It has to be pointed out that since 1939 already, a practice existed which still more affected the administration of justice and was more debasing, and which was based on a decree of Guertner, then Reich Minister of Justice for he had decreed that the individual judge and the individual prosecutor had to get in touch with each other in cases to be tried. (Exh. 73; NG-445). Compared with this state of affairs the conferences on the presidential level as well as the administrative level, where only general policies were discussed essentially, constituted no doubt an improvement, a progress.
Dr. Rothenberger as well as Kaufmann, the Reichsstatthalter, declared before Hamburg judges after Hitler's speech that they did not in end to introduce blood justice (conf. Priess's testimony Prot. 9095). That Hamburg's tradition was opposed to the administration of justice in criminal matters to be rendered mere severely without restriction has been corroborated by documentary evidence. Reference is being made to the censure of State Secretary Klemm in 1944, in which he reproached the President of the Court of Appeal in Hamburg for too much leniency in the administration of justice, giving detailed examples. Schmidt-Hgk, President of the Court of Appeal at that time has pointed out in his affidavit that he continued along the lines of Dr. Rothenberger. In agreement with the above the witness Priess has testified that even during Rothenberger's term of office as President of the Court of Appeal there had been criticism on several occasions because of too lenient jurisdiction. From the affidavit of the witness Bacmeister it is also evident that Dr. Rothenberger never urged the administration of justice to be rendered more severe and never influenced it. In the face of criticism of verdicts passed in Hamburg, as too lenient especially by Freisler's censures, he took up for the judges.
THE PRESIDENT: We will take our morning recess at this time.
(A recess was taken)
THE MARSHAL: The Tribunal is again in session.
DR. WANDSCHNEIDER:
From the case Komorowski (Exh. 597) the tradition of Hamburg' jurisdiction is evident. This involves a Pole who, in 1942, had been sentenced to a short term of penal servitude for a sexual crime by the criminal court, not a Special Court. The negative position which was taken by the President of the district court at that time cannot be inferred to Dr. Rothenberger. In particular the preview and review, ordered by Dr. Rothenberger only on 7 May 1942 (see R. Exh. 9) had nothing to do with the conference of judges at the Hamburg district court (mentioned in Exh. 597) which took place on 5 May 1942.
THE PRESIDENT: Dr. Wandschneider, the request has come to the Tribunal, for reasons which are easily understood by us, that at the time of the brief statements which will be made by such of the defendants personally as desire to make them, that the persons interested in the case of the various defendants will probably wish to hear those statements and that the facilities in this room will probably be inadequate and, therefore, not for the purposes of a "Schauprozess," but in order to accommodate the friends of the defendants and of other persons here who desire to hear the defendants' statements, we will convene after the noon recess tomorrow in the large courtroom and the proceedings will be concluded there.
DR. WANDSCHNEIDER: I am now continuing with No. 2, Special Courts. That is on Page 13 of the German copy and also in English.
It says:
"Above all, the fact that Dr. Rothenberger was opposed to a unrestrained use of jurisdiction of the Special Courts and the undiscriminate extension of the jurisdiction of Special Courts is convincingly shown by his letter to State Secretary Freisler of 13 June 1941 (Exh. 583). In this letter he makes the complaint that crimes of general criminality, such as public enemy cases, war economy cases, offenses of violent criminals, etc. were not prosecuted any more before the Criminal Courts and Summary Courts. He regretted that too many cases were brought before the Special Court. He wants to avoid the bringing before the Special Court of insignificant property offenses and other less important offenses. His reasoning is especially significant for his point of view. He stated that apart from the watering down of Special Courts as a result of these proceedings one would have to consider that to be punished by a Special Court would constitute a twofold onus for the person sentenced, firstly the punishment, which was severer than the usual, secondly the moral onus. He declared that the bringing of trifling matters before a Special Court was, therefore, not desirable. From the differentiating in Dr. Rothenberger's letter the endeavour of exempting trifling cases from the competence of Special Courts for humane reasons is evident.
The reasoning, which has been emphasized for tactical reasons, is interesting. Dr. Rothenberger emphasized at first to State Secretary Freisler the view point several times that the importance of Special Courts should not be watered down by indiscriminate prosecution of almost all offenses before these. If one wishes to misinterpret the meaning of his letter intentionally, all one would have to do would be to stress this argument alone and to conclude there from that Dr. Rothenberger only wanted to increase the striking power of the Special Courts by his intended measures. This would amount to a forced construction, consciously overlooking the fact, that Dr. Rothenberger availed himself of an argument, skilfully presented and readily listened to, in order to achieve an effect actually, which was in the sense of a more humane handling of the administration of penal law.
Dr. Rothenberger did not sign the report, submitted by Section IV, on the harsh verdict passed by the People's Court on 4 June 1943 (Exh. 194). As has previously been explained he had nothing whatsoever to do with this Section as far as competence is concerned. Nor is he in any way responsible for the letter by the Reich ministry of Justice to the Chief of the Party Chancellory of 5 August 1943 (Exh. 142). Here too, were concerned penal low questions regarding foreign juveniles, for whom he was in no way competent and where for him every opportunity to exert influence was lacking. A single case contained in Exh.163, must still be discussed. In the case of Petrolinas, Dr. Rothenberger refused to grant a pardon to a stateless elderly men, who had stolen objects of little value, and who had been condemned to death by a Special Court. This decision can only be understood under consideration of the conditions prevailing after the terrible air-raids. It complies exactly with the attitude which had been laid down prior to Thierack's taking office b' his predecessor in a letter dated June 1942 (Rxh. 165). If, in arriving at a decision, one takes into consideration the fate of thousands and tens of thousands of severely damaged, as well as dead and injured fellow citizens, it is not permissible in such cases to sneak of a collision of duties or of inhumane treatment of the criminal in the event of refusing pardon.
Despite this it must be admitted that an especially tragic case is concerned, since Dr. Rothenberger, through no fault of his own, remained in ignorance of the fact that Petrolinas had himself been damaged by bombs, which was an important factor in the decision to grant a pardon. It is significant that Dr. Rothenberger, despite the tragic fact that the decision arrived at could not be rescinded, made inquiries as to why he had not been informed of this circumstance, without, however, receiving a satisfactory answer. The crime upon which the sentence was based was a purely criminal delict and not a political one.
Summarizing the following can be said with regard to the above count of the indictment: The most important characteristic of this count of the indictment, from the point of view of crimes against humanity, is that the defendant Dr. Rothenberger mis-used the Special Courts for political purposes. This was not so in any one case. No verdict which could have served to suppress political opponents, Jews, Poles and other foreigners has been presented against Dr. Rothenberger. In so far as Dr. Rothenberger's activities with the Special Court in Hamburg are concerned this was a case of prosecuting common, dangerous criminal acts.
It is significant that the Control Decree of 13 October 1942 does not mention Jews and Foreigners, i. e. does not differentiate between Natives and Foreigners.
II) Para. 9 and 21 of the Indictment Explanation: Ex. 100 = Prosecution Exhibit No. 100R'Ex. 1 - Rothenberger Exhibit No. 1 R'sta.5233 - Rothenberger Statement, German transcript page W'tes.
Hartmann = Witness testimony Hartmann.
p. .... German transcript page... ....
1) Rx. 113 and R'sta. p. 5240
2) Rx. 114 and R'sta. 5241, 5415
3) Ex. 115 and R'sta. 5241, 5415
4) Rx. 116 and R'sta. p. 5242
5) Rx. 76 and R'sta. p. 5264
6) Ex. 165 and R'sta. 5242
7) R'Rx. 54 (3. III p 57-59)Control decree of Dr. Rothenberger 1942 and R' sta. p. 5266-5269
8) Ex. 81 et sec. and R'sta. p. 5296
9) Rx. 194 and R'sta. p. 5321 10) Rx. 142 and R'sta.
5317, 5319 11) Ex. 462 and R'sta.
5243, 5330 12) Rx. 163 and R.'sta.
p. 5326, 5417 13) Rx. 587 and R'sta.
9062 14) Rx. 588 and R'sta.
9063 15) Rx. 597 and R' sta.
. 9060 16) Rx. 634 and R'sta.
9063 Furthermore to the subject Special Courts the statement of Dr. Schlegelberger R'sta.
o. 5240-5243, 5410-5416, 5445 17) W'tes.
. Dr.. Hans Hartmann p. 8682 18) W'tes.
Dr. Becher (p. 8602-8606) 19) W'tes.
Dr. Friedrich Priess p. 9095-0997 20) W'tes.
Dr. Timmermann p. 8819, 8823-8825 21) R'Rx. 5 (B. I p. 23-30) Aff.
Albert Schmidt-Egk 22) R'Ex. 7 (B. IV p. 80-84) = Pres.
Ex.. 474 23) R'Ex. 8 (B. II p. 16-17) Aff.
Georg Bacmeister 24) R'Ex. 11 (B. I p. 41-49) - Pro.
Ex. 76 25) R'Ex. 14 (B. I p. 65-66) Aff.
Dr. Reinhard Vogler 26) R'Ex. 16 (B. II p. 31-34) Speech at the opening of the German prizecourk 1939 27) R'Ex. 15 (B. I p. 67-68) Aff.
Dr. Georg Baur 28) R'Ex. 17 (B. I p. 69-71) Aff.
Walter Hinrichs.
29) R'Ex. 76 (B. app. I p. 56) Excerpts from "Deutsche Rechtszeitschrift 1946" I now come to Roman III and I should like to read the whole of that passage:
III. Gradually growing apposition of Dr. ROTHENBERGER to the SS and the Gestapo.
After he was appointed Justizsonator in Hamburg in 1933, Dr. Rothenberger naturally had to consolidate his position in which he succeeded after some experiences. Even if one could find some contradictions in his development, one fact can be established beyond doubt, namely, that he always opposed the SS in a strong manner in the years before the war, during the war up to his appointment as StateSecretary. No affidavits, but special documents from that time, may confirm that. In a report on the situation of 7 November 1940 ( R' Exh. 24 ) he critizises the fact that a certain "side" which was not at all informed, discusses such fundamental Questions as the independence of judges and the interpretation of laws. What is this "side" officially mentioned by him? Nothing else but the "official" organ of the Reichsfuehrer SS, the "Schwarze Korps". This happened one year after the SS, SD and the Gestapo had been combined by Himmler in one hand in the Reich Security Main Office and at the time when he stood nearly at the zenith of his power. In a report on the situation a draft of a bill concerning the treatment of people outside the national community, that is, of a social people. He protests against the fact that the cases concerning asocial people should be handled by the Reich Security Main Office, that means by Himmler.
He also raises objections against the fact that the Reich Rain Security Office, i.e. the Gestapo should decide who should be called asocial, and he wants to take away from the police the right to make this decision and to transfer it to a court.
This contemporary document speaks for itself and proves that Dr. Rothenberger objected to the fact that the handling of the questions concerning asocial persons should be left to the arbitrariness of the police, The report on the situation of 12 March 1942 (R' Exh. 26), written a short time before he was appointed State-Secretary is still more illustrative. I quote verbatim:
"There are even voices to be heard referring in this regard to our English enemies who, as we can conclude from our papers, openly admit their failures, 3. The opinion is also frequently expressed that the opponent should not be made too contemptible by our propaganda, he should not always be called inferior and not only be scoffed at. Especially our soldiers and the boys home on furloughs are constantly pointing out that they consider these abatements and belittling of the opponent as a depreciation of the accomplishments of our own Wehrmacht. Many people also dislike to hear that constant joking about and making fun of CHURCHILL, ROOSEVELT and ROOSEVELT's wife. It is believed that one should be moderate about this and that exaggerations and especially too frequent repetitions might have a contrary effect on the common people."
This happened at a time, when high - ranking personalities also disappeared within one moment in a concentration camp with the motivation that they had made "defeatist statements." There cannot be any doubt that Dr. Rothenberger's attitude which has unequivocally been proven by documents was truly the attitude of a sober - minded and considerate person, who bravely stood up in public for his opinions. It can not be doubted that in every respect he was the absolute opposite of the type of a unscrupulous, unrestrained fanatic.
I want to stress here his public statements concerning the "Schwarze Korps" which he made in Kiel (see R' exh. 211 Aff. Hansen) and in the detention prison in Hamburg, as well as his courageous attitude which he showed in meetings of the Chief presidents.
Here I interpolate a reference to the testimony by the Prosecution witness Buhl and the Defense Witness Priess who said that Rothenberger, at the meeting in the detention prison had explained that "swelling must be pricked." He was referring to abuses of the Gestapo.
And now I continue to read: Dr. Rothenberger was regarded by his colleagues as it was stated unanimously, as the spokesman of the opposition to the SS and Gestapo. We need not go into details concerning the nature of his opposition (the reversing of verdicts a.s.o.) I only want to point out again that Dr. Rothenberger always tried in vain to persuade the Reich Ministry of Justice to show a stronger attitude. (see Exh. 373, NG - 392 and Exh. 76 NG -389.)
These facts and Dr. Rothenberger's real attitude cannot be ignored. Such a brave attitude which had been proven beyond doubt, has to be appreciated still more because of the fact that Rothenberger surely lived in constant danger, as it easily can be understood if one considers Himmler's power. The above statements also apply, if it is correct that Dr. Rothenberger overestimated his position and that he had to make compromises when he was appointed State - Secretary. According to the opinion of the defense, the court will and should take those facts into consideration, later on, when the question of his credibility will be examined concerning the fact that he did not approve of the inhuman acts of the SS, and much less has taken part in them.
IV. Dr. Rothenberber's reform plans and his memorandum of 31 March 1942.
In the course of time a series of reformatory ideas concerning the legal policy resulted from Dr. Rothenberger's opposition to the SS end the Gestapo which culminated in his demand for a judiciary, independent - from directives and separated from the rest of the officialdom. These reformatory ideas are known to the Court from the records submitted by Dr. Rothenberger and they are also summed up in the memorandum. Therefore it is unnecessary to go into details. In retrospect, one might say today that the struggle for an independent judiciary and against a further expansion of the police power, was a fight against wind-mills and of no great importance. At that time, when the authorative State was flourishing, this fact was of great importance for Dr. Rothenberger and the judiciary. They at least attempted to change matters, while the rest was resigned and completely passive from the start. All his reformatory plans prove that he was firmly convinced that a change of conditions within the German justice could be achieved, even if his conviction might have been erroneous and his endeavours were destined to fail. Dr. Rothenberger put down his reformatory ideas in brief in his memorandum. They are based in principle - what a strange irony - on ideas of the present Jewish Minister of Justice of the German Eastern Zone Dr. SCHIFFER.
It is an urgent necessity to take a stand to Dr. Rothenberger's memorandum, especially when it has to be admitted that it is based on a complete misconception of the importance of Hitler's character and that he completely misjudged the strength of his antagonists, especially of HIMMLER and THIERACK and that he also overestimated his own strength.
The memorandum can with regard to its contents, be divided into the completely different parts which outwardly are very little separately and therefore have to be extracted, in a more ideological - historical part and in a second part, which contains special concrete demands, concerning the legal policy. The fact that the latter are not put down in a distinct and coherant way for themselves but that they are connected with and attached to ideological statements in different places of the memorandum, has its special reason in the purpose of the memorandum, namely to convince Hitler of the necessity of Rothenberger's real-political demands. This reference to Dr. Rothenberger's tactical deliberations shall, however, by no means express the opinion that he himself was not convinced of the correctness of his statements regarding his conception of the world and his politics. Only after a minute analysis of the memorandum with regard to its ideological and concrete, real-political contents the question can be answered in what connection the two parts stand to each other and what importance has to be attached to Rothenberger's concrete demands concerning the legal policy during the situation in 1942.
Dr. Rothenberger states in his memorandum that "at all times the law has been the strongest pillar of every civilized state." States disappeared when despotism and corruption took place of order, and States rose to an imaginable height, if the central figure, the real former and the personification of the legal idea, - the judge represents an authority." Dr. Rothenberger was convinced that Hitler's fight in Europe" would substitute law and order for power and despotism." "No order without of strong law." He objects to a legal order, based on violence.
"Only a state supported by external force must fear a strong judge, and history has proved inumerable times that nothing leads quicker to the self-destruction of a state than lack of justice and a weak judiciary" At the core of his judiciary reform he places the central figure of the judge, evnisioning Hitler as his highest incarnation. He demands a "strong judiciary" which represents justice and a judge who does not "advise" like an employee, but who "judges".In retrospect all these declaration appear like a ghastly from of self-irony, prophetically, though without doubt unintentionally foretelling the extinction and self-destruction of one's own country, and consequently of its judiciary.
It is typical for Dr. Rothenberger's writings that they are based on the premise of an intense indealization of National Socialism, in the main, however, only of Hitler's personality. The rest of his statements about Nazi ideas concerning justice characteristically deal, - as far as they are positive, that is to say, affirm National Socialism, - less with the reality of the Nazi administration of law than with idealizing and historical reflections. Obviously, they serve him to deceive himself about the negative outward manifestations of the real National Socialism. Nevertheless, in his memorandum Dr. Rothenberger showed that he realized the discrepancy and tension between his idealized image of National Socialism and the Nazi practices as they were applied. It can be seen, therefore, that he set forth all his thoughts concerning the application of German law with the intention of pointing to the dangerous tendencies of an systemes, disastrous development. It is characteristic for Dr. Rothenberger that he foregoes any cheap, adverse criticism of foreign judicial systmes, particularly those of the Anglo-Saxon states, some of whose judicial institutions, analogous with his ideas concerning judicial reforms, -- he even mentions favorably (judges of the peace). He therefore well realized why he made his statements concerning a strong judiciary, and about law and order and other such matters, which must predominate as against depotism and corruption. He even delivered these statements in an imploring manner, fearing that developments might take another, more disastrous course. As the sole refuge for all the real dangers besetting German judicial life, Dr. Rothenberger, - from the distance of his provincial background and from his lacking insight into the course of events, - envisages Hitler as the last pillar on whom he could build his hopes.
From his one-sided viewpoint as a theroizing and abstract jurist he also never visualized Hitler as the phenomenon-in whole, nor as the diabolic figure and ruinous initiator of the German policies which led to catastrophy, but as the last factor appearing, who, considering all the prerogatives laid claim too was in a position to revers the case.
The question now arises whether it can be proved from Rothenberger's memorandum that he made demands concerning concrete and legal policies, which by their contents and nature were indubitably opposed to the brutal Nazi power policies. This is indead the case.
1.) Of greatest and most timely importance is Rothenberger's basic demand that the law itself should perform a radical reform (page 5 of the memorandum); because for a long time already there was the danger, which in reality could not any more be averted, that the law would be completely swallowed up by the administration, which meant the Gestapo and, therefore, Himmler. Dr. Rothenberger wanted to save the last remnants of justice, by presenting it as legitimately entitled to perform on its own account comprehensive reforms.
2.) He demanded with great emphasis that the administration of criminal justice, - the very core of the law, -- must remain a part of the law, and that under no circumstances must it be divided up amongst several ministries by dismemberment and dispersement. (Compare page 17 of memorandum). This postulate was unequivocally directed against the Gestapo, that is to say, Himmler.
3.) Dr. Rothenberger demanded "that any other private, official party or state agency should refrain from every type of intercession or influence on the judge's verdict" (page 9 of the memorandum). This postulate, too, was unequivocally directed against the Gestapo and the radical party circles. In his report about the situation on hand, of 12 March 1942, Rothenberger exhibit 26, Dr. Rothenberger censures the fact that political leaders frequently appeal in pending matters directly or indirectly to the courts, and he states that the Gauleiter, upon his suggestion, prohibited it.
By the construction of a "direct life-relationship of the judge to the Fuehrer", Dr. Rothenberger wanted to prevent the integration of the judge into an administrative hierarchy of officialdom. Thus he wanted to deprive various kinds of party and SS agencies of their constantly exerted intercession with the judges. The so-called "judge of the Fuehrer" is the price to be paid for it. Dr. Rothenberger wants a dignified, independent and small corps of judges.
4.) With historical considerations (page 12 of the memorandum) Dr. Rothenberger tries to support his practical demand that the judge should he the prototype of national life, "independent and free from orders", a postulate which loomed like a thorn in the eyes of large party circles, and especially of the party chancellery and the Gestapo.
5.) Finally, Dr. Rothenberger expounded the opinion (page 7 of the memorandum) that "the political leader, or the Landrat (state councillor), or the official of the secret state police Gestapo, could not he a judge at the same time".
In a cautious, but still clearly perceptible manner he asserts that political officials were unfit to he judges, because "the idea of justice was not the maxim of their profession". Who could fail to recognize that such an opinion was hound to appear as most suspicious to every party member, not to mention the SS and the Gestapo. After removing the shell from the practical, core of Dr. Rothenberger's memorandum, the question arises, why, on the basis of this memorandum, was he called upon by Hitler? It involves the question whether, as the prosecution avers, the memorandum may he considered as nothing more than a super-Nazi declaration, intended to furnish the idealogical foundations for the further brutalizing of National Socialistic jurisprudence. This opinion undoubtedly is wrong. In order to prove it, however, one Would have to portray the events leading up to Dr. Rothenberger's appointment as state secretary.
IV. Reform plans and memorandum of 31 March 1942.
1.) Exh. 37 and R. Tr. p. 5273 - 5274. 5383 - 5388, 5440, 5446 -5447 and testimony Rammers p. 5450 and v. Steinaecker's testimony p. 549p.
2.) R. Exh. 77 (B. app. 1 p. 1 - 17) Aff. Hans Segelcken
3.) R. Exh. 48 (B. app. I, p. 45 - 48) Aff. Werner Brueckmann
4.) R. Exh. 83 (B. app. II. p. 220 24) Aff. Herbert Ruscheweyh
5.) R. Exh. 50 (B. I, p. 72 - 74) Aff. Dr. Karl Martin
6.) R. Exh. 51 (B. II, p. 20 - 23) Aff. Bruno Becker, 7. ) R. Exh.
9 (B. I, p. 31 - 33) Aff. Prof. Walther Fischer
8.) R. Exh. 10 (B. I, p. 34 - 40) Aff. Freidrich Priess
9.) R. Exh. 41 (B. IV, p. 59 - 63) Dr. Hans Wogatzky 10.)
R. Exh. 81 (B. app. II, p. 7 - 9) Aff. Fritz Fechner, 11.)
R. Exh. 55, 56, 58 - 66, Excerpts from the book: Eugen Schiffer "Kie deutsche Justiz" (B. II, p. 14, 15, 28, B. III, p. 43 - 56).
12.) R. Exh. 67 to 72, 75 (Publications by Dr. Rothenberger on the subject of Reform of the Administration of Justice. (C. III, p. 1 to 42, B. app. I, p. 64 - 68).
13.) R. Exh. 73 (B. app. I, p. 57 - 59) "Deutsche Rechtszeitschrift 1946" article on Dr. Rothenberger's reform plans after the surrender.
14.) R. Exh. 74 (B. app. I, p. 60-63) "Deutsche Reichszeitschrift 1946" V. Events leading up to Dr. ROTHENBERGER's appointment as State - Secretary.
There is no doubt about it that Dr. ROTHENBERGER's memorandum was the cause for his appointment. The critical question is that reasoning of Hitler led him to appoint Dr. ROTHENBERGER as StateSecretary on the basis of his memorandum. The prosecution is attempting to assert that Hitler had read Dr. ROTHENBERGER's memorandum even before his notorious address of 26 April and that it had supplied Hitler with the ideological weapons for that speech. This assumption is not justified; at last, it is out of question that Hitler's speech congrued with Rotenberger's veiw.
"The Memorandum is dated 31 March 1942. It was passed on to Hitler in April 1942 via his personal adjutant ALBRECHT, after Dr. Rothenberger, as already stated, had for years tried in vain to influence the Reich Ministry of Justice to take a stronger stand against the SS" I am now going to interpolate a few sentences in connection with the plea by the Prosecution.
The Prosecution said that Dr. Rothenberger had liked because he had asserted that he did not Know how the memorandum had reached Hitler. That charge is quite unfounded for Dr. Rothenberger has told us exactly how that memorandum reached Hitler.
"It is not known for sure when he read it, whether still in April or only later at the beginning of May. To make it appear that judging by the contents and views of the memorandum Hitler had read it before the 26 April--as the Prosecution is trying to do-it, is impossible. The actual cause for his speech, as is known, was an Oldenburg verdict on which Hitler had been wrongly informed. In his uncontrolled manner obviously urged on by the opponents of the administration of justice in his circles, in cheap attacks upon the absolutely powerless administration of justice in his circles, in cheap attacks upon the absolutely powerless administration of justice without a minister to direct it, Hitler had taken this verdict as the occasion for his explosion in that notorious speech which had its climax in the statement that judges could be dismissed at any time.
In whatever way one may look upon the memorandum, it is out of question under all circumstances that the memorandum could have stimulated Hitler to such a speech; for the one thing is absolutely certain, namely, that Dr. Rothenberger supported by historically sociological and philosophical arguments pointed out most urgently the authoritative position of the judges. It certainly can not be questioned that basically Dr. Rothenberger wanted to bring the extreme danger which were threatening the administration of justice and its independence to the attention of the National - Socialists and Hitler in order to rescue what still existed of the substance of a conservative fundamental attitude, There is no doubt that the trend of the Rothenberger Memorandum was absolutely in opposition to the radical, yes nihilistic course of the Party and the SS. Even his use of the national -socialist terminology cannot cover up that fact. The above standpoint is justified in view of the careful analysis of Dr. Rothenber's memorandum made at an earlier date.
If, however, this can be proved to be the case, than the defense will have to make it credible why Hitler, who unmistakably took an ever increasing sharper course in his policy concerning the administration of justice, would approve of a man like Rothenberger, always advising me - degration and prudence, as under-Secretary. Indeed, the reasons for this attitude must be clearly brought to view. Already in his memorandum on page 9 Rothenberger had pointed out to Hitler the high value placed upon the distinction and indipendence of the judges by Fascism. On 7 May 1942, MUSSOLINI had made a speech in which he pointed to the sacral importance of the Fascist administration of justice with special emphasis. In the meantime, end of April to beginning of May, Hitler had had ample opportunity to learn of the disastrous reaction to his speech and the propaganda emphatically started in foreign countries.
The Lord Chancellor of England, for instance, in a speech referred to the Hitler speech as evidence that a Constitutional State did not exist in Germany (Compare Exhibit 77). He recognized how terrible he had for no good reason exposed himself politically and tactically through his wild speech of 28 April and that in his foreign-policy propaganda struggle it would make some difference if from the German side the idea of a Constitutional State, and even if it was only a semblance of maintaining a Constitutional State, should be given up entirely.
Since, moreover, for years the failure to appoint a Reich Minister of Justice, had so to speak already symbolized the complete turning away from the Constitutional State, Hitler decided to appoint a Reich Minister of Justice for the Ministry of Justice in the person of THIERACK who was not prominent through literary contribution or otherwise in the outside world. The actual tone given for the benefit of foreign states was to be that he appointed as StateSecretary of the Minister of Justice, Dr. Rothenberger, the president of the Court of Appeal in Hamburg who had become known, of course, also abroad for his struggle with the Schwarze Korps and the SS. This was clearly a tactical ruse and propaganda stunt of Hitler's, a maneuver to create a false impression. This theory is proved by the fact that immediately after his appointment it was the State-Secretary Dr. Rothenberger who had to give the statements according to program to the representatives of the home- and foreign press, and not the Minister. Dy. Rothenberger was used as placard for a Constitutional State and did not notice that he was merely used as a tool. Should one argue against this, that this thesis was not acceptable because the actual, absolutely opposite, radical and brutal course pursued by Dr. THIERACK would soon have come to light and thus would have made Dr. Rothenberger out as a liar, this argument is unjustified. As can also be seen from Dy. Rothenberger's description of the discussion with Lammers, Hitler and Himmler were counting on the outcome of the war in favor of Germany by 1942/43.
It is immaterial in this connection whether this conviction was based on a surprise by use of a special weapon or other circumstances.
The putting into the foreground of Dr. Rothenberger as a moderate reformer of Justice would not have shown its effect before this early expected end of the war.
That there was actually no agreement whatever between Rothenberger's memorandum and Hitler's speech is shown at once by the fact that Hitler in his speech degraded the judge to an official who could be removed at any time, whilst the memorandum demands exactly the opposite. But it is also shown by the way in which Dr. Rothenberger himself reacted unfavorably to Hitler's speech. There is no doubt about it that he, like all the other German judges, regarded it as disastrous and crushing. When he expressed the view that it had not been a surprise to him (see Exh.76), this was on account of his being aware of the fact that Hitler was more and more surrounded by advisors who brought an influence to bear on him which was opposed to the jurists (justizfeindlich). This is also the reason for the arguments in his letter of 3 June 1942, addressed to Albrecht, Hitler's adjutant (Exh. 536), in which he emphasizes that he believes to be on the right way in spite of, or perhaps, just because of the speech of the Fuehrer. Just on account of the fact that Hitler had shown by his speech of 26 April that the influence of the circle which was opposed to the jurists had increased in an ominous manner, Dr. Rothenberger was the more definitely convinced that it was necessary to bring about a fundamental change by himself exerting a direct influence on Hitler. That Dr. Rothenberger was actually convinced that he was able to do so, as shown in the evidence by the original letter of Dr. Rothenberger's to the Reichsgerichtsrat Dr. von Dohnanyi (R.Exh.