Can you explain them in more detail?
A Yes. Rothaug, in two very important points, in his work first was not up to what I was used to. In indictments and in orders, transferring a case to another court, beyond the actual facts, very extensively, an evaluation of the deed and the personality of the offender was contained such as a judge, for example, would later describe it in the opinion. Occasionally these statements also contained a political coloration. Because I was afraid that the person who read this indictment or this transfer, that is the Public Prosecutor who would attend the session, or the General Public Prosecutor who would later have to work on the case, could be influenced in advance in his judgment, there I requested Rothaug in a discussion which, however, was not conducted in a sharp form, to comply with the usage which prevailed in our office, and he did so.
Q Did Rothaug advance material reasons for his conception, and perhaps only because he was new in his office and because he was so burdened with work and perhaps because he did not know the habits of the office?
THE PRESIDENT: I think you should ask questions instead of suggesting the answer in that manner. You arc putting the answer in the witness's mouth to an unusual degree.
BY DR. KOESSL:
Q Did Rothaug advance material reasons for his suggestion?
A Counsel, I have already told you. Probably that was in accordance with his habit as a former judge.
Q Do you remember under what points of view the division for undermining of military morale matters was divided between Rothaug and Franzke?
A When in the spring of 1942 it became apparent that even an independent department was not able to cope with the large mass of work, I divided it and, as was our usual practice, so that the matter would be done in accordance with the material, that is objectively, in a way that one person worked on even numbers and the other on the uneven numbers. One was Rothaug and one was Franzke.
Q Did any one of the assistants who were given to Rothaug complain that Rothaug terrorized him or that he did not like to be in Rothaug's Division?
A I can only answer that as follows, that no prosecutor asked to be transferred from that division.
Q Did tho Reich Public Prosecutor in cases of undermining of military morale take into account the occasional prejudice of the local police officers and the denunciations?
A We had every cause to do so, and I already told the Tribunal here tho example from Karlsbad.
Q Did Rothaug report cases to you in which he had misgivings in the direction just stated and in so doing what a suggestion did he make to you?
A Since ho know every file very well, he realized very soon these weaknesses of individual investigations and he repeatedly suggested to mo to clarify those questions through personal interrogations, and I let him do that.
Q In that connection do you still remember a case from Nurnberg in which a wholesale dealer was denounced by a competitor?
A Yes.
Q Can you remember a case from tho territory of Hassfurt where a teacher and a Catholic priest were arrested by the Gestapo?
A Without having the files of that case submitted to me I cannot state any details from memory. However, I do know that in this case Rothaug went to tho place of action in that case.
Q Can you also confirm that there was a similar case in Naumburg?
A What did you say? Where?
Q Naumburg. Naumburg.
A Yes.
Q What do you know about the case von Braun in Ansbach? This case is mentioned in Exhibit 231.
A When the files of von Braun reached the Reich Public Prosecutor I put agree cross on them and immediately had tho case reported on to me.
Rothaug reported, he suggested to mo since he considered that it was very doubtful whether undermining of military morale existed in this case, and I agreed with him, he suggested that we again undertake interrogations in the place of action in order to get some basis for returning this case to tho People's Court. Apparently that was possible only because tho Special Court had not referred the case to the People's Court, otherwise this manner of proceeding would not have been possible, but they had only adjourned. However, tho case was not checked because in the meantime we received the information that von Braun had committed suicide.
Q What do you know about the Dr. Treuter case in Bayreuth?
A The Dr. Treuter case I still remember very well, because the way he was treated by high Reich agencies was, I may say, horrifying.
Dr. Treuter was the chief physician of the Winifried Wagner Hospital in Bayreuth. He was charged with undermining of military morale. And when one read the file one felt immediately between the lines that denunciation played an important part. When this file was submitted to the Reich Public Prosecutor it was accompanied by an ordinance which was due to the direct interference by Hitler and which said approximately that the Reich Public Prosecution should immediately conduct the investigations personally, that the indictment should be filed very quickly and that a serious penalty should be asked for. In order to carry out these investigations I sent Rothaug to Bayreuth. He returned and, according to the interrogations which he had conducted, there was no doubt that the proceeding should be stopped. He also submitted to me a long and well-founded order to stop the proceedings and I approved it and sent it on to the Minister of Justice for decision, as I had to do in this case.
However, the Ministry of Justice repealed this order and instructed me to file an indictment and to file it because of the undermining of military morale, to bring about a trial in Bayreuth and to order the defendant Rothaug to be present during the trial as representative of the prosecution and to instruct him that he should try to effect that a death penalty will be pronounced.
Since at that time the connection between Berlin and Bayreuth, that is to say, the telephone connections were so bad, I, in spite of that order, left it absolutely up to the defendant Rothaug what application for penalty he wanted to make in the trial. He asked for acquittal and that is how the court decided.
DR. KOESSL: Thank you very much. May it please the Tribunal, the Tribunal has suggested that the cases of the presiding judges of the Special Courts should be presented as a whole at the conclusion of the submission of evidence by the defense. This suggestion made by the Tribunal -
THE PRESIDENT: May I interrupt you, please? It has come to our attention that some, at least of defense counsel, would oppose that change in the order of the trial. If you will simply state your position briefly the Court will be disposed to follow your wishes as to the order of trial. In other words, we are not disposed to change the order of trial unless all of the parties concerned agree to it. Do you desire that the original plan be carried out?
DR. KOESSL: I wanted to request to carry out the suggestion made by the High Tribunal and this for the reason that, first, because of the material connection of the Special Court cases. It would probably be the most sensible and material regulation to treat the presidents of the Special Courts as a group and I would like it also because the Rothaug case is the largest which, in comparison with Rothaug's neighbors, has to be treated more seriously because of the greatest difficulties in procuring -
THE PRESIDENT: You favor the suggestion made by the Court; is that correct?
DR. KOESSL: I want to request to carry out the suggestion made by the Tribunal.
THE PRESIDENT: Do any other counsel object to it?
DR. SCHWARTZ: Dr. Schwartz for the Defendant Petersen. I regret, although I see and understand the reasons that Dr. Koessl advanced, I have to object to that ruling. The defense of the defendant Petersen has made its plans in accordance with the ruling by the Tribunal at the beginning of the defense case. The Document Book was submitted only 3 or 4 days ago and will not be completed before approximately 3 weeks. Furthermore, there is a witness from the Russian Zone, whose arrival is not certain yet and probably one can not count upon it before the three weeks are up. Therefore, I have to request that the old ruling be maintained.
DR. TIPP: Dr. Tipp for Dr. Barnickel. Your Honor, if I under stood the Tribunal correctly before, Your Honor thought that this suggested new regulation could be carried out only if the rest of the defense counsel would be in agreement with it.
And as much as I can approve of and understand the reasons which my colleague Koessl advanced, I am not in a position to agree to this regulation for two reasons -
THE PRESIDENT: You need not state your reasons. There appear to be objections by counsel for two of the defendants to what was made only as a suggestion by the Tribunal. We, therefore, will follow the procedure which was outlined at the opening of the defense case. The Tribunal withdraws its suggestion with some regret. Is there any other direct examination of the defendant Lautz? There appears to be none. You may cross examine.
CROSS EXAMINATION BY MR. KING:
Q Mr. Lautz, let me say at the outset that I have no objection whatsoever if you wish to refer, during the cross examination, to the question and answer memorandum which you used during direct. If you think that will be of aid during cross you are, so far as I am concerned, welcome to keep it before you.
Dr. Lautz, you joined the party in May of 1933?
A On the first of May 1933.
Q You have told the Tribunal that membership in the party did not mean that you approved of the program of the party. May I ask you if that is true, if you didn't approve of it, why did you join?
A I said that I had not been of the opinion that joining the party meant that one approved of the program of the party entirely, as also formerly, when one joined political parties, one did not approve of their program in every point. When I joined the party I did not know either that a few years later, I believe in 1936, it would be required of party members that they would give a personal oath of allegiance to Hitler.
When I joined the party I did not know about that.
Q And in 1936 when that personal oath of allegiance to Hitler was required, by that time you were sold on the party platform, were you?
A I gave that assurance.
Q That does not answer my question. I asked you if in 1936 when you pledged an oath of allegiance and loyalty to Hitler if at that time you approved of the principles for which the party stood?
A The point of the racial program I did not approve of, at least I did not approve of the form in which it was carried out.
Q Well, did you approve of the racial program?
A I told you I did not approve of it.
Q Let me ask you if you approve of this party program before you became a member; at least before you pledged allegiance to Hitler did you approve of Point 4, which reads as follows:
"No one but members of the Nation may be citizen of the State. No one one but those with German blood may be members of the Nation. No Jew, therefore, may be a member of the Nation."
A Yes, I knew it, I also stated that I did not approve of it.
Q Then what do you mean when you said you did not approve of the methods of carrying it out; the racail policy; did you mean by that that you did approve or did not approve of it.
A When the party program in regard to that point was carried out, first of all it was limited to excluding the influence of the Jews by removing them from influential positions in the state and in the economy.
Q Is that all you have to say on that?
A That meant at that time not what happened in 1944 or 1945 later.
Q Let me point out to you, Dr. Lautz, that prior to September 20, 1939 the attitude of the party toward Jews in general was well known by everyone, certainly you could not have been unaware of what the party intended to do about the Jews, when you took office; there is no doubt about that.
A Well, I did not maintain that I did not know it.
Q In other words, you knew what the party was doing when you took office as chief prosecutor, on the subject of the Jews?
A Would you please tell me what you mean by saying what the party was doing.
Q Certainly, I will be glad to tell you. You knew of the excesses in 1938, did you not, against the Jews in which their property was confiscated, they were thrust into jail without any cause whatever except for the fact that they were Jews; you could not have helped knowing that; could you?
A Well, I knew it. I knew it because as chief prosecutor I was concerned with criminal cases which included these events.
Q Yes. You read "Mein Kampf" did you not, before or sometime in the early days?
A I read the book "Mein Kampf."
Q Now, you said in direct testimony that you did not know that the party wanted war. You, of course, read the party program. It did not occur to you, I suppose, that may of the points in the program if they were carried out would probably very conceivably lead to war?
A One really could not gather that from the points in the party program, that the leadership of the state would in carrying out these points let it come to the point of the war which we have just lived through, at least I Ad not think so.
Q You could get that ideal pretty clearly from "Mein Kampf"; could you not?
A Mr. Prosecutor, you have to consider that the book "Mein Kampf" was written in 1924 and by a man who was under arrest; moreover it is in accordance with political experience that statesmen when they come to power put things differently and act differently than they have written previously; when they are carrying out an office of the state, that is in accordance with other laws than the writing of propaganda.
Q So you did not take much stock in "Mein Kampf" on the point of war?
A If I should be frank, after I had read the book I put it out of my hands with disappointment as I compared it with Bismarck's "Ideas and Memoires." I still maintain the same opinion today.
Q When were you appointed to your job as Reich Chief Prosecutor of the People's Court in 1 July of 1939, you said you had no idea that war would break out, you had no idea Hitler wanted war before you took office, but in September of 1939 war had started, if you did not want to accept the office under war conditions why then did you permit yourself to be inaugurated into office after war was well under way?
A I can only answer that in the following way, Mr. Prosecutor. When on 1 July 1939 I received the document that appointed me to the position, I really did not know that two months later war would break out and I can explain that to you. Immediately after I had received my appointment I went to the hospital to have an operation carried out and I therefore also postponed my vacation as I wanted to take it in the fall. If I had known that war was going to break out in eight weeks, I would have done it the other way around.
Q And how do you mean you would have done it the other way around?
A That I would have taken my vacation first and would have made sure that I had a nice vacation before the war broke out, more clever people did that.
Q But, that did not in any way effect your decision to accept the job which had been offered to you?
A On 1 July 1939 the question, Mr. Prosecutor, was no longer whether I would accept the position or not, the question had been decided eight months before, but at that moment I received the appointing document with Hitler's signature and that finished the matter. According to the regulations at the time, I could have asked that I be dismissed from the service of the state without salary or pension; but I had no cause to do so. And, frankly, I did not have the means to take that course of action.
Q You mean you could not resign after war broke out?
AAfter the war had broken out other laws prevailed for civil servants, then it became impossible to resign from office unless one provoked an open break and one refused to carry out the duties of the office irrespective of the consequences.
Q Did you ever hear of anyone being sent to a concentration camp for resigning, or being subject to other abuses?
A No, I did not maintain that either.
Q Dr. Lautz, before you took this job as Chief Reich Prosecutor, you had achieved considerable stature and eminence as a lawyer in the Reich. With that reputation you could have made even a better living in Private practice, could you not, than to continue on as a public servant?
A That is correct without doubt. If I had resigned from my office one way or the other and had become a practicing lawyer, I could have become a rich man in taking care of cases of undermining the military morale. But, I considered it more important to associate in a state office, less well paid, that no abuses occurred.
Q Well, this morning you testified that later on in the war, 1942 or 1943, you were very much disgusted, your conscience troubled you, you knew what was going on then and considering the question you decided that because of your indispensability you would not resign. In 1939 there was no question of indispensability, was there?
A I believe you misunderstood me. This morning I said that I had decided to remain in my office, that I had not made that decision for the reason that I thought I was indispensable but for other reasons. I never considered myself to be indispensable in my official position. Even when I was a simple prosecutor or general prosecutor, I was always of the opinion that I could be replaced. But during the later course of the war, this question was connected for me with the other question how this replacement would look like, that who would follow me. I considered it absolutely sufficient if one official would use himself in this hard job; I would hot have wanted a successor to do it.
Q So that in 1939 when war was already under way, when you took a job with the People's Court, which you knew to deal exclusively or largely with political matters and when your health was a great factor, you took the job in order to contract abuses; is that what you mean to say?
A No, you again misunderstood me. On the 1st of July 1939 this question was not yet acute for me. On that day I received the document confirming my appointment. I had no experiences as yet at the People's Court. I met these experiences only when I came there during the course of the years.
Q You said in your direct examination that before you took office you realized that the People's Court dealt largely, but not exclusively, with political matters. You must have known it.
A Well, of course, that it would not concern itself with thefts I knew, that is why I did not like this office, and if I did take it over I did so because I obeyed my Minister, whom I revered, and he probably had good reasons for selecting me particularly. If, Mr. Prosecutor, you would know the District of Karlsruhe, Lake Constanz, the Black Forest, and Heidelberg, you would probably believe me that only under force and upon urging did I give up that District. I did not do so voluntarily. Moreover, I probably would not be here today if I had not accepted the position.
Q Was it greatly to your financial advantage, Dr. Lautz, to move from your position in Karlsruhe to your position with the People's Court?
A My defense counsel submitted some documents about that. Through the office of Chief Reich Public Prosecutor I received five thousand marks more per year, but that these five thousand marks were not the decisive factor I submitted in evidence by stating that half a year before I had refused to accept the position as Senate President at the Reich Supreme Court which carries the same salary as the Chief Reich Prosecutor because I preferred to remain in the resort town of Baden-Baden rather than live in the city of Berlin.
Q Now, on the 1st of July 1939 when, as you say, you were committed irrevocably to taking the job at the People's Court, was it your feeling that in that job you could stand above political parties and remain distant from political life! I want to be perfectly fair with you, Dr. Lautz, that is what you said -- a jurist in Germany was expected to follow a principle of behavior, and I am asking you if, when you took the People's Court job, if you thought you could continue to follow those precepts?
A Mr. Prosecutor, first of all it is a fact that as Chief Reich Public Prosecutor at the People's Court I was much less subject to party political influences than ever before in any official position, because no Kreisleiter and no Gauleiter would have dared to interfere in these matters, because these gentlemen respected treason and high treason. But the influences of the state leadership - that is to say, the influences which came immediately from the top, from Hitler, via the Minister, to me - these were the decisive influences, but they were not party political, they were state political.
Q Is it your position that while you were at the People's Court you were not subject to influence by high party people, including Gauleiters?
A Nobody tried it. No one came to me. Whether the Gauleiters made the influence felt through Hitler, I am not in a position to know, but one can assume so, since after I heard the Stuergkh case here, and I also know it from the case of the Strassburg condemned prisoners, which I reported to the Court here. There, too, the Gauleiter made serious efforts to influence the trial through Hitler, but he did not make these efforts directly to me. For the Gauleiters I was a little man, too.
Q You don't recall the case where you turned a. couple of Jews over for execution, without trial, at the suggestion of the Gauleiter?
A No, I can't remember.
Q Let's have a look at that document. Dr. Lautz, if you will turn to pages 6 and 7 of the German edition, I might say that this is document identified as NG-1454. I would like to read, for the benefit of your memory, the last sentence in the last principal paragraph:
"The two Jews in this case", you. say, "who are in custody, shall at the same time be hanged by the security police at the place of their crime."
Do you find the place?
A Yes.
THE PRESIDENT: On what page is that?
MR. KING: That is on page 6 of the English version, Your Honor.
BY MR. KING:
Q Do you recall the facts of this case?
A May I please look at that in peace?
MR. KING: Certainly.
A Yes, but the report shows clearly that I did not order this at all. I could not issue such an order. The following was at stake here: The Administration of Justice could not concern itself with these two Jews since the 1st of July 1943, and the police disposed of them in this summer. I could not prevent them from doing that. I would have liked to have done so.
Q You say you would have liked to have done so. Yet in this letter in which you refer to other recommendations of the Gauleiter you, as Chief Public Prosecutor for the People's Court, with ample authority to do something about it, turned two people over to the security police without triad, for shooting. You say you would have liked to do something about it. Why didn't you do something about it?
A Where does it say so, that I turned them over? On what page?
Q You look on pages 6 and 7. In your copy it is on page 7.
A Yes.
Q If that isn't turning them over, I would like to know the definition for it. You don't think telling the Reich Minister of Justice that these men are, so far as you are concerned, eligible to be shot, is in no sense turning them over? Is that your position?
A No. You interpret that incorrectly, Mr. Prosecutor.
Q Well, let's have your interpretation.
A Yes. I filed an indictment, and I had to file it, to the extent as the offenders were not Jews.
Q Just a moment. You didn't file an indictment against the two Jews you are referring to in your last paragraph?
A No, I could not. In accordance with the decree of 1 July 1943 that was impossible. And, therefore, I inform ed the Minister of Justice, here in this report, what the Gestapo intended to do with these two Jews.
Q Anything else to say about that?
A The two Jews whom I did not turn over. Id did not have any jurisdiction over them at all.
THE PRESIDENT: May I ask a question, please?
WITNESS: Yes, Your Honor.
THE PRESIDENT: I am examining the sentence which immediately follows the one which the prosecutor has read to you. It reads: "I have requested the President of the People's Court to arrange a particularly early date for the main proceedings." Do you find that place?
WITNESS: Yes.
THE PRESIDENT: Did it refer to the two Jews mentioned immediately preceding that?
WITNESS: No, no. It does not.
BY MR. KING:
Q Do you have any more to say about this matter?
A Perhaps I may be permitted to look through the file a little more carefully and again refer to it during the redirect. I can only say that I did not initiate this action against the Jews, but the Gauleiter did.
Q And you followed his suggestion?
A No! This instruction by the Gauleiter, and this intention of the Gauleiter, I reported to the Minister of Justice in my report to the Ministry of Justice, not because I wanted to recommend it but so that the Minister of Justice would find out about it.
Q Dr. Lautz, I intend to offer this document as an exhibit immediately after the luncheon recess, to be Exhibit 537. But if you wish to comment on it before it is offered you certainly may have the opportunity to do so during cross examination.
THE PRESIDENT: Let the Exhibit be marked for identification at this time, 537.
We will take our recess until one thirty this afternoon.
(The Tribunal recessed until 1330 hours.)
AFTERNOON SESSION (The Tribunal reconvened at 1330 hours, 28 July 1947)
THE MARSHAL: The Tribunal is again in session.
ERNST LAUTZ (Resumed) CROSS EXAMINATION (Continued) BY MR. KING:
Q: Dr. Lautz, have you had an opportunity to examine further, or think more, about the exhibit 537 which was marked for identification just before the lunch recess?
A: I have looked at it.
Q: Do you have any further comments to make upon it?
A: The report of 11 December 1944, page 6, in my view reveals quite clearly the following:
First: The Reich Prosecution had filed an indictment against three persons. That indictment was handed to the Minister of Justice for his information in accordance with the regulations. When that indictment was handed to him, I, at the same time, reported on another matter to the Minister of Justice. I passed on to him a notification from the Chief Public Prosecutor at Koenigsberg. That information from the Chief Public Prosecutor at Koenigsberg, of which I notified the Reich Minister of Justice in the form of an extract, resulted in the following: Completely independently from the proceedings, the Security Police in Koenigsberg had arrested two Jews who had had some relation with the matter on account of which an indictment had teen filed, but who could not have been prosecuted by the Administration of Justice because the law of July 1943 was contrary to such prosecution. The Gauleiter and Reich Defense Commissar, in agreement with the Chief of the Koenigsberg Security Police, therefore, had decided -- and this is evident from the report -- that those two Jews were to be liquidated illegally.
I informed the Reich Minister of Justice about that. I could only have prevented it by going to Koenigsberg with a revolver in my hand and saying to the Gauleiter, "You can't do that, or you will be a dead man." Any decision on my part, or on the part of the Minister of Justice, on account of those Jews, was never made, and that does not show from the document either.
For the rest, the intention of the Gauleiter -- at any rate, I cannot see that here -- was not carried out in the way it had been planned, because page 2 shows that at any rate one of the condemned persons -- that is to say, one of those who had been sentenced by the Administration of Justice -- at the instruction of the Ministry of Justice, had hot been executed at the place where he had resided, but at Koenigsberg, in the prison. To that extent, at least, the Minister of Justice did not comply with the wishes of the Gauleiter.
Q: You are not suggesting, are you, Dr. Lautz, that the letter on page 2 has anything whatsoever to do with the disposition of the two Jews mentioned on page 7 of your copy?
A: No, no, but the Gauleiter had expressed the wish that the execution of the two prisoners in the hands of the Administration of Justice -- if they were to be sentenced to death -- that that execution should take place simultaneously with the illegal execution of the two Jews whom the Security Police wanted to execute, and evidently that was not done.
Q: And do you consider that a considerable victory for the Ministry of Justice, the fact that they were hanged in the prison rather than at the place of the crime?
Was that a considerable concession to have wrung from the Gauleiter?
A: No, that was not what I said. I only reported the facts such as they arc evident from the files; and as far as the matter refers to me, this explains completely that I had nothing to do with that illegal execution.
Q: Is that all you have to say on this case?
A: Yes, it is.
MR. KING: I offer the Exhibit 537, which is NG-1454.
THE PRESIDENT: The exhibit is received.
BY MR. KING:
Q: Dr. Lautz, you told me this morning that you had read the Party Platform before you joined the Party, or at least you had read it some time in the past. I wonder if you could tell me, just as a matter of information, what you believe, or what you believed, point 19 in the Party Platform stood for. I will read it:
"We demand that the Roman law which serves the materialistic world order shall be replaced by a German common law."
Did you give any thought to that at all in the years before 1939?
A: That passage in itself proves merely that it was a slogan, a propaganda slogan, and that the person who coined that slogan had only a very slight knowledge of the law. I understood that point to mean that the law which was valid in Germany, above all the civil law, which in many ways is based on concepts of Roman law, should be given a new shape, or a new language, which was to make it more popular, because those who knew the law of the Civil Legal Code realized that that language was hardly understandable at all to a layman, a man of the people.