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.
80) who, as is known, was put to death, or executed, in connection with the events of 20 July 1944. Dr. Rothenberger writs in this latter :"Once again one of the best - he means Dehnanyi turns his back on the judicial profession, and I am afraid that, unless there is a fundamental change, very many will follow him. fortunately, I am personally sufficiently optimistic, and I an therefore not giving up the - no doubt desperate - struggle for a radical change."
It is therefore not a question of a subsequent statement of Dr. Rothenberger's for the purpose of protecting himself, but it expresses the fact that he had very high hopes - even if he often despaired of them - of being able to bring about an improvement in the conditions regarding the administration of justice; or, as he expresses it " a fundamental change". There is something else in this connection. The Defense happens to have obtained knowledge of a file from the Hanseatic Court of Appeal (R.Exh. 78) which contains in systematic order a collection of material and documents concerning Dr. Rothenberger's struggle with "Der Stuermer", Streicher's mouthpiece, and "Das Schwarze Korps", the SS publication. The official of the administration of justice, Thaden, has testified on oath (R.Exh.78a) that he has recognized this file as one belonging to the Hanseatic Court of Appeal. I refer to pages 4a and 5, as also to pages 17a and 18 of the German copy. The administration of justice on the part of a judge against the Schwarze Korps is defended here: he had, with a view to Hitler's interpretation, refused an application against Jews to quit promises. Page 18 of the German copy of Exhibit 78 shows that the Reich Ministry of Justice had referred to a communication of Goering's, according to which Hitler did not approve of the anti-semitic attitude of the Reich-Fuehrer SS.
It can, of course, not be disputed that powerful factors in Germany did not only pursue ideologic but in practice disastrous, anti-semitic tendencies. But at the present time, now that we are fully aware of the dreadful events of the past, it remains hardly possible for us to imagine in how far, even still shortly before the war, these fundamental questions of National Socialism were still being regarded as asdispute pending between the leading men, and not yet entirely decided. I may in this connection refer to R.Exh.3 in Doc. Book I and Goering's disapproving attitude concerning the excessive measures against the Jews. It is understandable of course, that on the outbreak of war the importance of these questions had of necessity to fail into the background on account of the military interests, and this not only for the German public, but also for Dr. Rothenberger. These arguments may suffice to make it clear on account of what considerations Dr. Rothenberger became, in spite of all negative experience, convinced over and over again that he would be able to convince Hitler of the correctness of his views. I must admit that this conviction was strenghtened by Dr. Rothenberger's somewhat monomoniacal obsession of his duties and also his undoubtedly doctrinal stubbornness.
It must appear as extremely important that according to Exh. 27, Hitler happens to have told Reich Minister Lammers on 7 May 1942 of the memorandum of a certain jurist, namely Dr. Rothenberger, which appeared noteworthy to him. This was the same 7 May 1942 on which Mussolini had made his speech on the sacral importance of the Italian administration of justice and the Italian judiciary.
Even if it cannot be proved, it can quite easily be assumed that Hitler just after Mussolini's speech of 7 May on the administration of Justice became known - the tendency of which was entirely the opposite - picked up the memorandum of a German jurist which had perhaps been submitted to him some time ago, in order to discuss it now with Reich Minister Lammers. It can be left entirely undecided, as to whether he did not read this memorandum till on the 7 May itself, after hearing about Mussolini's speech, or, after he had read it previously and returned to it again after the Mussolini speech for the reasons set out.
As it is established and has been proved that the actual concrete demands concerning Dr. Rothenberger's policy on the administration of justice as expressed in his memorandum were in no way in agreement with the aggravated course of party politics and the SS, the Defense has perhaps by the above arguments have made it highly probable that Dr. Rothenberger was used by Hitler so to speak as a constitutional figleaf to cover his nakedness tyranny.
I now skip to the next paragraph.
I have yet with a few words to go into the importance of the power of attorney of August 1942, which has also been turned into the opposite as regards its original meaning and its original importance. Dr. Rothenberger wanted the power of attorney, in order to create again a strong administration of justice, i.e. an administration aware of its own authority, but not necessarily a severe administration. (This did not exclude that under certain circumstances it could be and had to be severe). (See Article of the Defendant of 4 Sept. 1942, R. Exh. 68). It is not the fault of Dr. Rothenberger that the power of attorney drafted by him was later, and without his having anything to do with it, watered down by additional clauses.
However, the question of the power of attorney is of no practical importance for the further actual course of events.
It can be seen immediately that when Dr Rothenberger was appointed Staatssekretaer in an unusual manner, and without regard being paid to Dr. Thierack's wishes, this must immediately have caused a tension between the two. The witness Lammers has confirmed this in the witness box and it has further been deposed by the then Kabinetsrat Ficker. The latter witness confirmed in R.Ech. 29 that it had struck him that Dr. Thierack and Dr. Rothenberger "did not get on" i.e. quarrelled as far back as 19 August 1942. It may be obvious without any more that Himmler was not favorably disposed towards Dr. Rothenberger whose struggle against the over increasing authority of the police and against the SS had by reason of SD reports not remained unknown to him. This was soon to show itself. Thus Dr. Rothenberger took up his official appointment under unfavorable auspices.
1) Ex. 27, 65, 536 and R'sta. 5273-5294, 5383-5393, 5431-5436 and W'tes. Lammers p. 5450 and W'tes. Peter Kiffe p. 5538 and W'tes. p. 5498-5499
2) R'Ex. 29 (B. IV p.20-23) Aff. Hans Ficker
3) Ex. 635, Dr. Rothenberger's farewell speech after his appointment in Berlin
4) R'Exh. 33 (B.IV p.26-29) Aff.Baptist Lentz
5) R'Exh. 77 (B.app. I, p.1-17 especially: Memorandum Segelcken
6) R'Exh. 40 (B.IV p.56-58) Aff. Hans Willhoeft
7) R'Exh. 41 (B.IV p.59-63) Aff. Hans Wogatzky
8) R'Exh. 46 (B.app. I p.45-48) Aff. Werner Brueckmann I now come to Roman VI which deals with development of Himmler and his SS into the decisive power in the National Socialist State.
I can abstain from reading these passages with the exception of the last sentence on page 33 in the English text. From 1941 onward the evacuation of the Jews out of the Reich and the mass liquidations in the East were carried out.
VI. Development of Himmler and his SS into the decisive Power in the National Socialist State.
Now night be the time for a short review of the various stages of Himmler and his SS's development into power.
When the Gestapo was founded in Prussia through Goering in 1933, Himmler was the deputy Gestapo Chief in Prussia. The legal basis for the order for Police Custody for reasons of public security was the ordinance by the Reich President for the Protection of the People and State of 2 February 1933. This was followed shortly, in the same year, by further limitation of liberty through the elimination of the important basic constitutional laws in accordance with the ordinance by the Reich President for the Protection of the people and State of 28 February 1933. The Roehm-Putsch in June 1934 resulted in the elevation of the SS to an independent unit. Furthermore, it is not without interest, at this point, to refer to a recent statement by the former German Reich Chancellor Bruoning in "Der Deutschen Rundschau", Stuttgart edition of July 1947, volume 7. It is shown from Bruening's attitude printed here that Hitler's Roehm-action was actually a reaction to very serious opposition and attempts to cause a revolt brought about by various circles within nationalsocialism itself. Amongst other things it is stated here: "connections were established in the spring of 1933 between various persons, under groat difficulties and dangers, which could create a basis for a more widely spread opposition towards Hitler.
Strong groups were formed within the Reichswehr which created connection between men, who had formerly participated actively in politics, and also with a growing number of prominent national-socialists who were dissatisfied with Hitler's regime. When the foreign exchange situation became even more critical in the spring of 1934, widely spread attempts at open revolt were made, such as the demonstration by the students of the university of Bonn. Better prepared rebellions were attempted on various occasions and many of those men lost their lives on 30 June 1934.
It is important in this connection that in accordance with the basic changes in the political structure in Germany, the division of power ceased at that time already and that Hitler officially designated himself as Supreme Judiciary as justification for his action. In the year 1934 the SS-Death Head units took over the guarding of the concentration camps. In 1936 Himmler became the chief of the German police in the Reich Ministry of the Interior, at the same time the coordination of the Gestapo and Security Service was brought about, Himmler became the commander of the entire Ordnungs- and Security Police. In 1938 the persecution of the Jews was organized. In 1939 the Reich Security Main Office was founded as the highest administration office of the SS, the Security Police and the Gestapo; in the same year a special SS-jurisdiction in penal natters concerning members of the SS and the police units on special duty was created, which expressed in an emphatic form the unusual position of power of the SS in the German State and symbolized the impotence of justice in general.
In 1940 the Waffen-SS was a special part of the army within the structure of the Wehrmacht. Himmler begins to create a SS-industry and a SS-economy within the state. From 1941 onward the evacuation of the Jews out of the Reich and the mass liquidations in the East were carried out. In the year 1942 the Himmler-Thierack discussion took place on 18 September 1942. In 1943 Himmler became Minister of the Interior, in 1944 Supreme Commander of an army group.
The above, very rough and incomplete dates illustrate quite sufficiently the fateful ascent which Himmler and his SS made in Germany from 1933 onward. It is entirely justified that the author Kogon entitles his book, which appeared in 1946, on the subject of German concentration camps, "The SSState". The SS had really become a state within a state.
No. VII which concerns the Himmler-Thierack discussion, I shall refrain from reading all the details from this argumentation, although it is very important.
VII. Case 10/22 of the Prosecution.
Conference about the surrender of criminal prisoners, designated as "asocial", to the Gestapo for the purpose of "extermination through work" and other conferences violating Humanity.
The object of the count of indictment here under consideration is the conference of 18 September 1942 in Shitomir, between HIMMLER and THIERACK in which Dr. ROTHENBERGER participated.
The affidavit of Dr. Bussmann (R'Exh.30) to whom Dr. Rothenberger spoke of the result of the conference of 18 September 1942 shortly afterwards also confirms that Dr. Rothenberger showed himself to be glad and relieved at the course it took. The arrangements discussed in Dr.Rothenberger's absence are so contradictory to the demands of the newly appointed Under Secretary as to have given Dr. Rothenberger every reason to be dismayed and depressed, if he had attended the conferences throughout.
(This sentence refers to the fact that he said that ho was satisfied with the results of the discussion) I continue to read: In this connection, special reference is made to the file of the Hanseatic Court of Appeal, drawn up at the order of Dr. Rothenberger and presented in court as R'Exh. 78, page 29 and following pages (German copy) in which"the methods of the police" were severely criticized. Dr. Rothenberger had a methodical compilation made of the cases enumerated in this file in order to use it for his representations and objections in dealing with the Reich Ministry of Justice, and to obtain redress. For the rest, this file which had been drawn up the years before the war clearly demonstrates how well Dr. Rothenberger had succeeded, after inevitable initial set-backs, gradually to asserting himself in Hamburg, and to risk the fight against such police-methods. In this connection, reference should be made, above all, to Dr. Rothenberger's previously mentioned attitude to the subject of the "asocial elements" (Exh. 400) which only shortly before was definitely opposed to the treatment of the problems of the asocial elements by the police. In all the numerous essays and addresses of Dr. Rothenberger there is no trace of an inclusion of foreign nations, as Poles, Jews and Gypsies, etc. in the category of asocial elements, as is also the case with the Lueneburg and Hamm addresses. Finally, we may touch in a general way the previous pleas of the defense regarding Dr. Rothenberger's public opposition against the SS and the Gestapo (compare Exh. 28 NG-629, Exh. 400 NG-387) and the statements of many former Presidents of Courts of Appeal, and to Dr. Rothenberger's demands laid down in the memorandum.
It was just the purpose of the "full powers" obtained at Dr. Rothenberger's initiative to carry out sweeping reforms in the administration of justice the tendency of which, for all its dependence on National Socialism, was opposed to the dominant Party doctrine in important points, as is shown by the memorandum.
The question now is to what extent the defense plea that Dr. Rothenberger had no knowledge of the implicating points of the conference of 18 September 1942 can be borne out, not only by reasons inherent to his personality, but also by on inquiry into Himmler's and Thierack's attitude.
That Thierack was strongly prejudiced against Rothenberger has already been said and proved, and it goes without saying that Himmler was displeased with Rothenberger's attitude. It soon became obvious that Himmler was openly inimical to Dr. Rothenberger. Already a short time after the conference he had an inquiry concerning Dr. Rothenberger circulated to all offices of the SD which contained the following text: "The opinion prevails that the new Under Secretary Dr. Rothenberger will not be able to stay in his office for a prolonged time. He does not dispose of the qualities which are imperative for his office, and he comes from a department with a much smaller scope."
We must therefore without doubt start from the consideration that way and manner of Dr. Rothenberger's appointment as Under Secretary had been a surprise for both Himmler and Thierack and had cone to pass obviously without their consent. It has already been stated how the appointment came to pass in a quite unusual manner and without the cooperation of Himmler and Thierack, and that it was caused by the sole initiative of Hitler, apparently for the reasons stated.
