Together with Rietsch, before the conference at Himmler's, I had had a lengthy conversation with Thierack. on the matter, because this problem again constituted a fundamental question of the Administration of Justice. Thierack did not give his approval, even when Himmler broached that question at the conference and asked Thierack to give his consent, Thierack remained firm. That is evident from item No. 7 of the document. As I heard later on, negotiations were held between the Referents, and the law never became a law in affect, at least not during my period of office, and I do not believe that it became effective afterwards. The further points which were discussed were the problem which, I think has been discussed in almost too much detail here, that of justice of the peace. It was astonishing and surprising to me that Himmler had any interest at all in that problem. He was fairly well informed about the historical foundations both abroad and in Germany, and it was equally surprising to me that he concurred in my opinion -- I talked about that subject, my opinion being that the office of the justice of the peace was not to lie in the hands of the party. That is evident from item No. 3 of the document.
Various other questions were discussed at length, questions which were largely of a technical nature, partly anyhow. I do not remember the order in which these questions came up for discussion. I am merely mentioning the question of ago in regard to responsibility before the law, (Strafmuendigkeit). I believe that Himmler mentioned a few cases where children of only 13 years of age had committed punishable acts and where he was of the opinion that one had to punish them, whereas under the previously existing legislation a child only becomes punishable at the age of 14.
Questions concerning the penal register were then discussed, concerning ordinances to be issued jointly by the Administration of Justice and the police. I do not remember for certain whether punishment by flogging was discussed in my presence. I think it is possible. I am certain that while I was there the question of the transfer of the prosecution was not touched upon at all. This document contains a reference under 13 where Thierack says "I flatly rejected Himmler's demand for the transfer of the prosecution to the police."
BY DR. WANDSCHNEIDER:
Q: Dr. Rothenberger, may I interrupt you before we continue? When you spoke about eh correction of sentences you said that the correction of sentences, according to Himmler's remarks was to be stopped. The document of 18 September 1942 itself shows that beyond that a number of details were laid down as to what procedure was to be adopted in correcting sentences, concerning the relation between Himmler and Thierack and with the corresponding participation of Bormann. Were such particulars discussed in your presence?
A: No. Himmler merely emphasized that a unilateral interference such as has occurred hitherto would no longer be permitted by him.
Q: Would you continue, please?
A: The last point which is contained in the document was also certainly not discussed at all. I am referring to the question of the transfer of the penal administration of justice concerning Jews, Poles, Gypsies, Russians, and Ukranians.
Q: Dr. Rothenberger, you know that transcript of 18 September, those minutes where it says that Himmler and Thierack led the discussion and that you were present.
How can you explain it that those points which, according to you, were not mentioned in your presence must have been kept secret from you or deliberately cannot have been discussed in your presence?
A: The file note which Thierack wrote personally I saw for the first time here. Today it is altogether clear to me how that file note came about. Attached to that file note in NG-059 is another note signed by Ficker, Reich Cabinet Counsellor.
That note confirms that following the conference which I attended, the Reich Minister of Justice and Reich Leader SS, I quote, "Had a conversation alone."
When I think it over as to why such a talk between the two alone took place, today I realize fully that Himmler and Thierack quite deliberately excluded me and misled me, in particular, concerning the most delicate points.
What were their motives, I naturally can't say but in accordance with all the previous and subsequent events, immediately after the conference, I am bound to assume that Himmler and Thierack did not exactly regard me as their ally in such plans, and that during the first conference which I attended, they quite deliberately created the impression that they were making certain concessions. As to whether they, themselves, were not certain of themselves, whether Hitler really had a certain amount of understanding for my plans, I cannot tell, of course; but as far as the early period is concerned, that is possible. And now Thierack, I do not know when, for it cannot be seen from the file note, which bears no date, summarized the results of both discussions; that is to say, the converence which I attended and the following conversation between Himmler and Thierack alone, in this file note, without differentiating between them. It seems that a part of this file note was added by him only at a later time. I gather so from the original document, according to which some of the document was added later on by a different typewriter. That part concerns the last item, Point 14, the question of the transfer of the Penal Administration of Justice over Jews and Poles.
Q. Dr. Rothenberger, may I put another question to you in this connection? If I understood you rightly, you wanted to tell us that Thierack and Himmler were uncertain towards you and did not quite know where they stood with you. To what do you attribute that feeling that they had, that they did not quite know where they stood with you?
A. Mainly I think that feeling was caused by my memorandum. I assumed that Himmler knew that memorandum and that Himmler was not certain whether Hitler was really supporting the ideas of that memorandum.
Q. Did the unusual way in which you came to Hitler play any part in that?
A. No doubt, for Himmler and Thierack both knew that I had been appointed by Hitler himself in an unusual manner.
THE PRESIDENT: You have covered that.
DR. WANDSCHNEIDER: Thank you May it please the Tribunal, may I continue with my examination?
THE PRESIDENT: Yes.
BY DR. WANDSCHEIDER:
Q. What was your first impression after the conference?
A. My first impression after the conference was favorable. Immediately after the conference, I told Reich Cabinet Councillor Ficker so. That too can be seen from NG-059. I believed that that favorable impression was due to the fact that in regard to the main problems of the Administration of Justice, Himmler had not prevailed with his view. He had not asked to have the prosecution transferred. Concerning the correction of sentences and that of the "Schwarze Korps", he had given assurances, in the problem of the asocial law, too, he had withdrawn his demand, and the question of the transfer of prisoners had at any rate remained open.
After the conference, the next morning in fact, I left by myself. Thierack remained behind -- I do not know for how long he stayed. I went to Hamburg via Berlin to join my family in Hamburg, and there, too, to a friend I talked in a very positive way about this very important meeting which had concerned the Administration of Justice. When I returned to Berlin, the great disappointment began. Already after a few days, there was, among the files which lay on my desk, a paper. That, too, was a file note by Thierack. It was a much briefer file note than the one here. As I remember it now, it concerned a conference with Goebbels. That file note indicated, in what form I do not remember now, that Goebbels had voiced Thierack the idea of the extermination through work. That file note was not addressed to me. It must have come into my possession by mistake.
When I read it, I could hardly comprehend that idea to start with. I could not comprehend what was meant by it. Feeling upset, I went upstairs to sea Thierack immediately and asked him what it was all about.
Thierack said to me with a certain amount of arrogance and condescension, "Do not get excited. It is correct that I talked to Himmler alone afterwards," --. That was the first time I heard of it,---"and in the course of that talk, this question, too, was discussed by Himmler and myself. But I rejected that demand on the part of Himmler with determination. I did that for humane reasons alone, and Himmler too understood that at the time everybody in Germany was needed."
During that talk, Thierack took a paper out of his desk, and on this paper -- which I did not read myself but I could see it-- Thierack wrote in the margin so that I could see it, in his green pencil, "Settled or Rejected." I believe it was settled, as I can see now. Evidently, he wanted to confirm to me that his assertion that this idea of extermination by work had been dropped, by writing down that remark.
I had only been in office for three weeks at that time, and I was still so innocent that I did not realize that those men might really carry out such idea, and that they were deluding me.
Q Dr. Rothenberger, in connection with this group of questions, a number of documents have been submitted about which you will have to give us your views. I now want to enumerate the various documents and to ask you to give us your views. To begin with, it is Exhibit 262, Document Book IV-A, page 37, that is an extract from statements by Goering of 14 December, 1942, about the employment of prisoners, in anti partisan commandos, etc; did you ever hear anything about that?
A I gave my views on that document yesterday, and I said that as far as I remember, I have never seen it, and that it does not bear my initials.
Q We are then going to deal with Exhibit 264, Document book IV-A, page 42, that is a letter from the Reich Ministry of Justice to the general prosecutors, dated 22 October 1942, it is signed by Krohne, and it was connected with the carrying out of the agreement of September 1942.
A I never saw the letter either, which was natural, because it was a problem which concerned penal law and the administration of penalties. Such matters were not submitted to me, on principle.
Q As Exhibit 268, the Prosecution submitted a Document which was signed by Dr. Eichler, and is dated 21 April 1943; it concerns the transfer of Jews, Poles, etc., into concentration camp; did you ever hear of such a letter.
A No; I never saw that letter either.
Q Finally, a gruesome letter from Thierack to. Bormann, dated 13 October, 1942, plays a part. That letter was read into the record; and, was not submitted as a separate document --if I remember correctly. The Court knows it, did you ever see this letter from Thierack of 13 October 1942.
A No, I do not knew that letter either.
Q Would you now tell us, please, whether in the subsequent period after after those occurrences you ever again attended any discussions on questions of administration of penalties.
AAs I said yesterday, I never had anything to do with Department 5 and 15, not even as Deputy for Thierack, no referent ever came to see me on any question connected with these departments, Only once--and that was very soon after those events, it must have been approximately at the end of September, Thierack asked me to go up to see him. I believe at that time he was still alone in his office; and told me that Department 15 was to be established. For he had admitted that to me, that he had declared himself prepared, towards Himmler, to hand over prisoners to Himmler's armament industries, and for that purpose he told me that he was not going to establish Department 15. The question arose for him whether the new chief of that Department, that is, the man of whom he was thinking as a chief, Herr Engert, who at that time was the Vice President of the People's Court, and whom, therefore, he knew well, could become a ministerial Director. In the ministry the chief of every department had the rank of a Ministerial Director, that is the highest grade below that of under-secretary Since a new department was about to be established, the budget did not provide for an appointment for him as ministerial Director. He wanted to be informed by me about that question -- in particular as to whether, he as the minister was entitled to give Herr Engert that official designation of Ministerial Director, in spite of that, I said no, he could not. All the same, later on, although he did not have the right, he did confer that official designation on Herr Engert. On that occasion, later a few more gentlemen joined us, Thierack also made a few general remarks about the fact that is was necessary to make prisoner's available for the armament industry; that he himself in his prisons did not have an adequate number of armament plants; therefore, he had consented to a transfer of prisoners to Himmler.
In the course of that discussion, the impression which I had had before was confirmed to me, namely that Thierack had consented to the transfer but for those purposes--as I know today, for which they were actually made available.
Q Dr. Rothenberger, in the account you gave us this morning, you spoke of considerable tension with Lammers, or, rather Thierack; and you also spoke of differences of opinion with Himmler which existed on account of your demands. Did that tension and these serious differences of opinion already have any kind of adverse affect on you already at that time.
A Yes, and in very concrete manner, in a way which during my whole period office in Berlin put me under a shadow followed me. Shortly after that conference with Himmler, a president of a district court of appeal, it was Dr. Draeger, from Koenigsberg called on me. He said to me do you know that Himmler has sent on inquiry about you, via the SD, to all branch offices in the Reich? He then showed me a SD inquiry, dated 9 October, 1942, that was shortly after those events had taken place. That inquiry was headed: Re: Views on the now leadership of the administration of Justice. Following a new kind remarks abut Thierack, which I do not remember verbatim, it then said about me, literally, I remember that exactly--"one is the opinion that Dr. Rothenberger will not hold out in his office for a long time. He does not possess the necessary qualities; he comes from a small district.
Q What steps did you take then?
A When I heard of that, I went to Thierack and asked him for his protection, since I was naturally of the opinion that It was the duty of a chief of a ministry to protect his under-secretary against such inquiries. The introductory sentence is particularly noteworthy:
"One is of the opinion"--Perhaps I may add a few explanatory words.
The purpose of such an inquiry is for the branch agencies of the SD all over the Reich to give their opinion; but, with Himmler it was customary, by the wording of his inquiry to precluded and suggest opinions.
THE PRESIDENT: We will recess for fifteen minutes.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
DR. WANDSCHNEIDER: I ask to be permitted to continue my examination.
BY DR. WANDSCHNEIDER:
Q. Dr. Rothenberger, we had come to your description of your divergencies with Thierack and Himmler and the consequences which resulted therefrom against you. You had come to tho SD inquiry. Would you please supplement your statement concerning that point?
A. I had mentioned the fact that I had asked Thierack to protect me against that SD inquiry about myself, but in answering me he flatly refused; he said that was my personal affair, and all efforts to convince him that that was a matter for the Administration of Justice were in vain.
THE PRESIDENT: When was that?
THE WITNESS: At the beginning of October 1942 the inquiry occurred: it was the 9th of October.
DR. WANDSCHNEIDER: May it please the Tribunal, in this connection may I point out that the text of that inquiry, as well as the exchange of letters which followed, were available but were confiscated by a British officer, together with other material in favor of the defendant. I have made an application in these proceedings to get the material, which I designated precisely, also giving the date of its confiscation, but unfortunately it has not been received to this day. Therefore, I have to restrict myself to affidavits, and I shall submit these affidavits when I submit my documentary material.
THE WITNESS: In supplementing that, may I say only that the originals of that exchange of letters, which I shall describe, remained in the Reich Ministry of Justice, but I had copies of that correspondence in my home. However, soon after the surrender, at the beginning of June 1945, those copies were confiscated from my home.
A (Continuing) After Thierack had reused to protect me, I personally wrote to Himmler and expressed the thought in that letter that in my opinion it was an impossible thing, such a short time after my assuming office, that the SD should be in a position to pass an opinion about an Undersecretary who had just been appointed by Hitler.
I asked him for clarification, as well as for assurance that such inquiry should cease on principle.
That exchange of letters was carried on for several months, and the final result was a letter from Himmler--and it was not even signed by him personally--in which he said that he was sorry, but there was an oversight on the part of an Untersturmfuehrer, that is a low-ranking SS officer, in Koenigsberg, and that it was a matter which was of no further importance. He did not in fact apologize, and he did not offer any assurance for the future.
From that attitude on the part of Thierack and Himmler, of course, I gathered that both of them were standing on the same side in this respect.
Q. And then, at the end of 1943, how did your leaving the Reich Ministry of Justice come about?
A. Yesterday I briefly mentioned the fact that as early as in April of 1943, after Thierack had tried to transfer me to the Supreme Court (Reichsgericht) in January, but had stated that the time was not yet ripe for that, at that time I offered him my resignation, which he rejected. Furthermore, I had mentioned that at the same time that did not keep him from starting investigation proceedings against me the same time of that year 1943, without my knowledge, for the allegedly illegal procurement of furniture. That Thierack was primarily interested in getting rid of me in a manner which would give the impression to the outside world that I was being dishonorably discharged is proven by what I shall say briefly about my finally leaving the office.
Yesterday I also mentioned the fact that Thierack, as early as September 1942, kept my book for about three months, The German Judge -
THE PRESIDENT: You need not repeat what you said yesterday;
we remember it. Go on to something new.
THE WITNESS: Yes.
A. (Continuing) After Thierack had finally turned over this manuscript to the Party Chancellery and after it had been examined there for about six months, about in August or September -I am not quite sure about that date any more--of 1943 an SD report was received in the Ministry. Thierack put that SD report to me, and he told me it could be seen from that SD report that a plagiarism was contained in that book. That book contained a short historical review of the position of the judge in the old Germanic and Franconian era, and several sentences concerning that era were allegedly taken from a book by a Professor Fehr. Professor Fehr, Thierack told me, was an emigree, who lived in Switzerland, and a democrat; and there was concern that one day the London broadcasting station might broadcast the information that the German reform of the Administration of Justice really emanated from an emigree who was a democrat and lived in Switzerland. He said that was extremely dangerous from the point of view of foreign policy, and that I had to clear it up.
I did not know the name "Fehr" at that time at all. As can be seen from the preface, a considerable number of my assistants in Hamburg had participated in the work on this book, and one of these assistants dealt with the historical part of the book. One year before, when no mention was made about the possibility of publishing that book, he had compiled that historical data for me, which I needed for a lecture that I was supposed to give in the Reich Ministry of Justice. The other day I stated that in August of 1941 I gave a lecture in the Reich Ministry of Justice about the segregation of the profession of judges from the usual civil servant class. That historical compilation was made for that purpose.
I had the matter clarified by that assistant, Dr. Brueckmann, and he said yes, that was correct, he had used several sentences from a book by Professor Fehr in compiling that data, without having any opportunity at that time to know that it would lead to publication.
Thereupon I told Thierack what the causes for that oversight had been. At no time did anybody, not even Thierack, make the assertion that there was any guilt on anyone's part. But I told him the man who could be interested to see that some sentences of a general historic content such as could be found in any book, that such sentences would be also contained in my book would only be Prof. Fehr. Therefore I wrote a letter to Prof. Fehr, explained it to him, and asked him if that should be necessary for an interview and before that conference took place, it was intended to take place in January 1944 -- Thierack succeeded in having me dismissed, and that in the following manner: I was just on a duty trip at the beginning of December, 1943. During that time he went to Lammers and reported to Lammers that an application had been made by professors of the city of Hamburg who, he said, had complained that I was still in office. That, in other words, would have been colleagues of mine, because I myself was a professor at Hamburg at one time. And he added that from the point of view of foreign policy one could no longer maintain the responsibility of keeping me in office, and therefore he asked that Lammers should suggest my dismissal to Hitler. I was informed about that at the end of December 1943, that is to say before that conference with Fehr was to take place. At the end of 1943 I was suddenly called on the telephone -- I was at that time together with my family,-it was during Christmas -- that I had urgently to come to Berlin and take Thierack's place temporarily because he wanted to join his wife. Thierack called me into his office and told me, "Hitler has directed that you be dismissed". Upon my question "why" he answered, that matter with Fehr had gone so far on account of the application made by the professors from Hamburg that it was no longer bearable to keep me.
I told him that he himself didn't believe that, and I wanted to leave the room. Thereupon suddenly he became very friendly and soft and told me, why, of course the matter of that book was just the external pretense, but first of all in the course of this year and a quarter I had never succeeded in establishing good relations with the Party Chancellery and the SS. Moreover he said I was accused of having taken part in the funeral of Guertner, which I didn't understand at all, how anybody could be so stupid to charge one with having attended the funeral of an extremely descent former Reich Minister of Justice. I replied if these are the real reasons, then I was proud of it. Before I left him he again lied to me by saying yes, he would have liked too much to nominate me for the position of president of the Reich Supreme Court, but Lammers had raised opposition against that. Then a few days later I saw Lammers in order to inquire about the background of the story. Lammers told me just the opposite. It was he, he said, who tried to offer some office of some kind to me, but Thierack had been the person who rejected that. Through these circumstances the separation which had been pending for a long time actually took place, and without a new office, without gratitude, and without any compensation of any kind I left. And in accordance with that was the publication in all German newspapers where the following notice appeared, and I quote: "Change of office in the Reich Ministry of Justice. Upon the suggestion made by the Reich Minister of Justice the Fuehrer after effecting the transfer of Undersecretary Rothenberger into retirement (Wartenstand) has appointed Ministerialdirektor Klemm, who up to that time was in the Party Chancellery, Undersecretary in the Ministry of Justice." The effect of that publication was, on the whole, the following: One must have thought that I had stolen something, because dismissals during that period were very rare as such. But if a person was dismissed from office, then that was demonstrated or explained to the public in a very mild form, in a euphemistic form by promotion or by transfer into another office or some sort of honors, or a publication of some sort.
The London Broadcasting Station took the matter up-
THE PRESIDENT: I don't see what this had to do with the merits of the case. It is an interesting account, but I think you should get on to something new now. We are not concerned with what the London Broadcasting Company said about it. Just get along to something else, please.
DR. WANDSCHNEIDER: May I explain to the Tribunal it has something to do -
THE PRESIDENT: Just get along.
DR. WANDSCHNEIDER: It has something to do with the matter, Mr. President.
THE WITNESS: I have finished that account, Mr. President.
DR. WANDSCHNEIDER: I shall submit a document then on that matter. Now I come to the next question, Dr. Rothehberger.
THE WITNESS: May I still mention that also the information given me by Thierack that professors from Hamburg had complained was proved to be a lie. I made inquiry to the Hamburg faculty and the Hamburg faculty confirmed to Lammers that they never had made any application to Thierack or Lammers.
BY DR. WANDSCHNEIDER:
Q. Now, Dr. Rothenberger-
THE PRESIDENT: The difficulty is, this defendant isn't here being tried upon, the charges which Thierack made against him, but upon the charges which are in the indictment, and a brief explanation of his difficulties with his superiors was no doubt proper, but we think it has been extended very greatly.
DR. WANDSCHNEIDER. I am sorry, I didn't get the translation, Mr. President.
THE PRESIDENT: Well, proceed.
DR. WANDSCHNEIDER: Do you mean to say, Mr. President, that the form, the manner in which he was dismissed had nothing to do with the subject under discussion?
THE PRESIDENT: I mean that it has been adequately covered.
BY DR WANDSCHNEIDER :
Q. Now, Dr. Rothenberger, will you please come to the next question: Did you accept any new office after you were dismissed?
A. No.
Q. What did you do afterwards?
A. I returned to Hamburg and I became a notary in Hamburg.
Q. And you did not do anything else there then, did you?
A. No.
DR. WANDSCHNEIDER: Thank you. I have no further questions. My direct examination is finished.
THE PRESIDENT: Do any other defense counsel desire to make the witness their own ?
DR. SCHILF: (for the defendant Klemm) I have two brief questions for this witness.
DIRECT EXAMINATION BY DR. SCHILF:
Q: Witness, the day before yesterday you described your work as far as it was concerned with the problems of foreigners, and you discussed the fact that negotiations with the Party Chancellery took place, and that these negotiations were concerned with the liquidation of property of foreigners, in Germany. I ask you now were there during these negotiations and conferences any representatives of the Party Chancellery who belonged to the justice group within the Party Chancellery, and was the defendant Klemm present during these negotiations?
A: As for the internal structure of the Party Chancellery, that was one thing that I never knew. During the one oral conference which took place -- that was the conference of Under-Secretaries concerning the liquidation of enemy property -- Klemm was not present.
Q: The second question, Dr. Rothenberger. You mentioned also in connection with the Party Chancellery certain difficulties which arose when Ministerial Director Segelkin was appointed, and also District Court of Appeals Councillor Brauer -- difficulties which were presented on the port of the Party Chancellery. I should like to ask you, do you happen to know whether it was the personnel group of the Party Chancellory that presented these obstacles or the justice group or Klemm personally?
A: I said already that I was not informed about the internal structure of the Party Chancellery. The letters in both of these cases, Segelken and Brauer, as I remember were signed by Bormann himself.
Q: And you no longer recall whether anything was mentioned in these letters which would refer to the fact that it came from the Personnel office?
A: No.
Q: Thank you. I have no further question.
DIRECT EXAMINATION BY DR. THIELE-FREDERSDORF (for the defendant Dr. Joel):
Q: I ask the Tribunal to be permitted put one question to the witness.
Dr. Rothenberger, did Thierack, immediately after he assumed office as Reich Minister of Justice, mention to you that Dr. Joel was to leave the Reich Ministry of Justice?
A: Yes, several times.
Q: Thank you. I have no further questions.
DIRECT EXAMINATION BY DR. DOETZER (for the defendant Petersen):
Q: Dr. Rothenberger, did you know the defendant Petersen before the beginning of this trial?
A: No.
Q: Do you happen to know whether during the period when you were Under-Secretary in the Ministry of Justice, Petersen ever attended a meeting or conference which took place within or outside the Reich Ministry of Justice?
A: I was never concerned with the matters of the People's Court; therefore I am in no position to know that.
Q: Do you happen to know whether Petersen, being a lay judge, received the Judges' Letters under Thierack?
A: I cannot say anything about that wither.
Q: Thank you. Then that finishes my direct questions for the defendant Petersen.