When and how can the looting and pillaging inflicted by Trump’s malign version of government be arrested?

It’s not only that the damage already done is incalculable, under a barrage of attacks so sweeping as to make clear that the MAGA intent is that our national future will be more fearful, sick, poor, dirty and stupid.

Or that vital institutions are under relentless and escalating attacks - the agencies responsible for our health and welfare, scientific research, and global security and stability; the financial foundations of the world’s interdependent economies; and the core values of universities and law firms and museums and art centers.

It’s also that the quality and extent of engaged resistance has yet to provide either broad grounds for optimism or effective strategy and tactics.

I posted my anxiety and concern right after last November’s election. If anything, the impact of the last months leaves me feeling worse. Now more than then, it is tiresome and dispiriting that so much of the commentary is dominated by hindsight hand-wringing from those presuming to have substantive insight. (A saddening recent example was the May 1 Opinion from the editorial board of the New York Times – a great mound of platitudes attempting without success to provide original thinking or actionable suggestions.) 

That outburst now aired, here is fair warning that this contribution to the dialog will invoke several layers of academic research.  

I’ve just finished my law school teaching for the spring. This non-traditional course takes its theme and title from the pioneering 1974 article by Daniel Kahneman and Amos Tversky, Judgment Under Uncertainty. The goal is to unpack the sources of bias, influence and misdirection that inhibit optimal decision-making, at all levels including personal and societal. Bright and curious young students explore the ways by which they can acquire and develop the skills and tools to provide advice and counsel to their clients, firms and companies.

The syllabus has a section relevant to the so-far bewildered public perplexity: “Why didn’t we know?” and “Why wasn’t he stopped?” and “What can we do now?”

Punch line first, with explanation to follow - the academic literature offers a lesson in two parts:

• That the dangerous behavior of a malign personality will often start at a modest level which – unless stopped early – may be successively leveraged upwards.
• That society’s in-built sources of bias mean that early chances to intervene or interrupt can be missed or ignored, under a failure to recognize the potential gravity of the threat.

Start with the early signals and predictive signs of opportunities for high-level positive achievement – an important context given the basic bias in the American psyche in favor of optimism and success.

There we see the importance of “early incremental advantage”- what may be detected as a slight early-stage competitive edge, subtle perhaps and difficult to discern, possibly random in its presence, which over time can build and escalate to become highly consequential.

Landmark research in Toronto forty years ago solved the question why the team rosters in professional Canadian hockey were dominated by players with birthdays in the first quarter of the calendar year.[1] The light-bulb flash revealed the phenomenon not to be based on astrological influences or peculiar seasonal timing of infant conception in the prairie provinces. Rather, boys first introduced to organized hockey were assigned to teams at age six. Thereafter they were evaluated and promoted such that high performers graduated to premier or all-star levels, while average players were grouped together, and de-motivated lower performers gave up the sport altogether.

At each level, upper-tier players received the benefit of preferred rink times, superior equipment, more extensive and focused coaching, and extended playing time at a higher competitive level. A self-reinforcing cycle favored their further promotion to successively more elite levels, while opening up a gap with the average players whose “catch-up” prospects became increasingly difficult and unlikely.

All this, to emphasize, was based on the randomly distributed physiological reality that a boy with a birthday in the first quarter of his sixth year is that much bigger, faster, stronger, and more visible than his teammates younger by six to nine months or more.

Decades on from this Canadian scholarship, the principle has been extensively fleshed out and can feel familiar. High school students assigned to “advanced” or “AP” classes enjoy extra attention, favorable evaluations, and reinforced expectations by which their superiority comes to be assumed – ultimately with consequential impacts as they compete for university admissions.

Likewise, a new employee’s distinctive performance on an early assignment sets a pattern: “Jones did a great job on that project - let’s give her another and expect the same” – from which will flow recognition, promotions and increase in stature. Children raised with the advantages of high-performing parents will have both access and reinforcement to support their skill and interest. (Spanning broad sectors, see as examples the sons of Tiger Woods and LeBron James and the senior Bill Gates, and the daughters of Bernard Arnault, Michael Redgrave and Blythe Danner.)

Those not so fortunate are competing in a world where the metrics can be brutally and publicly obvious, measured by a stop watch or a stock price or a ballot box. Only a tiny fraction of early competitors reach the pinnacle of success – a national team or an Olympic gold medal, a firm’s partnership or an Academy award - while the vast population even of those equally well qualified are relegated to the sidelines of the unsuccessful and the vast and invisible pool of those failing to be in the competition at all.

Without that advantage, what ways has an aspiring competitor to “level the field?”

In the law firm where I spent my early years, the leadership applied a recognizable if unfair bias - young lawyers who were tall received better assignments and higher levels of recognition. Those so favored by random genetic chance needed no more than to enjoy the benefit. To solve his well-recognized disadvantage, a perceptive young colleague who stood not more than 5’6” searched the partner list. There he identified the firm’s shortest partner, with whom he could look eye-to-eye as he offered his services – a tactic that was foundational for his extended and successful career.

Moving to the current context, a trajectory of socially harmful behavior can also be built on the exploitation of an early advantage.

That is, a violently rogue policeman or an abusive priest whose early violations are tolerated and unchecked will be reinforced to continue. Schemers from Charles Ponzi to Crazy Eddie to Bernie Madoff may have started small, but they were reinforced and allowed to flourish, financed by their early results and fueled by the unrelieved credulity of their later victims. 

Here a reminder, that for the most part, those so favored with early and consequential advantages did not ask for them or in any moral sense “earn” or “deserve” them. Nor would they be expected to renounce or forswear the opportunities so presented. Quite the contrary.

Their principal challenge in achieving their ambitions, instead, is to make choices and pursue strategies that preserve their footholds on the upward ladder. That challenge is risky and not easy to maintain, it being a basic if under-appreciated principle in career development that a necessary aspect of maintaining momentum is to avoid the events that lead to failure. 

To stay on the upward path, in other words, requires avoiding the conduct or the impacts that would be disruptive. For an aspiring young athlete it could be a season-ending injury, or a family relocation away from a league schedule, or a career-destroying personal choice resulting in a failed drug test or an arrest for abuse.

Observing that early incremental advantage is built into our social systems by way of incentives and rewards on the positive side, a look at those falling off the upward graph toward elite status reveals a lesson in symmetry for addressing the problems of bad actors as well.

That is, the best time to stop a schoolyard bully is with an early punch in the nose. The metaphorical equivalent for an extortionist or a fraudster, or a malign narcissist bound on a path of social wreckage, would have been at the earliest evidence of his destructive intentions. In Trump’s case, that would have been as he first emerged from Queens as a bigoted real estate developer, with a bankroll and a business ethos underwritten by his father and schooled by the notorious Roy Cohn in the legal tactics and ethics of delay, deflection and denial.

Enablers of early-stage non-compliance will only encourage further and expanded bad behavior. As reflected in the stunning rate of recidivism among those charged with repeat incidents of white-collar criminality, the well-intentioned if ineffectual recitals that “He deserves a second chance” and “He’s learned his lesson” serve to foster rather than deter or prevent the predations of a budding young criminal.

To do no more than to re-assign an abusive priest or to slap the wrist of a violent police officer is to encourage and invite further and expanded levels of harmful behavior. Yet there is a through-line in our culture that not only tolerates but perversely elevates and admires the conman – from P.T. Barnum to Elmer Gantry and the Wizard of Oz and the Music Man, to Ken Lay and Jeffrey Skilling and Sam Bankman-Fried.

To be effectively deterred, just as with expulsion from a police force or de-frocking an abusive clergy, a novice in white-collar criminality can be knocked off a felonious pathway at an early stage – e.g., conditioning a reduced prison sentence on a permanent prohibition from access to investor funds or a corporate treasury. The would-be criminal whose potential never ripens is the flip side of a young skater’s failure at age eight to make the all-star team.

It cannot be claimed that “nobody knew.” Instead, and fully consistent with the American character that can perversely find something like bemused admiration for the rascality of a conman, Trump was treated early on with a patronizing mixture of disdain and derision, instead of being shunned and shut down for his disregard, disrespect and abuse of the rules and guardrails of well-ordered society.

Even in an era when the prevailing evaluation of client acceptance and retention was “Will Work for Food,” my old firm only purged Trump as a client - for his pattern of unreliable disclosures and his disdain for the niceties and obligations of fee payments - after the bankruptcies of his New Jersey casinos.

Instead, maxims in our cultural vocabulary demonstrate how late-arriving is the reluctant American readiness to grasp the scope of abusive or fraudulent conduct. Only when the damage has been inflicted is heard, “fool me twice, shame on me” or “once burned, twice shy” or “too good to be true” or “never play cards with a man called Doc.”    

Recognizing even so belatedly the understandable if unfortunate biases that inhibited any effective intervention to thwart Trump’s ability to leverage and expand the toxicity of his early advantages, then, the lesson for the present moment is that the next best time to act is right now.      

[1] “Hockey success and birthdate: The relative age effect”, Canadian Association for Health, Physical Education, and Recreation Vol. 51(1985) Barnsley, Roger; Thompson, Angus; Barnsley, P.E. – picked up and popularized by Malcolm Gladwell in Outliers (Little, Brown and Company, 2008), and subject to much discussion, research and commentary.

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