Cheater

Cheater (pronounced chee-ter)

(1) A person who cheats.

(2) A device or component used to evade detection of non-compliance with rules or regulations (such as the (Dieselgate) mechanical and electronic devices used by Volkswagen and others to cheat emissions testing programmes (usually as a modifier).

(3) Slang for eyeglasses or spectacles (archaic).

(4) In mechanical repair, an improvised breaker bar made from a length of pipe and a wrench (spanner), usually used to free screws, bolts etc proving difficult to remove with a ratchet or wrench alone; any device created ad-hoc to perform a task not using the approved or designated tools.

1300-1350: From the Middle English cheater from cheat, from cheten, an aphetic variant of acheten & escheten, from the Old French eschetour, escheteur & escheoiter, from the noun; it displaced native Old English beswican.  The -er suffix was from the Middle English –er & -ere, from the Old English -ere, from the Proto-Germanic -ārijaz, probably borrowed from the Latin -ārius.  The adoption was reinforced by the synonymous but unrelated Old French –or & -eor (the Anglo-Norman variant was -our), from the Latin -(ā)tor, from the primitive Indo-European -tōr.  The suffix was added to a person or thing that does an action indicated by the root verb, thereby forming the agent noun.  The noun cheatery is now rare, existing only in old texts.  Escheat refers to the right of a government to take ownership of estate assets or unclaimed property, most often when an individual dies without making a will and with no heirs.  In common law, the theoretical basis of escheat was that (1) all property has a recognized owner and (2) if no claimants to ownership exists or can be identified, ownership reverts to the King (in modern terms the state).  However, in some circumstances escheat rights can also be granted when assets are held to be bona vacantia (unclaimed or lost property).

The original sense was of the "royal officer in charge of the king's escheats," and was a shortened form of escheater, agent noun from escheat.  The meaning “someone dishonest; a dishonest player at a game” emerged in the 1530s as the Middle English chetour, a variant of eschetour following the example of escheat +‎ -er which evolved in English in the modern form cheater (cheat + -er).

Heav'n has no rage, like love to hatred turn'd, nor Hell a fury like a woman scorn'd. William Congreve, The Mourning Bride (1697).

Cheater cars are a frequent sight on several social media platforms, posted presumably by impressed spectators rather than victims or perpetrators.  Techniques and artistry vary but there does seem to be a trend whereby the more expensive the car, the larger and more lurid will be the lettering.  Red, pink and fuchsia appear the colours of choice except where the automotive canvas is red; those artists adorn mostly in black or white.

Hell also hath no fury like a woman cheated upon.   

For some reason, the (anyway incorrectly quoted) phrase “Hell hath no fury like a woman scorned” is often attributed to William Shakespeare (1564–1616), possibly because it’s plausibly in his voice or maybe because for most the only time the Middle English “hath” is seen is in some Shakespearian quote so the association sticks.  The real author however was actually Restoration playwright William Congreve (1670–1729) who coined the phrase for his 1697 play The Mourning Bride, the protagonist of which, although becoming a bit unhinged by the cruel path of doomed love, doesn’t resort to leporidaecide (bunny boiling).  Congreve’s line, “Heaven has no rage like love to hatred turned, nor hell a fury like a woman scorned” was good but actually was a more poetic rendition of a similar but less elegantly expressed version another playwright had used a year earlier.  The Mourning Bride is also the source of another fragment for which the bard is often given undeserved credit: “Music has charms to soothe a savage breast” although that’s often bowdlerized as “Music has charms to soothe a savage beast”.

Politicians are notorious liars and cheaters, some even cheerfully admitting it (usually when safely in their well-provided for retirement) but in the privacy of their diaries, they’ll often happily (and usually waspishly) admit it of others.  Although he has a deserved reputation for telling not only lies but big lies, no one has ever disputed Joseph Goebbels’ (1897–1945; Reich Minister of Propaganda 1933 to 1945) assessment of a fellow cabinet member, foreign minister Joachim von Ribbentrop (1893–1946; Minister of Foreign Affairs 1938-1945) of whom he said “He bought his name, married his money and cheated his way into power”.

Guilty as sin.  Oliver Schmidt (b 1969; inmate number 09786-104 in US Federal, York Township, Michigan) received a seven year sentence for his involvement in the Volkswagen Dieselgate scandal.  Herr Schmidt (right) is pictured here receiving a Ward’s “Best Engine” award in 2015.

Volkswagen certainly gave cheating a bad name and in May 2022 the company announced the latest out-of-court settlement would be Stg£ 193 million (US$242 million) to UK regulators, following the Aus$125 million (US$87 million) imposed by the Federal Court of Australia.  To date, Dieselgate has cost the company some US$34 billion and some criminal cases remain afoot.

Smokey Yunick’s 1966 Chevrolet Chevelle #13 which some alleged was a 7:8 or 15:16 rendition, here aligned against a grid with a stock body.

In simpler, happier times, cheating was sometimes just part of the process and was something of a game between poacher and gamekeeper.  In the 1960s, NASCAR racing in the US was a battle between scrutineers amending their rule-book as cheating was detected and teams scanning the same regulations looking for loopholes and anomalies.  The past master at this cheating was Henry "Smokey" Yunick (1923–2001), a World War II (1939-1975) bomber pilot whose ever-fertile imagination seemed never to lack some imaginative idea that secured some advantage while remaining compliant with the letter of the law (at least according to his interpretation).  His cheats were legion but probably the most celebrated (and there would have been judges who would have agreed this one was legitimate) concerned his interpretation of the term “fuel tank capacity”.  NASCAR specified the maximum quantity of fuel which could be put in a tank but said nothing about the steel fuel line running from tank to engine so Mr Yunick replaced the modest ½ inch (12.5 mm) tube with one 11 feet (3.6 m) long and two inches (50 mm) wide, holding a reputed 5 (US) gallons (19 litres) of gas (petrol).  That was his high-tech approach.  Earlier he’d put an inflated basketball into an oversized fuel tank before the car was inspected by scrutineers and when they filled the tank, it would appear to conform to regulations; these days it’d be called “inflategate”.  After passing inspection, Mr Ynuick would deflate the ball, pull it out and top-up his oversized tank for the race.  Pointing out there was nothing in the rules about basketballs didn’t help him but did lead to the rule about a maximum “fuel tank capacity”, hence the later 11 foot-long fuel line.

NASCAR's letter of approval.

Mr Yunick’s 1966 Chevrolet Chevelles were different from the stock models but by the mid 1960s, all NASCAR’s stock cars were.  The difference was certainly perceptible to the naked eye and an urban legend arose that it was a 7:8 (some said 15:16) scale version.  The body’s external dimensions were however those of a stock Chevelle although the body was moved back three inches for better weight distribution, the floor was raised and the underside was smoothed out to improve the aerodynamics.  For the same reason the bumpers were fitted flush with the fenders.  The first car passed inspection (after making the modifications decreed by NASCAR) and took pole position at the 1967 Daytona 500.  He built another imaginative Chevelle for the 1968 race but it never made it past inspection.  In 1990, Smokey Yunick was inducted into the International Motorsports Hall of Fame, a recognition as richly deserved as it was overdue.

Gate

Gate (pronunced geyt)

(1) A movable barrier, usually on hinges, closing an opening in a fence, wall, or other enclosure.

(2) An opening permitting passage through an enclosure.

(3) A tower, architectural setting, etc., for defending or adorning such an opening or for providing a monumental entrance to a street, park etc.

(4) Any means of access or entrance.

(5) A mountain pass.

(6) Any movable barrier, as at a tollbooth or a road or railroad crossing.

(7) A sliding barrier for regulating the passage of water, steam, or the like, as in a dam or pipe; valve.

(8) In skiing, an obstacle in a slalom race, consisting of two upright poles anchored in the snow a certain distance apart.

(9) The total number of persons who pay for admission to an athletic contest, a performance, an exhibition or the total revenue from such admissions.

(10) In cell biology, a temporary channel in a cell membrane through which substances diffuse into or out of a cell; in flow cytometry, a line separating particle type-clusters on two-dimensional dot plots.

(11) A sash or frame for a saw or gang of saws.

(12) In metallurgy, (1) a channel or opening in a mold through which molten metal is poured into the mold cavity (also called ingate) or (2), the waste metal left in such a channel after hardening; (written also as geat and git).

(13) In electronics, a signal that makes an electronic circuit operative or inoperative either for a certain time interval or until another signal is received, also called logic gate; a circuit with one output that is activated only by certain combinations of two or more inputs.

(14) In historic British university use, to punish by confining to the college grounds (largely archaic).

(15) In Scots and northern English use, a habitual manner or way of acting (largely archaic).

(16) A path (largely archaic but endures in historic references).

(17) As a suffix (-gate), a combining form extracted from Watergate, occurring as the final element in journalistic coinages, usually nonce words, that name scandals resulting from concealed crime or other alleged improprieties in government or business.

(18) In cricket, the gap between a batsman's bat and pad, used usually as “bowled through the gate”.

(19) In computing and electronics, a logical pathway made up of switches which turn on or off; the controlling terminal of a field effect transistor (FET).

(20) In airport or seaport design, a (usually numerically differentiated) passageway or assembly point with a physical door or gate through which passengers embark or disembark.

(21) In a lock tumbler, the opening for the stump of the bolt to pass through or into.

(22) In pre-digital cinematography, a mechanism, in a film camera and projector, that holds each frame momentarily stationary behind the aperture.

(23) A tally mark consisting of four vertical bars crossed by a diagonal, representing a count of five.

Pre 900:  From the Middle English gate, gat, ȝate & ȝeat, from the Old English gæt, gat & ġeat (a gate, door), from the Proto-Germanic gatą (hole, opening).  It was cognate with the Low German and Dutch gat (hole or breach), the Low German Gatt, gat & Gööt, the Old Norse gata (path) and was related to the Old High German gazza (road, street).  Yate was a dialectical form which was an alternative spelling until the seventeenth century; the plural is gates.  Many European languages picked up variations of the Old Norse to describe both paths and what is now understood as a gate.  The Old English geat (plural geatu) was used to mean "gate, door, opening, passage, hinged framework barrier", as was Proto-Germanic gatan, and the Dutch gat; in Modern German, it emerged as gasse meaning “street”; the Finnish katu, and the Lettish gatua (street) are Germanic loan-words.  Interestingly, scholars trace the ultimate source as the Primitive European ǵed (to defecate).

The meaning "money from selling tickets" dates from 1896, a contraction of 1820’s gate-money.  The first reference to uninvited gate-crashers is from 1927 and gated community appears in 1989; that was Emerald Bay, Laguna Beach, California although conceptually similar defensive structures had for millennia been built in many places.

G Gordon Liddy (1930–2021) was the CREEP lawyer convicted of conspiracy, burglary, and illegal wiretapping for his role in the Watergate Affair.  Receiving a twenty-year sentence, he served over four, paroled after Jimmy Carter (b 1924; US President 1977-1981) commuted the term to eight years.  He was one of the great characters of the affair.

The practice of using -gate as a suffix appended to a word to indicate a "scandal involving," is a use abstracted from Watergate, the building complex in Washington DC, which, in 1972, housed the national headquarters of the Democratic Party.  On 17 June, it was burgled by operatives found later to be associated with Richard Nixon's (1913-1994; US president 1969-1974) Campaign to Re-elect the President committee (CREEP).  Since Watergate, there have been at least dozens of –gates.

Notable Post-Watergate Gates

Billygate: In 1980, US President Jimmy Carter's brother, Billy (1937-1988), was found to have represented the Libyan government as a foreign agent.  Cynics noted that, unlike his brother, Billy at least had a foreign policy.

Crooked Hillary Clinton (b 1947; US secretary of state 2009-2013) has provided the lexicon many "-gates".  A marvelous linguistic coincidence gave us Whitewatergate, a confusing package of real estate deals later found technically to be lawful and Futuregate was a reference to some still inexplicable (and profitable) dabbles in her name in the futures markets.  Servergate was the mail server affair which featured mutually contradictory defenses to various allegations, the Benghazi affair and more.  There was also a minor matter but one which remains emblematic of character.  Crooked Hillary Clinton, after years of fudging, was forced to admit she “misspoke” when claiming that to avoid sniper-fire, she and her entourage “…just ran with our heads down to get into the vehicles to get to our base” when landing at a Bosnian airport in 1996.  She admitted she “misspoke” only after a video was released of her walking down the airplane’s stairs to be greeted by a little girl who presented her with a bouquet of flowers.  Even her admission was constructed with weasel words: “…if I misspoke, that was just a misstatement”.  That seemed to clear things up and the matter is now recorded in the long history of crooked Hillary Clinton's untruthfulness as Snipergate.  Most bizarre was Pizzagate, a conspiracy theory that circulated during the 2016 US presidential campaign, sparked by WikiLeaks publishing a tranche of emails from within the Democrat Party machine.  According to some, encoded in the text of the emails was a series of messages between highly-placed members of the party who were involved in a pedophile ring, even detailing crooked Hillary Clinton’s part in the ritualistic sexual abuse of children in the basement of a certain pizzeria in Washington DC.  Among the Hillarygates, pizzagate was unusual in that she was innocent of every allegation made; not even the pizzeria's basement existed.

Closetgate: References the controversy following the 2005 South Park episode "Trapped in the Closet", a parody of the Church of Scientology in which the Scientologist film star Tom Cruise (b 1962) refuses to come out of a closet.  Not discouraged by the threat of writs, South Park later featured an episode in which the actor worked in a confectionery factory packing fudge. 

Grangegate: In Australia in 2014, while giving evidence to the state's Independent Commission against Corruption (ICAC), Barry O'Farrell (b 1959; Premier of New South Wales 2011-2014) forget he’d been given a Aus$3,000 bottle of Penfolds Grange (which he drank without disclosing the gift as the rules required).  He felt compelled to resign.

Perhaps counterintuitively, there seems never to have been a Lindsaygate or Lohangate.  In that sense, Lindsay Lohan may be said to have lived a scandal-free life.

Irangate: Sometimes called contragate, this was the big scandal of Ronald Reagan's (1911-2004; US president 1981-1989) second term.  As a back channel operation, the administration had sold weapons to the Islamic Republic of Iran and diverted the profits to fund the Contra rebels opposing the Sandinista government of Nicaragua.  Congress had earlier cut the funding.

Nipplegate: Sometimes called boobgate, this was a reaction to singer Janet Jackson’s (b 1966) description of what happened at the conclusion of her 2004 Superbowl performance as a “wardrobe malfunction”.  In Europe, they just didn't get what all the fuss was about.

Monicagate: The most celebrated scandal of President Bill Clinton’s (b 1946; US President 1993-2001) second term.  Named after White House intern Monica Lewinsky (b 1973), with whom the president “…did not have sexual relations…”.

1973 Pontiac Trans-Am SD 455.

Dieselgate: In 2015, Volkswagen was caught cheating on emissions tests used to certify for sale some eleven-million VW diesel vehicles by programming them to enable emissions controls during testing, but not during real-world driving.  Manufacturers had been known to do this.  In 1973 Pontiac tried to certify their 455 Super Duty  engine with a not dissimilar trick but the Environmental Protection Authority (EPA) weren’t fooled which is why the production 455SD was rated at 290 horsepower rather than 310.  Later, manufacturers in the Fourth Reich turned out to be just as guilty and, in that handy phrase from German historiography "they all knew".  Including the fines thus far levied, legal fees and the costs associated with product recalls, the affair is estimated so far to have cost VW some US$27 billion but the full accounting won't be complete for some time.  Other German manufacturers were also affected but Daimler (maker of Mercedes-Benz) avoided a penalty by snitching on the others. 

In Australia, Utegate was a 2009 campaign run by opposition leader Malcolm Turnbull (b 1954; prime-minister of Australia 2015-2018) and his then (they're no longer on speaking terms) henchman, Eric Abetz (b 1958, Liberal Party senator for Tasmania, Australia 1994-2022), which accused Dr Kevin Rudd (b 1957; Australian prime-minister 2007-2010 & 2013) of receiving a backhander from a car dealer, the matters in question revolving around an old and battered ute (pick-up).  Based on documents forged by Treasury official Godwin Grech (b 1967), it led to the (first) downfall of Turnbull.  Abetz went on to bigger things but Turnbull neither forgot nor forgave, sacking Abetz during his second coming (which started well but ended badly).  Abetz however proved he still has the numbers which matter, gaining preselection and in 2024 winning a seat in the Tasmanian Legislative Assembly (the state's lower house).  He now serves as minister for business, industry & resources and minister for transport as well as leader of the house in the minority Liberal Party government.  

The first Nutellagate arose at Columbia University early in 2013 with allegations of organized, large-scale theft by students of the Nutella provided in the dining halls. Apparently students, unable to resist the temptation of the newly available nutty spread, were (1) consuming vast quantities, (2) pilfering it using containers secreted in back-packs and (3) actually purloining entire jars from the tables.

In the spirit of the investigative journalism which ultimately brought down President Nixon, the Columbia Daily Spectator, breaking the story, reported that, based on a leak from their deep throat in the catering department, the crime was costing some US$5,000 per week, the hungry students said ravenously to be munching their way through around 100 pounds (37 or 45 KG (deep throat not specific whether the losses were weighed on the avoirdupois or troy scale)) of Nutella every seven days.  The newspaper noted the heist was on such a scale that, unless addressed, the cost to the university would be US$250,000 a year, enough to buy seven jars for every undergraduate student.

The national media picked up the story noting, apart from the criminality, there were concerns about the relationship between the wastage of food, excessively expensive student services, the exorbitant cost of tuition fees and a rampant consumer culture.  It seemed a minor moral panic might ensue until the student newspaper (now a blog) deconstructed the Spectator’s numbers and worked out the caterers must be paying 70% more for Nutella than that quoted by local wholesalers, casting some doubt on the matter.  The university authorities responded within days, issuing a press release headed “Nutellagate Exposed: It's a Smear!"  Their audit revealed that the accounting system had booked US$2,500 against Nutella purchases in the first week of term but that was the usual practice when stocking inventory and that consumption was around the budgeted US$450 in subsequent weeks.  Deep throat (Nutella edition) lost face and was discredited.

Nutellagate II broke in 2017 when a consumer protection organization released a report noting the recipe had, without warning, been changed, the spread now having more sugar and milk powder but less cocoa and, as a result, was now of a lighter hue.  Ferrero’s crisis-management operative responded on twitter, tweeting “our recipe underwent a fine-tuning and continues to deliver the Nutella fans know and love with high quality ingredients,”… adding “…sugar, like other ingredients, can be enjoyed in moderation as part of a balanced diet.”

#Nutellagate soon trended and users expressed displeasure, many invoking the memory of New Coke or the IBM PS/2, two other products which appeared also to try to fix something not broken.  The twitterstorm soon subsided, the speculation being that, because it contained more sugar, consumers would become more addicted and soon forget the fuss.  So it proved, sales remaining strong.  Nutella though remains controversial because of the sugar content and the use of palm oil, a product harvested from vast monocultural plantations and associated with social and environmental damage.  Ferrero has now and again suggested they may be ceasing production but the user base has proved resistant although, recent movements in the hazelnut price may test the elasticity of demand.

Open-Gate Ferraris

The much admired but now almost extinct open-gate shifters were originally purely functional before becoming fetishized.  At a time when more primitive transmissions and shifter assemblies were built with linkages and cables which operated with much less precision than would come later, the open-gates served as a guidance mechanism, making the throws more uniform and ensuring the correct movement of the controlling lever.  Improvements in design actually made open-gates redundant decades ago but they'd become so associated with cars such as Ferraris and Lamborghinis that they'd become part of the expectations of many buyers and it wasn't hard to persuade the engineers to persist, even though the things had descended to be matters purely of style.  A gimmick they may have become but, cut from stainless steel and often secured with exposed screw-heads, they were among the coolest of nostalgia pieces.  

Reality eventually bit when modern, fast electronics meant automatic transmissions both shifted faster and were programmed always to change ratios at the optimal point and no driver however skilled could match that combination.  Once essential to quick, clear shifts, by the late 1990s, the open-gate had actually become a hindrance to the process and while there were a few who still relished the clicky, tactile experience, such folk were slowly dying off and with sales in rapid decline, manufacturers became increasingly unwilling to indulge them with what had become a low-volume, unprofitable option.  

Not all the Ferraris with manual gearboxes used the open-gate fitting, some of the grand-touring cars using concealing leather boots but both are now relics, the factory recently retiring the manual gearbox because of a lack of demand.  The 599 GTB Fiorano was made between 2006-2012 and included the option but of the 3200-odd made, only 30 buyers specified the manual.  That run of 30 was however mass-production compared with the California (2009-2014) which was both the first Ferrari equipped with a dual-clutch transmission and the last to offer a manual, ending the tradition of open gate-shifters which stretched back 65 years.  Testing the market, a six-speed manual option had been added to the hard-top convertible in 2010 and the market spoke, the factory dropping it from the order sheet in 2012 after selling just three cars in three years.  The rarity has however created collectables; on the rare occasions an open gate 599 or California is offered at auction, they attract quite a premium and there's now an after-market converting Ferraris to open gate manuals.  It's said to cost up to US$40,000 depending on the model and, predictably, the most highly regarded are those converted using "verified factory parts".

2012 Ferrari California (top) and 2012 Cadillac CTS-V sedan.

So the last decade at Maranello has been automatic (technically “automated manual transmission”) all the way and although a consequence of the quest for ultimate performance, it wasn’t anything dictatorial and had customer demand existed at a sustainable level, the factory would have continued to supply manual transmissions.  There is however an alternative, Cadillac since 2004 offering some models with manual transmission for the first time since the 1953 Series 75 (among the Cadillac crowd the Cimarron (1982-1988) is never spoken of except in the phrase "the unpleasantness of 1982" ) and by 2013, while one could buy a Cadillac with a clutch pedal, one could not buy such a Ferrari.  For most of the second half of the twentieth century, few would have thought that anything but improbable or unthinkable.

Ferrari open-gate shifter porn 

1965 250 LM

1967 330 GTC

1968 275 GTS/4 NART Spyder

1969 365 GTC

1972 365 GTB/4

1988 Testarossa

1991 Mondial-T Cabriolet

1994 348 Spider

2011 599 GTB Fiorano

2012 California

Billigung

Billigung (pronounced bill-a-ghin)

(1) To approve.

(2) To acquiesce.

(3) Tacitly to accept; not to oppose.

(4) "Looking the other way" from something one would not wish to admit knowledge of; a means of creating a defense of plausible deniability; a self-denial of knowledge.

1300s: A Modern German form from the Old High German billīh (appropriate), from the Proto-Germanic biliz (merciful, kind, decent, fair), the variant being Billigung (approval; acceptance), the construct being billig(en) +‎ -ung (from the Middle High German -ung & -unge, from the Old High German -unga, from the Proto-Germanic -ungō; it was used to forms nouns from verbs, usually describing either an event in which an action is carried out, or the result of that action).  The third-person singular & simple present tense is billigt, the past tense is billigte, the past participle is gebilligt and the auxiliary haben.  In German, bein a noun there's always an initial capital but when used in English as a general descriptor (sepecially in a legal context), it usually all in lower-case.  Billigung is a noun and in German, there's no plural form although in English-language texts it might appear as "billigungs" for the sake of clarity. 

When wishing not to know, look the other way

The German Billigung is not so much hard to translate as able to be translated in a number of senses; context is everything.  The way it is used to mean “looking away; avoiding specific knowledge of something which one knows or suspects is happening” was clarified in 1977.  Albert Speer (1905-1981, Reich Minister for Armaments 1942-1945), the convicted war criminal, had always denied any knowledge of the holocaust and was displeased when sent the English translation of a profile to be published in Die Zeit magazine in which Billigung had been rendered as his “...tacit consent...” of the final solution.  This he corrected, explaining Billigung in this context meant “looking away”.  This meant he averted his gaze from the worst crime of the criminal régime he served in order to be able to deny he knew of it.  Speer, predictably, was able to summon a word to explain this too: Ahnumg (the sensing of something without quite knowing exactly what).  He did at least concede the implication of his translation “...is as grave…” as the original, one biographer noting that had Speer said as much at his trial “…he would have been hanged.”  Other historians and some lawyers disagreed with that but it was an assertion the author was unable to pursue.  When she tried to nudge Speer a little further, pointing out that for one to look away from something, one must first know it's there, he didn’t deny what he’d earlier said but added they “…must never speak of it again".  The moment passed and within weeks he would be dead, dying "on the job" in police slang.  Some have noted the feeling Speer conveyed of always somehow longing to confess his knowledge of the holocaust.  He so often came so close to admitting he knew what he'd always denied, as if the last great act of his life would have been to admit worst of the the guilt he convinced himself (and some others) he'd evaded when the International Military Tribunal (IMT) at the first Nuremberg  Trial (1945-1946) convicted him of war crimes & crimes against humanity (counts 3 & 4) and sentenced him to twenty years imprisonment.

Albert Speer in conversation with his lawyer Dr Hans Flächsner (1896-dod unrecorded) and a legal associate, Nuremburg, 1945.

Looking the other way.

In what he described as a “...leadership failure...", former Australian cricket captain Steve Smith (b 1989) has admitted he "didn't want to know about it" when he became aware “something” was being planned after seeing team mates in a dressing room discussion.  Their talks he witnessed were about ball-tampering, a form of cheating which came to be known as sandpapergate.  Billigung is one of those useful German creations (zeitgeist, schadenfreude et al) which in one word conveys what might in English take a dozen or more.  Operating somewhere on the spectrum of plausible deniability, Billigung is where someone hears of or perhaps “senses” something of which they’d prefer there be no admissible evidence of their knowledge; they “look the other way”.

Gladys Berejiklian (b 1970; Premier (Liberal) of New South Wales 2017-2021) & Daryl Maguire (b 1959, MLA (Liberal) for Wagga Wagga 1999-2018).

For some, Billigung might have come to mind when pondering the recording of a telephone call between then New South Wales (Australia) Premier Gladys Berejiklian and Daryl Maguire, another member of the same parliament with whom she was in an intimate relationship, a man forced to resign as an MP as a result of an (ongoing)  investigation by the NSW Independent Commission against Corruption (ICAC) for allegedly using his political influence in business activities.  Of interest was the premier’s use of the phrase "I don't need to know about that bit" when the former member began to tell her some details of his dubious deals.  To that pertinent observation, Mr Maguire replied "No, you don't".  The suggestion is the premier failed to declare a conflict of interest when dealing with the allocation of taxpayer funds which would be to the benefit of her then lover.  The words used by the then premier: "I don't need to know about that bit" may be compared with how Speer described his response in mid-1944 to being warned by a friend "never, under any circumstances" "to accept an invitation to inspect a concentration camp in Upper Silesia".  Speer's friend explained that at that place he'd "...seen something there which he was not permitted to describe and moreover could not describe".  Having received what he claimed was his first knowledge of Auschwitz, Speer asked no questions of anyone, later admitting: "I did not want to know what was happening there".  That was what he later called Billigung.     

At the time the recording was made public, the former premier denied any wrongdoing beyond having appalling taste in men.  Apart from the men in her life (and not a few women would ruefully admit to having "had a Daryl"), she probably was unlucky.  Billigung has long been a part of that essential tactic of political survival: "plausible deniability".  Actually, as practiced these days, because standards of accountability seem to have declined a bit, denials needs no longer be plausible, just not actually disproven by a publicly available audio tape or film clip.  Others, beyond NSW, might be taking interest, especially those south of the border intimately involved in party machines who, apparently for decades, didn't notice certain things going on around them.     

On 1 October 2021, the NSW ICAC announced certain investigations into the former premier's conduct in office.  Specifically, ICAC is focusing on the period between 2012-2018 and her her involvement in the circumstances in which public money was given to a shooting club and a conservatorium of music and whether that conduct was “...liable to allow or encourage the occurrence of corrupt conduct by Mr Maguire”.  The ICAC will explore whether the conduct constituted a “breach of public trust” by placing the former premier in a position where a conflict of interest existed between her public duties and private interests “...as a person who was in a personal relationship” with Mr Maguire.  The commission will also investigate whether she failed to report what could be defined as reasonable suspicions that “...concerned or may concern corrupt conduct in relation to the conduct of Mr Maguire”.  As a point of law, the ICAC is concerned with actual substantive conduct and conflicts of interest.  It is not the test of "apprehended bias" applied to the judiciary where judgements can be set aside if a court finds there could have been a "reasonable perception" of bias or conflict of interest in some way involving a judge.  To the ICAC, any degree of perception, reasonable or not, is not relevant, their findings must be based on actual conduct.

On 1 October 2021, Berejiklian announced her resignation from both the premiership and the legislative assembly.  There are critics of the NSW ICAC who oppose the public hearings and feel its rules permit an exercise of powers rather too much like the Court of Star Chamber which they say it too closely resembles.  However, the former premier can reflect that unlike the IMT at Nuremberg, neither the Star Chamber nor the ICAC were vested with capital jurisdiction so there’s that.

Dieselgate and implausible deniability

Former Audi CEO Rupert Stadler (b 1963, right) with his lawyers Ulrike Thole-Groll (left) & Thilo Pfordte (centre) during his trial, Munich District Court, May 2023.

The billigung defense is still heard in German courts and if not always exculpatory, lawyers still appreciate its effectiveness in mitigation.  Rupert Stadler began his career with Audi AG (a subsidiary of the Volkswagen Group) in 1990 and between 2010-2018 was Audi’s Chief Executive Officer (CEO).  The scandal which came to be known as “dieselgate” involved companies in the Volkswagen group (and others) installing “cheat” software in diesel-powered vehicles so excessive exhaust emissions wouldn’t be detected during official testing and, after years of obfuscation, Volkswagen in 2015 admitted that was what exactly they’d done.  Civil and criminal proceedings in a number of jurisdictions ensued and thus far the fines alone have cost the group well over €34 million.  There have also been jail sentences imposed, something which presumably would have been in Herr Stadler’s thoughts when, in March 2018, Munich prosecutors named him as a suspect in their investigations.  A week later, he was arrested and held in an Augsburg prison, apparently as a precautionary move because it was claimed he was tampering with evidence by making a telephone call in which he suggested putting a witness “on leave”.  After a month, he was released on bail, subject to certain conditions.

In September 2020, Herr Stadler’s trial on charges of fraud began and for years (proceedings now take rather longer than in 1945-1946) he denied all wrongdoing until, in May 2023, he accepted a plea deal offered by Judge Stefan Weickert which would require him to admit guilt.  To date, he’s the highest-ranking executive to confess, tempted apparently by (1) the preponderance of evidence before the court which made it clear he was guilty as sin and (2) the deal limiting his punishment to a €1.1 million fine and a suspended sentence which would not see him jailed, an attractive alternative to the long term of imprisonment he otherwise faced upon conviction.  As confessions go however, it was among the more nuanced.  His lawyer read a statement saying the defendant (1) did not know that vehicles had been manipulated and buyers had been harmed, but (2) he acknowledged it was a possibility and accepted that, adding that in his case (3) there was a need for more care.  A classic piece of billigung, was the line (4) “I didn't know, but I recognized it as possible and accepted that the properties of diesel engines might not meet legal approval requirements” while the statement (5) “I have to admit the allegations overall” had an echo of Speer’s admission of “a general responsibility” while denying personal guilt.  Still, it must have conformed with the terms of the plea bargain because it was accepted by the judge.  His lawyer read the statement, apparently because he couldn’t bring himself personally to utter it but when asked by the judge if the words were his own, Herr Stadler replied (5) “Ja”.

Lindsay Lohan with Audi A5 cabriolet, Los Angeles, May 2011.  Ms Lohan apparently avoided being affected by the dieselgate scandal, all the photographs of her driving Audis have featured gasoline (petrol) powered cars.

Outside the court, his lawyer was a little more expansive, admitting her client had allowed vehicles equipped with manipulating software to remain on sale even after learning of the scam.  “In the course of addressing the diesel issue" after the revelations became public, Stadler “neglected” to inform business partners that cars with so-called defeat devices were still going on the market, meaning he was “accepting that vehicles equipped with the illegal software would go on sale” she said.  Although it may have been stating the obvious, she added Herr Stadler regretted he’d been unable to “resolve the crisis”.  The carefully composed text may however have averted another crisis, lawyers noting the cryptic nature of some of his comments might be explained by a desire not to create grounds for additional claims by consumers for financial compensation.

How that might unfold remains to be seen but on 27 June 2023 the Munich court handed down a 21 month sentence, suspended for three years, a fine of €1.1 million (US$1.2 million) also imposed; that will go to the federal government and charities, the court ruled without providing details.  Herr Stadler was the first member of the Volkswagen board member to be sentenced for his part in the scandal, the judgment coming some four years after prosecutors first laid fraud charges.  Guilty verdicts were also delivered against two former Audi executives: head of engine development Wolfgang Hatz (b 1959) and lead diesel engineer Giovanni Pamio (b 1963) who were handed suspended jail sentences of 24 months and 21 months, respectively.  Hatz was fined €400,000 (US$437,000) and Pamio €50,000 (US$55,000).  All three were guilty as sin so the verdicts were unsurprising.

Dr Angela Merkel (b 1954; chancellor of Germany 2005-2021) & Dr Martin Winterkorn (b 1947; CEO of Volkswagen AG 2007-2015).

The long-running scandal (the fines and settlements thus far ordered having cost the group some €33 billion (US$36 billion)) still has some way to run because the case against former CEO Martin Winterkorn has yet to be heard although he’s already agreed to pay VW €11.2 million (US$12.3 million) after an internal investigation found he failed properly to respond to signs the company may have been using unlawful technology which enabled its diesel engines to evade emissions testing and it's not yet clear if Dr Winterkorn will try the billigung defense.  Herr Stadler was required to pay VW €4.1 million ($US4.5 million) under terms agreed following the same investigation.  The company clearly wished to move on and in separately issued statements, Volkswagen and Audi said they were not party to Tuesday’s proceedings, which should be “viewed independently” of proceedings against the companies which had (in Germany) been finalized in 2018.  Audi seemed anxious to confirm it was now a righteous corporation, saying “Audi has made good use of the crisis as an opportunity to start over.  We have updated our systems, processes and checks to ensure compliance company-wide.”  It concluded by noting it had since “cultivated and strengthened a culture of constructive debate.”  In exchange for agreeing to pay the fines, prosecutors dropped criminal charges against Volkswagen and Audi.