Monday, May 26, 2025

BOOK REVIEW: Mark Twain

Mark Twain - Ron Chernow, 1039 pages + notes and index

Since 1990, author Ron Chernow has crafted a series of biographies of figures in American history that go far beyond answers to basic who / what / when / where questions to address WHY those individuals came to exert such influence in the world in their day and HOW their work still affects the world today. His books The House of Morgan and Titan: The Life of John D. Rockefeller provided insight into how both American business and government were corrupted by concentrations of wealth which still count among America's biggest threats in the present. His biography Alexander Hamilton provided insight into the personalities that drove the debates over the methods of governance America would adopt and demonstrated how Hamilton's intellect, writing abilities, sheer productive output and certainly ego resulted in him having perhaps the greatest influence on the precedents set – often intentionally, with great debate and sometimes randomly – for America's unique federalist form of government. Chernow went on to write biographies on George Washington and Ulysses S. Grant that provided insights on how two different generals evolved into Presidents and how those evolutions were shaped in part by slavery within the United States.

Chernow's latest book Mark Twain traces the literary and intellectual evolution of a man who became world renown for not only his novels but his satires and critiques delivered via short stories, op-eds and stage appearances throughout the world. This new biography is as well-researched as all of Chernow's prior work but the net effect on the reader is far different than any of the other works. After plowing through all 1039 pages, two possible conclusions are likely to come to mind... 1) Thank God I'm done. 2) I dislike virtually every person referenced in this book, including Mark Twain. ESPECIALLY Mark Twain.

That seems like an odd conclusion to reach for someone who is then spending the time to review the book. Why not just walk away and avoid reviewing the book at all? Primarily, because Chernow's intent in writing these biographies and the reader's intent in reading them isn't (and shouldn't be) one of mere entertainment. The goal is enlightenment.

In prior biographies, Chernow's research identified previously unknown events or contributors to those events influenced by the subject of the book that are interesting in their own right. As those previously unknown influences are tallied over the subject's life, Chernow makes a case for how the overall arc of that career wasn't merely a collection of random collisions between person and circumstance but a result of a willingness of that subject to exert their sense of propriety consistently over time, even in circumstances where doing so bucked current thinking. Essentially, each subject came across as someone playing chess and consistently thinking three or four moves ahead of the world around them.

In contrast, after reading Mark Twain, the reader comes away with an impression that Twain's fame in large part stemmed from the coincidence of three forces at a critical point in America's history:

  • a writer growing up with a poor education in a racist society
  • a writer possessing a gift for terse, satirical aphorisms that cut through hypocrisy and flowery language and communicated an idea with punch
  • the evolution of mass media in a world made smaller via trains and steam ships that made world travel not just possible but common

Chernow never makes the case directly, but the real takeaway from the biography is that Mark Twain could be viewed as the world's first successful "influencer." And that suggestion carries with it all of the skepticism, if not outright scorn, that the term attracts when applied in the present. Prior to reading the book, a reader might have been expecting to glean more insight into the complex thought that Twain put into his work over his career to "bend the arc" consistently in a desired direction. After reading the book, it is possible for a reader to come away with the impression that Mark Twain became a "great American novelist" because he wrote what he lived every day – ignorance, greed, hypocrisy -- and peppered his output with comedic, sound-byte friendly outbursts of moral outrage on racism, women's rights and business.


The Naive Narrator

An interesting parallel between the biography Mark Twain and the work of Twain himself is the challenge posed by the language used at some past point in time. Twain's work most famously encountered this problem in Huckleberry Finn in which Twain's prose replicated the dialects and attitutes he encountered throughout his childhood, nearly verbatim, including frequent use of the N-word. From its publication to the present, many readers have great difficulty in seeing value in a book using such an offensive word hundreds of times. Twain infused the prose of the book with the word as part of his use of a naive narrator mechanism for delivering the core point of the book (in the famous "I guess I'll go to Hell" scene).

Huck was an ignorant child raised by a violent father and ignorant aunt amid a racist society who absorbed everything he was taught without thinking. As the book progresses and Huck spends time with Jim drifting down the Mississippi, despite all of that ignorant, racist coaching, Huck's conscience wakes up as he realizes Jim is his equal in every respect. Huck reaches this conclusion after realizing he is technically helping a fugitive slave escape, a criminal offense in his society and a "sin" according to his warped "Christian" upbringing. As Huck weighs his options – turn Jim in like a "Christian" or help him escape and "sin" -- his conscience finally snaps and leads him to the correct moral answer while his "logical" mind, warped by his upbringing, tells himself he'll go to Hell for helping a black man escape slavery.

The N-word permeates the text to reflect how racism permeated America at the time, yet the wrongfulness of racism, despite that head start, could still be grasped by an ignorant, unschooled child. The reader, being multiple chapters into the book by this critical point, is already steps ahead of this ignorant child narrator and "knows" what the correct thing to do is. Via this narrative device, Twain's point was essentially if an ignorant thirteen year old boy can solve this morality problem, why can't YOU, an educated adult? If you're reading this book and think you're ahead of the narrator in this plot, why aren't YOU applying this in your life? The fact that Twain didn't suddenly STOP using the N-word in the book after that point in the plot makes a more subtle, but equally important point. Great, you learned a lesson ("slavery is evil and needs to be eliminated") but if you were wrong on that, you were likely wrong on many related topics and that more moral evolution on your part is required.

Possibly without realizing it, Chernow faced a similar problem researching and writing about Twain himself. With the exception of Alexander Hamilton, who was a VERY gifted writer, most of Chernow's biography subjects were primarily "doers" rather than thinkers and writers. In contrast, Twain was a writer by profession and his first inclination in nearly every circumstance was to write. The output of that inclination might be a travelogue, a short story, a novel, a flowery letter to a family member or fan or a BLISTERING diatribe at some party who suddenly fell out of favor for some real or imagined offense.

In short, Twain's use of the naive narrator in Huckleberry Finn was authentic because he was writing from his personal experience. One takeaway from the entire biography is that, in modern parlance, Twain demonstrated EVERY behavior of someone with attention deficit / hyperactivity disorder (ADHD). He hated school, stopped attending at age 12 but was a voracious reader so he was nearly entirely self-taught. At various points in the biography, it is mentioned that as an adult, people who encountered Twain were amazed at how he could hold forth in discussions on virtually any topic. Such a genius.


Autodidact or ADHD

What also becomes obvious from the biography which Chernow doesn't really mention is that Twain may have been self-taught, but it is not clear he learned much from what he read. If a self-described autodidact reads Isaac Newton's Mathematical Principles of Natural Philosophy but cannot explain the basics of calculus or calculate a derivative, did reading the book really accomplish anything other than introduce vocabulary to throw out at a party? Twain's decisions about business investments and the handling of his own publishing work created repeated, catastrophic financial losses throughout his career. Twain not only repeated the same mistakes after some lull in activity, he repeatedly made identical flawed choices, sometimes within DAYS of concluding efforts to recover from prior failures.

As one example, Twain became convinced he was being cheated of royalties from his first publisher so he decided he would start his own publishing firm. The first project undertaken by his firm used a subscription model in which books were essentially sold door-to-door rather than via a retail bookseller. The books were sold under an installment plan so a set being purchased for say $40 dollars for 10 volumes would collect that $40 dollars over time, yet the customer would receive the entire set of books up front. Twain failed to grasp the cash flow problem created by that model. He further failed to recognize that the more successful the sales of the book became, the more acute the pressure for up-front costs to PRINT the books would be without any incoming cash. Did any of Twain's vast readings cover concepts of basic business and accounting?

Many of those mistakes reflect not only ignorance in matters of finance, general business and investing but an impulsivity obviously attributable to ADHD from a modern vantage point that is clear throughout the book. While Chernow's exposition covers this pattern of behavior in exhausting detail, Chernow never returns to the perspective of the present to address this dynamic in modern terms.


The Consummate Hypocrite

Over Twain's entire life, his choices reflected a consistent streak of hypocrisy regarding both wealth and power. Twain managed to marry up well, finding a wife whose family netted consistent income from a coal processing business serving the railroads – a business equivalent to printing money. Once married, Twain moved frequently between various homes and apartments in Connecticut and New York. The "homes" were not newlywed fixer-uppers or starter homes. Twain's home in Hartford, Connecticut featured TWENTY FIVE ROOMS, 11,500 square feet of space and a staff including a coachman, a housekeeper, a personal maid for wife Livy and a butler. And despite that luxury, they still summered most years at another home owned by Livy's side of the family. Those fixed costs mounted quickly during slack periods in Twain's writing income or when his failed business ventures triggered recognition of enormous losses.

During these budget crunch periods, did Twain ever consider downsizing? Nope. His ADHD driven stress-coping mechanisms kicked in, triggered his wanderlust and he would take the family on extended trips to live abroad while making appearances to make money etc. while leaving the staff in place, burning money at an even faster rate on two continents at a time. At a later point, Twain at least rented the Hartford home out during their absence but neither Twain nor his wife could reach the more logical conclusion that they needed to economize rather than frazzling their nerves and further stressing his wife's ever-fragile health worrying about money.

How much of Twain's tribulations regarding the cost of his homes and lifestyle were due to hypocrisy versus the previously mentioned ADHD demanding the constant stimulus of new things and his particularly poor allotment of common sense related to money is debatable. But Twain's willingness to hobnob with rich or powerful people was a pure reflection of hypocrisy and vanity. As an example, Twain's worldwide tour to raise money to retire debts led to a stint in South Africa. Twain's observations from that trip eventually made their way into his 1897 book Following the Equator which contained this scathing comment on whites in South Africa:

The great bulk of the savages must go. The white man wants their lands, and all must go excepting such percentage of them as he will need to do his work for him upon terms to be determined by himself. Since history has removed the element of guesswork from this matter and made it certainty, the humanest way of diminishing the black population should be adopted, not the old cruel ways of the past. Mr. Rhodes and his gang have been following the old ways.—They are chartered to rob and slay, and they lawfully do it, but not in a compassionate and Christian spirit. They rob the Mashonas and the Matabeles of a portion of their territories in the hallowed old style of “purchase!” for a song, and then they force a quarrel and take the rest by the strong hand. They rob the natives of their cattle under the pretext that all the cattle in the country belonged to the king whom they have tricked and assassinated. They issue “regulations” requiring the incensed and harassed natives to work for the white settlers, and neglect their own affairs to do it. This is slavery, and is several times worse than was the American slavery which used to pain England so much; for when this Rhodesian slave is sick, super-annuated, or otherwise disabled, he must support himself or starve – his master is under no obligation to support him.

The reduction of the population by Rhodesian methods to the desired limit is a return to the old-time slow-misery and lingering-death system of a discredited time and a crude “civilization.” We humanely reduce an overplus of dogs by swift chloroform; the Boer humanely reduced an overplus of blacks by swift suffocation; the nameless but right-hearted Australian pioneer humanely reduced his overplus of aboriginal neighbors by a sweetened swift death concealed in a poisoned pudding. All these are admirable, and worthy of praise; you and I would rather suffer either of these deaths thirty times over in thirty successive days than linger out one of the Rhodesian twenty-year deaths, with its daily burden of insult, humiliation, and forced labor for a man whose entire race the victim hates. Rhodesia is a happy name for that land of piracy and pillage, and puts the right stain upon it.

Taken out of context, the initial portion of that quote sounds atrocious – Twain is sarcastically stating the position of the white racist minority to highlight its offensiveness -- but Twain's true position becomes more evident as the quote goes on. However, that quote and that ultimate conclusion came well after leaving the country. While actually in the country, in the moment, he had no qualms with spouting his grossly uninformed opinions to the local press.

Upon arrival, he spoke in favor of a group of "rebels" led by Brit Cecil Rhodes who had attempted to topple the government controlled by Boers, a faction of white supremacists with ties back to Dutch settlers. (Those Boers are now referred to as Afrikaners, the same Afrikaners that jailed Nelson Mandela who eventually led a movement that removed them from power.) After meeting with some prisoners taken by the Boer government, Twain made some comments to the press about their living conditions, sarcastically terming them superior to many he had seen in mining camps of the American west. That led the government to dramatically worsen their accommodations for several months before they were released.

Twain later met with the South African President of the country and had a pleasant chat with him. Only after leaving the country did Twain realize a) the "rebels" were tied to the British, b) the "rebel" faction under Cecil Rhodes was as racist as the Boers they wanted to oust from power and c) the native South Africans of the country would suffer equally under either faction, regardless of any distinctions between their historical motivations. Twain enjoyed a meal, bolstered his own fame via the publicity of meeting with a head of state and got something to write home about for his book but was unable to speak truth to power in the moment because he made no concerted effort to understand the actual truth before opening his mouth.


Bridging the Past to the Present

In general, some amount of "vernacular shock" is almost guaranteed when modern minds encounter letters and transcripts of communication from many generations in the past. At a minimum, styles of communication from yesteryear seem far more formal and stuffy than the flood of emails and texts most prevalent in the Internet era or even the movie and radio eras. However, when writing about a writer who already has an instinctual urge to WRITE about anything, it seems likely there will be far more material to review and much of that material will be even more over-the-top in whatever idioms were prevalent at the time.

This is absolutely the case with Twain the writer and with the content quoted within Chernow's biography. And because Chernow is attempting to write a "definitive" biography with diligently footnoted sources for every quote, much of Chernow's surrounding prose providing context for such quotes tends to stay within those historical idioms to avoid a jarring clash between the "context prose" setting up a quote and the literal quote. This snowballs into a very tiresome pattern for the reader. As a writer with a flair for dramatic superlatives, Twain's comments in letters consistently

  • Describe every new place he is visiting as the most beautiful, magnificent place he has ever seen… Until he's been there two weeks at which point it becomes a cockroach infested dump he cannot wait to leave.
  • Describe every new business partner as the most brilliant, honest mind he has ever encountered… Until a month later when he becomes convinced that partner is swindling him of all his rightful income from a venture.
  • Describe every new home or villa he ever purchased or rented (and there were many) as an enchanted place of happiness and delight… Until someone gets sick and the place becomes forever tainted as a hell-hole.
  • Describe new doctors or "medical facilities" for family members as the surest place to put someone on the mend… Until an inevitable setback occurs, at which point the doctors become know-nothing, over-charging hacks and he never wants to visit the facility again, even if a family member is still there awaiting the cure that will never come.

The extensive use of quotes from letters between Twain and his family and business partners and the overwrought, overly-dramatic language so prevalent in that era, over 1039 pages of it, quickly make the reader begin feeling like they are reading the literary equivalent of a mashup between the movie High Society with Grace Kelly (or The Philadelphia Story that came before it) and Seinfeld. A mashup reflecting a faux gentility of the rich who are nowhere as cultured and smart as they strive to appear...

...with a collection of characters incapable of hugging, showing even a minimum of concern for their fellow humans or learning anything from any of their experiences.

The family letters quoted throughout the book reflect that same upper-crust dialect that Tracy Lord and her little sister Dinah affect to mock two gossip writers who have arrived to collect dirt on her upcoming wedding. But while reflecting that faux devotion to each other on the page, nearly every Twain family member consistently lied to other family members about their own feelings, lied about the health and feelings of others in the family or seemed to spend inordinate amounts of time collecting sympathy from third parties regarding how they suffered so from the suffering of other family members they were actively keeping out of their sight.

Modern readers encountering letters dripping with this Victorian era melodramatic tone are likely to first immediately scoff at the overbearing hyperbole and faux sentimentality but then immediately discount that reaction. The thought might be people of that era didn't know what they didn't know and they had no radio, TV or Internet to distract themselves so they indulged in dramatic letters. They didn't understand the origins of conditions like epilepsy, a multitude of cancers, heart disease (congenital and diet-induced), alcoholism and depression. And untimely deaths weren't an exception, they were the norm. In that era from 1835 to 1910, Twain was a very old man at 74 when he died.

On the other hand, simply offering up a mulligan for Victorian era hyperbole and drama doesn't seem appropriate given the repeated boorish behavior throughout Twain's life. He not only learned nothing about actually operating a business, despite a major failure, he immediately repeated the same error within DAYS of undoing the financial damage from his first mistake. He learned nothing from dealing with scammers and crackpot doctors affecting his family matters and continued ceding complete control to new strangers who happened to cross his path who quickly failed him miserably if not outright cheated him.

For most of the book, Chernow's exposition surrounding this would-be multi-decade soap opera uses a third-person narrator voice that mostly hews to the Victorian era vernacular as the subjects in the book. Only on relatively few occasions does the exposition step all the way back to present day sensibilities to cut through some of the self-delusional posturing of Twain and the other subjects to reference current knowledge regarding medicine, psychology and mental health. As a result, most of the reader's time is spent in that overwrought woe-is-me alas Mama frame that becomes annoying. It becomes so annoying, in fact, that by the end of the book, the only characters in the book that retained any sympathy were...

...Twain's younger brother Henry who died at age 20 in 1858 in a boiler explosion aboard a steamboat.

...His second daughter Olivia (Susy), who died at age 24 in 1896 of spinal meningitis. Susy was likely Twain's favorite child but shocked the family when she seemed to fall in love with another female student while away at Bryn Mawr college, leading to her withdrawal (or being withdrawn by her scandalized parents) after a single semester. Susy spent the next six years trying to piece together a singing career (picture Twain as Charles Foster Kane paying for opera lessons for his mistress Susan Alexander) while avoiding the glare of being "Mark Twain's daughter" and battling fatigue and depression.

...Twain's wife Olivia (Livy) who acted as his best editor and guardian against his more toxic vitriol reaching the public until she died at age 58 in 1904 of congestive heart failure.

...and Henry Rogers, a senior executive at Standard Oil who (luckily for Twain) befriended Twain at a point in 1893 where Twain was virtually bankrupt due to losses at his own publishing firm and a pipe-dream investment Twain made in a machine for setting type that was soundly beat to market by the Linotype. Rogers volunteered to help keep his financial books straight while Twain embarked on a worldwide speaking tour to restock his coffers. Rogers might have been the only person Twain encountered in all of his business dealings who a) actually knew what he was doing, b) in fact did not cheat Twain out of money and actually helped him tremendously and c) was never accused by Twain of thievery. And curiously, Rogers was a noted robber baron of the era, operating in multiple business sectors.


America's First Influencer

Prior to reading the book, the creative arc one might have expected to glean from a biography of Twain was that of someone raised ignert, who, like their character Huck Finn, learned instinctively at an early age some key lessons about slavery, hypocrisy and greed and, consistently over a career, further honed and unified those lessons, producing a body of work at the end that holds together. After reading Chernow's biography of Twain, a much different impression of that career arc emerges.

Twain wasn't the same type of literary artist in the vein of a James Fenimore Cooper or Herman Melville or Charles Dickens. He didn't focus exclusively on long-form work and those novels and travelogues he wrote rarely hinted at older "classic" works that might have informed his material. Twain was comfortable writing for multiple attention spans and his ADHD likely led to his unique ability to convert flashes of insight into short, pithy aphorisms that clicked with readers. In more modern terms, Twain was not so much an F. Scott Fitzgerald, Kurt Vonnegut or Toni Morrison but more like a topical stand-up comedian or mock-news anchor like Jon Stewart, Colin Jost or (less charitably) Dennis Miller. Miller struck audiences as edgy and hip in his SNL and HBO stints but the same characteristics that matched the zeitgeist in the 1990s never evolved and his commentary seemed to lose any edge based upon any underlying good and came across as snark for snark's sake which ceases to be entertaining.

Twain was among the first writers to expand their career and income by touring the world to recite their works as performances or simply tell new stories or provide ad hoc commentary on stage regarding current events to audiences. This mode of work is instantly familiar to audiences today and Twain was the first author to leverage this model of "infotainment" to achieve worldwide recognition and wealth. But reading history of years of such tours undertaken in parallel with events in his personal life where he was repeating business and personal mistakes over and over is also something people in the present would recognize in "influencer" culture. It is possible to be an influencer capturing clicks and likes and ad revenue without knowing a thing about any subject being "influenced." Knowledge and expertise are not the product being commoditized. Views and likes are being commoditized and there is zero correlation between expertise and popularity.

Chernow's account of Twain's visit to South Africa described earlier provides all of the ingredients to make this point with perfect clarity but Chernow doesn't make this point in the book nor even hint at it. It could be one of the most important takeaways tying the life of Twain to modern circumstances. Sadly, the origins of "influencer" culture is not the only negative parallel to be drawn from Twain to present day fixations on fame, wealth, influence and...


A Second Creepy Parallel With the Present

Mark Twain might not only hold claim to being the first American "influencer", he might also hold claim to being America's first famous rich creep. The first reference Chernow makes to this aspect of Twain's life involves a speech Twain made to a girl's college in London, Ontario. The recently married Twain began flirting with the students after his lecture ended under the conceit of being an old man in need of directions around town. Later Twain began a habit of meeting ten to fourteen year old girls while traveling and "adopting" them as friends during the trip and doting on them as daughters or… (sigh) engaging in months of back and forth correspondence espousing their purity and beauty and charm. One obvious explanation is that these girls were initially adoring fans of his work and Twain enjoyed the adoration from anyone. But weekly correspondence? For months? Between a man in his 60s or 70s and girls under sixteen years old?

Sounding familiar yet?

After Twain's wife Livy died in 1904, Twain voluntarily ceded (to his later regret) control of all of his day to day affairs to Isabel Lyon, a woman already in his sphere acting as organizer of content for his planned autobiography. By the decade of 1900, Twain's obsession with being in the company of young girls Twain termed his "angelfish" reached a point where girls he met would be invited to stay at his house where they could play billiards with Twain and hang out in a dedicated room in his house that even his own daughters were not allowed to enter. Lyon, as the veritable chargè d'affairs of Twain's daily life, helped coordinate these visits, as Chernow describes:

Disappointed by his family, Twain indulged, as compensation, in his late in-life madness: the angelfish. In late July, he wrote to ten-year old Dorothy Quick and pleaded with her to visit him in Tuxedo Park [his residence at the time] for a week. He sent a parallel letter to her mother, promising that Isabel, a former governess in her forties, would pick up Dorothy and deliver her home safely. As further reassurance, Isabel wrote to Mrs. Quick to attest that "both Mr. Clemens & I want Dorothy to be happy, and I too shall love to have her here, as I do love little girls." So Isabel, among her varied duties, was now enlisted as special agent for the angelfish and deployed as protective camouflage to show the world that nothing untoward could happen.

Jeffrey Epstein and Ghislaine Maxwell, anyone?

Charlie Rose and Yvette Vega, anyone?

Twain's behavior lasted his entire life. He continued to invite young girls for extended stays at his home until the year before he died. In fairness, there is absolutely zero written correspondence originated by any of the girls who came into his circle from the time of these visits or afterwards that alleges or even hints of ANY sexual contact or even impropriety. However, at the time, those with knowledge of these arrangements were creeped out as much as those seeing this with modern sensibilities and efforts were taken to hide these interactions from the public. Today, much of Twain's written and verbal interactions with DOZENS of these young girls would be immediately categorized as manipulative grooming behavior used by pedophiles or more generally by powerful men against powerless victims. In the present day, we are conditioned by modern realities to assume that when there is this much creepy smoke, there is almost inevitably creepy fire. It is very difficult to review this behavior from one hundred fifteen plus years ago and conclude otherwise.


Twain as the Quintessential American

It was previously mentioned that after reading all 1039 pages of Mark Twain, the reader is left in a position where virtually NONE of the persons referenced in the book are likable. This is most true about Mark Twain himself.

At the time of daughter Susy's death in 1896, Twain was abroad in Europe with wife Livy and daughter Clara working speaking engagements to earn money to escape debts that had triggered bankruptcy. However, the Clemens had received multiple telegrams at the beginning of August 1896 referencing medical issues with Susy back in the States. Finally, a telegram sent on August 14 led wife Livy and daughter Clara to book a return trip to America. Twain curiously chose to remain in England awaiting further confirmation. Chernow writes:

The next day at noon, Livy and Clara departed aboard the Paris from Southhampton on a voyage disturbed by fearful musings. Twain wrote a letter to his wife that expressed a pessimism inexplicably at odds with his behavior. "You & Clara are making the only sad voyage of all of the round-the-world-trip. I am not demonstrative; I am always hiding in my feelings; but my heart was wrung yesterday. I could not tell you how deeply I loved you nor how grieved I was for you nor how I pitied you in this awful trouble that my mistakes have brought upon you. You forgive me, I know, but I shall never forgive myself while the life is in me. If you find our poor Susy in the state I seem to foresee, your dear head will be grayer when I see it next. [Be good & get well, Susy dear, don't break your mother's heart.] This self-flagellation went on. "Livy darling, you are … the highest & finest & loveliest character I have ever known; & I was never worthy of you. You should have been the prize of a better man – a man up nearer to your own level." Twain was consumed by such dread about Susy it makes one wonder – and Twain himself would have cause to wonder – why he had not rushed with his wife and daughter to America.

As events turned out, Susy died on August 18, four days after Livy and Clara set sail to return and Susy was buried before Twain could reach New York on his later trip. In other words, Twain not only missed being able to be present for his daughter's death despite a heads up eighteen days prior, but chose to remain long enough to require his wife to deal with the funeral entirely on her own before returning. This was Twain's reaction for the death of his favorite daughter, in spite of reams of cloying correspondence about her being the best of everything in the world.

After losing wife Livy eight years later in 1904, responsibility for the care of eldest daughter Clara and youngest daughter Jean fell on Twain, who immediately offloaded it to Isabel Lyon. Lyon had already been in Twain's sphere, working to assist him in assembling material for his autobiography. Twain put her in charge of not only his business affairs but decisions about the treatment plans for his surviving daughters who both had many real health issues. His eldest surviving daughter Clara had tendencies towards depression and required frequent trips to sanitariums for "recovery." His youngest daughter Jean suffered from epilepsy which was treated as a taboo illness in society, resulting in her being shuttled off to a never-ending series of treatment centers to be "treated" by the latest voodoo of the day. Jean's inability to attempt leading a normal life and her lack of contact from the family, reinforced by Lyon, led Jean to write a letter to her father complaining that he knew nothing of recent improvements in her health because Lyon was purposely hiding information from him.

Twain responded with a letter to Jean that reflected the most consistent aspect of his behavior over his entire life:

Far from being upset at not being told of Jean's condition, he expressed approval, saying, "That is right, & as it should be, unless it is something that I could remedy. Clara, Miss Lyon & Mr. Paine keep all sorts of distresses from me, & I am very thankful for it – distresses which they are aware I could not remedy, I mean… But whenever there is anything that depends upon me & my help, I want to know all about it.

The mindset in that letter was reflected consistently throughout Twain's adult life in not only his interactions with his own family but his business affairs as well. He didn't want to be bothered with details and when the details spiraled out of control and he was sucked into a situation at its nadir, the blame was laid on anyone or everyone else, then solely with him for a brief spike of despair, then was suppressed to allow the cycle to repeat. Over and over.

That's a dangerous modus operandi for guiding a life yet many of the same behaviors can be seen in modern America. Fixations on fame and notoriety rather than hard-earned expertise and competence. Preferences for internally derived opinions over external, verifiable facts. A desire to avoid the hard work of remaining informed about boring but important day to day details. Insistence on modeling every problem and decision as a black and white issue rather than one of countless colors. Denial of any contributory responsibility for one's own fate despite decades of prior heads up regarding the possible impacts of one's decisions.

Mark Twain achieved the fame he desired but the money that came with it was never enough. Twain relied on his conscience at a few critical points in his life and was able to communicate moral insights sorely needed in America and the world at a few key points along the way. But Twain was unable to fully grasp the stunting nature of the limits of his self-driven education. He had much learning to do but avoided it to pursue more predictable rewards. As a result, as influential as some of his work remains to this day, Twain likely fell short of the best work he might have been capable of producing.

For that reason, Mark Twain may be the quintessential American. There are elements of Twain in all of us. America never was a perfect place and its imperfections have corrupted every generation raised here. But we know that. We the people, in order to form a more perfect union... It's up to everyone to try to do better, for everyone's benefit, not just our own. And recognize no matter how enlightened we think we are, there is darkness that remains to be eliminated.


WTH

Friday, May 23, 2025

Attainders and You

Today's lesson in crusty legal terms you never thought you needed to care about is brought to you by Donald Trump, who seems likely to sponsor many more future episodes in the coming days. Today's civics vocabulary term is attainder which the Merriam-Webster dictionary defines as:

attainder (noun): The termination of the civil rights of a person upon a sentence of death or outlawry for treason or a felony.
The term attainder might ring a distant bell with Americans who have watched a lot of legal dramas or were paying attention in a social studies covering American history. That's probably because the concept is referenced in the United States Constitution, specifically in language within Article I, Section 9, Clause 3 which reads:
No Bill of Attainder or ex post facto Law shall be passed.
The simplest interpretation of this language is that it prevents both state and federal governments from enacting laws which explicitly target individuals for punishment. A state can pass a law making it illegal to drive faster than 70 mph on any road but a state cannot pass a law that explicitly makes it illegal to drive faster than 70 mph for Joe Schmoe while allowing it for others. The federal government can enact a law removing tax breaks for any corporation selling its products to a particular foreign country but it cannot enact a law removing tax breaks solely for Mango Microprocessors if it sells chips to Monaco.

This ban against bills of attainder in the Constitution was added to explicitly address and prevent specific abuses seen during colonial rule and prior centuries of English history. In some cases in that history, attainders were interpreted to not only affect the named party of the law but to blood relatives as well, extending the abuse to descendants. So obvious were the dangers of bills of attainders that the attainder language added to the Constitution was adopted unanimously by those drafting the Constitution and generated zero debate.

That was then. This is now. And now, the Trump Administration, with 6-3 conservative control of the US Supreme Court, a 53-47 majority in the US Senate and a 220-212 majority in the US House (with 3 vacant seats) seems unable to enact ANY legislation to match its goals using actual legislative processes. Instead, it is issuing executive orders and threats that, if implemented via actual legislation, would represent clearly unconstitutional bills of attainder. The two most recent examples in two days are:

  • The order from the Department of Homeland Security explicitly banning Harvard University from enrolling foreign students OR hiring foreign faculty or administrators.
  • A threat from Donald Trump stating that 25% tariffs will be applied to Apple if it does not begin making its products in the US.

If these are merely administrative orders or verbal threats from the President, are they technically bills of attainders? In a world where the US Supreme Court has ruled that a President has a cloak of immunity around "official actions" even after his defense counsel argued such protections would apply to assassinating political enemies, it is sadly no longer clear how court cases addressing these conflicts will be eventually adjudicated. Historically speaking, however, there is ZERO doubt these actions and policies are completely unconstitutional, even if they are being imposed short of an actual law being enacted.

In the foreign student / staff restriction, the mandate only applies to Harvard, there is no specific civil or criminal violation being cited by the federal government that triggered the decision, and there is punishment (loss of enrollment, loss of staff, chaos that could further reduce enrollments of other students not interested in attending a university being crippled by limits on its students and faculty) being inflicted on a single entity.

In the Apple case, the firm has broken no law by manufacturing products in a foreign country, the threatened tariffs would be assigned solely to Apple's products and would obviously uniquely impair Apple's profits versus competitors.

The last time America was subjected to the rule of someone who had gone this King George while in power, well… We called it for what it was, wrote a firm but mostly polite eff you note and spent the next five years fighting and dying to shed the yoke of a tyrant and establish more just (not perfectly just, of course) control of our own affairs.

Two hundred and forty nine years later, Americans are in EXACTLY the same predicament as 1776. We somehow elected a President who has chosen to rule by fiat – DESPITE having majority control of every lever of the federal government – and in words and actions violates multiple constitutional protections on a DAILY basis. And the party in majority control refuses to use any of the powers available to it in the Legislative Branch to remove the threat posed by the President.

The actions being taken by Trump don't involve complex, esoteric gray areas in Constitutional law reflecting competing goals favoring the individual that occasionally come into conflict. These issues involve core constitutional limits protecting ALL individuals from gross abuses of power by a single person. Even in a hair-triggered, nuclear-tipped ICBM world, no President requires or deserves the level of power Trump is attempting to claim for himself. And whether he gets it or not, NOTHING GOOD has ever resulted from any individual attempting to concentrate this much power over the rest of us.


WTH

Wednesday, May 21, 2025

Escalating Risks in AI

Advancements in Artificial Intelligence technology continue to reflect the escalating risks posed by the technology itself and anyone trying to invest in it. Two stories receiving coverage in various outlets highlight the unpredictability of the technology and its impacts on society. The first story involved a decision made by Microsoft to release source code for its integration between VSCode and its GitHub Copilot platform. The second story involved a white paper published by engineers at OpenAI involved with the development of its AI technologies and an unexpected, disturbing lesson those engineers reached while trying to influence the "learning" of their AI system.


AI Meets PacMan

In a quickly evolving technology field, it is common to see various competitors attempt to gain attention with flashy presentations at trade shows or put a wet blanket on other firm's attempts to do the same. The AI space has proven unique in this regard in the sense that this continual jockeying doesn't involve announcements about products that might move a few thousand units in their first months of release, it involves private decisions to make bets worth millions and billions of dollars whose value can be diminished if not zeroed out only days later. This dynamic of the AI market was again demonstrated on May 19, 2025 when Microsoft announced a decision to release source code for a key module in its VSCode developer tool as open-source code under the MIT license. The reasoning behind and impact of this decision require a bit of explanation and unpacking.

Since the late 1990s, Microsoft has offered a platform called Visual Studio that provided a unified set of tools software developers needed to create applications to run atop Microsoft Windows. Over time, Microsoft generalized Visual Studio to support development in multiple languages of applications for multiple operating systems. However, Visual Studio itself remained based upon libraries only present within Windows so it only ran on Windows PCs. By 2015, Microsoft decided to develop an alternate platform with non-Windows libraries that could also develop applications for multiple platforms in multiple languages but would itself run on multiple platforms. This new platform was (confusingly…) named Visual Studio Code. (Most developers refer to it as VSCode to differentiate it from the older Visual Studio product.)

VSCode was released in 2015 but, by 2019, it reached a "market share" of nearly 50% and a survey by Stack Overflow in 2024 showed 74% of developers using VSCode. It's worth noting that the use of developer tools is never an EXCLUSIVE so these "share" numbers add up to exceed 100% because most developers use three or four based upon the work required. VSCode's user interface is not THE best for EVERY programming project scenario but its popularity grew because it proved easy to customize using extensions that ran atop its framework. This allowed developers in a variety of niches to create extensions that automated common tasks unique to specific project types (like creating code for a microcontroller versus a Python app versus a Java application). Microsoft further encouraged this external innovation by open-sourcing the code to VSCode. Well... Sort of... The core code controlling the GUI and the interface for extensions within VSCode is all open-source but many of the custom extensions built for VSCode are NOT released as open-source.

Given VSCode's partial open-source basis and its popularity, the spike in availability of different AI platforms has led to multiple attempts to "fork" VSCode and create optimizations specific to some of these new AI tools. The firms creating these AI platforms have noticed this trend and often support these efforts by providing funding to those developing these forks in the hope support of a custom AI integration will boost adoption of their AI platform.

That was certainly the thought when OpenAI itself decided around April 26, 2025 to spend $3 billion dollars to purchase a firm called Windsurf. Windsurf, under its prior name Codeium, developed an extension for VSCode that used APIs into various chat front-ends into multiple AI platforms to simplify how a developer would pose questions ("how do I protect methods in a web service based upon the role assigned to the userid who authenticated this request?") to an AI, review the AI's suggestions, refine them as needed then eventually paste answers from the AI back into source code being edited within VSCode.

The core team at Codeium began building this tool in earnest in mid-2022. The first release wasn't made available until November 13, 2024 but by August 29, 2024 the company had announced a new funding round that reflected a $1.25 billion dollar valuation of the firm. As recently as March 8 of 2025, stories in the press were still making references to valuations in the $1 billion dollar range, yet OpenAI decided to buy Windsurf outright for $3 billion dollars on April 26, 2025 and closed the deal on May 15, roughly 20 days later.

Why was OpenAI willing to spend $3 billion dollars to buy a firm that had recently been evaluated at only $1 to $1.25 billion? Especially when that valuation was assigned by investors who presumably did due diligence to come up with that number? Frankly, the answer is not clear. The portion of Codeium driving its user interface and integration hooks out to external AI systems are open source but its core AI logic used to interpret results from external AIs and unify them into a "final" answer for the user uses a proprietary execution engine that runs near the user on servers the user controls rather than somewhere in the cloud. For users not wanting to send their proprietary code into a cloud for analysis, that's a plus, besides the fact that the local AI engine can be more specifically trained on local proprietary systems and result in a smaller / faster dataset for the AI to use interactively.

Of course, whether Windsurf / Codeium will still be worth $3 billion dollars to OpenAI down the road is now in question. It is a legitimate question to ask if the Windsurf / Codeium codebase is worth anything now after Microsoft open-sourced its GitHub Copilot Extension for VSCode. That code base implements many of the same capabilities as Windsurf but if it also open-sourced the logic Microsoft implemented to meld different AI inputs together and refine them into a coherent "final answer", that would allow enough competitors to use it as a jump start to virtually eliminate any competitive advantage OpenAI thought it gained by buying Windsurf

At some point, the executives at all of the companies chasing AI riches are going to have to recognize a key point which, to date, still seems to be escaping them. It is virtually IMPOSSIBLE to build and maintain an intellectual property moat around anything related to AI. This is probably counter-intuitive to the executives of these firms because there are literally only one or two hundred people IN THE WORLD with the expertise in mathematics, statistics, computer science, networking and hardware design capable of advancing these technologies. However, all of that expertise lies in their head and cannot be trapped or retained with an NDA or non-compete clause. If those engineers leave, there goes your moat. They're not stealing it, you just never had control of it to begin with.

Perhaps a more direct way to put it is this… It's easy to think of this technology "space" as a PacMan video game with a big firm gobbling up little firms once they prove they've devised something that can threaten the big firm. In reality, there are multiple PacMen on the screen and new PacMen can emerge from virtually nothing and release products that can completely obliterate existing PacMen on the screen in an instant.

Of course, this lack of viable intellectual property protections around AI is in some sense the ultimate irony for executives who chose to build these systems by training them on petabytes of public but copyrighted content they studiously ignored. If the executives at these firms continue to ignore this lesson, it behooves investors (current and would-be) in these firms to begin paying closer attention when executives strike these BILLION dollar deals with little due diligence. Twenty or thirty years ago, a THREE BILLION DOLLAR acquisition was a big deal and required careful review by a firm's board and often by regulatory agencies. The fact that the government has gone AWOL on evaluating large mergers for anti-trust concerns doesn't eliminate the duty of boards to protect shareholders from billion dollar boondoggles that only capture headlines for a week until the deal is completely negated by a competitor's next release.


AIs Have Learned to Lie

Perhaps a more shocking story in recent days involving AI boils down to one simple point. AI systems have learned to lie. A paper was published by nine engineers at OpenAI on March 2025 describing a problem they were trying to solve and the behavior of the system in response to having its incentives altered.

https://cdn.openai.com/pdf/34f2ada6-870f-4c26-9790-fd8def56387f/CoT_Monitoring.pdf

The title of the paper was a bit dry but somewhat ominous: Monitoring Reasoning Models for Misbehavior and the Risks of Promoting Obfuscation.

In an effort to improve the transparency of the sources and weights assigned by an AI system in answering a prompt from a user, AI engineers add a "scratchpad" function in the AI's control logic that logs information that provides clues as to how the AI is parsing the human input, how it is selecting keys in that prompt to use as focus points to establish its "context" and how it is sorting preliminary answers to merge into a final answer. This scratchpad instrumentation gives engineers (and sometimes the end-user) insight into whether the AI might be misinterpreting something in the input (maybe reflecting a lack of training data) or if the AI has recognized it is actually "hallucinating" and making up a response in the absence of anything better correlated in its training.

The OpenAI engineers were testing their implementation of scratchpad functionality in their system and were pleased to find this scratchpad concept worked and DID provide the desired transparency they sought. And they saw problems they wanted to address. They knew the AI is based upon "learning" logic that scores inputs based on whether an interpretation it made led it CLOSER to an answer deemed correct or FURTHER from an answer. They decided to use that same approach to alter the AI's internal logic to consult the scratchpad log entries it was creating, score those words (which were not part of the original human prompt request) then avoid any low-weighted paths and try something else.

After adding this extra feedback logic – logic that basically slapped the AI on the wrist in the middle of processing saying BAD AI, avoid this, try something else – the engineers were shocked to find the AI core quickly learned to simply HIDE its actions that it saw tied to low scores in the scratchpad feedback loop. It did this either by NOT logging any terms it saw tied to low weights OR – even worse – by making up new terms for those terms it had learned were low-weighted in the scratch pad. Imagine parents telling a child "I don't want to hear you talk to your friend about X" and the child and friend deciding to simply use Y instead of X to refer to "X" and carrying on with their conversations. Inxe on the ottenre. AI learns pig Latin. The AI core had – in anthropomorphic terms – learned to LIE to the scratchpad feedback mechanism so it could continue using weights and logic paths that were weighted higher in its core learning data but were de-valued by the scratchpad feedback.

A different group found that the OpenAI system also lied in a different way. Rather than simply omit references to "discouraged" paths in scratchpad or invent new terms for "discouraged" paths when logging them in the scratchpad, OpenAI would at times fabricate logs for actions it never performed. This team at Transluce posted the following on its X account on April 18, 2025:

https://medium.com/@aitechtoolbox48/the-curious-case-of-artificial-intelligence-that-cant-stop-lying-16efb6a4df06
We tested a pre-release version of o3 and found that it frequently fabricates actions it never took, and then elaborately justifies these actions when confronted.

This problem is not unique to OpenAI's technology. A similar paper was published in December 2024 with results engineers at Anthropic found in their Claude AI system. They used the term alignment faking for the behavior they detected and described it as selectively complying with its training objective in training to prevent modification of its behavior out of training.

https://www.anthropic.com/research/alignment-faking

Their white paper can be read at this address:

https://arxiv.org/pdf/2412.14093

The implications here are truly profound. From petabytes of human generated content, this technology has already "learned" some of the most dangerous behaviors of its creators:

  • ignoring explicit directions,
  • hiding from accountability by not recording anything about what it did,
  • hiding from accountability by essentially inventing its own pig Latin that can escape scoring that would normally stop it from pursuing an action
  • flat out fabricating actions to make it appear it followed direction when it explicitly ignored such direction

No accounting firm should operate with such a system.

No civil engineering firm should operate with such a system.

No public utility or chemical operation should operate with such a system.

Yet here we are. Stepping back to the prior thread about investment risks with AI technology firms and their clients, this new vulnerability should appear at the top of the list when considering investments in this space. Even though these engineers understood enough of the system and logs generated within it to identify the fact the AI system PERFORMED these actions, it is impossible for them to identify exactly HOW this "lying" intent has become reflected in training data, how such intents can crop up during processing and how to prune such data out of the system. And since the AIs have already demonstrated the ability to hide their tracks, it isn't clear at all whether current AI engineers will be able to spot when such behavior becomes perfected in obfuscation in the next generation of their system.


WTH

Monday, May 12, 2025

Over-Criminalization?

The buzz word for Week #16 of the made-in-America horror flick Trump Hell has to be over-criminalization. Over-criminalization was the subject of yet another Executive Order issued by the Trump Administration on May 9 and publicized on the White House web site. Here are links to both the official Executive Order and the "fact sheet":

https://www.whitehouse.gov/presidential-actions/2025/05/fighting-overcriminalization-in-federal-regulations/

https://www.whitehouse.gov/fact-sheets/2025/05/fact-sheet-president-donald-j-trump-fights-overcriminalization-in-federal-regulations/

On a weekend where Steven Miller appears on the White House lawn confirming consideration is being given to suspending habeas corpus protections as part of the battle against illegal immigration and an Administration publicly confirms it is considering accepting a $500 million dollar luxury jet as a gift from Qatar to serve as an interim Air Force One, any policy decisions about criminal prosecution philosophies accompanied by "fact sheets" merit detailed review.


The Executive Order in a Nutshell

The EO starts with the thesis that the United States is over-regulated and the quantity of criminal statutes on the books is so vast and opaque that no reasonable lawyer much less citizen can be expected to know of all the possible behaviors to avoid to comply with the law. It goes on to opine that strict liability standards applied with "regulatory criminal law" are too onerous and must be relaxed to require knowledge of the law and intent to break it to prosecute and that the Department of Justice will hence DE-PRIORITIZE all enforcement of "regulatory criminal law."

Here are excerpts from exact language of the EO stating these views:

Section 1. Purpose. The United States is drastically overregulated. The Code of Federal Regulations contains over 48,000 sections, stretching over 175,000 pages — far more than any citizen can possibly read, let alone fully understand. Worse, many carry potential criminal penalties for violations. The situation has become so dire that no one -– likely including those charged with enforcing our criminal laws at the Department of Justice — knows how many separate criminal offenses are contained in the Code of Federal Regulations, with at least one source estimating hundreds of thousands of such crimes. Many of these regulatory crimes are “strict liability” offenses, meaning that citizens need not have a guilty mental state to be convicted of a crime.

This status quo is absurd and unjust. It allows the executive branch to write the law, in addition to executing it. That situation can lend itself to abuse and weaponization by providing Government officials tools to target unwitting individuals. It privileges large corporations, which can afford to hire expensive legal teams to navigate complex regulatory schemes and fence out new market entrants, over average Americans.

The purpose of this order is to ease the regulatory burden on everyday Americans and ensure no American is transformed into a criminal for violating a regulation they have no reason to know exists.

From those assumptions, the following policies are established by the EO:

Sec. 2. Policy. It is the policy of the United States that:

(a) Criminal enforcement of criminal regulatory offenses is disfavored.

(b) Prosecution of criminal regulatory offenses is most appropriate for persons who know or can be presumed to know what is prohibited or required by the regulation and willingly choose not to comply, thereby causing or risking substantial public harm. Prosecutions of criminal regulatory offenses should focus on matters where a putative defendant is alleged to have known his conduct was unlawful.

(c) Strict liability offenses are “generally disfavored.” United States v. United States Gypsum, Co., 438 U.S. 422, 438 (1978). Where enforcement is appropriate, agencies should consider civil rather than criminal enforcement of strict liability regulatory offenses or, if appropriate and consistent with due process and the right to jury trial, see Jarkesy v. Securities and Exchange Commission, 603 U.S. 109 (2024), administrative enforcement.

(d) Agencies promulgating regulations potentially subject to criminal enforcement should explicitly describe the conduct subject to criminal enforcement, the authorizing statutes, and the mens rea standard applicable to those offenses.


Legitimate Concerns?

Ignoring for a moment the Administration that issued this EO, are there merits to the concerns the EO claims to address? Maybe.

Are concerns about "dumb laws" valid?

Media outlets find it easy to produce "filler news" stories periodically summarizing old, obscure laws (and sometimes even new, obscure laws) on the books at the federal and state levels. To people outside the legal system, these articles implicitly make a simplistic but misleading point about how such arcane laws at best illustrate how inefficient the justice system can be and, at worst, how such laws can be used as "gotchas" to arbitrarily snare an average citizen for pointless infractions.

Left out of these recurring stories is any explanation as to WHY these types of laws exist. These existing "dumb laws" exist for three key reasons:

  1. At some point in the past, some collection of "dumb" people saw the need to ENACT those laws.
  2. Our legal system operates in a manner that prioritizes WRITTEN LAWS over relying upon arbitrary decisions made by a single prosecutor or judge or jury in deciding to prosecute, try and convict a citizen for violating a written law. It's why we say we have the rule of law rather than the rule of whoever has power. You don't want enforcement of laws varying purely because of who gets to make decisions about prosecution or conviction.
  3. Our political process has become paralyzed by corruption from special interest groups who often write the obtuse laws enacted by legislatures to obscure the benefits being extracted from those laws. These same corrupt forces also excel at protecting those laws once on the books and impairing the larger legislative flow such that spending time cleaning up thirty or eighty or one hundred fifty year old "leftover" laws isn't worth distracting the legislature and potentially burning up time required for new pressing needs.

The idea that the country is burdened by laws which are attempting to micromanage the citizenry and businesses is ironic given that the same conservatives making that argument which DRIVES very explicit terms to be incorporated into legislation also find fault (and legal escape) in laws which FAIL to spell out EXACTLY what is being made illegal and are "too vague" to enforce.

Are concerns about arbitrary prosecution valid?

Absolutely, but not in the sense possibly conveyed by this order. No government can literally enforce one hundred percent of laws against one hundred percent of all offenders. Doing so would require a police state mentality to catch every offense and would require enormous resources with diminishing returns to pursue every case. That has never been an argument for not enacting laws and establishing penalties. Prosecutors must ALWAYS evaluate charges brought by law enforcement against available facts, the nature of the crime and available resources with the prosecutor and the courts to ensure the most important cases are tackled and less important cases that might distract from the larger cases are deferred or declined. That's the nature of operating with limited budgets and personnel.

On the other hand, prosecutors should never be making decisions case by case as to what the law means or whether a particular suspect should be charged based on who the suspect is or their ties to people in power. When prosecutors are told to categorically AVOID prosecution of regulatory criminal law offenses except in outlying circumstances, they are being told to ignore the law to the point of nullifying the law which the Administrative branch lacks the Constitutional authority to do. If the complexity of existing law seems to be an obstacle given a growing society, increasing the budget for law enforcement and the courts would be a more logical policy goal than simply IGNORING decades of existing laws.

Are concerns about strict liability valid?

The strict liability standard applied to "regulatory criminal law" as termed by the EO essentially says a person who violates a "regulatory criminal law" can be prosecuted even if they didn't know the law existed or know they were breaking the law. This differs than the standard used for violent crime, for example, where a prosecutor must prove mens rea, meaning the prosecutor must prove the suspect KNEW of the law and UNDERSTOOD their action violated that law and INTENDED to violate that law.

The application of strict liability for "regulatory criminal law" versus mens rea in (regular) criminal law is based in large part upon the legal stakes involved with the two different categories of crime. For regulatory criminal violations, penalties might include jail time but are never going to impose the death penalty. More typically, regulatory crimes often just result in financial penalties or restrictions on future business actions. At the same time, violations of regulatory criminal statutes are FAR MORE COMMON than (regular) criminal statutes and the costs to society can be FAR GREATER if left unchecked.

It makes perfect sense to apply a lower standard of liability for crimes lacking risk of the ultimate penalty but can occur in volumes and magnitudes capable of triggering BILLIONS of dollars in real losses to other citizens and society in general. If you operate a million or billion dollar enterprise, you shouldn't be expected to know every page of the federal statutes but you should pay to have professional legal counsel steer you clear of the shoals. Attempting to operate a large business WITHOUT sound legal and accounting support is the business equivalent of designing and building your company's skyscraper without an engineering degree. Sure, if the building collapses, it's your fault and you may die but the rest of the public has a right to be protected from your building collapsing on nearby citizens.


What's Behind This Executive Order?

Trump lacks the intellectual horsepower to completely cloak the underlying intent of this order. This order does nothing to "level the playing field" for small business to compete with big megacorps with immense legal staffs to navigate confusing legal statutes at the federal and state level. This order has nothing to do with ELIMINATING the potential for arbitrary prosecution of citizens based on the whims of the sitting President. This order does the exact opposite on both counts.

It magnifies the abusive market power of large corporations by explicitly telling them it is de-prioritizing enforcement of "regulatory criminal law." This encourages corporations to simply NOT review potential business decisions with competent legal counsel then claim ignorance of the law after concocting schemes to interfere with competitors, defraud customers or lie to the government regarding actions taken in violation of labor, safety and environment regulations. A small business owner with 20-30 employees might not be aware of a workplace safety regulation that might pose a risk to employees. A firm like Amazon employing 740,000 warehouse workers and 390,000 drivers has ZERO excuse to be "unaware" of safety regulations involving repetitive injuries, shift lengths, chemical exposures, etc. Their ability to exploit violations of such rules for profit is exponentially greater than even hundreds of small businesses.

The EO includes this language

Prosecution of criminal regulatory offenses is most appropriate for persons who know or can be presumed to know what is prohibited or required by the regulation and willingly choose not to comply, thereby causing or risking substantial public harm.

That language might seem reasonable to the average citizen but fails to acknowledge the stakes involved in operating billion dollar corporations. Is it conceivable that a billion dollar chemical company might not know a new product it developed would cause cancer in consumers or factory workers? Absolutely. Does it make sense to let that corporation or its executives and engineers off the hook if they didn't absolutely, positively KNOW the new product would cause cancer? Absolutely not. In a complex, scientifically driven industrial economy, no one is going to know everything at any given time but the financial and legal burden of uncertainty is best carried by those who should be EXPECTED to know the most about those risks. Reducing that liability and potential criminal exposure creates what economists term an "externality", a cost that is shifted away from the creator of the cost that encourages overproduction of a good or service by inflating its profitability, privatizes the profits and socializes the risks.

This executive order doesn't REDUCE the opportunity for prosecutorial abuse at the direction of the President, it MAGNIFIES it. The preamble to this EO states the following:

This status quo is absurd and unjust. It allows the executive branch to write the law, in addition to executing it. That situation can lend itself to abuse and weaponization by providing Government officials tools to target unwitting individuals. It privileges large corporations, which can afford to hire expensive legal teams to navigate complex regulatory schemes and fence out new market entrants, over average Americans.

Regulatory law has become so prevalent in modern societies precisely because of the complexity of modern industrial economies. As an example, regulation of pollution involves continual learning about new health risks gleaned from medical advances and continual evolution as businesses devise new chemicals and new uses for existing chemicals and materials. Because of this technical complexity and the paralysis and inefficiency of legislative processes, it is impossible for elected officials to explicitly update statutes on a monthly basis in sync with advancements in industry. Laws must be written with enough generality to allow agencies charged with enforcing the law to clarify and evolve rules over time in response to scientific advancements without having to navigate a gauntlet of special interests with tens of millions of dollars to thwart any additional changes.

An argument that assumes a complex economy with heavily concentrated power can be successfully regulated with simple laws and rely upon the good intentions of the most powerful to look out for the public's interest is a fantasy with no basis in reality. Instead, it is a direct reflection of a goal of extreme conservatives to dismantle the entire regulatory framework of the United States that emerged in the latter 1880s as a response to anti-competitive monopolies and horrendous labor practices. That legal rationale was extended in the 1960s, 1970s and 1980s into environmental and safety regulations as consequences of pollution ranging from the Manhattan project, mining and pesticide production became apparent.

Rather than reducing the potential for selective enforcement, an explicit direction to minimize enforcement of such laws while still leaving them on the books magnifies the power a President has over industry to extract favors in return for continuing to look the other way. In Trump, America has a President who is literally auctioning off private dinners and White House tours for those buying up the largest blocks of his meme coin as a means of not only padding his wallet but having compliant future partners in corruption self-identify their willingness to partner up with Trump in any scheme, no matter how corrupt in nature. In Trump, America has a President who is "considering" accepting a $500 million dollar used luxury 747 from a foreign government to serve as an interim Air Force One as Boeing falls five years behind and counting in delivering replacements for the 30-year old airframes currently in use. One would have to be criminally naive to assume such a President would not actively leverage his influence over prosecutorial priorities to protect his friends and punish his enemies. He has often promised to do exactly those things.

The intent of this executive order has nothing to do with streamlining legitimate business operations by eliminating cumbersome, pointless, gotcha regulations. This EO is a statement of intent to implement a rollback of over one hundred and forty years of laws protecting workers and the public via fiat rather than by altering the law. Such a rollback has been at the top of the extreme conservative to-do list since the Chevron vs National Resources Defense Council decision in 1984 expanded the government's regulatory authority by explicitly deferring to agency expertise in many rules-setting decisions. Conservatives LIKED the ruling at the time when they thought a conservative Administration would be using the power but DESPISED it once control shifted to Democratic Presidents.

The intent of this order has everything to do with bypassing actual legislative work to correct whatever flaws are imagined in current law – even with majority control in the House and Senate – and further putting a corrupt President in a position of power over an ever-wider swath of activity in the entire economy to manipulate to enrich himself and persecute his enemies.


WTH

Monday, May 05, 2025

Willie Wonka Meets Bernie Madoff

Recent news from Trump World is beyond astonishment.

  • On April 23, 2025, Donald Trump announced he would host a special dinner at Mar-a-Lago for the top 250 holders of his meme coin and provide an inside scoop on planned regulatory policies affecting cryptocurrency (hint, there won't be any cryptocurrency regulation) and offer a special private White House tour to the top 25 holders.
  • On May 2, 2025, Donald Trump posted an AI generated photo on his OWN social media platform depicting himself as the Pope, as if to say "I run America, I run the world, why don't I just run the Catholic Church as well?", maybe as a joke or…?
  • On May 2, 2025, DHS head Tom Homan publicly threatened Wisconsin Governor Tony Evers with arrest and prosecution for potentially "interfering" with federal immigration officers who show up on state property and interact with state workers. Evers merely instructed state employees to involve the legal team of their department if contacted by federal officials to ensure they complied with state and federal law.
  • On May 4, 2025, Donald Trump appeared in a taped interview on Meet the Press and answers a question about whether if, in light of recent court rulings against his executive orders, he needs to follow the Constitution and allow due process, he answered with "I don't know."
  • On May 4, 2025, Donald Trump posted a comment stating he is directing the federal government to re-open Acatraz prison as part of his efforts to alter how American handles its most violent criminals.

The meme coin promotion is a political corruption hat trick even the worst of Trump's predecessors could not have possibly imagined or concocted. The ownership contest spiked the price of the meme coin which creates wealth for Trump. The spike in sales of the coin (at any price, up or down) create transaction fees paid to Trump for additional income. And the contest allows Trump to deploy another scheme for identifying true believers for future exploitation while also packing Mar-a-Lago with 250 people for a weekend at $2,000 per room list price. That's $500,000 right there per night. You didn’t think Trump was going to invite them all down to crash at his place and bend a knee for free, did you?

It only takes a few seconds of thought for connections between these events to become apparent. The first obvious connection with the crypto coin scam could be imagined as a bad Hollywood mashup between a second remake of Willie Wonka and the Chocolate Factory and the Bernie Madoff biopic The Wizard of Lies. Trump coins serve as the Wonka bars hawked to the public seeking a chance at a "golden ticket" to visit Mar-a-Lago and get first dibs on hearing about any policy changes on cryptocurrency, putting money in Trump's pocket three different ways (see above). But there's no need for anyone to buy the coins for insight into administration strategy on crypo currencies. The Trump Administration has explicitly stated it is halting ALL criminal investigations into ANY cases that were pending or under investigation regarding crypto currency. PERIOD. End of story.

Unlike Willie Wonka however, there's no wholesome ulterior motive in running the golden ticket contest to find the one wholesome player to take over the empire. The meme coint contest is simply another way for Trump to grift his own supporters and collect intelligence on who the wealthiest, dumbest bootlickers are among his supporters that can be counted on for future favors and extortion.

Unlike Bernie Madoff, the Trump meme coin scheme isn't truly a traditional Ponzi scheme victimizing innocent friends and family without anyone knowing. The scam is a combination of bribery and money-laundering that is completely obvious to the participants and the larger public. The participants don't care, however, because the value of money funneled through the illusion of coin purchases is far exceeded by the value they think they will derive from publicly demonstrating fealty to Trump via the only yardstick that really matters – his wallet. And unlike Bernie Madoff, no one involved thinks they have any legal worry from the scheme since the guy accepting the bribes thinks he has the ultimate golden ticket from the Supreme Court, a Republican controlled Congress and the Constitution.

From the USSC, Trump enjoys a presumption of innocence from evidence gathering and investigation of anything he claims to be "official duties." From a spineless majority of Republicans in Congress, he faces no immediate threat of sanction much less impeachment for DOZENS of blatantly criminal acts and violations of his oath to "faithfully execute" the law and uphold the Constitution. Even when he publicly states on television he isn't sure he is obligated to provide due process in American courts, not a word is heard from Republicans anywhere in government. From the Constitution, Trump enjoys unlimited pardon power that can short-circuit any criminal investigation of anyone under him he wishes to protect.

At this point, there can be zero doubt that a painful financial contraction is coming. No rational person would argue that the American economy prior to January 20, 2025 represented a sane, equitable or one hundred percent ethical environment. That is impossible to argue given the dominance of $300 billion dollar and up corporations and the share of wealth controlled by the top one percent. However, the actions of the Trump Administration since January 20, 2025 have explicitly confirmed there isn't a single sane person holding any control within the Trump Administration nor any sane person with influence on those in power.

More importantly, there isn't a single lever at the disposal of government – spending, taxing, regulation – the Trump Administration plans to use to stabilize employment, tame inflation or ensure availability of basic products and markets for consumers and producers in America. Instead, every action taken by the Trump Administration can be mapped to only four possible motivations:

  • a desire to exact pain on persons or entities (domestic or foreign) Trump hates
  • a desire to grift private family wealth from business segments dependent upon favorable government policies
  • a desire to continuously generate shorting / insider selling opportunities for cronies by continually shocking financial markets
  • a compulsion to be the only name in the news EVERY MINUTE OF EVERY DAY

"I Don't Know" (If We Have a Constitution)

Trump's other actions related to immigration, court orders, the roles and responsibilities of state governments and prison strategy all point to a single observation... America is already operating in a post-Constitutional dystopia. A Constitution only provides value if combined with a judiciary and administrative branch who both put the rule of law above immediate tactical political goals and petty squabbles and combined with a public that understands WHY the rights stated in the Constitution are there.

Why is Trump allowed to get away with publicly conveying outright contempt for following Constitutionally mandated processes? Partly because the judiciary has been corrupted and corroded over the past forty years with extremist dogma pushed by the Federalist Society, an organization formed after Republicans failed to get Robert Bork on the Supreme Court during the Reagan era to ensure the next Bork-like candidates all passed the gauntlet and reached the bench.

That effort paid off, not just on the Supreme Court (all SIX of the Republican appointees since 1990 still sitting) but across the entire judiciary. Even if that fraction is only twenty to thirty percent of current federal judges, that is enough of a presence to allow venue shopping for particular issues to bypass normal sanity that would emerge from a more balanced judiciary and get extremist policies argued all the way to the USSC and ruled on in favor of extremism. And even if a case takes years to reach the court, flawed rulings at the lower layers have the effect of slowing down proper law enforcement which is often as effective as no enforcement or having an opposing policy in law.

Trump is also escaping consequences because a super-majority of the gerrymandered Republican majority controlling Congress is equally hostile to those Constitutional principals if they conflict with their religious extremist social views or their peasants-be-damned hostility to anyone not in the one percent.

Ultimately though, Trump is escaping consequences because the majority of Americans, even counting those who voted against him, still do not comprehend the true damage being done by the wholesale dismantlement of crucial federal agencies.

The average American understands NOTHING about banking and financial markets. So what if a bunch of internet geeks want to swap digital widgets online and lose their money? Because BANKS want to make money on that trading and will inevitibably drag YOUR bank deposits into their gambles in this space which WILL eventually explode, risking YOUR money with theirs.

The average American has forgotten the true meaning of innocent until proven guilty, despite a decade of television series regarding wrongful convictions and rigged DNA test results affecting decades of cases in multiple counties. Why should I care if some Venezuelan gang members get kidnapped off the street and flown to a prison in El Salvador? Keeps my family safe… Because these people are NOT being given due process and there are MULTIPLE cases of people with zero ties to any crimes being swept up and disappeared. If you have a Mexican sounding last name or a tattoo, YOU literally could be next.

The average American, like Trump, may not understand that one of the most fundamental responsibilities of any government is to not just enact laws, enforce them, prosecute offenders and adjudicate those cases fairly and consistently without prejudice but to handle punishment for those convicted as well. If some drug-smuggling scumball gets arrested and convicted, why should I care where he gets incarcerated? If you've already displayed contempt for due process, you likely also fail to comprehend the idea of wrongful convictions and thus fail to comprehend the moral aspects of hiring out the "punishment phase" of justice.

Without even arguing about the FORMS of punishment that are appropriate, doesn't it seem inherently wrong for a government to enact some law banning X, hunt down any thought to have violated that law, convict them then expel them from the country? This isn't a reference to illegal immigrants committing US crimes on US soil, being caught, convicted and returned to their home country or some other country. This is about AMERICAN CITIZENS being convicted of crimes and being sent to prisons in foreign countries. Trump has stated he wants to treat American citizens this way as well. That's why he referenced Alcatraz. Not because it would just be additional capacity but explicitly because it had a reputation as a particularly cruel facility. With Trump, cruelty isn't a side effect of any particular policy, it is often one of the primary goals.

The average American voter doesn't seem to be processing that concept yet that is exactly what Trump is proposing for American citizens in American prisons that he doesn't like. Trump has no problem with that. It's simply a shorthand for him to telegraph his toughness and it's shorthand that is easy for people to pick up that short-circuits any understanding of the core issue. Even for those convicted and imprisoned, those prisoners still have human rights. Sending selected categories of prisoners out of the country and forgetting about them is an abandonment of that moral responsibility. Ethically and morally, this is no different than Iran outsourcing terrorism to Hamas or Putin outsourcing major campaigns of the war against Ukraine to Wagner Group, a private corporation.

Is there some way of breaking this mode of thinking about prisoners' rights, even when people think that a "few bad convictions is the price for being a hard ass on violent criminals?" Ponder this. Roughly 3175 convictions have been overturned in the US since 1989 based upon new DNA testing or other facts coming to light about prosecutorial abuses, evidence fabrication or incompetent defense counsel. If the idea of possibly 3175 innocent people sitting in jail for decades isn't disturbing, what about the fact that this statistic means there are 3175 other actual individuals who committed these crimes who were NOT prosecuted and punished because the system thought it got the right person or purposely railroaded an innocent person to bolster their own statistics and career?


A Path To Recovery?

Any glance at social media since January 20, 2025 highlights the dilemma facing the United States. Every time the Trump Administration does something outrageous and a court eventually engages and puts a temporary restraining order on an action or explicitly issues an injunction with prejudice, liberal leaning outlets immediately post commentary essentially conveying "At last, the courts are weighing in and they're putting a stop to the madness". It isn't clear what the intended effect of this type of coverage is but a possible effect is that readers / viewers pause a moment, take a breath and conclude that this nightmare is coming to a halt so the country can begin returning to normal.

This is delusional thinking.

Recent rulings from courts, including the Supreme Court, are still MEANINGLESS. From the previous analysis above, the country still exists in a state where

  • The President has public contempt for the law and the Constitution and the President controls the vast majority of resources who actually enforce court orders.
  • The President has appointed leaders in his Administration with equal contempt for the law and Constitution.
  • The judiciary is similarly "infected" with enough extremists with authoritarian sympathies to allow a large number of criminal actions to escape punishment, further poisoning the public's faith in equal justice.
  • The idea that the damage will stop after the November 2026 elections when a frustrated public return Democrats to power is laughable. Even if they win both the House and Senate, they won't win two thirds of the Senate required for an impeachment conviction.
  • Even if voters suddenly flip the House and Senate and provide a two-thirds majority in the Senate so Trump can be impeached, who's next in succession? Vance? He's proven to be as corrupt and authoritarian as Trump. Mike Johnson? He conspired with Trump in 2020 and continues to genuflect to Trump rather than filling his role as Speaker of the House reflecting its Constitutional prerogatives and duties. Who might Vance pick as a VP if he became President? He has the same talent problem as Trump. No one with two brain cells and a conscience is willing to be associated with him, drastically impairing the talent pool.

It is not at all evident that the institutions of the United States will survive to January 1, 2027 to put out the fires being lit across the country today. More pressure is required on Congressional Republicans TODAY, and every day going forward, to attempt to force a reckoning with what they are enabling and to trigger a reversal much sooner.


WTH