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.
Doubtless things were like this at the beginning, that HIMMLER and THIERACK - although of course they did not consider Dr. ROTHENBERGER a serious adversary in view of his comparatively minor position - regarded him personally at least with distrust, not being sure of what backing Dr. ROTHENBERGER might have from HITLER himself. That was the reason why they thought it better not to discuss questions of import in his presence.
The fact that these psychologically and logically substantiated arguments are not more hollow speculations but an assumption based on documentary facts is proved by a file notation written by FICKER to the effect that after a conference in the presence of Dr. ROTHENBERGER another secret conference "unter vier Augen" (without witnesses) took place between HIMMLER and THIERACK. HIMMLER and THIERACK had every reason at that time to keep the full content of their conference a secret from Dr. ROTHENBERGER: this is proved by the fact that no proper minutes of this conference were taken down which would have required the presence of a clerk, but merely a unilateral undated file notation was made out and initialed by THIERACK. With reference to this it is a striking coincidence also that the other item dealing with the transfer of the criminal jurisdiction concerning Jews was added and written on another typewriter than the one used before. Summing up it can be said that Dr. ROTHENBERGER has proved beyond doubt that he did not take part in the conference when the incriminating items of the file notation of 18 September 1942 were discussed.
Dr. ROTHENBERGER has declared in the witness-box that he heard only subsequently from THIERACK that he had agreed to the assignment of asocial criminals to HIMMLER's armament industries. Dr. ROTHENBERGER's suspicion, arising from a file notation concerning a conference between THIERACK and GOEBBELS, that such assignments had the object of extermination by overwork, was convincingly dispelled by THIERACK.
As anyway, for purely external reasons alone, with the war situation being in the state, it was in, then, all forces were urgently needed for war economy. That Dr. ROTHENBERGER himself never agreed with the allocation of criminal prisoners for work in the armament industries is not only evident by the objections he raised already at the discussions with HIMMLER, but also from his attitude towards the question of asocial people, discussed at length already.
Even after the meeting in Schitomir on 18 September '42, Dr. ROTHENBERGER never had anything to do with the work carried out in Departments V and IV which dealt with the allocation of criminal prisoners for work to HIMMLER. According to prosecution document (Exh. 45) THIERACK, by a decree dated 27 August, did exclude Dr. ROTHENBERGER from collaboration and co--responsibility of Department V which was competent for the execution of sentences by appointing himself their superior. This decree was extended to include Department XV when the latter was founded in October or November 1942. This was quite obvious by the fact that Dept. XV, in the same way as Dept. V, dealt exclusively with matters dealing with the execution of sentences, and they received a joint director in the person of Dr. ENGERT. The minister, as director of the Ministry, was legally entitled to exclude the Undersecretary of State from part of the work as he was an official who was bound to act according to instructions. He thereby absolved him from the responsibility of these departments in as far as the latter did not himself act as deputy for the minister in individual cases. However, this never occurred in the cases of Depts. V and XV, as, when the minister was absent, the director of the department himself decided matters or left them as the case may be.
This is evident from the testimony of the witness for the prosecution HECKER, and the affidavits MARX and RICHLER (R'Exh. 86, 31). Dr. ROTHENBERGER never once was Informed about occurrences in these departments. All basic decrees and documents submitted, which concern these departments, were never seen by Dr. ROTHENBERGER nor did he initial them, (Exh. 143, NG-558, Exh. 263, 662-PS, Exh. 262, 638-PS, Exh. 264, 648 PS, 701 PS and Exh. 265 L-316). Neither did Dr. ROTHENBERGER read or initial Dr. THIERACK's memorandum on the conferences in Shitomir, Exh. 38 NG-059. If, however, an under-secretary of state, in disregard of the normal competence, is excluded from an activity by express order of the minister, and if he has not been notified of the developments, he cannot assume responsibility for these departments. Dr. ROTHENBERGER, therefore, had no possibility whatever of exercising any influence in the matter in question. Of course he got knowledge that against his protest, as stated, criminal prisoners were drafted for HIMMLER's armament projects, but here, too, he was not in a position to exercise my legal or actual influence.
With reference to the questions connected with this Count there remains an individual case to be discussed which has its origin in the letter of the SS-legal officer on the staff of the Reichsfuehrer-SS to Dr. ROTHENBERGER, dated 19 January 1943 (Prosecution Exh. 472). By this, the prosecution tries to prove that Dr. ROTHENBERGER had departed from, or no longer strictly adhered to, his line of protest against correction of sentences by the police. This proof must be regarded as unsuccessful. The exhibit in question represents a reply to a previous letter of Dr. ROTHENBERGER's.
Unfortunately, this letter has not been presented by the prosecution, so that its contents can only be deduced from the presented prosecution exhibit. It is quite obvious from the letter of the Reichsfuehrer-SS that not only had Dr. ROTHENBERGER in his previous letter protested against the fact of the publication of the shooting without judicial sentence but, in keeping with his exhaustively detailed attitude, also objected to the fact of the shooting as such; otherwise the Reichsfuehrer-SS would hardly have thought it necessary to discuss, in the first place, the question if the shooting as such and, in tne second place, the fact of the publication, in the 2nd paragraph of the letter, and, beyond that, to motivate the shooting with the reference to a relative order from HITLER's.
It is a deplorable and disastrous fact that Rothenberger's representations failed because of the existence of an order by Hitler. Concerning this visit to Mauthausen, I shall only read the second half of the paragraph. It is on page 43.
Dr. ROTHENBERGER himself admitted that he had once visited the concentration camp in Neuengammer, and, later on, the concentration camp Mauthausen. It cannot be deduced from this fact either that Dr. ROTHENBERGER is guilty. The purpose of these visits was simply to find out -- in view of the circulating rumors -- what the conditions in the concentration camps wore like. In no instance could it be established that Dr. ROTHENBERGER had witnessed abused or even worse things. On the contrary, the statements of the witness HARTMANN prove that Dr. ROTHENBERGER talked to individual prisoners of to concentration camps in order to inform himself about the reasons for their imprisonment. It may be admitted without further ado, that the results of such an examination could not be of great importance -- according to his own plausible statement, Dr. ROTHENBERGER did not detect one case in which a sentence had been altered in an inadmissible manner -- since, as a consequence of the expansion of the competency of the Gestapo by the institution of the so-called "prevention custody" in the year 1939; the problem concerning the correction of sentences had become obsolete to a great extent.
The shifting of power within the state had already progressed too far, the Gestapo had long since been a state within the state. Dr. ROTHENBERGER did not have any power or competence whatsoever, to repeal any protective or preventive measures ordered by the Gestapo. I now pass on to page 44 of the English, deprivation of the rights of Jews, Poles and other people designated "asocial" and immunity of members of the Party I only want to read the four lines from page 44 and they are in the third paragraph, Dr. Rothenberger was involved in the circumstances which led up to this law only once, when he was asked by Thierack to attend a conference of Undersecretaries in the Ministry of the Interior.
Summarizing, the following has to be stated with regard to the counts 10/22 of the indictment Dr. ECTHENBERGER did not take part in the discussion of the inhuman problems at the conference on 18 September 1942. He was obviously excluded from this discussion, for the reasons stated above. He heard afterwards that it was intended to place asocial criminals (their nature was not described in detail) at the disposal of Himmler's armament industry, and he protested against this measure in vain. He was in no way connected with the measures by which criminal prisoners were transferred to the police by the departments V and XV which were not controlled by him.
VIII. Count. 16/28 of the charge.
Count 17/29. of the charge.
Deprivation of the rights of the Jews, Poles and other people designated "asocial", and immunity of members of the Party.
Under counts 16/28 and 17/29 Dr. ROTHENBERGER is charged with not having prosecuted members of the Party and with having established special criminal laws for the Jews.
The one and only document submitted in support of the charge of not having prosecuted members of the Party is Exh. 255 NG-640. This document does not show any connection with Dr. ROTHENBERGER. The fact that he had nothing to do with the matter emerges from the document of the Prosecution Exh. 256 (list of reports by THIERACK, see testimony of ROTHENBERGER page 5329).
The responsible participation in the introduction of special criminal laws for Jews allegedly refers to the law of 1 July 1945. (Exh. 204, NG-151). Dr. ROTHENBERGER was involved in the circumstances which led up to this law only once, when he was asked by THIERACK to attend a conference of Under-Secretaries in the Ministry of the Interior.
The subject of this conference was an ordinance on legal restrictions for Jews. Originally there had been a draft concerning the limitation of legal redresses in criminal cases as far as Jews were concerned; this draft already dated from the time before Dr. ROTHENBERGER took office, and which had been written by the then UnderSecretary FREISLER. Another draft, dated 13 August 1942, likewise originated with Under-Secretary SCHLEGELBERGER Dr. THIERACK's predecessor. Upon suggestion of the different ministries concerned, this draft had been amended and furnished with supplements later on. The file number proves that the final draft of the ordinance dated 25 September 1942 was submitted in the conference of Under--Secretaries, which originated with the Plenipotentiary General who had the last word in this matter.
This draft did not contain any regulation concerning the transfer of jurisdiction over Jews, and for the first time the question of transfer of property to the Reich in the case of deaths of Jews was formulated here. When ROTHENBERGER was ordered by Dr. THIERACK to like the chair in the conference mentioned, he was not in the least acquainted with all the events related above, since he did not know what was being done in department III which had to deal with the matter and which was not under his orders. (Exh. R'49, affidavit CRAU). In spite of his outright opposition, THIERACK ordered him to attend the conference and, at the same time, handed him the draft of the ordinance dated 25 September 1942. The scruples of Dr. ROTHENBERGER proved to be all the more justified, as an additional item, brought up by KALTENBRUNNER, came to light which surprised Dr. ROTHENBERGER extremely. The question at issue was the transfer of the jurisdiction concerning Jews to the police. This had been agreed upon between HIMMLER and THIERACK in a secret meeting of the two alone, and therefore without Dr. ROTHENBERGER on 18 September 1942. Apart from the many general reasons discussed with count 10/22, the correctness of Dr. ROTHENBERGER's statement is supported by the external fact that this item has been inserted into his file notation in subsection 14 by THIERACK only later on and written on another typewriter. From the probability of the statement as made by Dr. ROTHENBERGER it is disclosed that he was surprised at this new development, and, as was his duty, left to the Reich Minister of Justice himself the responsibility for such a far-reaching regulation, in particular as this problem quite obviously did not fall within his jurisdiction.
This stand-point of Dr. Rothenberger is credible firstly because the prevention of the transfer of jurisdiction to the police was one of the main subjects of the struggle he fought for the maintenance of law (see memorandum page 23) and, secondly, because Dr. ROTHENBERGER, in accordance with his entire human and personal attitude towards Judaism, was innerly opposed to the transfer of jurisdiction.
What was this attitude? By education and, as he failed from Hamburg, he was all but an Anti-Semite. By profession and also personally he maintained close relations with Judaism.
I now pass on to page 46 which deals with the same subject Dr. Rothenberger's attitude to the Jewish problem. The problem of the Jews pushed more and more to the fore by the National Socialists caused him severe inner conflicts. To be sure he was in favor of curtailing Jewish influence out he was, against any violent solution and economic exploitation of the Jews. The many articles of Dr. ROTHENBERGER submitted to the courts, his speeches, as well as the entire reform In all program do not contain a single word against Judaism. the individual cases which he handled either officially or privately he helped or removed harsh measures. Of. affidavits WIEGELMESSER, R'Exh, 19; deposition of Valentin, record p. 8826 affidavit BRUNS R'Exh. 20 and affidavit MEYER R'Exh. 18; affidavit KIESSELBACH jr. R'Exh, 45; deposition EIFFE, record p. 5542; deposition MIETSAM, record p. 4810 and affidavit BUSSMANN R'Exh. 30. Pensioning of Jewish judges took place automatically pursuant to the law governing Civil Service employees. He kept persons of mixed blood until the end of the war. Above all, in every case in which an inadmissible intervention in the life and body of a Jew took place by the police, he complained about it at the Reich Ministry of Justice This refers on the one hand to Jewesses who had been put in protective custody as witnesses in race pollution cases, unless they were prostitutes and had sexual intercourse with several men, as well as to Jews who after having served a sentence for race pollution were taken into custody by the police.
Cf. R'Exh. 78, p. 23 and 24 R'Doc. 104. The same document discloses on page 4 the fact, which already has been pointed out in a different connection, that Dr. ROTHENBERGER protected a judge who was attacked in the "Schwarze Corps" (SS publication) because he Rejected petitions for an order for eviction of Jews by landlords. The only legal question in which Dr. ROTHENBERGER assumed an antisemitic attitude was the question of law governing paupers. He testified on the stand why he assumed this attitude - namely it was due to the abolition of the duty of the State to advance funds to cover the trial costs after a welfare organization for Jews, separate from the State, had been created. In contradiction of this the witness BECKER, record p. 8599 testified that Dr. ROTHENBERGER by by-passing the district leaders of the Party took care in all cases that Jews, who wanted to go to court were assigned a lawyer for legal advice. To the extent that the document of the prosecution Exh. 28 NG-629 contains opinions toward the Jewish problem, these interpretations do not represent Dr. ROTHENBERGER's opinion but those of the Reich Minister of Justice which Dr. ROTHENBERGER, as far as they concerned questions of civil law, passed on to the courts under him.
From this follows that Dr. ROTHENBERGER, to be sure, made concessions in individual cases relative to the Jewish question, but this entire tendency was to limit the extension of police jurisdiction and attacks on the lives or bodies of Jews. When he heard of the agreement between HIMMLER and THIERACK relative to this, he immediately took the necessary steps.
He reported to THIERACK, and submitted his resignation, The latter refused to accept his request by pointing out the war situation and the legal impossibility of resigning in times of war. Besides this THIERACK called his attention to the fact that he had already asked for a second Under Secretary, intending to thus neutralize further Dr. ROTHENBERGER's position (Deposition Dr. LAMMERS, record p. 5455).
The file notice, concerning the Under Secretary's of State conference of 21 April 1943 which originated from the Reich Chancellery, is a very brief and coneise one; it is evident that its purpose is not one of (establishing a) minute documentary record of the course of the discussion. The brief wording explains why the question, as to who thought the settlement of the we doubtful points by way of an ordinance necessary, was left open. That it was KALTENBRUMMER who claimed this necessity, is evidenced by his letter dated 8 march 1943 directed to the Reich Minister of the Interior. The brief wording of the file notice seems mistaken and ambiguous in as muck as it also considers Art. 6 of the draft decree necessary. In Art. 3 of the draft of the decree under discussion, we do not, however, talk about a transfer of criminal jurisdiction but of the lacking laws enabling judges to reject pleas in respect of Jews. Therefore, from the file notice alone, it cannot be deduced conclusively that Dr. ROTHENBERGER himself considered the legal settlement of those two points in question necessary. The second point, the question of forfeiture of capital has not been dealt with by the Reich Ministry of Justice either. The contrary is also shown by Exh. 204, NG-151, draft decree dated 25 September 1942 file reference GBV. The exhibits ALTSTOETTER (sec appendix) show that Department VI of the Ministry of Justice otherwise competent for these matters, had nothing to do with the insertion of this provision.