"Nothing brings about the selfdestruction of a State more than the absence of law and a weak judicature." The second element with which I hoped to convince Hitler was a more nationalistic element. I attempted to explain to him the picture which every human being makes himself of a position of a judge. I used the expression, "The original judge and arch judge," and I told him that the essential characteristic of this arch judge consists of three conditions.
First that it is a distorted picture if this judge has to ask another person what kind of a decision he should make. The independence of the judge and his freedom in issuing instruction was the most essential characteristic of a judge in contrast to a civil servant. The second element which I wanted to include in this picture in which I told him that he has to imagine a court on a market place, was that a human being can really only imagine that there was just one judge. As soon as one has several judges in one case, one asks, "Well, who gives me a better justice?" I said that the symbol for the fact that there is only one law and one justice would be blurred. By saying so, of course, I meant that there should be as few judges as possible. The third element which I added to this picture was, and I quote: "The judge has a strong inner authority. He is the interpreter of the law, who from the point of humaneness, wisdom and experience, must be superior to all other servants of the State." The fact that Hitler, himself, was the highest legal reviewing authority in Germany was of course from my conception of the dignity and independence of the judiciary, a danger. The question exists anyhow as to whether this idea of the absolute independence of the judge is compatible with the concept of an authoritarian state.
After I was discharged and after I had gathered the experience in Berlin during the 15 months that I was there, I absolutely denied that question. I said that those two concepts are not compatible with each other. At the time when I made this attempt, I believed that they were compatible, and that the separation of power which is necessary in every state for the purpose of controlling the people, that in practice this would be achieved by my program of having all influences on the judiciary eliminated.
Q: Dr. Rothenberger, may I say something in regard to this last point? It seems to me that you did not make it clear enough, because the problem which you discussed was after all that in effect you maintain that you wanted to bring about and strive for the independence of the Administration of Justice. On the other hand, at that time you affirmed the authoritarian state -- the Fuehrer state -and with that you have to admit that in the person of Hitler there was a man who was the highest legal reviewing authority, who in his own person eliminated the separation of power and in effect made the judiciary dependent upon him. That is the problem, isn't it? And now you may that this concession which you had to make because you recognized the existence of an authoritarian state you explained that to the court. In what do you have any aim that practically can be strived for in regard to the immediate and practical independence of the Administration of Justice throughout the country?
A: I believe I emphasized that already, that from the point of view of an idea, the authoritarian state was a fact for me, but that in practice by my wanting to eliminate all influences on the Administration of Justice through eliminating all intermediaries, that in practice I achieved again a separation of power.
Q: Two concrete questions. On Page 25 of your memorandum you mention when you plans were supposed to be put into effect. Did you think? when you wrote this memorandum, of having your plans realized already during the war?
A: No, not at all. On another occasion I shall have to discuss that point again briefly. It was a matter of course? that these plans meant such a change and would necessitate such difficult preparations that long years would have been required before they could have been put into
Q. Is it correct that your plans on pages 24 and 25 of the memorandum are explained in summary form in the four points which you mentioned: the radical reform of training, the radical reduction in the number of judges; taking the judiciary out of the civil service; and the radical change in the structure of the courts?
A. Yes.
DR. WANDSCHNEIDER: Thank you, I have no further questions.
THE PRESIDENT: We will recess for a period of fifteen minutes.
MR. LaFOLLETTE: One moment, if Your Honor please. If Dr. Kubuschok will be in court after the recess, I will then present the Schlegelberger documents, and also offer the exhibit which was offered yesterday; I think the twenty-four hours notice has practically expired.
THE PRESIDENT: We will recess now for fifteen minutes.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
MR. LAFOLLETTE: If the Court please, the Prosecution now offers in evidence Exhibit 517, Document NG-1029.
THE PRESIDENT: Will you speak very slowly, please?
MR. LAFOLLETTE: Yes, your Honor. Document NG-723, Exhibit 518-
THE PRESIDENT: Perhaps we had better rule on them as you offer them.
MR. LAFOLLETTE: Yes, if your Honor please.
THE PRESIDENT: Exhibits 517 and 518 are received in evidence.
MR. LAFOLLETTE: Exhibit 519, Document NG-1612.
THE PRESIDENT: The Exhibit is received.
MR. LAFOLLETTE: Exhibit 520, Document NG-1613.
THE PRESIDENT: Received in evidence.
MR. LAFOLLETTE: Exhibit 521, Document NG-1615.
THE PRESIDENT: Received.
MR. LAFOLLETTE: Exhibit 522, Document NG-1513.
THE PRESIDENT: Received.
MR. LAFOLLETTE: Exhibit 523, Document NG-1061.
THE PRESIDENT: Received.
MR. LAFOLLETTE: Exhibit 524, Document NG-391.
THE PRESIDENT: Received.
MR. LAFOLLETTE: Exhibit 525, Document NG-670.
THE PRESIDENT: Received.
MR. LAFOLLETTE: Exhibit 526, Document NG-1847. I send this exhibit to the desk and also copies for distribution.
THE PRESIDENT: It will be received.
MR. LAFOLLETTE: And Exhibit 527, Document NG-839. I ask that it be received at this time although only the German document copy is available. I will see that the Bench gets copies and I furnish one copy now to Dr. Kubuschok in German and more to the German counsel when they wish them.
THE PRESIDENT: The exhibit is received.
MR. LAFOLLETTE: The Prosecution also at this time offers Exhibit 534, Document NG-797. There was an objection to this document yesterday.
THE PRESIDENT: Well, the objection was on account of time.
MR. LAFOLLETTE: That was the only objection stated, yes, your Honor.
THE PRESIDENT: The exhibit is received.
MR. LAFOLLETTE: I furnish copies in English and German for distribution, your Honor.
THE PRESIDENT: Would you inform us if convenient to whom the Documents from 517 on specifically or more apply?
MR. LAFOLLETTE: You mean Exhibit 517, your Honor?
THE PRESIDENT: To 527, all inclusive.
MR. LAFOLLETTE: Those are all part of the cross examination of the Defendant Schlegelberger, your Honor.
THE PRESIDENT: They are received as a part of the cross examination.
MR. LAFOLLETTE: Yes, your Honor.
JUDGE HARDING: What is the status of 530 to 533?
MR. LAFOLLETTE: I will have to check, your Honor. My recollection was that Exhibits from 530 to 533 inclusive were offered and received. On 533 and 534 I believe there is yet some preparation needed and for that reason I did not offer them.
THE PRESIDENT: We have marked 530 and 531, 532, 533 and 534 as received.
MR. LAFOLLETTE: Yes. Your Honors are right. They were received with the understanding that there was yet some preparation to be made on them but they were received in evidence. Those were documents with reference to the defendant Klemm.
THE PRESIDENT: Yes. They are received as part of the cross examination.
MR. LAFOLLETTE: Exactly, for the cross examination.
DR. WANDSCHNEIDER: May I continue with my cross examination of Dr. Rothenberger?
BY DR. WANDSCHNEIDER:
Q. Dr. Rothenberger, would you now please tell the Court how your appointment to the post of Under-Secretary in 1942 came about? In this connection I would refer to Exhibit 65. That is the authority dated 20 August 1942. That authority is in Volume I-B on Page 25. It is Exhibit 65.
A. On the 4 August 1942 The Reich Minister and Chief of the Riech Chancellery, Lammers, suddenly asked me to come to Berlin for the purpose of a conference. Lammers told me the Fuehrer had read my memorandum. He had liked that memorandum and he would like to have the plans of that memorandum carried into effect. I asked Lammers specifically as to whether Hitler had given him any further reasons. He told me what had impressed Hitler was the question of the position of the Judge. He had no opinion whatsoever of the judge of the civil servants type and the question officials, of civil servants and judges being strangers to practical life.
In reply to my question Lammers said to me, "Hitler is convinced that these plans must be carried out." I then said to Lammers that I thought during the war it was altogether impossible to put into effect my plans and I would ask to be allowed to wait with carrying out my plans until the end of the war, all the more so as I myself had not yet finished my preparatory work in Hamburg. Lammers replied: "Hitler counts on an early conclusion of the war and the preparation for carrying out the reform would need some time after all and I was to utilize that time.
As I myself was in no way able to judge the war situation, I had to accept that fact as being correct. Then I asked Lammers whether the prerequisites concerning personnel in regard to carrying out the plans were assured. At that time it was the general belief that the next Reich Minister of Justice would be Herr Frank, since Frank, at an earlier time, had been Hitler's advisor, and had been such an advisor to Hitler for about twenty years. I told Lammers that it would be quite out of the question to carry out such a reform under Frank. Lammers then said "You need not worry; Hitler has dropped Frank, he will not become Reich Minister of Justice." And, to stop me from worrying about other matters, ho told me that Frank would also be dismissed as Reich Justice Leader.
That made things a great deal easier for me since, as I have already stated, Frank, in that capacity, always raised great difficulties for the Administration of Justice; his competition therefore had been eliminated.
I then asked whether Freisler would remain in office. I thought that was out of the question too. That question was denied too, and I was told that Freisler would not remain in office. Lammers told me: "Hitler would like to have you, as an expert and as Undersecretary, carry out your plans, and that Bormann had suggested to Hitler, as Minister of Justice, Thierack, and it looked as if Thierack might receive that appointment. To me, in those days, Thierack was a name that meant hardly anything. I hardly know him. I met him a few times at the conferences of the presidents at the Reich Ministry of Justice. Occasionally ho had stated his opinion concerning the reform plans which were under discussion at that time at the Ministry, and he took a positive view of those plans.
It has been said about me that I have no insight into human character. That outer form in which Thierack appeared to me at the time was such that it seemed to me ho had an entirely unproblematic character. His mental abilities seems to ms to be, at the utmost, average. He appeared to be of a certain type of Saxon, suburbanite, and cunning. His massive toughness, his love for intrigue, and the brutality of that man -- those qualities I underestimated. If I had recognized them, I would have refused to collaborate with him, just as I refused to collaborate with Frank and Freisler.
All personal reasons were against my assuming that task, for in Hamburg I hold a regal position: I was a judge, I could act as I thought right without having to make concessions. I had a Reichsstatthalter, a Reich Lieutenant, who, as I discovered later, was for superior to all other Reichstatthalter/Reich Lieutenants, in Germany. I had never liked Berlin, but I accepted the task because I was of the conviction that it was necessary to carry it out to influence the development of the Reich.
Q. Did you pay another call on Lammers later on?
A. Yes. A fortnight later Lammers rang mo up again and I was told that I was to be introduced to Hitler, whom I had not met before. I went to Lammers' field headquarters, which at the time was in Schitomir. There the first conference and meeting took place between Lammers, Thierack-who had also been ordered there -- and myself. On the way there I had boon thinking it over and had arrived at the conclusion that, judging from the experience of decades, it was only possible to carry out the task with which I was confronted, if I were given the authority to carry out that task, according to my own plans.
I know that before Reich Minister of Justice Schiffer too, who wished to carry out those plans during the Weimar era -- my attorney will submit an exhibit on that subject -- had requested and received that authority too from the Reichstag. It was clear to mo that if I was to be dependent on the approval of Bormann, Himmler, or any other quarters, it would never be possible to carry out my plans. Therefore, at that conference I suggested that Hitler was to grant special authority to the Reich Minister of Justice; and that is the authority which has been discussed here a groat deal, and the idea of which originated with me. I had also drafted a text for that authority; I had done that on the way to Schitomir. The text stated:
"A strong Administration of Justice is the pillar of the Greater German Reich. The Reich Minister Of Justice is authorized to take all measures which are required to carry out this task."
It is necessary for mo to say a few words about the term "strong", because at this trial the word "strong" has been mixed up with the word "severe". In those days, immediately after I assumed office, on the 4th of September I published an article in "Deutsche Justiz", where I defined in more detail what I understood by that term.
I quote from that article, "The German ideal of justice must, as it is timeless, be incorporated within the future structure of a National Socialist Reich. A strong Administration of Justice is a pillar of the greater German Reich. As from tomorrow, according to the instructions of the Fuehrer, all measures must be prepared which arc requisite so that that aim may be achieved. That the Fuehrer as he has manifested clearly now wishes a strong -- and I underline that word -- Administration of Justice had never been in doubt to anybody who thinks on historical lines. Law at all times has been the strongest pillar of all great realms of civilization. Realms would pass away if in the place of law and order appeared arbitrariness and corruption -- the same realms rose to great heights when the central figure, the actual organizer, the one embodying the legal ideal, that is the judge, represented authority, authority in the meaning of reputation. I then go into the historical development in England and in the Roman Empire. Those are the same statements which are contained in my memorandum. About that request of mine a discussion developed. Thierack did not want to have anything much to do with it. As he said, he thought that was much too bombastic. Lammers expressed misgivings as to whether Hitler would grant such authorization During that discussion the first arguments developed, arguments between Thierack and myself concerning that problem. The next day we went to the Fuehrer's headquarters to be introduced to Hitler. Why I, too, was introduced to Hitler I do not know. It was customary only for a new minister to be introduced and for the Minister then to choose his undersecretary. I assume that Hitler only wanted to meet me because on account of the memorandum he himself had appointed me.
Q.- What was the impression you received during your visit at the Fuehrer's headquarters? Would you describe that, please.?
A.- I must say that that visit did make a great impression on me. The reception and the outer conditions already impressed me favorably. Things were simple, modest, natural, and we had lunch together. Hitler kept quiet altogether until a certain moment.
Perhaps after half an hour when he began to talk, and then he wouldn't stop. When I tried to enter into a discussion about the matters about which he was talking, that is to say matters concerning the Administration of Justice, I was held back by my neighbor, and that I did not like at all. For the first time I noticed that it was not possible and that it was not customary to have one's say with Hitler. What he said about the Administration of Justice impressed me favorably. In particular, he spoke about the dangers of the j udge who was a civil servant, about the dangers of having judges being strangers to life, and he said to me personally in departing "You plans must be carried out." The personal impression which Hitler made on me was by no means that of brutality. There are very many people who have the same impression of him, but there arc other people who have the very opposite impression of him. He must have been two-faced.
Q.- Which were the events later on which confirmed your opinion that you had become undersecretary to carry out your reform program?
A.- May I say a few things briefly about the authorization?
Q.- I was going to refer to that later on.
A.- Two factors supported my view in that respect. On the one hand, that shortly after Hitler's speech of 26 April, it was on the 7th of May, Mussolini before all Italian judges made a speech, and in contrast to Hitler, who by his speech had done away with the status of the judge by which he could not be dismissed, Mussolini spoke of the Italian judges as being a body of men in whom he had absolute confidence, and he spoke of the Administration of Justice as being the sacred mission of a state, and of justice he said that it was the foundation of all states. Another factor which, in spite of all the disappointments of the previous years strengthened my view, was this: on the first day after his return to Berlin Thierack said to me, the highest quarters want you to speak to the foreign press. For a man like Thierack, who normally liked to place himself in the foreground, that was unusual. I believe it was on the 22nd of August that I did speak before the entire foreign press in Berlin about my reform plans.
Q.- Dr. Rothenberger, I would like to revert to the authorization. A little earlier you read to the Tribunal the original text of the authorization. I would how like to ask you as to whether and if so what changes were made in that original text.
A.- On account of the talk with hammers and Thierack I believed that the authorization would not be granted and I was very disappointed, because Thierack was not in favor of it and Lammers expressed doubts as to whether it would be possible. When I returned to Berlin I learned about the text of the authorization which Hitler had signed, after all. The difference was this: The first sentence, in a somewhat weekend form, remained. It said, "To fulfill the tasks of the greater German Reich a strong Administration of Justice is necessary." Whereas I had said, "A strong Administration of Justice is the pillar of the Greater German Reich."
What was new was the fact that "the Reich Minister of Justice was authorized, according to Hitler's directives and instructions." - That was a matter of course for me. - But "In agreement with the Reich Minister and Chief of the Reich Chancellery and the Chief of the Party Chancellery to organize a National Socialist Administration of Justice." Bormann had thus found a place for himself in that authorization. During the subsequent period of my work, it was shown what significance lay in that.
Another sentence was new. It was the last sentence of the authorization, "Ho can deviate from the existing law in doing so." In itself, there is nothing wrong with that such as the prosecution assumes. Why that sentence was included and who did it, I do not know. Under German law -- I believe under foreign law as well -- it is in itself a natural rule: Lex posterior derogat priori: If the legislature or legislator grants the authorization to a Minister to issue a law, then that new law issued by the Minister naturally deviates from an earlier law. For the rest, that provision was not made use of -- not even by Thierack, as far as I know.
Q Would you now please tell us some details about you relations with Thierack.
A I started my work in Berlin and began by carrying out my plans. I had come from Hamburg where things were very satisfactory, and now for the first time I had to move on the smooth parquet floor of high diplomacy. That is not in my line. The optimism with which I had started my work were very early on was soon put to a very severe test. It was not only that I noticed that other authorities were not very satisfied with my appointment, the worst obstacle was the fact that at the Ministry itself the differences and the struggle between Thierack and myself set in immediately. It is wrong if it says in the Indictment that Thierack had appointed me to be Under-Secretary. I believe that NG-075 reveals clearly that it was Hitler who appointed me. Lammers told me that Thierack would have preferred somebody else to be Under-Secretary.
As far as outward appearances were concerned, to begin with he saved face. The first differences of opinion had appeared during the discussions with Lammers, and they arose also during the discussion with Himmler which took place in September, of which I will talk in greater detail later on. The difference of opinion by the end of September was demonstrated by Freisler, who in the meantime had become President of the People's Court. At the first conference which all the presidents of district courts and general prosecutors attended, it was demonstrated very clearly in front of all those present by his words, "Minister, I warn you, there is a rumor going about that the reform of German justice is being undertaken by someone other than you." Our duties and our spheres of work from the first day on -
Q May it please the Court, I would like to refer to NG-195, Exhibit 65, Document Book I-B, Page 95 in the German text. It concerns the conference of department heads in January 1944.
THE PRESIDENT: Exhibit 65?
DR. WANDSCHNEIDER: Exhibit 45, your Honor.
THE WITNESS: On the 27th of August, a few days after we had assumed office, Thierack issued an ordinance by which, excluding my person, He alone was placed in charge of Departments III, IV, V, and a month later when Department XV had been established, that, Department XV was placed under his immediate direction. I was placed in charge of the other departments: I, II, VI, VII, and VIII. Naturally, the Minister shared the responsibility and in fact was my superior. Thierack then took another measure. He established a Ministerial Bureau. Under Guertner and under Schlegelberger, it had been the custom for the Minister to have one or two adjutants. Thierack set up a special bureau with several assistants which was exclusively under his direction. That Ministerial Bureau dealt with decisive matters; among them, the Judges' Letters.
The prosecution in connecting me with the Judges' Letters, in so far as it concerned the first Judge's Letter, refers to a sentence saying, "The judge, like the farmer and the workman, has a basic profession." I can't help it that the person who dealt with the Judges' Letters borrowed an idea from my memorandum.
Naturally, I knew of the Judges' Letters, and in matters concerning civil law I could give my view on these letters. Concerning cases of penal law which were dealt with in those letters, I cannot assume any responsibility.
Very soon I noticed, and this was the thing I had not known before, that Thierack had very close relations with the party chancery and with the SS. My adjutant frequently told me that the SS officials and the officials at the party chancery continuously appeared at Thierack's office. I was never asked to attend those conferences, nor was I interested in going there as I assumed that those discussions were largely concerned with penal matters. Thierack's favorite hobby was Kochem castle; for the Administration of Justice ho had bought a castle on the Mosel where the loading men of the Administration of Justice were called together for conferences. I never wont to the castle. All trips which had to be undertaken were undertaken alone, either by Thierack or alone by myself. I never had any personal contact with Thierack. At a very early stage this war on his part began against my assistants and against myself. I had brought a number of my assistants along with me from Hamburg. For years they had collaborated with me in my reform plans, and it was a matter of course that I should need them now that it came to carrying these plans out. The two main assistants wore Herr Segelken and Herr Brauer. The manner in which Thierack treated my two main assistants I shall have to describe briefly. I had intended to have Segelken appointed chief of Department II, that is the training department. Hardly had he assumed office when a SD report arrived which said that Segelken in 1927, that is to say fifteen years ago, had attended a mooting in Bremerhaven -- a pacifist mooting; therefore, he was politically unreliable. Secondly in 1930, that was twelve years ago, ho had boon to Russia; that too, gave cause for misgivings from the political point of view. The Party Chancery used that SD report as a grounds to refuse its approval of Segelken's appointment.
The matter went on for months, and Segelken was dismissed from his post as chief of Department II. My second chief assistant, Brauer, had the same fate. He was an extremely capable and gifted pedagogue. Of this gifted young judge it was said on the basis of a SD report that in the year of 1933 he had written his thesis in which in one passage ho had referred to a jewish professor; therefore, ho was politically unreliable. That, again, the party chancery used as a basis for describing Brauer as politically unreliable, and Thierack dismissed him; and ho was called up to the armed forces.
Q. Herr Dr. Rothenberger, you described Kochem castle as the focal point of Thierack's plans of training. May it please the Court, in this connection I would refer to a document which has boon submitted by the Prosecution; it is NG -784; it is a loose document; it was submitted as a separate document. The Tribunal will remember the report by the President of the District Court of Appeals, Dresden of 30 May 1944 to Minister Thierack, and I would like to read one passage which will explain to the Court -
THE PRESIDENT: Was the document given an exhibit number?
DR. WANDSCHNEIDER: It was submitted as a loose document and the Prosecution has not yet submitted it in evidence; it has no number as yet; it is simply NG-784; it has not yet got an exhibit number. I would like to quote two paragraphs from the report. President Bayer says the climax of the conference were yours and the speech of the Reichsfuehrer SS; all of us in our districts can only judge matters from our provincial angle, that is to say, we do not know; we have faith, but only our faith; that alone is not enough.
Therefore, we welcome it from the bottom of our heart; and, therefore, we can no longer imagine life without Kochem castle where a possibility is given us to refer in our charge to the higher views of the high authorities; sentences like "the higher the aim, the greater the necessity for silence" (also certain followers of Rothenberger evidently have recognized the danger of Rothenberger's tirade for the development of the Administration of Justice; none of them will forget. Mention is made here -- by somebody who is blindly devoted to Thierack that Rothenberger is dangerous.
Q. Dr. Rothenberger, may I ask you now to continue with your description and to tell us about the attempts which Thierack made to take steps against you to get rid of you.
A. Thierack made his first attempt in January 1943, that is to say three or four months after I had assumed office. What happened was this: Until then the under secretary had held the same rank and had obtained the same salary as the president of the Reich Supreme Court. By a new ordinance, the president of the Reich Supreme Court fared loss well than under secretary. Thierack then asked Ministerialdirector Schneller of Department VIII whether it was no longer possible to get rid of an under secretary and appoint him president of the Reich Supreme Court. In a state of great excitement, Ministerialdirector Schneller told me that. I went up to Thierack and asked him what it was all about. He said nothing yet; there is nothing the matter as yet.
Next, in April 1943, I hoard that he had asked Lammers to got a second under secretary. I shall revert to that matter in greater detail later on.
MR.LaFOLLETTE: Dr. Rothenberger, excuse me a minute. I must address the Court before we recess. If your Honor please, I ask the Tribunal, on the basis of information that I have, to request Dr. Marx, attorney for the defendant Engert, to be in court immediately after the recess, at which time I wish to present an affidavit to the Court. I will not present the affidavit in his absence, but I must have him in the courtroom.
THE PRESIDENT: I presume the Marshal would be the proper person to notify Dr. Marx. The Marshal is directed to notify Dr. Marx to be present in Court at 1:30 this afternoon, -- until which time we will recess.
(A recess was taken until 1330 hours, 17 July 1947.)