SMH: Let’s draw a line through a bill of rights

Posted on August 2, 2023 by Luke Ford

James Allan is Garrick Professor of Law at Queensland University. He writes in the Sydney Morning Herald Sep. 6, 2005:

Compare the constitutional structures of Canada and Australia. Both are federal systems. Both share the English common law tradition, the Westminster parliamentary form of elected government, and a great deal of history. Yet there is a significant constitutional difference: in 1982 Canada opted for a Charter of Rights and Freedoms. Australia, pretty much uniquely in the Western world, doesn’t have a constitutional or statutory bill of rights.

But to my mind, one of the many attractions of Australia is that it does not have a bill of rights. These instruments are far from obviously desirable. I’ve had first-hand experience with the bills of rights in Canada, the United States and New Zealand, and I think all three jurisdictions are the worse for having them. Britain is, too, for that matter, with its Human Rights Act of 1998.

The case against bills of rights in a successful liberal democracy comes on many fronts but at core it is that these instruments undercut citizens’ participation in social decision-making. They transfer too much power to unelected judges.

The rights set out in these bills – the right to freedom of expression or of religion or to equality – enunciate very general standards about the place of the individual in society. Bills of rights offer us all an emotionally attractive statement of entitlements and protections in vague, very broad terms. Up in the Olympian heights of abstract rights guarantees, nearly all of us can and do support them. Who, after all, would say he or she is against free speech?

The problem, however, is that the effects of bills of rights are not felt up in these Olympian heights. They are felt down in the quagmire of detail, of where to draw the line when it comes to hate speech or campaign finance rules or defamation. Repeating the mantra that we have a right to free speech doesn’t change the fact that down in the quagmire of drawing these lines there is no unanimity. Tough calls have to be made about where to draw lines.

Enshrining some right to free speech in a bill of rights nowhere in the world means one can say anything he or she wants any time he or she wants. No, there is always disagreement and dispute about how this and other rights should play out.

And those who happen to disagree with you cannot be easily dismissed as unreasonable, morally blind, evil or in need of re-education. Despite the sanctimonious sermonising of some bill of rights proponents, it is simply a fact that how rights should play out is highly debatable, and not self-evident.

So adopt a bill of rights, as Canada, the US, Britain and New Zealand have done, and you transfer a chunk of power to unelected judges to draw some of these contentious lines, under the cover provided by the amorphous, appealing language of rights.

Without a bill of rights in place, these difficult, debatable social policy lines are drawn on the basis of elections, voting and letting the numbers count. With a bill of rights in place the unelected judges decide – though ironically they, too, decide by voting; four justices’ votes beat three. Victory does not go to the judge writing the most moving judgement or the one with the most references to moral philosophy.

What makes a bill of rights, and its transfer of power to judges, appear attractive is the unspoken assumption that the moral lines drawn by judges are somehow always the right lines, that a committee of ex-lawyers somehow has a pipeline to godly wisdom and greater moral perspicacity than secretaries, plumbers and regular voters. A good many judges, human rights lawyers and legal academics may happen to think this. I do not. Most Australians so far do not.

Australians should be very glad that they have resisted the siren call of a bill of rights. They should be wary of those who advocate the need for one, , pretending that judicial power can be easily contained. It cannot. Thus far in Australia, we have decided not to throw in our lot with an aristocratic judiciary. I hope this continues to be the case. It is one of the great attractions of this country.

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Conservative Anti-Fascism

Posted on August 2, 2023 by Luke Ford

June 6, 2017, Dennis Prager wrote:

One would think that Jonah Goldberg, of all people, would understand this. He is the author of what I consider to be a modern classic, Liberal Fascism: The Secret History of the American Left, from Mussolini to the Politics of Change.

His book leads to one conclusion: We are fighting fascism. How is that not a civil war? When you fight fascism, you are not merely fighting a “culture war.”

That Dennis Prager considers the book Liberal Fascism a modern classic reveals his willingness to believe any nonsense if it fits with his agenda.

Michael Ledeen wrote:

What is missing from Jonah’s book…is the specific historical context from which fascism was born: the First World War. Fascism was created in the trenches of that war, it was a war ideology from beginning to end, and the central core of fascism was composed of two basic concepts. First, the conviction that the only people worthy of political power were those who had been tested and proven in combat (for the most part, the brownshirts were veterans, and the socialists they attacked had been pacifists or neutralists). And second, that Western civilization was under siege from the left, that is, from communists and socialists.

Jonah, instead, says (pg. 80) “Fascism, at its core, is the view that every nook and cranny of society should work together in spiritual union toward the same goals overseen by the state.” Certainly Mussolini and his cohorts believed that (how did it go? “Everything in the State; Nothing outside the State”…), but that is not the central core of fascism; it’s not Mussolini or his imitators, and certainly not Hitler, whose vision was global, not just national. The issue is “the same goals,” not just the methods of rule.

The weakest part of the book has to do with the Nazis. All of us who have worked on fascism have had to try to figure out to what extent Hitler belongs inside the category. As Jonah says, Hitler worshiped Mussolini (a love that was not reciprocated), but the Fuhrer was driven by racism and antisemitism, not by the sort of nationalism the Italians embraced. It is very hard to find a political box big enough to accommodate the two, and, like the rest of us, Jonah huffs and puffs trying to make one. Predictably, he has to downplay Hitler’s ideology. He calls Hitler a “pragmatist,” and then adds “saying that Hitler had a pragmatic view of ideology is not to say that he didn’t use ideology. Hitler had many ideologies. Indeed he was an ideology peddler.”

So much for the view–the fact–that Hitler was driven, from an early age, by an antisemitism so virulent that he would not rest until he had set in motion the Holocaust. Indeed, in one of Liberal Fascism’s most unfortunate phrases, Jonah trivializes Nazi racism, equating it with some American political rhetoric:

“What distinguished Nazism from other brands of socialism and communism was not so much that it included more aspects from the political right (though there were some). What distinguished Nazism was that it forthrightly included a worldview we now associate almost completely with the political left: identity politics.”

And in case you thought he was kidding, he repeats it a few pages later: “What mattered to (Hitler) was German identity politics.”

Paul Gottfried wrote in his 2016 book Fascism: The Career of a Concept:

Goldberg goes after Democratic politicians who, according to him, are pursuing economic and social policies similar to those of Mussolini and Hitler. Programs aimed at American youth are compared to Mussolini’s Balilla and the Hitlerjugend, and American public works proposals are seen as derivative of or closely related to fascist and Nazi plans of the 1930s.17 After hundreds of pages of these often strained comparisons between fascist and Democratic orators, it is hard to miss the point: if Democratic partisans in Hollywood have gone after Republicans as fascists, then
the other party should be allowed to play the same game.

Goldberg’s partisan attack is far from convincing. The early American critics who made the comparisons in question were looking at the way political actors defined themselves: American New Dealers and their social democratic allies were praising the Italian fascist model while establishing an American welfare state. One cannot recall the last time the Obama administration extolled either Mussolini or Hitler when trying to bail out
the Obama administration’s supporters. Goldberg’s application of the fascist branding iron has its origin in intermural politics. It is part of a game in which the advocates of one party cast aspersions on those of the other.

Modern industrial democracies have huge welfare states that the major parliamentary blocs (there are usually two) accept as a given. If we wish to condemn one of the two institutionalized parties as “fascist” for building
and sustaining a large administrative state, then why not make the same judgment about the other? Nowhere does Goldberg suggest that he would rescind the “fascist” handiwork that he attributes to the Democrats before the election of Obama. And for a good reason! By now that handiwork belongs as much to his party as it does to the opposition.

Paul Gottfried wrote in his 2021 book Antifascism: The Course of a Crusade::

* Antifascist polemics have played a critical role in conservative discourse by typically recycling the other side’s arguments to make them !t the needs of establishment conservatives and the Republican Party. According to this account, the Democratic Party swarms with fascists, while the Republican Party is fighting for equality and human rights. Widely acclaimed conservative antifascists include journalist Jonah Goldberg, radio talk show host and author Dennis Prager, and author, filmmaker, and commentator Dinesh D’Souza. Although none of these celebrities has more than a nodding acquaintance with their subject, they do provide their base with a steady supply of sound bites.

Exemplifying media conservative antifascism is Jonah Goldberg’s 2007 best-seller Liberal Fascism, which claims that the other national party has been historically linked to fascism. Goldberg, a nationally syndicated Republican columnist, focuses on the putative parallels between the rhetoric of Mussolini and Hitler and the proposals of 2016 Democratic presidential hopeful Hillary Clinton. Because Hillary Clinton favored extensive social programs that resembled those advocated by interwar fascists, her platform supposedly revealed a connection between fascism and the Democratic Party.

Hillary’s references to a new “village” under government auspices was really just a throwback to Hitler’s Volksgemeinschaft, and the Democratic Party’s endorsement of af!rmative action programs for minorities and women is supposedly the modern equivalent of Hitler’s exclusion of Jews from German public life under the Nuremberg Laws of 1935.1 The reproduction at the end of his book of the 1920 Nazi Party Platform in translation is intended to point out that the Democratic Party, even before Barack Obama arrived on the national scene, was on its way to replicating the politics of the Third Reich.

Goldberg offers this antifascist principle that government should follow: “The role of the state should be limited, and its meddling should be seen as an exception.”2 Although there is nothing wrong with this maxim in theory, the devil, of course, is in the details. How exactly do we decide what is meddling and what is a proper form of state intervention? In Goldberg’s case this question is a no-brainer. Every social and anti-discriminatory program passed before 2007 (when his book was published) was !ne, providing both parties signed off on it. Accordingly, Goldberg disapproved of presidential candidate Rand Paul questioning the existence of a Department of Education or the public accommodations provision of the Civil Rights Act of 1964.

Yet Goldberg also has a problem with far more moderate steps undertaken by Democrats Woodrow Wilson and FDR to erect a modern welfare state.3 Goldberg’s work seems to have served as a blueprint for other Republicans
who make it their business to address the fascist problem. Republican talk show host Dennis Prager has produced commentaries on the fascist peril for his Prager University, which his website describes as “the world’s
leading conservative nonprofit that is focused on changing minds through the creative use of digital media.” Based on his sketch of the thinking of the neo-Hegelian Italian philosopher Giovanni Gentile (1875–1944), Prager’s frequent guest Dinesh D’Souza opines that “fascists are socialists with a national identity.” He notes, “The Left has vastly expanded state control over the private sector,” and concludes that “fascism bears a deep kinship to the ideology of today’s Left.”4 The logic is that any thinker, regime, or movement that has advocated an expansion of the state exemplifies both fascism and “today’s Left.”

* An equally questionable attribution of fascism to one’s enemies on the Left can be found in Dennis Prager’s blanket statement: “if there is a real fascist threat to America, it comes from the left whose appetite for state power is essentially unlimited.”10 Were fascists the only past political actors who craved “state power”? If this were the case, all political leaders who displayed an appetite for unlimited power throughout history would have to be classified as fascists.

Equally questionable is the notion that governments become fascist when they reach a certain tipping point in their acquisition of power or in their appropriation of GNP from the private sector. Although we may agree that
giving the state unlimited power is detrimental to freedom, this is not the same as saying that to do so is to become fascist. The postwar Labour government in England nationalized industries on a scale that went beyond anything that was tried in fascist Italy between 1922 and 1943. Between 1945 and 1951 the Labour government of Clement Attlee nationalized one-fifth of the British economy, yet this did not mean that England by 1951 had become more of a fascist state than Italy was in 1930.11 In England, the growth of state power proceeded from leftist, egalitarian, and at least implicitly internationalist premises; in Fascist Italy, the state appealed to hierarchy and revolutionary nationalist principles as it claimed to speak for all Italians.

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The Political Economy of the Frankfurt School

Posted on August 2, 2023 by Luke Ford

Christian Fleck writes

The paper presents the findings of two recent books on the financial history of the Frankfurt School: Jeanette Erazo-Heufelder, Der argentinische Krösus: Kleine Wirtschaftsgeschichte der Frankfurter Schule, 2017, and Bertus Mulder, Sophie Louisa Kwaak und das Kapital der Unternehmerfamilie Weil. Ein Beitrag zur Wirtschaftsgeschichte der Frankfurter Schule, 2021 (Dutch original 2015). In contrast to the “court histories” of the school, the two authors tell the story of the money that brought the school to life and secured its existence throughout a turbulent period of history. At the center of the books are individuals who have been sidelined until now or even completely ignored by the literature on the Frankfurt School: on the one hand, Felix Weil, who founded and financed the Institute of Social Research and, on the other hand, Erich A. Nadel and Sophie L. Kwaak, two employees of the holding company who managed the accounts of the Weil family and the Institute’s foundations and were responsible for protecting the assets from being seized by Nazis. The books’ thick descriptions induced the author of the present paper to consider an alternative perspective on the Frankfurt School by contemplating Max Horkheimer and Friedrich Pollock as playing confidential games with Weil and others….

On the other side of the Atlantic, the soloist in speculative economics Pollock lost about one million dollars in 1937 alone (in today’s value, this would be around 19.5 million). The historians of the Institute hide these losses behind vague wordings.Footnote16 To give an impression of the value that Pollock lost, one could mention that it equals the amount of 250 one-year support payments that the Emergency Committee in Aid of Displaced Foreign Scholars allocated to its recipients at the time.Footnote17

Again, Weil stepped in and donated another $100,000 to the Institute. Horkheimer thanked him in a letter but continued to downsize the Institute to a mere unit subsidizing him, his buddy Pollock, and his new philosophical handyman Adorno. All the other members of the Institute were pressed or persuaded to find a source of income elsewhere. Those who were still in Europe perished because, as Ulrich Fries has recently shown, Horkheimer declined to pay for the ship transfer for Walter BenjaminFootnote18 or to help Andries Sternheim to survive in Switzerland. Sternheim had to return to the Netherlands and died in the HolocaustFootnote19; Benjamin committed suicide on the French-Spanish border.

Later on, Horkheimer was forced to accept a paid position as a white-collar employee at the American Jewish Committee to direct the Studies in Prejudice project.Footnote20 Such alienated labor quickly became too much for him, and he returned after half a year to his house on the West Coast, for presumed reasons of health.

In 1949, Horkheimer accepted an offer to return to Goethe University, followed by his friend Pollock and Adorno. A look at the financial situation of the Institute makes it clear that they needed to return to their hometown because the funds had evaporated, and remaining in the USA would have required them to find an ordinary job. The Germans were given the impression that the returnees were making a great sacrifice if they returned voluntarily to the country of the murderers.Footnote21 To fellow exiles who did not follow the same path, the argument was that they wanted to participate in the re-education of the Germans. For nearly a decade, Horkheimer appeared in many roles and functions: as rector of Goethe University, visiting professor in Chicago, advisor for politicians and bureaucrats, and public intellectual. German critics of the Frankfurt School claimed that Adorno and Horkheimer acted even as the “intellectual founders of Germany’s Federal Republic.”Footnote22

It seems ironic: Kwaak who had singlehandedly prevented ROBEMA from being robbed by the Nazis performed financially better during the occupation than Pollock on Wall Street. As the last transaction of ROBEMA, Kwaak transferred several thousand German marks to Pollock in 1963. The money came from dividends for the years 1941 to 1944 from IG Farben, the famous business conglomerate that had been broken apart after 1945 because of its close collaboration with the Nazi system.

Weil died in 1975 in an economic situation which one could only call poverty. The main beneficiaries of this self-expropriation were two men who pretended to be his friends, Horkheimer and Pollock. They managed to use Weil’s money to fund a life of luxury over a very long period of time, starting with a house in the suburbs of Frankfurt in the 1920s, to condominiums in Manhattan, a newly built bungalow in Pacific Palisades, and lastly, since 1957, residences in Montagnola in the Tessin region of Switzerland (finally, Pollock married a cousin of Felix who did not donate money to any opaque enterprise but rather enjoyed it herself; Pollock died in 1973).

Horkheimer promised to deliver his critical theory of the present from the early 1930s until his retirement in the south of Switzerland. Pollock was more modest and stopped publishing seriously when he cast aside Weil as the director of the imperium of associations, foundations, and corporations. Until his retirement, he helped his friend Horkheimer to concentrate his energy on running a network of intrigues, documented in the four volumes of his correspondence, instead of writing the promised “New Logic,” “Critical Theory,” or whatever.Footnote23

One of Horkheimer’s remarks that is still quoted long after his death in 1976 insisted that “whoever is not willing to talk about capitalism should also keep quiet about fascism.”Footnote24 Looking into the political economy of the Institute, the institution Horkheimer presided over between 1931 and 1957, one is inclined to respond: “whoever is not willing to talk about the material base of the Institute should also keep quiet about Critical Theory.”Footnote25 The political economy of the Frankfurt School was not hidden in papal archives as both Erazo-Heufelder and Mulder prove in their well-researched histories.

People who met Horkheimer, even those who were critically disposed, remembered him as an impressive individual, a true German professor. Some even referred to the concept of charisma to explain Horkheimer’s interpersonal successes. After reading Erazo-Heufelder and Mulder’s work, one starts considering alternative interpretations of this man and his doings.

The evidence for cleaning out the sponsor of the Institute from the side of the intellectual and the administrative manager is overwhelming. It might have not been entirely perceptible to contemporaneous observers, but it can obviously be reconstructed from the files available for historians and others interested in the case. Why did generations of admirers of the Institute just ignore these facts?

There is an abundance of evidence in novels, movies, and other sorts of popular entertainment to expose swindlers, so-called con men as artist-like impression makers. Interestingly enough, serious academics seem to shy away from considering the existence of similar problematic performers inside the ivory towers of the humanities. They see deviant behavior of academics only in the hard sciences. They are wrong.

Suggesting that an important person in the history of ideas should be regarded as a trickster not only arouses the vehement protest of partisans of that very person, but also probably triggers resistance on the part of the less partisan. To the vast majority of those who are morally on safe ground, it seems sacrilegious to even hypothetically consider that there may be deviants in their highly conforming community after all. This undermining of commonly shared beliefs may perhaps be more readily condoned when framed as a hypothesis. In other words: I am not sure that Max Horkheimer was a trickster, but it seems to me that his most important actions, especially the recognizable implicit strategy and tactics employed, give sufficient reason to at least consider explanations other than those already in circulation.

So, in the world of social theory and social research, how would one be able to recognize a con man?Footnote26 A con man, especially in American literature, is someone who masters more or less sophisticated games to which he invites his presumptive victims with the promise of extraordinary gains. In the end, of course, the victim, called the “mark,” loses. The perpetrator, called the “operator,” usually has helpers. These “coolers” try to prevent the victim from making a fuss, even going to the police or otherwise attacking the con man’s status. The basis on which the con of the “mark” becomes possible in the first place is that the “operator” gains the trust of the “mark.” In other words, if you want to succeed as a con man, you have to be able to win over your future victims, to wrap them around your finger. Maria Konnikova has collected a large number of examples in her extensive study of the confidential game.Footnote27 Each of her con men was indeed an artist of misdirection and impression management.

Can the model of the con man, or the confidence game, be applied to intellectual history? If this were possible, one could close an obvious gap in the theory of the human sciences, which can be seen in the fact that the question of possible deviant behavior has remained a desideratum. In disciplines that are considered “hard,”Footnote28 this gap is filled by those who manipulate or even invent data. One of the last spectacular cases was that of the Dutch social psychologist Diederik Stapel. In the reports about him, the term “con man” was used.Footnote29 The financial history of the Frankfurt School, started out by Erazo-Heufelder and Mulder, could become a Kuhnian exemplarFootnote30 for a new specialty in the sociology of deviant behavior in the human sciences.

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Philosopher Stephen Turner Is On Facebook

Posted on August 2, 2023 by Luke Ford

Follow him here. He posts July 7, 2023:

…the 4th circuit just struck a blow against academic freedom, citing a famous case which involved a person in the LA prosecutors office telling the truth about a case the prosecutor was lying about. The ruling: you have no right to contradict the employer. Now it has been established in an academic context, which is important, because rights in these cases depend not on law but on clear precedent. Now the clear precedent is “shut up,” you have only very special circumscribed rights– as a citizen and in your classroom and research, but not to speak up against the administration. Beware. Every Provost in the country has the champagne out tonight.

If it was public topics, i.e. politics as such, he would have been OK. What Garcetti established was that if you object to company or organization policy, even if they ask you to lie, you can be fired for it. Mostly this just means that if you are critical of affirmative action in your university you can be fired.

From the Volokh Conspiracy:

Porter is a tenured statistics professor in the college of education. He was unhappy with the direction of the higher ed program, with which he was affiliated. In particular, he thought the college and the program had gone woke and was promoting social justice over good scholarship. He expressed those views internally in departmental email and departmental meetings. As a consequence, he was removed from the higher ed program on the grounds that he was insufficiently collegial.

The majority held that professorial speech in department meetings and the like is speech pursuant to their job duties under Garcetti v. Ceballos and does not fall under a narrow exception for research and teaching. As a consequence, such speech is entirely unprotected by the First Amendment and does not even reach the balancing test under Pickering v. Board of Education.

Turner writes:

‘Since FDA Commissioner Robert Califf began his second tenure as the agency’s head in February 2022, he has made combating “misinformation” one of his top priorities, arguing it is “a leading cause of preventable death in America now” — though “this cannot be proved,” he said.’ So which is this rationale for censorship? Misinformation, disinformation, gaslighting, BS, or the familiar problem of believing something that can’t be justified?

The distinction between mis and dis seems to hinge on the intentions of the transmitter, not the content.

Turner writes May 30:

‘Nature may be “red in tooth and claw”, but creatures whose weapons are teeth and claws can only kill each other one at a time. Only humans commit atrocities such as war, genocide and slavery – and what allows us to conceive and carry out such crimes is the very power of reason that we boast about.’ Obviously they have never seen the crows in my neighborhood, who kill babies in the nest, harass ospreys, and generally raise hell, and do this in co-ordinated attacks, calling on one another to help.

Turner writes May 13:

So the deal with AI replacing everything is that we are now going to be free to be our creative selves rather than drudges working every day on routine paperwork. But there is a catch– we will never be as good as AI in anything we do. So what we do with our creative selves is essentially worthless.

Turner writes April 2, 2023:

The actual source of the key elements of Kuhn’s theory of paradigms was Nathan Isaacs, “The Law” and the Law of Change (pts. 1 & 2), 65 U. PA. L. REV. 665, 666, 757 (1917), transmitted through LJ Henderson and James Bryant Conant. It was an account of changes in Jewish law. …[T]he basic model of establishing the paradigm, codifying it, having it break down and replaced by a new one is there is Isaacs in 1917, and his buddy Henderson applied it to the history of science. Henderson was the in-law of Conant, where you will also find the basic ideas and the personal connection to Kuhn.

Leonard Waks comments:

If Kuhn was merely Fleck, why wasn’t and isn’t Fleck famous now? For the past 30 years, everyone has known about the Fleck connection.
Ideas may be in the head, but as public objects they have to be boxed and gift wrapped before they are given away. As presentation, Kuhn’s book is a masterpiece. It provided an interpretive framework not only in science studies, but throughout the social sciences and humanities. In academia, that is a monster success story.
You cannot “steal” an idea because ideas cannot be copyrighted. When folks are ready to claim that ‘Structure’ was plagiarized, I will be interested.

Turner: “The idea that there is a cycle of doctrine which starts with something clear, turns into puzzle solving, and finally collapses and is replaced. This is a pretty radical departure from, say, Hermann Cohen, who thinks there is an essential element which persists through time and is revealed in greater purity, which is also the kind of history of science that Kuhn is rejecting.”

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Hunter Biden

Posted on August 2, 2023 by Luke Ford

Philosopher Stephen Turner posts on Facebook five days ago:

Here is a plausible inside version of what happened: Based on conversations with people who were in the courtroom today, and my experience as a former federal prosecutor, I think I know the full story of what happened with the Hunter Biden plea agreement blow-up this morning.
Bear with me, because this is a little complicated:
Typically, if the Government is offering to a defendant that it will either drop charges or decline to bring new charges in return for the defendant’s guilty plea, the plea is structured under Federal Rule of Criminal Procedure 11(c)(1)(A). An agreement not to prosecute Hunter for FARA violations or other crimes in return for his pleading guilty to the tax misdemeanors, for example, would usually be a (c)(1)(A) plea. This is open, transparent, subject to judicial approval, etc.
In Hunter’s case, according to what folks in the courtroom have told me, Hunter’s plea was structured under Federal Rule of Criminal Procedure 11(c)(1)(B), which is usually just a plea in return for a joint sentencing recommendation only, and contained no information on its face about other potential charges, and contained no clear agreement by DOJ to forego prosecution of other charges.
Instead, DOJ and Hunter’s lawyers effectively hid that part of the agreement in what was publicly described as a pretrial diversion agreement relating to a § 922(g)(3) gun charge against Hunter for being a drug user in possession of a firearm.
That pretrial diversion agreement as written was actually MUCH broader than just the gun charge. If Hunter were to complete probation, the pretrial diversion agreement prevented DOJ from ever bringing charges against Hunter for any crimes relating to the offense conduct discussed in the plea agreement, which was purposely written to include his foreign influence peddling operations in China and elsewhere.
So they put the facts in the plea agreement, but put their non-prosecution agreement in the pretrial diversion agreement, effectively hiding the full scope of what DOJ was offering and Hunter was obtaining through these proceedings. Hunter’s upside from this deal was vast immunity from further prosecution if he finished a couple years of probation, and the public wouldn’t be any the wiser because none of this was clearly stated on the face of the plea agreement, as would normally be the case.
Judge Noreika smelled a rat. She understood that the lawyers were trying to paint her into a corner and hide the ball. Instead, she backed DOJ and Hunter’s lawyers into a corner by pulling all the details out into the open and then indicating that she wasn’t going to approve a deal as broad as what she had discovered.
DOJ, attempting to save face and save its case, then stated on the record that the investigation into Hunter was ongoing and that Hunter remained susceptible to prosecution under FARA. Hunter’s lawyers exploded. They clearly believed that FARA was covered under the deal, because as written, the pretrial diversion agreement language was broad enough to cover it. They blew up the deal, Hunter pled not guilty, and that’s the current state of play.
And so here we are. Hunter’s lawyers and DOJ are going to go off and try to pull together a new set of agreements, likely narrower, to satisfy Judge Noreika. Fortunately, I doubt if FARA or any charges related to Hunter’s foreign influence peddling will be included, which leaves open the possibility of further investigations leading to further prosecutions.

* It has everything to do with his father. Otherwise he would be on skid row. But who cares? These are known crooks. We elected them.

* Aside from massive inflation, which has destroyed the life chances of young people and everyone else, what has he accomplished? Failure in Afghanistan and Ukraine. But he did get rich. And the evidence of payoffs is clear, and not based on fairytale legal theories.

* People are working for nothing because of fear and inflation. The gun laws are pro-crime– they don’t affect criminals and murders have exploded.. Debt relief for students was a gift to the rich at the expense of ordinary people. Infrastructure was a scam. Inflation followed that hurt the most vulnerable. No, I don’t see the good. I do see plenty of damage in the lives of the people I know, who are just ordinary people trying to survive in this horrible situation created by him.

* The bad stuff started with Biden’s policies and a congress concerned to spend. What else causes inflation? Loose monetary policy. The Fed did that too. Oh, and catering to the financial elite, which makes money on both these things at the expense of ordinary people. But inequality is just fine if it favors them.

* So Hunter pleads not guilty because the prosecutors refuse to go through with the deal because they don’t want to testify before congress about the deal and want to keep up the charade that the case is ongoing and therefore they can refuse to testify. This is pure banana republic. And he will get a pardon. So why bother?

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