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:
1. Comey seriously botched the investigation of Clinton. Hardly anyone defends him. Today, Trump’s critics implicitly argue that the Clinton error was a one-off thing. They continue to insist that Comey can be trusted to lead the FBI. Why exactly? Another possibility, which seems quite plausible, is that Comey does not belong at the head of the FBI. He can’t be trusted.
2. Trump harbored a strong motive to fire Comey, and—according to press reports—acted on it. He was frustrated that Comey was vigorously pursuing the Russia investigation, to Trump’s (apparent) detriment. However, if my earlier comments are right, this is not a sufficient reason for keeping Comey on the job. Indeed, Trump continues to face an investigation, and his act heightened distrust rather than ended his problems. He may have trouble appointing a loyalist to replace Comey.
3. Is it excessively optimistic to believe that in future FBI directors will avoid repeating Comey’s errors?
Many people complain that Trump has “politicized” law enforcement. The truth is that law enforcement is inherently political when turned against itself. The president is the chief law enforcement officer; he determines law enforcement priorities and policies. What happens when the president is suspected of unlawful behavior? In our system, this can only be described as a serious problem, one that has never been resolved.
The major effort was the post-Watergate independent counsel statute. This statute provided for the creation of independent counsels who were given the authority to investigate and bring charges against executive branch officials, including the president. The independent counsel was not subject to the authority of the Justice Department or president, and so could not be blocked from investigations.
Congress allowed the statute to lapse in 1999. By then, it was clear that the independent counsel statute caused more harms than benefits. The problem was that the decision to investigate and prosecute is shot through with political calculations, and lodging the authority to make those calculations in a free agent, unconstrained by public opinion, led to endless fishing expeditions and forms of harassment that undermined the effectiveness of the president and the executive branch. The notion that law enforcement—especially law enforcement directed at the president—can truly be apolitical died with the statute.
Where does this leave us? Politics may well be more effective than law, or “unwritten constitutional norms” as they are sometimes called. Trump has seriously damaged himself, thanks to the typically Trumpian incompetence with which the hatchet was swung. The timing, leaks, obvious vindictiveness, and much else, has further eroded public trust in Trump’s ability to manage the executive branch, and further raised suspicions about his ties with Russia. As Republicans in Congress begin to worry about reelection, they may push back. That may be the best we can hope for.