The relations between Dr. Goerdelor and Dr. Schlegelberger were so good that on the occasion of Dr. Schlegelberger's 60th birthday, in 1936, Dr. Goerdeler wrote an article for the Anniversary Pamphlet which appeared to honor Dr. Schlegelberger.
The second name which I should like to mention in this connection is von Donani. Von Donani had been the Personnel Referent of Minister of Justice Dr. Guertner. He left the I artistry of Justice before Guertner's death and became Roichsgerichtsrat.
A.- ... During tho war he was a close assistant and collaborator of Admiral Canaris in the Counter-Intelligence Department. He also was a man who was hostile to National Socialism. He also criticized quite openly and he, together with Guertner, was among those men who made the attempt in 1944. He also, as I was informed later, was executed. I know Donani personally very well. That dated back from our work together in the Office of the Ministry and the Under Secretary. Also, outside our official work we were on good terms.
Q.- Can you tell us something about the daily routine of Schlegelberger in the Ministry?
A.- When Dr. Schlegelberger arrived at the office in the morning in, the Ministry he used to discuss tho program for the day with me. A definit schedule was worked out for the various reports to be made to him from the different departments, for the visitors who were expected, and for the work with me which We took up during the evening hours. Any time that was loft Dr. Schlegelberger used for his scientific studios and works.
Q.- In what field were those scientific works?
A.- Dr. Schlegelberger is a civil jurist. He is especially interested in commercial and economic law, law concerning stocks, law concerning so-called voluntary jurists, and he also worked on a series of writings about Scandinavian civil law. He also prepared himself for his lectures which he, as a professor of commercial and economic law, was giving to students of tho University of Berlin.
Q.- Do you also know something about tho personal situation of Dr, Schlegelberger?
A.- I know that very well because I visited him frequently at his house. It presented the atmosphere of tho home of a scientist. Dr. Schlegelberger was especially interested in good books -- domestic and foreign. A lot of music was practiced in Schlegelberger's home, and the visitors and friends whom I met there were composed accordingly.
Q.- Did you. over meet any Party officials as visitors in Schlegelberger's house?
A.- No. As I stated, I was frequently at Schlegelberger's home and I never met there a definite Party official. I already mentioned Dr. Schlegelberger's attitude to Goebbels. I never met Frank or Thierack, for instance, in Schlegelberger's house.
Q.- Will you describe to us the official activity of Schlegelberger's until Guertner's death?
A.- The Ministry of Justice had two Undersecretariats -- one was under Dr. Schlegelberger; the other under Dr. Freisler. Dr. Freisler, in 1933, had come into the Prussian Ministry of Justice and on the occasion of the murder of the Prussian Ministry of Justice, with the Reichs Ministry of Justice, come to the Reichs Ministry of Justice. He was an old Party Member. He had the Golden Party Badge. For many years he had been a member of the faction of the N.S.D.A.P. in the Diet. He had been a member of tho Prussian Diet and, therefore, he was considered a confidential agent for the Party in the Reichs Ministry of Justice.
Q.- How was the distribution of fields of work among the two secretariats?
A.- Dr. Schlegelberger dealt with matters of civil law within tho scope of the Reichs Ministry of Justice. Therefore, the following departments were under him; Department 4, as it was called at that time. That was the department for civil law; Department 5 for commercial and economic law; and Department 6, the so-called Budget Department, to which the Construction Department also belonged. Also, the Personnel of the administration of the Ministry of Justice of the Reich, but one half was under Dr. Schlegelberger. The distribution had been made according to districts. Under Dr. Schlegelberger only was the Reichsgericht and the Reichs Patent Office. Dr. Freisler had the Department for Penal matters under his administration. That was Department 2, Penal Legislation -- Department 3, individual penal cases -- also penal execution. Then, he had as I mentioned, the other half of Personnel matters to take care of and then also the People's Court.
Q.- Could you tell us something about Dr. Schlegelberger's principles in personnel matters?
A.- Dr. Schlegelberger put the greatest emphasis on capabilities and qualities of character.
Q.- Did political considerations have anything to do with the decisions of Schlegelberger concerning the employment of officials.
A.- No. Political considerations did not enter into Schlegelbergor's considerations at all. I know that frequently candidates for promotion were presented to him, and it was stated that they had special political merits. He was always against these people because the time it began he emphasized the necessity for the technical capability and qualities of character of an official. But I know that political authorities, especially the deputy of the Fuehrer, or the Party Chancellor, which later took the place of the deputy of the Fuehrer -- that these offices were authorized or entitled to participate in the nomination and appointment of officials....
That these offices occasionally presented candidates to Dr. Schlegelberger who allegedly had a special political merit; Dr. Schlegelberger, as I stated, was always against these suggestions.
Q Did it ever happen that a compromise between the party chancellery of the Ministry of Justice about some particular appointment could not be reached?
A I mentioned already that the party chancellery or before that, the deputy of the Fuehrer occasionally on their part presented candidates for appointment. Dr. Schlegelberger's suggestion usually was in a different direction, because there was usually a long discussion, an extended argument between Schlegelberger and the political offices which I have mentioned, about the question as to what candidate should be appointed for that position. These discussions sometimes took a considerable time. That was particularly delicate and disagreeable in cases of positions which on account of their special importance had to be filled as quickly as possible, as for instance, the position of the President of the District Court of Appeals or of a general prosecutor. Dr. Schlegelberger tried then to find support for his opinion in other offices of the Administration. I know that frequently he spoke to Dr. Lammers, asked him for his support, and pointed out in particular that for objective reasons one could not go on leaving that position vacant. On account of his tenacity Schlegelberger succeeded in almost all of these cases to put his opinion through.
Q Would you give us quite briefly two significant individual cases in that connection.
AAs the first case, I should like to mention the case of the President of the District Court of Appeal, Duerig, in Bamberg. Duerig was a courageous man who criticized the party quite frankly and openly; and never made any secret of his opinion, and that attitude of his was quite well known in the Administration of Justice and also within the party. When the position of President of District Court of Appeals in Bamberg became vacant and had to be filled, Dr. Schlegelberger proposed Dr. Duerig for that position.
The appointment of Dr. Duerig could only take place if and after the political offices, which I have mentioned before, had approved it, but that approval was denied. As I found out, the most essential factor was the hostile attitude of the two Gauleiters in the Wurzberg and Bayreuth district that belonged to the district of the District Court of Appeals, Bamberg. Dr. Schlegelberger got in touch with Dy. Lammers in order to achieve that his suggestion should finally be accepted. The struggle and arguments took several months -- I believe it may have been a year that that position was left vacant; but, in the end, Br. Schlegelberger's suggestion was accepted and Duerig was appointed President of the District Court of Appeals in Bamberg. After he was appointed, of course, he had the greatest difficulties in his district; that is, from the political agencies. He came to see us frequently in Berlin, and when he sat in my anteroom, in order to wait to see Dr. Schlegelberger, he complained about the attacks of the party against him. Schlegelberger, as well as he could, protected him against all these attacks, and during his entire period in office, that is to say the period in office of Schlegelberger, Schlegelberger held him on his post in Bamberg.
THE PRESIDENT: Mr. Witness, counsel asked you to be very brief in the giving of these illustrations which are being considered only as illustrations supporting your former testimony as to the attitude of Dr. Schlegelberger. The Tribunal hopes that you will be brief when you are giving these illustrative cases.
A I remember various other individual cases, one of which I would like to mention now. I know that on official trips Dr. Schlegelberger always intervened for political officials, always tried whenever he got to various places to straighten out difficulties of that nature and to hold officials in their positions.
Q Didn't you make a mistake with that last sentence. You said he had intervened for political officials. Did you mean to say that?
A If I said that, I made a mistake. He intervened for officials who were attacked from political sides, and he saw to it that these officials remained in their official positions despite these attacks.
Q Do you also happen to know of cases where Schlegelberger fought against intrigues by officials who tried to disturb his known political policy?
A Since the Court has asked me to be as brief as possible, I should like to mention only one brief case which was very impressive because it occurred during the beginning of my activity in Dr. Schlegelherger's office; as a young man who had just come into that office at that time I was very much impressed by it. The political situation in the District of Darmstadt was especially tense. Gauleiter Sprenger did not think to much of the Administration of Justice, and frequently criticized the sentences and the leading officials of the Administration of Justice in that district. The situation became all the more complicated because the two leading officials, the President of the District Court of Appeals and the General Prosecutor, did not display the necessary firmness in dealing with these political offices. Dr. Schlegelherger quite suddenly made a trip with me to Darmstadt in order to straighten out these difficulties. There he found, after a conversation with the President of the District Count of Appeals, that the cause for these difficulties was a senior prosecutor by the name of Krauss, who acted as an informer for the Gauleiter, and told him about the occurrences in the field of the Administration of Justice, and in a manner which tended to cause difficulties. After we returned to Berlin that senior prosecutor was called by telephone to Berlin, to report to Dr. Schlegelberger; and I was ordered to be a witness in that conference between Schlegelberger and Krauss.
Never before or after did I experience that an official was reproached in such a serious, injurious manner for his behavior. On that occasion Dr. Schlegelberger told Krauss if once more he would pass on information to Sprenger against his colleagues Schlegelberger would initiate disciplinary proceedings against him in order to have him removed from office because he would have become untenable.
Q What was Schlegelberger's attitude toward Jewish-halfbreeds and people and officials who had Jewish relatives?
A Schlegelberger had a great deal of understanding for people of mixed descent and people with Jewish relatives. Frequently he tried to protect them against the well known attacks from the party, and he did so by having them transferred from small places, where there were all the difficult conditions of a small town, into a large city where they were less subjected to these attacks. Here also I should like to discuss briefly one case: In the Ministry of Justice we had a Jewish half-breed of the second degree, that is to say a quarter Jew, that was Ministerialrat Dr. Koffta; he was in Dr. Schlegelberger's department. Dr. Schlegelberger kept him in his office until he died, inspite of all the attacks from the party against Koffta. And, when he was seriously ill, he expressed his understanding and sympathy by visiting him frequently in his house.
One has to know the conditions of that time in order to realize what that meant at that time. A man of Jewish descent in a high official position, that already was presenting grave difficulties for his superior; as a Ministerialrat in a Ministry, that presented continuous difficulties and troubles from the party.
Q Did Dr. Schlegelberger in maintaining these principles incure difficulties with political offices, and of what nature were these difficulties?
A Dr. Schlegelberger, as I mentioned, was bound to the approval of the Party Chancellery or the Deputy of the Fuehrer when appointing higher officials. It was obvious that these offices offered extraordinary difficulties when he tried carrying out these principles in his personal policy.
Q Do you happen to know anything about attacks from the press in that connection?
A I know that the administration of justice was continuously attacked in the press, particularly by the Schwarze Corps, the Black Corps, that was the paper of the SS, the periodical of the SS which appeared every week, and frequently published the most serious attacks against the administration of justice; officials, judges, and prosecutors were mentioned by name; they were charged of having displayed an unNational Socialist behavior; their removal from office was demanded, and time and again one could observe that the full documentary evidence of such publications were either incorrect or so much distorted that they did not stand up under scrutiny. I know of an individual case, an Oberlandesgerichtsrat in Cologne - I do not remember the name any more, was attacked and it was found out that at the basis of this article there was just a denunciation of a notorious griper. Schlegelberger also had to obtain a denial of these publications; he got in touch with the various authorities, with other offices, and the corrections which appeared in some cases came very belated or put in a place in the paper where they could hardly be noticed.
Q The proceedings against the Czech Prime Minister Elias, has also been mentioned in these proceedings. The Prosecution takes this case as the proof for the close cooperation between the administration of justice end the Gestapo; could you tell us anything about these proceedings?
A I remember the case Elias quite well. After all I had seen in the Ministry of Justice at that time, I gained the impression that the President of the People's Court, Dr. Thierack, with the Reich Protector, Heydrich, and that behind the back of the Minister, Dr. Schlegelberger, without his knowledge had conspired in order to achieve that end, in that the case Elias, should not be submitted by the Chief Reich Prosecutor but by the Gestapo, that is to say, by an agency outside the administration of justice. I know that Schlegelberger when he was informed about that was quite indignant, and called Dr. Thierack to see him. These attempts were particularly dangerous because the SS Police and Gestapo, for a long time had displayed the tendency to separate the job of the prosecution from the administration of justice and to get it within their domain of power.
Q What individual cases would illustrate the position or the attitude of Schlegelberger to the Party and Party agencies, can you remember?
A Here, also, I should like to mention only one case which is probably designed to characterize the relations of Dr. Schlegelberger to the Party. Reichsleiter Bouhler was in charge of the Secretariat of the Fuehrer, and Dr. Schlegelberger had a rather severe controversy in correspondence wherein Bouhler charged Dr. Schlegelberger that the Ministry of Justice was not directed by him in a National Socialist sense, and he probably also expressed his doubt as to the personal attitude of Dr. Schlegelberger in this matter. I no longer remember what the cause of this controversy may have been, but I believe that it was the following: The Secretariat of the Fuehrer tried to gain influence on the decision of clemency pleas filed for Party members.
It is possible that it even demanded the final decisions in these matters, and that may have been the cause because Dr. Schlegelberger could never accept anything of that kind. That controversy assumed great severity because Reichsleiter Bouhler sent copies of his very aggressive letters to important agencies of the Party, and the State, such as: Lammers, Himmler, Bormann, and others.
Q Did Schlegelberger actually have the position of a Reich Minister when he assumed office; when he was put in charge of the Ministry?
A No, Dr. Schlegelberger, by assuming that office did not assume the position of a Reich Minister. As far as the rank was concerned, he was Under-Secretary, Staatssekretaer; even after he was put officially in charge of affairs in the Ministry he also kept his department, that is his Staatssecretariat; that was an intermediary solution anyway; that he was put in charge of affairs until the various political agencies could agree as to who the new new Reich Minister of Justice would be. Dr. Schlegelberger's position of course, was very difficult because he had to work together with Dr. Freisler who had very good connections with the Party, which Schlegelberger, of course, did not have.
Q Did Schlegelberger attend cabinet meetings during that period or did he have other possibilities to report to Hitler directly?
A Cabinet meetings no longer took place. The possibility to get to Hitler personally did not exist for Dr. Schlegelberger. I can remember that Dr. Schlegelberger just once during his entire period in office saw Hitler personally. That was at the time of his dismissal when he was ordered, in order to receive his approval of leave, to see him at his headquarters.
Q What possibility did Schlegelberger have in order to pass suggestions and proposals ton to Hitler?
A Since Schlegelberger could not use any channel through the Party, he had no alternative but to Contact Dr. Lammers as far as the natters for the Reich Cabinet were concerned, that is to say, natters where Hitler was concerned in his position as Reich Chancellor; as for Hitler's capacity as Chief of State, Dr. Schlegelberger turned to Meissner, the Chief of the Presidial Chancellery, and that was particularly in cases of clemency pleas, because that right was reserved for Hitler as the Chief of State.
Q How were these clemency natters handled? Would you please refer only to cases with the death sentence?
A Death sentence cases were handled with special care and thoroughness in the Ministry of Justice. When I came into the Ministry of Justice I was told that it was the custom of the Ministry of Justice that a Referent who was not perfectly informed about the facts in a case dealing with a death sentence would be removed at once from the Ministry of Justice. The handling of these matters was the following:
The Referent put his opinion down in writing; the same was then done by the sub-department head, the department head, and the Under-Secretary. These endorsements were submitted to the Minister for his decision, together with a copy of the sentence and the opinion of the Court and the Prosecutor concerning the question of clemency. The Minister then made his decision on the basis of that material. If he had any doubts, he ordered the department to report, and that report was made in the presence of all the persons I have mentioned.
With Dr. Schlegelberger it occasionally occurred that he personally went through all the files, and, in addition, called the department concerned to report, in order to be sure that the matter had been dealt with exhaustively.
Q What was Dr. Schlegelberger's attitude when he dealt with clemency matters?
A The Referent in clemency matters know that if he submitted a well-founded clemency plea to Dr. Schlegelberger, he could expect support from Dr. Schlegelberger.
I should like to say that Dr. Schlegelberger's attitude was sympathetic towards clemency. He was quite prepared, on his part, to submit a. proposal for clemency to Hitler, and also in cases where he knew that he would expose himself by so doing to attacks of a political nature. It impressed me particularly that in all cases of doubt which has been submitted, and which he passed on through Under-Secretary Meissner to have them reported to Hitler, Schlegelberger got in direct contact with Meissner and referred to those points which, in his opinion, were particularly essential and which he expected would make an impression of a special nature on Hitler.
His tactics in clemency matters played an important role because, as a matter of experience, one knew that Hitler was more receptive to certain elements, such as activities as a soldier, and so on.
I might also say that Dr. Schlegelberger frequently had the satisfaction, in such cases of doubt, when the decision went according to hie suggestions and a clemency decision cane back from Meissner.
Q Do you happen to know of individual cases in clemency matters which you consider worth mentioning before the Tribunal?
A The Tribunal has asked me to be very brief, and therefore I ask to be permitted to mention only one case. That case was such an extraordinary one that, in spite of the long tine which has since passed. I still remember it.
A Polish countess was sentenced to death for arson. She had been the owner of a large Polish estate, and when the Germans occupied that territory she was sent into the building for domestic servants on her estate, whereas the residential building was inhabited by the German manager, who bad been appointed by the German Army or civilian agencies. One night the entire estate went up in flames. The opinion stated that the Polish woman had started the fire.
As for facts, the sentence was based solely on the testimony of a niece of the owner, a child who was twelve years old, who lived in the same building. She had stated, as a witness, that her aunt secretly expressed her disapproval and her hatred of the German Administration and had also manifested her intention to put fire to the entire estate.
Dr. Schlegelberger refused definitely to order the execution of the death sentence in this case, and of course he would have been in a position to do so without consulting Hitler or Meissner. He said that it was quite impossible to base the sentence on the testimony of a 12-year-old child, particularly when it was the case of a girl of 12 years whose statements in cases of arson, as experience shows, have to be met with great caution. He ordered me to look at the files and to determine from the files how, where, and through whom that little girl - the niece - had been questioned for the first time. I found a police transcript in the files, and since this transcript still left the possibility open that the child might have been induced to make these statements by leading questions on the part of the police official, Schlegelberger submitted the whole case, with a plea for clemency, to the Presidial Chancellery. He also had a long conversation with Meissner concerning that case. The Polish woman was pardoned, and was given a term in prison.
I still remember the satisfaction which Schlegelberger displayed when I submitted to him, on the occasion of my daily report, the decision from Meissner in this case. Later I was informed that doubts had arisen concerning the accuracy of the testimony of that little girl and that the Administration of Justice had initiated proceedings for a re-trial. In that re-trial I was told that the woman was finally acquitted. That is what I was told, I have never read that sentence.
Q Do you know anything about transfers of condemned persons to the police, or to the Gestapo?
A I know that it frequently occurred that Hitler gave orders to the police to call for people who had been sentenced to prison terms. To be sure, it was an order from Hitler directed to the police to the effect that the police had to take such and. such a man into their custody. These orders had rather short limits. As a rule, there was only a time limit of 24 hours before execution by the police, after which the police had to report that it had been executed.
These transfers, as far as I can remember, took place only during the war.
Q Do you know whether Minister Guertner did anything against these transfers?
A Yes; I know that Dr. Guertner - and I happen to know this from Dr. Schlegelberger, who told me about it once -- Dr. Guertner got in touch with Lammers and pointed out that these transfers were untenable and could not be accepted by the Administration of Justice.
The success, however, was not very large. Dr. Lammers on that occasion is said to have told Dr. Guertner that Hitler had stated that the courts could not stand up to the special requirements of the war, and that therefore these transfers would have to continue.
THE PRESIDENT: The hour has arrived for our morning recess of 15 minutes.
(A recess was taken.)
Court No. III, Case No. 3.
THE MARSHAL: The Tribunal is again in session.
MR. LA FOLLETTE: If Your Honor, please, may I address the Tribunal for a minute on a purely practical matter; and I have no quarrel at all, and I am sure that the sergeant believes he is following orders in not allowing Miss Arbuthnot, who is of counsel, when she desires to come into the courtroom with a portfolio and a bag. There is a rule, I think, against spectators bringing bags in, but I don't think that applies to attorneys either for the prosecution or the defense. The sergeant at the door feels that he must ask her to remove them. I don't believe he is informed as to actually what the Tribunal desires, or the difference between the members of counsel and the mere visitors.
THE PRESIDENT: The Tribunal knows that Miss Arbuthnot is on the Legal staff for the prosecution, and she is entitled to bring into the courtroom such papers or recepticles as may be necessary in connection with her work as counsel.
MR. LA FOLLETTE: Thank you, Your Honor. May I say again that I am not quarreling with the sergeant, but I just wanted him so advised.
THE PRESIDENT: He is so advised. You may proceed.
BY DR. KUBUSCHOK:
Q Did the intervention of Guertner via Lammers to Hitler not reach at least the one thing, namely, that information about having given orders to the police was sent to the Ministry of Justice?
A Yes. I know that these representations made by Guertner had that success, that from that time on in every individual case when such a transfer had been ordered, the Ministry of Justice was informed about that.
Q What did Guertner believe that he could have achieved for having that information handed on?
A Dr. Guertner did not speak to me about this, but from the conferences which Dr. Schlegelberger had with me, I found out the following about the motives of Dr. Guertner. In accordance and the ex Court No. III, Case No. 3.perience of the facts which Hitler received, they were always anonymous channels by which such an application was brought to Hitler.
Wherefore I say, the facts were incorrect, at least, they were strong distorted; and Dr. Guertner probably believed that by appropriate reporting to Hitler, namely, by telling him the actual facts, especially the reasons for which the court passed the penalty which had condemned the persons to a penitentiary sentence, or at least some kind of a prison term. Guertner believed if he had Hitler informed of the correct facts in the case that by those means he justified the sentence and could have the order for transfer withdrawn.
Q Was all of that possible within a twenty-four hour period?
A That was in most cases, at least, entirely impossible to achieve that within 24 hours. For in most cases they were not cases which had been tried in Berlin, but which had occurred somewhere within the territory of the Reich.
Q If Hitler now did not withdraw the order for the Ministry of Justice, did there, under those circumstances, exist any possibility at all to prevent the transfer to the police?
A Dr. Schlegelberger frequently discussed that question, and I believe that he actually had no possibility to cause -- let us assume the case that he would not have recognized this order that the police had received. In that case, no doubt existed that the police, if necessity existed, would have enforced this Fuehrer Order by force and would have broken any resistance.
Q Could you report anything about the events in the Ministry as soon as a transfer order came to the Ministry?
A The transfer order did not come to the Ministry, but rather the information that such a transfer order had been given to the police; and this information regularly came to Dr. Joel or one of his assistants. Dr. Joel or his assistant then came to me immediately, and I had the following instruction from the Under-Secretary which I had to follow in such cases. The entire plan of work for the day which had been de Court No. III, Case No. 3.termined in the morning was interrupted immediately.
The reports of the departments which had been set for the certain hours were immediately cancelled by me. I postponed visitors for a later time. Men of Dr. Schlegelberger's department had to report to him. I went to his office and reported the facts to him briefly, namely, that Dr. Joel or his assistant wanted to see him in such a matter. Thereupon, those who were present were immediately dismissed from Schlegelberger's presence and Joel came to Dr. Schlegelberger to report to him.
Q Now, what was the activity in detail that began now?
A I said already that Dr. Guertner and the same applies also to Dr. Schlegelberger, when he became acting Minister and had to take care of the Ministry of Justice and such. They tried first of all to find out the true facts; therefore, the files were immediately ordered to be brought to the Ministry of Justice. The files were not in Berlin, but somewhere else. It was ordered by telephone and a courier immediately brought the files to the Ministry in Berlin, for one had to gain time above all. Dr. Schlegelberger then commissioned Dr. Joel to telephone the police and other offices in order to extend the time limit. Dr. Joel, who in those cases evidenced particular activity, was then in the next hours engaged in a feverish activity in order to have this time limit extended. In between, he currently informed me or the Under-Secretary about whether or what he had succeeded in doing. If the extension of time had been achieved, if the true facts in the case had been determined, then immediately an extensive written report was sent to Lammers or Schaub with a request to submit it to Hitler immediately and to see to it that the transfer was withdrawn.
I already mentioned here that Dr. Schlegelberger considered especially elements which he expected to be especially effective with Hitler. I can still remember one case in which the report which Dr. Schlegelberger made it was stated that the person concerned, according to the story, had done his duty as a soldier during the First World War and had been wounded at Verdun.