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The writer is chief executive of the New America think-tank and an FT contributing editor
As the Trump administration threatens to refuse compliance with judicial decisions and interferes with the federal government’s prosecutorial power, it is time for American business leaders to decide where they stand on the rule of law. Will they speak out as the rules of the world’s largest economy are twisted and evaded for political and personal ends?
Businesses from all over the world choose to do deals in the US precisely because of the rule of law: the carefully calibrated system that ensures their contracts will be enforced and their disputes litigated in good faith without bribes or political interference. But a determined ruler can turn the law to his purposes in many different ways, transforming a government of laws into a government of men. The Trump administration appears to be following precisely this path.
Vice-President JD Vance, for instance, has argued that “judges aren’t allowed to control the executive’s legitimate power”, citing as an example a hypothetical case in which a court would try to tell a general how to conduct a military operation. That claim is fine as a legal argument about the relative scope of executive and judicial power. Indeed, the courts have long recognised that some questions brought before them are political rather than judicial in nature and thus must be decided by the political branches.
The point is not about the existence of limits to judicial, executive or legislative power. It is that the courts get to decide those limits and the other two branches must comply with their decisions under the constitution. Yet Vance said openly on a 2021 podcast that the executive should simply refuse to comply with judicial decisions limiting its power. President Donald Trump seemed to be preparing the ground for a similar argument, posting on X and Truth Social that “He who saves his Country does not violate any Law”.
In February, the Trump-appointed, and impeccably conservative, acting US attorney for the Southern District of New York, Danielle Sassoon, resigned after being directed to drop a corruption case against New York mayor Eric Adams. She did so on the grounds that the DoJ directive violated her professional obligation “not to use the criminal enforcement authority of the United States to achieve political objectives or other improper aims”.
So why are business leaders not protesting at threats to the rule of law as public servants like Sassoon have?
Some chief executives have adopted a strategy of pre-emptive Trump-pleasing, changing personnel and policies to align with the Maga playbook. Many others are rolling back their DEI programmes. When I have pressed business leaders on the chaos that would ensue from a presidential refusal to comply with judicial decisions, one answer I hear is that the markets will immediately fall, at which point Trump will pay attention and pull back. The markets will fall precisely because the US will suddenly become a much less favourable place to do business.
Suppose, however, that the markets crash and Trump doesn’t care, and that the path to absolute power by destroying the entire system of checks and balances is too tempting.
Suppose further that Elon Musk, or another associate of the president, wants to buy various companies cheaply. The Internal Revenue Service and other government departments can tie them up with investigations and impose fines that will lower their stock price. Chief executives can be prosecuted, particularly those who did not support Trump. Maga-friendly judges across the land can entertain frivolous lawsuits filed against companies and individuals with the aim of draining their time and treasure on legal fees.
Or suppose the markets don’t fall. When Franklin Roosevelt proposed packing the Supreme Court with additional justices appointed to rule in his favour, the markets slumped, but not dramatically. What did happen was an outpouring of public opinion, with so many letters to Congress that members could not read their mail, as well as protests of many kinds across the country.
In sum, business leaders are taking an enormous risk by staying silent. Now would be an excellent time to speak up, just as the Supreme Court has handed the administration its first defeat. They will join the ranks of majority leader John Thune, judiciary chair Chuck Grassley, and senators Josh Hawley and Mike Rounds, all staunch conservatives, who have insisted that the administration has to obey the courts.
Grassley explained that he learnt about checks and balances “in eighth grade civics”. Exactly. It should not be so hard to stand up for liberty under law.
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