Court No. III, Case No. 3.
That charge had also been the subject of a comprehensive official investigation. As Faerber knows perfectly well it was discovered at that time that the charge made against me lacked all foundation and is untrue. It is also untrue that Attorney Michel at any time made such a complaint to me at an open session which I was the presiding judge. That is evidenced from the mere fact that in that case I immediately would have made that charge the subject of a disciplinary proceeding against myself. I would have been bound to do so, and in particular, that matter, if it had been untrue, would have resulted in consequences for attorney Michel; but none of that all happened.
Q Were the Ramsteck files handed to you at the Blaue Traube?
A They never were at the Blaue Traube.
Q Did you ever receive the wishes of Gauleiter through Haberkern concerning any trial that was pending?
A I did not even hear the opinions of the Gauleadership, nor can I remember a single case where the Gauleadership of Frankonia might have displayed any interest apart from the case which has already been mentioned of Stegmann, the SS-Gruppenfuehrer. In other words, such influence was never taken either directly or indirectly.
Q According to Doebig in the Ramsteck case, you were told that the Gau Leadership was not satisfied.
A Doebig did make a remark of that kind (in the transcript, Page 1866). To put it briefly, these were the facts. When the Ramsteck case had been decided upon, and it was sometime after that decision had been arrived at, Holz asked me to go to see him to reproach me on certain things. He described the verdict as a legal murder and asked me for an explanation as to what my plans were for the setting of that matter once and for all. I then told him that I was not worrying about that at all, but that I considered the verdict right for the rest, the Reich Supreme Court, too, had made the decision of the same kind.
Q You meant to say decided, you did say appeared.
Court No. III, Case No. 3.
A Yes, I did mean "decided." He told me that was the same idiotic nonsense as my case, and he became very rude. I told him that there was no point in discussing the matter on this basis. If he believed that criticism might be made, he had better approach the Reich Ministry of Justice. He did that, and wrote out a complaint of about 8 pages which he sent to the Reich Minister; and on those 8 pages, I was reproached with all sorts of things even to the extent of having blamed me for committing a legal murder.
Q Did the Gau Leadership in any case try to persuade you to pass a certain kind of verdict?
A The Gau Leadership did not do that in one single case.
Q The witness Elkar, English transcript page 2896 speaks about -
THE PRESIDENT: What page?
DR. KOESSL: 2896.
BY DR. KOESSL:
Q He mentioned that Haberkern above all, in legal questions, relied on the advice and the actions of Rothaug. Can you remember whether and in what cases Haberkern asked you for legal advice?
A with reference to the statements made by that witness, I thought about all those things for weeks, and I wondered whether at any time and in any connection Haberkern had asked me for my legal advice. I arrived at the conclusion that I cannot remember one single case in which Haberkern asked me for my legal advice, nor can I bring back to my memory any connections, any contacts where he might have been dependent on such advice from me for after all it would not have been a crime if he had put a question to me or to hear my opinion on the matter; but I cannot remember any incident of that kind whatsoever. There is only one point, and that referred to a personal matter. In connection with that, I have remembered something of that kind. Haberkern and his meat factory got involved in insolvency proceedings and finally a forced settlement was made. According to that forced settlement of the debts, he would only have had to pay out a certain percentage to the creditors. But subsequently Court No. III, Case, No. 3.one creditor asked for his debts to be paid out to him in full.
Haberkern called on me and asked me as to what attitude he was to adopt.
THE PRESIDENT: We don't care to hear concerning Haberkern's debts or any advice that may have been given to him, if any.
Q Witness, did the Party Offices in Party affairs have their own legal consultants?
A In this connection, one must point out that every Party Office, even the Ortsgruppenleiter, the leaders of the local groups, had their own legal offices. I had nothing to do with that matter.
Q. When were matters concerning legal questions brought to you?
A. Only if simultaneously they affected the interests of the Jurists League, and even then only if they affected the interests of the Gau Group for judges and public prosecutors.
Q. Did the Gauleitung take any interest in the general administration of justice?
A. I never noticed that the Gauleitung of Frankenia ever took any interest in the development of the legal situation.
Q. Did the legal situation play a decisive part in the Gauleitung?
A. I novel noticed anything of that sort.
Q. At the table at the Blaue Traube that has been mentioned here so often were there ever any discussions which have loon laid down previously ?
A. May I summarize my statement and perhaps say for the last time that I went to the Blaue Traube with the same intentions that other people had when they went there, and with which other people are in the habit of going to other pubs. As for conferences with agendas, they weren't held there for the simple reason that that would have been parliamentary. I met other people there, too, but I didn't meet anybody who went there with any political aims.
Q. Were official matters discussed there?
A. Not official, though Party matters were discussed there; but there, as I think happened in these days at every table in every pub, political things were discussed and the war was discussed. If somebody were task me today what we talked about, I would not be able to give an account of only one trend of ideas that we discussed there.
Q. Did you ever go to Haberkern with your own affairs, that is to say, to get any of your own wishes of a personal nature fulfilled?
A. I never bothered Haberkern on any matter of that kind.
Q. Do you know whether other people from your entourage asked Haberkern for his help on their own behalf?
A. I heard that they did.
Q. The witnesses Faerber and Elkar are of importance. They were examined here. Elkart Ins given an affidavit, Exhibit 411. Faerber had given an affidavit, number 151. The examination of Faerber is on page 1312 up to page 1466, and pages 1576 to 1546 in the English transcript. Elkar testimony is on page 2374 following in the English transcript. Before we discuss those matters, would you tell us what your relations were at an earlier time with these men? When did you make Faerber's acquaintance?
A. That was in 1937 when I was transferred from Frankfurt to Nurnberg. Faeber at that time was public prosecutor with the prosecution of Nurnberg. He was employed excusively in political criminal cases, that is to say, we immediately had official business to discuss.
Q. How did you yet on with him?
A. I was on excellent terms with him. His attitude in official matters was exemplary. He was industrious, he was conscientious, he was devoted to the cause, he had an excellent knowledge of the law, and he had a very good knowledge of the cases and decisions of the Reich Supreme Court. He was easy from a personal point of view, he was frank, open, and between him and myself there was confidence, and as far as I am concerned, it was honest confidence. And that confidence existed not only in official matters, but also in all other questions which eifected both of us. We were what is called "One heart and one soul." The only thing that I noticed was the fact that he was busy-body, and that his ears were aether long. By that I mean to say that inside the Palace of Justice there warn nothing he didn't come to hear about. He was informed about everything, and he was inclined to be critical of others; but I didn't think that was too serious, but I just thought he liked to make himself important. I didn't think ho had any evil intentions, and in effect, nothing much could happen because from the very beginning we reduced all the things he brought before me by 50%. He was always inclined to twist things m a certain way, but as I said, we didn't take that seriously.
Q. What did one think of his political reliability?
A. There were never any doubts about Faerber as concerns his political reliability, and by that I want to say that he, just like the rest of us, had a positive attitude toward the National-Socialist State. Naturally that did not exclude the fact that in one question or another, even in basic questions, too, he could have been of a different opinion, but that is natural. That we considered him politically reliable is evident not only from the fact that he was continuously employed on political penal cases. There were never any arguments in connection with politics. When I was asked by the Gauwalter to recommend a man as an assistant for the Office for Racial Policy of the Gau Leadership, I talked to Faerber. Faerber immediately, said that he would be willing and he said he would rather do that than what he had bone before; and as far as I know he did become assistant in the racial Office. And also from the other talks I had with him, I never gained the impression that he was a person who was against the Nazi Party. For example, he told me, and he told my wife, to, that his two daughters whom I knew were to go to universities so that they could eventually join the NS organizations in their Professions. Those were his ideas, and they were ideas about which he talked to me, and he thought along the same lines.
THE PRESIDENT: You have sufficiently developed the character sketch of the former witness. Let's get along to something else.
Q. The witness Faerber, English transcript page 1323, spoke of your connections with Haberkern and also mentioned it in connection with the Ludendorf movement. The Ludendorf movement was said to have been opposed to the Nazi Party. He said about in general and it is said, and I quote: "That there was a particularly close connection between Herr Rothaug and the Gau Inspector Haberker, and that close relation wcs the main reason why on tho part of the higher Party authorities no objections were made against Herr Rothaug."
Faerber says in describing a conversation with Denzler, and I quote: "That he, Denzler, had to remove certain difficulties among higher Party authorities, assertions against Rothaug because Rothaug was a follower of Ludendorf. However, he, Herr Denzler, had succeeded in convincing the Party authorities that Herr Rothaug, in spite of the fact that he was an adherent of the Ludendorf movement, was a judge for the Special Court of Nurnberg who was certainly working in the interest of the Party." Would you please explain the contradictions in the testimony of the witness Faerber who on the one hand said you were heralded into Nurnberg with Political music accompaniment, and who oh the other hand mentioned that you had had difficulties with the higher Party authorities for the overcoming of which you had alleged; required the aid of Denzler ad Haberkern?
A. I know nothing about those facts that Faerber mentioned here but I do know that such criticism about me was made and that criticism was levelled at me for the following reason: In connection with Oschey appointment to be Gauhauptstellenleiter - Main Gau Office Leader- a Gauleiter form the Reich Leadership of the Nazi Party appeared. He said that with the Reich leadership there were political misgivings about me. I was an adherent of Ludendorf and consequently I repudiated the ideology of the Nazi Party.
Oschey immediately told me about that and I know for certain that I informed Faerber about it. He mentioned it himself and mentioned my statement: "I am therefore not a revolutionary but a rebel." But the attempt to get rid of me by sending me to the East, that is not connected with this matter.
When, in 1937, I came to Nurnberg, for years I had had no contact with Haberkern for he didn't ever, know where I was. Consequently, he can have no connection with the criticism which is supposed to have been connected with my transfer to Nurnberg, I, myself took no steps concerning the alleged misgivings about the Reich leadership of the NSDAP on my behalf. Whether Denzler did wake any steps I don't know. That I was a follower of the Luddendorf movement was generally known, for I told everybody about it until the time of the castastrophe. I told everybody who wanted to hear about it. However, that had nothing to do with my official position. For in that position I had to obey the orders of the law, and I did not engage in sabotage.
Q. According to Faerber's account, considerable changes appear to have occurred in the relations between Ludendorf and the Party when Hitler called on Ludendorf in Munich. From that tine onwards, it had become noticeable that the Party was willing to receive followers of the Ludendorf movement.
A. Faerber mentioned that during his examination. In my view, no particular importance is to be attached to those facts.
THE PRESIDENT: The Tribunal is not interested in any further testimony concerning the Ludendorf movement. The Tribunal also suggests to you that after all it is conduct, whether that conduct be guilty conduct or innocent conduct, that the Tribunal is concerned with. We have hard a great deal about the relationship between Haberkern and this witness. We suggest that that has been sufficiently covered. It is impossible for any witness to more categorically deny any connection between Haberkern and Rothaug's official conduct than Rothaug has already done. He has completely denied it. Repetition won't aid his case at all. Let us direct our attention a little more to the issues of conduct.
DR. KOESSL: May it please the Court, I have only referred to these questions to the extent to which they had previously been discussed.
THE PRESIDENT: You need not explain any further. We have permitted you to inquire at great length concerning these personal relationships.
BY DR. KOESSL:
Q. On Page 1356 of the English transcript the witness Faerber mentions that you were a member of the Tanneberg League. Is thatright?
A. I was never a member of the Tannenberg League.
Q. When the witness Faerber mentioned the doubts which the Reich Leadership harbored for your political reliability, he said that the SD took, an interest in your remaining at Nurnberg. From the account of the witness Elkart, English transcript Page 2888, we know that approximately in May, 1940, you were called to a conference which was attended by Doebig, Denz and the SS section leader Friedrich, and that in that way you got into contact with the SD. What was the topic of those discussions when you joined in?
A. That matter was rather different. To begin with, Elkar came to me at my office. Then Obersturmfanniuehrer Friedrich called and also a Standarten Fuehrer, whose name I no longer remember.
All those three men belonged to the SS. Those three men told me that whey had come to call on me because they wanted to introduce themselves to me and they wanted to try and establish good relations between their office and the administration of Justice authorities.
Conditions in general were then discussed, in particular the fact that the Administration of Justice in certain press organs, above all the Schwarze Corps, was being subjected to continuous attacks. They considered that state of affairs undesirable, all the more so as they also knew that those articles were generally written on the basis of one sided information. They also asked for my opinion as to what I would think of all questions which arose here in Nurnberg concerning the administration of Justice, if they were to be dealt with, to start with, on a lower level before a report being made on a higher level. I thought what was a good idea. They asked me whether I would care to be the mediator. I suggested District Court of appeals and the General Public Prosecutor since, as it is, he has told me that they intended to call on those officials, to.
I would like to point out that the three of them had only called on me because Elkar had brought them along. As you know. Elkar has been with me for training as a Referendar. At tat time I had no idea what the SD was about and what its functions were. The conference with Doebie and Denz was along the sane lines and both men say the point and agreed that it was quite a reasonable plan which had been submitted to them. They suggested that it might be a good thing to let these matters be dealt with through me because the cases which occurred with me were cases which were to be treated later.
I would subsequently asked to attend that conference. I, myself and I think it would have been the same with even human being couldn't imagine, or anyway, couldn't imagine very well what was going to happen at that conference. That was the basis on which developments went along.
Q. What was Doebig's attitude to Friedrich's wishes?
A. I believe I have already answered that question, he was in favor of cooperation.
BY THE PRESIDENT:
Q.- May I interrupt. May I ask you a question. It wasn't entirely clear what you meant in your testimony. You suggested that investigations on a lower level should take place before the higher level. Investigations of what -- what kind of matters?
A.- Investigations is not the word I meant to say. I wanted to say that by negotiations -matters which concerned the administration of justice were to be settled on a lower level.
Q.- What kind of matters -- which concerned the administration of justice?
A.- What we had in mind was attacks which within the sphere of the party were made against the administration of justice. I can illustrate that by an example.
Q.- It is not necessary now. No, I understood you to act under this suggestion as an intermediary. Was that your word?
A.- That I was to become the intermediary?
Q.- Yes, between what parties or what groups?
A.- Between the SD and the administration of justice.
Q.- Yes. And then you said since these matters are all matters to be dealt with by me afterwards, it was reasonable that you should be the intermediary. Did you refer to legal matters?
A.- That concerned matters -- cases which might be brought before me or which ware already pending before me. Matters in which those agencies were interested for reasons of criminological developments, but they were not interested in the individual case as such, in its treatment, or in the decision.
Q.- And what was the lower level where the matters were to be first discussed?
A.- The main difficulties which arose and which gave cause to discuss this matter at all were made from up above -- from a higher level. A report was made on some occurrence or other to the SD; the SD passed the matter on to Berlin; from there it was passed on as a rule without having been settled or even examined to the press where it caused a great deal of sensation.
Q.- Was this lower level, to which you refer, the local representatives of the SD?
A.- Yes, naturally.
THE PRESIDENT: Go ahead.
BY DR. KOESSL:
Q.- Now, witness, tell us please, what was to be prevented by the discussions, the report to the higher level; what was it -- was it that things were to be clarified after the higher level had dealt with it?
A.- One cannot state all that in one reply in such a general way. With these questions it always depended on what the individual case was like; what the attending circumstances of the individual case was like; and it depended upon what the aims and object of the participants were, Without going into the matter of the individual case, it is impossible to give an objective answer.
Q.- The witness Doebig said, English Transcript page 1766 "it was only a great deal later when I had left Nurnberg that I heard for certain that Rothaug worked in the SD." Later, English transcript page 1865 to 1866, Doebig stated: He remembered that the SD Leaders Friedrich and Elkar made him a visit, but that he could not remember the subject which was discussed. Anyhow, he had never given an inference that the administration of justice would cooperate with the SD. That position did Doebig take?
A.- I have already answered that question when I said that Doebig was altogether in favor of settling matters in that way.
Q.- How often would Elkar call on you in the subsequent periods?
A.- He said on Saturdays, and that makes it sound as if he had come every Saturday, but that is quite out of the question. He came on some Saturdays, but sometimes weeks passed, or months, until he came to see me again about some matter or other.
As was the case with many other things that were organized within the sphere of the party, they dragged on and finally nothing much was done.
Q.- What did Elkar tell you during these discussions about the functions of the SD, regarding the state of the party?
A.- He told me, and I think that was probably right, that the SD as we saw it was an institution of the nature of an official agency; that is to say, it was an organization of the police type; its activities and functions can best be described as an agency that gathered the opinions of the people; one intended to find out what the people really thought on official measures taken by the government, that is to say what they thought about laws, about judgments, about other administrative measures, etc. Those reports were then to be evaluated and passed on to the competent supreme Reich authorities to enable them in their governmental transactions and measures, to remain aware of the thoughts of the people. In all these reports, therefore, what mattered was not to find out who the people were who were critical and undesirable, but, on the contrary, the intention was to find out what people were really thinking; and therefore, it was undesirable and prohibited, to prosecute in any way an individual who stated his opinion in this connection. That was roughly the scope of the functions of the SD.
Q.- In the English transcript at page 2912, the witness Elkar mentioned the official character of the SD. I am showing you a book, and would ask you to tell the Tribunal what the title is.
A.- The book is entitled Ministerial Gazette Ministerialblatt; it was issued by the Reich Minister of the Interior; it was oublished in 1938.
Q.- Please turn to page 1906. At the right hand corner you will find a circular decree by the Reichleaser SS and Chief of the German Police at the Reich Ministry of the Interior, dated 11 November, 1938.
Please read out Section 1 of that circular decree.
A.- Under the leading Police Administration, it says collaboration of the authorities of the administration with the SD was the subject of the Reichsfuehrer SS (SD) circular decree by the Reich Ministry of Interior, dated 11 November, 1938. Then, there is a file note. Then ---one: The SD of the Reichsfuehrer SS (SD), as information organization, intelligence organization for party and state, has to work in particular in support of the security police, and has to fulfill Important duties. The SD thereby acts on the instructions of the state. That necessitates close understanding and cooperation between the SD and t e authorities of the general and internal administration. In reply to inquiries by the SD, information has to be imparted therefore to the same extent as if such inquiries had come from a government authority. The official agencies of the SD, in the same way, are under obligation to reply to inquiries of the general and internal administrations.
THE PRESIDENT: It is necessary to recess at this time, until 1:30.
(A recess was taken until 1330 hours, 12 August, 1947.)
AFTERNOON SESSION (The Tribunal reconvened at 1330 hours, 12 August 1947)
THE MARSHAL: The Tribunal is again in session.
OSWALD ROTHAUG - Resumed DIRECT EXAMINATION - Continued
DR. KOESSL: May I continue?
BY DR. KOESSL:
Q.- Witness, what were the motives for which you met with Elkar and discussed matters with him?
A.- The main cause was that he knew me from his former training period.
Q.- You may continue.
A.- I said Elkar knew me since the time when he was in training, because he was assigned to me. He was by nature a very faithful person, and at the time when he was not yet with the SD, I was connected with him by purely human relationships. That is how it came about that at that time, after the had taken up service with the SD and a connection with the Administration of Justice and the SD was sought, he came to me first, for I was known to him; and that is how, in the subsequent period, the entire relationship was purely a matter of comradeship. This is shown best, perhaps, by the fact that one day Elkar informed me that he would probably be transferred to the RSHA in Berlin for further training. Thereupon I told him that in that case I would also discontinue my activity because I would not start all over again with a new man.
Q.- What descriptions did Elkar give you about the further handling of the SD reports in Berlin?
A.- He said that the information which I gave him -- which was usually an opinion on problems which were connected with the collection of comments from the people -- he would incorporate into his reports. These reports would then, in Berlin, be divided according to whichever parti cipating Reich agency was interested and nut at the disposal of those offices.
Q.- Did you have an insight into questions and tasks which were outside of the Administration of Justice?
A.- I did not gain any insight into those questions.
Q.- Did Elkar tell you anything about the activity of the SD Einsatzgruppen in the East?
A.- No, I only found out about that now.
Q.- Did Elkar speak to you about the so-called final solution of the Jewish problem by extermination, execution, or gassing?
A.- No word was ever spoken about this. I do not believe that Ellar was informed about matters of that kind either.
Q.- Did Elkar tell you about individual SD Fuehrers being entrusted with special tasks, as, for instance, the feigned attack on the Gleiwitz radio station, or similar undertakings, which were the subject of the IMT Trial?
A.- Matters of that kind were not discussed among us. The examples you have cited became known to me only here in Nurnberg in the course of this trial.
Q.- What was the basic line of your conversations with Elkar, or the basic topic?
A.- As I have already stated, the conversations were mainly on problems which were raised by opinions which were gathered from the population. That then led to problems of a general nature, for example, the general development of war-time criminality in one field or another.
In general, that was the direction in which our conversations developed and that was also the aim of such conversations.
Q.- Could everything be said in such conversations without restrictions?
A.- I believe that that was the only possibility at that time in Germany where a person could say exactly what he was thinking; and the reason for that is because, in this connection, in particular, only the truth was at stake for they were interested in finding out what the population was actually thinking in regard to certain events, measures, laws, speeches, judgments, etc.
Q.- Do you know in what form these reports were forwarded?
A.- That is not known to me; I never read such a report.
Q.- According to Elkar's testimony -- English transcript page 2E?0 -- you directed your attention to the development of criminal and penal proceedings. What ideas did you represent?
A.- I believe I have already stated my position on that question. I do not remember a great deal in detail regarding what was discussed at that time. One question, for example, which interested us and which demonstrates how we came to speak about these matters and what opinion we represented is the question which was frequently discussed in this trial, and that is the contact of the prosecution during the trial with the court because of the application for penalty. Opinions from circles of lawyers and judges, and from the prosecution, were gathered for this purpose at that time. I myself represented the opinion that this problem grew into a problem only because it was treated in a wrong manner on the part of the Administration of Justice. The entire question could be solved by a small remark in the "Deutsche Justiz", namely, by pointing out that the law does not provide that a formal application has to be made and therefore it would have been sufficient to instruct the prosecutors to refrain from a formal application for penalty and to be satisfied with adducing the evidence and then stating the reasons which spoke for and against the defendant. With that, the entire excitement and fuss which was caused by the formal application for penalty could have been avoided.
Q.- What reason did you give for this suggestion?
A.- The reason which I have just explained.
Q.- What course did your conversations take? It was pointed out several times that the matters of the SD were treated secretly.
A.- In my case the matter was quite open and free, in my office. Elkar came into my office, sat down on a chair -- or sometimes he remained standing -- and told me what he wanted to know, whereupon I stated my position on it. During that time the rather lively traffic that rent through my office continued. Officials went in and out, and my associates too came in time and again and even frequently participated in the exchange of opinions on the problems that were being discussed. Thus there was no secrecy connected with this matter.
Q.- Elkar alleges that you have also talked about pending trials and had discussed also the facts as well as the legal situation and future judgment. English transcript, page 2891. Was the name of a defendant ever mentioned as long as trial was still pending?
A.- The names of defendants never played any importance in these conversations. The manner of expression was general. The individual cases, as such, were of no importance at all and their outcome even less so. It is possible that in the most infrequent cases - as an example of a definite criminal deed, in order to demonstrate for example the method of the consequences of this crime and to use it in the discussions of general questions, that an individual case was mentioned, by not in a single case was it like this that Elkar ever was interested in a certain pending trial or even wanted to get some information about the final outcome in advance such an evaluation was not possible in practice at all for the decision could be given only on the basis of the trial, after it was concluded. Thus, Elkar's activity was not aimed at such a goal.
Q.- By mentioning an individual case, did you ask for the opinion of the RSHA in order to find a basis for the political evaluation of the offense?
A.- Never. I had no connections whatsoever to the RSHA. Moreover, such a method, even in the Third Reich, would have been an absolute impossibility and it was never alleged that this occurred.
Q.- Did you, in any individual case, receive an instruction from the RSHA or a recommendation to direct the trial in a certain direction under a certain point of view, or to pronounce a certain definite penalty?
A.- This too was never alleged so far. Such a procedure too would have been an absolute impossibility. No office would have dared to suggest anything of that nature even.
Q.- According to the English transcript, page 1720, the witness Ferber said that the SD did not interfere in a pending case, but he made the following restriction, and I quote: