Eric Posner Gives "A (Very Reluctant) Defense of Trump's Firing of Comey"

A (Very Reluctant) Defense of Trump's Firing of Comey
Eric Posner
May 11, 2017

An employer faces a problem worker. The worker has botched several important assignments and ought to be fired. But there’s a problem. The worker has also disclosed wrongdoing in his workplace to the government. This means that the worker may be protected by statutory or common law whistleblower rules, which prohibit employers from retaliating against whistleblowers by firing them. What should the employer do?

He should fire the worker. If the worker cannot handle the job, he should make way for someone who can. It’s true that the employer also benefits—it may be that the government investigation based on the worker’s disclosures will grind to halt if the worker stops cooperating so he can find another job, or other workers fail to cooperate because they are afraid of being fired. But in a broader sense, the policy behind the whistleblower statutes and standard labor market prescriptions are reconciled. Workers will be deterred from incompetence; conditional on doing the job properly, the incentive to blow whistles will be preserved. The law should allow the employer to fire the worker.

Let us apply this analysis to Trump and Comey:

Eric A. Posner