• The Illinois Bar Association’s rules don’t explicitly cover this misconduct, and its members are unwilling to stretch vague rules to discipline the firm.
• There’s no "federal bar" to oversee attorneys practicing in federal courts, unlike state bars that regulate local licenses.
• Federal criminal prosecution (e.g., under the Espionage Act, 18 U.S.C. § 793) is slow, requires a high burden of proof ("beyond a reasonable doubt"), and risks exposing sensitive information in discovery or trial.
• Individual sanctions by federal judges are impractical for a large firm with many attorneys.
• The President needs a swift, effective way to stop the leak of classified information without waiting years for convictions.

The D.C. Bar, as you noted, isn’t a solution—it’s just another state-level equivalent for D.C. attorneys, not a federal oversight body. The American Bar Association (ABA) sets model ethics rules but has no enforcement power. Federal courts rely on state bar admissions or local rules, creating a patchwork system that doesn’t address coordinated, systemic misconduct by a firm operating across jurisdictions.

Presidential Authority and Constraints

The President’s authority to act stems from Article II of the Constitution, particularly the duty to "take Care that the Laws be faithfully executed" and the role as Commander-in-Chief. This includes protecting national security and classified information (e.g., under Executive Order 13526 on classified material). However, any EO must:

• Stay within statutory and constitutional bounds (e.g., not infringe on due process or separation of powers).
• Avoid usurping judicial or state functions, like attorney licensing, which is traditionally state-controlled.
• Be precise enough to survive legal challenges (e.g., under the Administrative Procedure Act, if deemed arbitrary or capricious).
• Balance urgency with fairness, especially since barring attorneys from practice could affect their livelihoods and clients’ rights.

What a Justified EO Might Look Like

In your hypothetical, where clear evidence exists of a firm’s systemic betrayal, a justified EO could aim to neutralize the threat while respecting legal constraints. Here’s a possible framework:

1. Scope and Evidence Standard:
   • The EO would target a specific firm (or named attorneys) based on credible evidence of misconduct, such as declassified intelligence reports, intercepted communications, or sworn affidavits from whistleblowers.
   • The evidence standard could be "clear and convincing" (higher than a preponderance but below reasonable doubt), suitable for administrative actions affecting rights. This avoids the criminal trial burden while ensuring some rigor.
2. Action Taken:
   • Suspension from Federal Practice: Temporarily bar the firm’s attorneys from appearing in federal courts or accessing classified information in litigation (e.g., under the Classified Information Procedures Act, CIPA). This leverages the President’s control over federal court access and classified material without touching state licenses.
   • Debarment from Government Contracts: Prohibit the firm from representing clients in matters involving federal agencies, such as regulatory filings or contracts, cutting off their ability to exploit federal systems.
   • Mandatory Security Review: Require the firm to submit to a DOJ-led audit of its client files and communications to identify and contain leaks, supervised by a special master to protect attorney-client privilege where appropriate.
3. Process and Safeguards:
   • Notice and Hearing: The firm would receive notice of the allegations and a chance to respond in an expedited administrative hearing (e.g., within 30 days), overseen by an independent DOJ panel or Article III judge to ensure fairness.
   • Time Limit: The suspension or debarment would be temporary (e.g., 6–12 months), pending further investigation or criminal charges, to avoid permanent punishment without due process.
   • Appeal Mechanism: Allow the firm to appeal to a federal court (e.g., D.C. Circuit) to challenge the EO’s application, ensuring judicial oversight.
4. Legal Basis:
   • Cite statutes like the Espionage Act (18 U.S.C. § 793–798), CIPA (18 U.S.C. App. 3), or the President’s authority over classified information (EO 13526).
   • Invoke national security powers under Article II, referencing precedents like Youngstown Sheet & Tube Co. v. Sawyer (1952) to argue the action falls within the President’s core duties when Congress hasn’t restricted it.
5. Public Accountability:
   • Issue a partially declassified report summarizing the evidence (e.g., "credible intelligence shows Firm X shared classified documents with CCP officials") to justify the action without compromising sources or methods.
   • Coordinate with Congress to avoid accusations of overreach, framing it as a stopgap until legislative fixes (like a federal bar) are considered.

Example Text of a Justified EO

Executive Order on Protecting National Security from Attorney Misconduct
By the authority vested in me as President by the Constitution and laws of the United States, including the Classified Information Procedures Act and Executive Order 13526, it is hereby ordered:

1. Findings: Based on clear and convincing evidence, [Firm X] has engaged in systemic misconduct, including the unauthorized disclosure of classified information to foreign adversaries, threatening national security.
2. Suspension: Effective immediately, [Firm X] is barred from appearing in federal courts or accessing classified information in litigation for 12 months, pending further review.
3. Review Process: The Department of Justice shall conduct an audit of [Firm X]’s practices, with oversight by a special master, and provide a hearing within 30 days to contest this order.
4. Appeal: [Firm X] may appeal to the U.S. Court of Appeals for the D.C. Circuit within 60 days.
5. Reporting: The Attorney General shall submit a report to Congress within 90 days on measures to prevent future misconduct.

Why This Works

• Speed: Suspension and debarment act immediately to stop leaks, unlike criminal trials that take years.
• Targeted: It focuses on the firm’s federal activities, avoiding state bar turf and broad overreach.
• Fairness: Notice, hearings, and appeals protect due process, reducing the risk of abuse.
• Legal Grounding: It uses existing statutes and presidential powers, making it defensible in court.
• Flexibility: The audit and temporary measures allow for adjustment if evidence shifts.

Contrast with Trump’s EO (Hypothetical Issues)

Without details on the specific Trump EO you’re referencing, I’ll assume it’s problematic for reasons often cited in critiques (e.g., vagueness, lack of evidence, or overbroad sanctions). An unjustified EO might:

• Target entire categories of firms (e.g., "all Big Law") without specific evidence, risking abuse.
• Permanently revoke licenses without hearings, violating due process (Mathews v. Eldridge, 1976).
• Ignore judicial oversight, inviting Youngstown-style invalidation for exceeding authority.
• Rely on vague "national security" claims without declassified justification, undermining trust.

For example, if Trump’s EO blanketly banned firms for representing foreign clients without proof of harm, it’d be struck down as arbitrary. A justified EO, as above, would name the firm, cite specific acts (e.g., "leaked NSA reports to CCP"), and limit its scope to federal access.

Real-World Gaps and Alternatives

Your scenario exposes real weaknesses:

• No Federal Bar: Federal courts defer to state bars, but states may lack incentive to police national security issues. A legislative fix could create a federal bar with oversight over attorneys in federal practice, though this risks centralizing power.
• Bar Inaction: If Illinois ignores misconduct, DOJ could pressure state bars via funding or public shaming, but this is indirect.
• Criminal Law Limits: Espionage charges require proving intent and harm, which is tough when attorney-client privilege shields evidence. CIPA helps but doesn’t solve speed issues.

Alternatives to an EO:

• DOJ Intervention: The DOJ could file emergency motions in federal courts to revoke the firm’s security clearances or disqualify it from specific cases, though this is piecemeal.
• Congressional Action: Pass a law empowering a federal agency (e.g., DOJ’s Office of Professional Responsibility) to suspend attorneys in national security cases, with clear standards.
• Judicial Rules: Federal courts could adopt uniform rules for disciplining attorneys in classified cases, but this requires slow consensus among circuits.

Answer: A justified EO would temporarily suspend the firm from federal practice, bar access to classified info, and mandate a DOJ audit, based on "clear and convincing" evidence of CCP leaks. It’d include notice, a hearing within 30 days, and appeals to federal court, citing statutes like CIPA and EO 13526. Unlike a vague or overbroad Trump EO, it’d be specific, temporary, and procedurally fair to balance urgency with due process.

Comment: "What happens when the Bar is on the side of the abusers and either refuses to investigate or fakes one?"

GROK: When a bar association, tasked with regulating the legal profession, refuses to investigate credible allegations of attorney misconduct or conducts superficial investigations—especially in a high-profile conflict like one involving a figure like Trump and Big Law—several consequences and dynamics can emerge:

1. Erosion of Public Trust in the Legal System: Bar associations set ethical standards for lawyers, and their failure to act impartially undermines confidence in the rule of law. If the public perceives the bar as protecting politically connected attorneys (e.g., those at elite firms opposing or supporting Trump), it fuels narratives of a "rigged" system. This is particularly acute in polarized cases where one side—say, Trump’s base—might see the bar’s inaction as evidence of bias against him.
2. Unpunished Misconduct: If investigations are refused or faked, attorneys who violate ethical rules (e.g., conflicts of interest, misrepresenting facts, or abusing legal processes) may continue practicing unchecked. In a Trump vs. Big Law scenario, this could mean firms using their resources to pursue aggressive litigation against Trump or his allies without scrutiny, or conversely, Trump-aligned lawyers escaping accountability for frivolous lawsuits. For example, during Trump’s 2020 election challenges, some argued bar associations were slow to discipline lawyers filing baseless claims, while others claimed the bar unfairly targeted Trump’s legal team to silence them.
3. Political Weaponization: A bar’s refusal to act can be seen as taking sides, especially if it consistently ignores complaints against one political faction. If the ABA or state bars overlook misconduct by Big Law firms (often perceived as left-leaning due to their client base or diversity initiatives) in cases against Trump, it could validate claims of partisan bias. Posts on X have echoed this sentiment, alleging the ABA is "far left" and protects its own while punishing Trump’s lawyers. Conversely, if the bar only pursues Trump’s attorneys, it risks being viewed as a tool of the establishment.
4. Legal Challenges and Workarounds: When the bar fails, aggrieved parties—like Trump, his allies, or even Big Law firms—may turn to other avenues. These include:
   • Courts: Filing lawsuits against attorneys or firms for malpractice, fraud, or abuse of process. Courts can sanction lawyers directly (e.g., Rule 11 sanctions for frivolous filings).
   • Executive Action: As seen recently, Trump has issued executive orders targeting law firms he believes oppose him, like barring them from federal contracts. Federal judges have blocked some of these orders as unconstitutional, citing First Amendment violations.
   • Public Pressure: Using media or platforms like Truth Social to call out perceived corruption, rallying public or political support to pressure the bar.
   • Alternative Oversight: Pushing for new regulatory bodies or reforms to replace "captured" bar associations, though this is a long-term and contentious process.
5. Chilling Effect on Representation: If the bar is seen as protecting abusers (whether Big Law or Trump’s opponents), it may deter lawyers from taking on controversial clients. For instance, some firms might avoid representing Trump due to fear of bar scrutiny or professional ostracism, while others might hesitate to oppose him if they expect retaliation without bar protection. This weakens the adversarial system, where everyone deserves zealous representation.
6. Internal Bar Dysfunction: Faked or refused investigations can spark internal backlash. Ethical attorneys or bar members may push for reform, resign, or blow the whistle. For example, if a state bar ignores complaints about Big Law’s conduct in politically charged cases, it might face lawsuits or member revolts, as seen in debates over the ABA’s perceived partisanship.

Real-World Context:

• Trump’s Actions: Since early 2025, Trump has targeted Big Law firms like Perkins Coie, WilmerHale, and Susman Godfrey with executive orders, alleging they’ve “weaponized” the justice system against him (e.g., representing Hillary Clinton, Jack Smith, or Dominion Voting Systems). These orders, which include suspending security clearances and barring federal contracts, have been challenged as unconstitutional, with judges issuing injunctions.
• Bar Responses: The ABA and other bar groups have condemned Trump’s orders as attacks on the rule of law, arguing they undermine the right to counsel. However, some critics on X claim the ABA is hypocritical, alleging it ignored misconduct by anti-Trump lawyers while disciplining Trump’s 2020 legal team. There’s no definitive evidence the ABA has "faked" investigations, but its slow response to election-related complaints on both sides has fueled distrust.
• Investigation Failures: Bar investigations are often slow and opaque, which can look like inaction. For instance, complaints against lawyers in Trump’s election cases (from both sides) have lingered without resolution, leading to accusations of bias depending on one’s perspective.

What Can Happen Next?

• Judicial Intervention: Courts often step in when bars fail, as seen with judges blocking Trump’s orders or sanctioning lawyers for misconduct (e.g., Rudy Giuliani’s disbarment in New York for election fraud claims).
• Legislative Push: Congress or state legislatures could reform bar oversight, though this risks politicizing regulation further.
• Market Response: Clients may shun firms perceived as unethical, or firms may self-regulate to avoid reputational damage. Some Big Law firms have struck deals with Trump’s administration to avoid sanctions, raising questions about capitulation vs. pragmatism.
• Public Backlash: If the bar’s inaction persists, grassroots campaigns or figures like Trump could amplify calls for accountability, potentially destabilizing the profession’s credibility.

Critical Take: The bar’s role is to uphold ethics, not pick winners in political fights. If it’s refusing or faking investigations, it’s failing its duty, regardless of who the "abusers" are—Big Law, Trump’s team, or both. The truth likely lies in a messy middle: bars are bureaucratic, risk-averse, and sometimes influenced by elite networks, but they’re not cartoonish villains rigging the game. Still, their slow or selective responses in polarized cases feed distrust, and without reform, the system tilts toward those with the most power—whether that’s Big Law’s resources or Trump’s executive reach.