The "Der Stuermer" really was the example to show how a scientific theory can be misused for political purposes. Naturally it existence was known to me. Everybody in Franconia knew the "Der Stuermer".
Q Do you know since when the "Der Stuermer" was being published?
A I cannot make any exact statements about that, but I believe it existed already when in 1924-1925 I came to Ansbach, into Franconia. In the closer vicinity of my home, in lower Franconia, one did not notice anything of the "Der Stuermer" at that time.
Q Did this "newspaper" play any part in connection with your official position?
A Never and in no single case.
Q Did you have any part in the trials connected with Streicher?
A I did not participate in these trials and did not attend them either officially or unofficially. At that time the Der Stuermer newspaper also was of some importance; it was the document which was the basis for the criminal offenses which were committed through the press, that is the Stuermer at that time.
Q Did you attend these sessions as a visitor?
A No, not either. I was so little interested in this whole affair, I don't believe that even politically, but rather medically it was interesting.
Q What was the general interest in the Palace of Justice for that affair?
A They were political trials which aroused the interest of the people. However, hardly anybody spoke in favor of it, because at that time it was always like this during political trials --- they made a mountain out of a molehill.
Q But now the Stuermer did concern itself with the racial question in effect.
A Yes, that is true, but the issue was how he did, but that point was how that the Stuermer did it, because in the way in which it happened, this question could only be brought into discredit as a political question.
Everything was aimed at having achieved political results among the non-political masses.
Q The prosecution asked the defendant Schlegelberger whether in 1933 the Stuermer existed in Nurnberg and whether you were in Nurnberg in 1938. What impression did the Der Stuermer make in 1938 on the broad masses of the Nurnberg population.
A In detail I could not observe that so carefully because I did not have sufficient interest in this whole affair, but I believe that already many years before 1933 hardly any inhabitant of Nurnberg, considered the Der Stuermer -- that the Stuermer was to be taken seriously.
MR. WOOLEYHAN: Just a moment. I object to the answer of this question on the grounds that it is not quite responsive to the question and something this witness couldn't possibly testify to. This is purely hearsay and some tiling that the witness cannot be expected to know from facts as to what the population of Nurnberg felt toward something.
THE PRESIDENT: He may answer the question.
A It is absolutely not correct that my scientific studies were limited to hearsay. Rather I was sitting in among these people and these people stated their opinions about this publication which before 1933 was quite openly regarded as a scandal sheet, and one could determine that the rejection of that newspaper was very extensive among the population.
Q Witness, what was the attitude of the party circles toward the "Der Stuermer"?
A I cannot say anything as regards the time before the seizure of power because at that time I did not have enough contacts with the party. I did known perhaps one or the other who was a party member, but I was not conscious of that at all. My observations refer to the time after I became a party member, that is to the time after the spring of 1938, and at that time it can be said quite generally for the party circles in Nurnberg, oven as regards the so-called old fighters of the party, that the newspaper Der Stuermer quite generally was rejected and was considered to be harmful; it is characteristic that this newspaper did not belong to the so-called National Socialist press, because this apparently -- but this is only an explanation which I have made myself -- they also did not want to become incriminated by the scandal sheet.
Thus, the Der Stuermer remained a private undertaking of Herr Streicher.
Q Did you hear anything about the Der Stuermer even after 1933 that it was prohibited by the police?
A Such prohibitions did become known to me against the "Der Stuermer".
Q Do you know where the Der Stuermer was published -- where the printing office was?
A Even I though I was presiding judge of trials in which comments published in the Der Stuermer were important, I could not tell you where in Nurnberg the Der Stuermer publishing company was situated. I don't know either who printed it.
Q Did you gain an insight into the financial aspects of the Der Stuermer? In affairs of a financial nature in the manipulations of a finance nature?
A In that connection I do not have any definite knowledge about details, but I do know that certain dirty money transactions were of some importance. Certainly the following is a fact and this is important for the question as to how the newspaper was judged before 1933 in Nurnberg. Before 1933 the Der Stuermer was an affair which was not very well financed, and it did not make a great deal of profit, for it was being discussed that Streicher who before that had been dismissed from State service, as a civil servant, was broke, when in 1933 the seizure of power occurred.
After a very brief period, however, it was generallydiscussed, spoken about, that Streicher was the richest nan in Nurnberg, and this is supposed to have come from circles who concerned themselves with taxation matters and the big income came from the Der Stuermer, but one must not believe that the attitude of the Nurnberg population in regard to this sheet would have changed, but one has to take into consideration that the victory of the NSDAP afforded Streicher the opportunity to publish this sheet almost all over Europe and that brought him money.
Q Did you hear of any other matters which made you reject this Der Stuermer in your inner-most self?
A Yes, above all, the fact that a part of Der Stuermer, that is the part concerned with religious questions of Jewry was being written by a full Jew. His name was Fritz Wolker, who until shortly before the war was one of the main co-editors in the Stuermer publication. I myself could not believe that, because I considered it impossible that a man like Streicher who to the outside world represented the attitude on the Jewish problem, that Streicher did represent, would, on the other hand, be able to employ a man here who belonged to Jewry, and to make his physically serviceable to him on the problem in which this man is to turn against his own people. I simply could not understand that. I even made careful inquiries and I know for sure, for I was told by the former police president, Martin of Nurnberg, who gave me documentary evidence to that effect, that this peculiar condition existed years after the seizure of power.
Q What did you find so despicable about this information?
A That Streicher was willing to use any means, even means which refuted his own ideas.
Q You already described once a trial in which you were presiding and in which the former Stuermer publication played some role. What trial was that?
A This was the trial against Peter Deeg.
Q Who were the associate judges?
A Oeschey and Engert.
Q Who was this Peter Deeg?
A Peter Deeg was the author of the book "Hofjuden" (Privileged Jews) that appeared shortly before the war -- perhaps two or three years before the war. The book was circulated extensively and propagandized. It appeared already before the war and was canvassed by very bad methods. These methods were applied especially during the Reich party rallies.
Peter Deeg was a protege of Streicher's, and moreover the owner of the only chair of professorship at the Berlin University for anti-Semitism; it has Been said that Streicher introduced Deeg there himself.
Q During the trial which took place Before you, what was this man Being charged with?
A There were canvassing groups who appeared as usual, and had used fraudulent methods and Blackmail methods of canvassing; among others By misusing the Red Cross. First of all the complaints against these canvassing agents were Brought, But after I studied the files extensively, I reached the conclusion that only Deeg could be in back of this whole affair. The investigations to that effect, in a certain respect let it be recognized that it was he. The matter was absolutely not one hundred per cent clear. However, we did prosecute it, and it resulted in a conviction.
Q What was the course that the trial took?
A The situation during the trial was very difficult. First, Oeschey who at this time was associate judge, was not convinced that it would Be possible at all to prove fraud. On the other hand he was of the opinion that in this case in particular, one would have to proceed with a great deal of severity. On the other hand, Engert, was opposed to the idea of applying the law against public enemies, and that was the idea that I represented. The trial itself, in our opinion, Brought unequivocable evidence in favor of the conviction for fraud; on the other hand, the point of view of the public enemy law could not be achieved by me because on that question they were opposed to me. Deeg was sentenced to, I Believe, one and a half or two years in prison.
Q How do you explain Engert's resistance in that case?
A It is difficult to say that today after I personally can no longer - have an objective attitude towards Engert and for that reason I would like to refrain from judging him in that direction.
Q Did this Deeg actually have the support of the party?
A He had such a strong support that even though he was convicted for fraud, with a considerable prison term, after he had served his term, he was again employed by the city of Nurnberg as though nothing at all had occurred.
Q Did this Deeg have a defense counsel?
A. Yes, yes.
Q Did he do anything to combat the sentence?
A Nothing was done against the sentence because I know that, because I would have liked it to happen only for purely scientific professional interest, because I was of the opinion that my opinion of the law, that the law against public enemies should be applied here to the utmost consequences, and that I thought I would have prevailed with this.
Q You have said that the party propagandized this book by Deeg. Was it not dangerous then to prosecute such a case in the light of the support he had from the party?
A This question was important already at that time. However, I was of the opinion, and that was a basic opinion of myself, under no circumstances should such trials be conducted behind closed doors, and thus Peter Deeg was tried at a public session where the population appeared en masse - as very other case.
Q Did you by chance treat Peter Deeg better than other defendants?
A I have answered that question already.
Q Did you arrest Deeg?
A Immediately when the case was going to be tried a warrant of arrest was issued.
Q What were the consequences of the sentence, in addition to the penalties?
A Of course Peter Deeg lost his professorship at the University of Berlin as professor of anti-Semitism. Moreover the book "Hofjuden" disappeared from the public.
Q What did this have to do with the Stuermer?
A The Stuermer publishing house was the distributors for this book. This can be seen from the inquiry made, namely, that Peter Deeg during one year earned 40,000 reichsmarks from that book, net profits.
Q When did this Deeg trial take place?
A It was during the beginning of the war.
Q: During this trial a special number of the Stuermer was introduced as Exhibit 155 as evidence as to what you arc supposed to have said against Katzenberger. When did you see this number of the Stuermer for the first time?
A: Here, during this trial. This Stuermer number was shown to me by Mr. Einstein. I had no knowledge of the existence of this article before that time. Moreover, I was not interested in what the Stuermer had to say about our work. Nor did I ever know any reporter who came to the court from the Stuermer.
Q: Then you had no connection with this article?
A: Not at all.
Q: What experiences did you meet here about the reporters who reported on the court cases in general?
A: They differed a great deal. The middle class newspapers, including the social--Democratic press, as I said before, made efforts to report objectively, even though they of course tried by throwing light on the situation to represent the case in accordance with their attitude. On the other hand, the Stuermer was always known, just as later on, for example, the "Schwarze Korps", to report on matters with a certain tendency - that is to say, the matters were cut up and were put together in such a way as they would bring about the highest effect on the public. Those are matters of general knowledge.
Q: For how long did the trial against Katzenberger last?
A: One and one-half days.
Q: Is it possible that in the report the lines of thought -- during the trial were reported approximately correctly?
A: It is impossible, of course, in a few lines in a newspaper to bring even the most essential points of the proceedings lasting for one and one-half days, But here this obviously is not the purpose; here it obviously was the aim to emphasize certain thoughts which were made for the purpose of the Stuermer to take them out of their context and to publish them among the population.
Q: The prosecution once asked the question of Schlegelberger whether in 1938, at the time of the so-called "Crystal Night" and the Aryanizations, you were here in Nurnberg. The question was answered affirmatively at the time. Therefore, I am asking you - did you at that time know the then Under Secretary Schlegelberger?
A: I did not know the Under Secretary Schlegelberger at that time. I saw him for the first time here at this horrible place, but probably as Under Secretary and Chief of the Personnel Department Schlegelberger will probably have known that in 1958 I was in Nuernberg.
Q: Did you at any time, or at any place, participate in an action against the Jews?
A: Here in Nuernberg, according to my observations there were three actions, I believe. One action was an action with yellow points - that was, I believe, 1933 and 1944. It must have been before my transfer to Sckweinfurt. At that time Jewish stores and private enterprises were marked with large yellow spots, and the reason that was given for that action, was, as far as I remember, that Jewery in the world exerted strongest influence on the German economic basis. Then there was an action, a boycott, but I don't recall any details about that one. And then there was what was summarized here under the concept of "Crystal Nights." That was this action of the 8th to the 9th of November 1938, I myself never and in no connection, participated in such an action. 7355
Q: The Aryanization lasted longer. Did you have any connections with, or any knowledge of it?
A: These events which occurred during the so-called "Crystal Night" became known to me for the first time on the morning when I left the tram car near this Palace of Justice in order to enter the building. There I met a barber who was living near me, and he told me everything that had happened during that night. I myself did not observe anything of these matters, only this matter was talked about a great deal, and from the very beginning I believe it was spoken of in a derogatory way, even in Party circles. It was not understandable that, because of an individual case, vandalism was aroused to that extent. That was the feeling which went into Party circles, and in addition one soon heard that this matter was disapproved altogether and was due to the initiative of Goebbels, I believe. In any case, in general one had the feeling that above, in the higher circles, this whole affair was considered to be very unpleasant. The Aryanization affair followed after that Crystal Night. What the interia was between them I don't recall, but one day, suddenly, it was talked about that in some cellars, rather numerous Jews were herded together, that real estate was being changed there, - sold, and that it was not honest at all. There was talk of beatings, but all those things that went on there -- this could be rumors just as well. Only some time after, I found out that this whole affair had brought strong waves also into the machinery of the Administration of Justice, namely in connection with the entries in Real Estate Register concerning those sales which were concluded in those cellars. At that time the then president of the District Court of Appeals, Doebig himself, gave me a rather careful report - that is, to put it more correctly, he told me about this problem and also about the fact that in Berlin his efforts against this scandal he had not prevailed.
However, I want to emphasize here expressly that what made people especially angry in connection with the Aryanization was the fact that certain circles who, by the way, had not even anything to do with the Nazi Party availed themselves of this opportunity to enrich themselves in a most unscrupulous manner.
THE PRESIDENT: Just a moment, please. I think the prosecutor has something to say.
MR. LAFOLETTE: Your Honor, please, tomorrow afternoon at one-thirty the prosecution will move the severance of the case against the defendant Engert. At that time I would like to introduce some testimony in support of the motion and ask that the Court to hear me at that time and I make mat statement for the reason that I want Dr. Link to be present. I will produce Captain Martin and Dr. Stern and I also would like to have some testimony from the Secretary General's Office.
THE PRESIDENT: Very well, then, that will be the order of procedure.
We will recess until tomorrow morning at nine-thirty.
(The Tribunal recessed until 0930 hours - 20 Aug 47)
Official Transcript of American Military tribunal III in the matter of the United States of America against Josef Aistoetter, et al, defendant, sitting at Nurnberg, Germany, on 20 August 1947, 0930-1630 The Honorable James T. Brand, presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal III. Military Tribunal III is now in session. God save the United States of America and this Honorable Tribunal.
There will be order in the Court.
THE PRESIDENT: Mr. Marshal, will you ascertain if the defendants are all present?
THE MARSHAL: May it please Your Honors, all the defendants are present in the courtroom with the exception of the defendant Engert, who is absent due to illness.
THE PRESIDENT: Let the notation be made; the defendant Engert has been excused.
You may proceed, Dr. Koessl.
DR. KOESSL: Thank you.
OSWALD ROTHAUG - Resumed DIRECT EXAMINATION - Continued BY DR. KOESSL:Q.- Witness, did you hear that during the Aryanization campaign pressure had been exerted on the judges dealing with the real estate registry?
A.- That was discussed, and it was said that the judges did not know as to what attitude they were to adopt.
Q.- As Gau Group Administrator, were you able to assist the judges and the public prosecutors?
A.- I don't know whether I held that position in the Lawyer's league at that time. At any rate, the judges who were immediately affected did not approach me; what I heard I heard by accident in conversations.
I could not have done anything beyond reporting to Denzler, who was the Gauwalter, or the Gau administrator, in those days, and I would have had to leave it to him to take the necessary steps with the competent political agencies. However, that would have been a useless effort, for Denzler probably was much better informed about all those occurrences that I and it is hardly likely that he would have been able to achieve anything with the local Gau leadership. For the rest, the whole of that question had become a question concerning the Administration of Justice.
Q.- However, it has been said that there was a law according to which the judges could have acted, and thus there was nothing that the Administration of Justice could have done.
A.- That is the point of view, in such critical situations which one is want to adopt. Naturally, there were laws for the judges which gave them the legal opportunity to refuse to deal with the transfer of real estate in the registry, a transfer which had come about by extortion. That was not a question at all in this connection, there was no doubt about that. The situation was much more difficult.
The events which had occurred here in Franconia amounted to a partial standstill of the Administration of Justice, and the characteristics of those events were that the judges were no longer able to act in the way in which they should have acted according to the law. The problems that arose from that cramped state of affairs could no longer be solved by the judges, but it had become necessary for the higher authorities -- that is to say, for the leadership of the state -- to take the proper steps.
As I stated here yesterday, I repeatedly discussed the situation with Doebig, and there is no doubt that Doebig had complete insight into the situation and was making serious efforts to bring about the proper steps by the higher authorities.
He too was very upset that he had not succeeded in doing so.
THE PRESIDENT: Your next question, please.
BY DR. KOESSL:
Q.- That is to say, you had no influence on that development?
A.- I did not have the slighest influence on that development, and I was, so to speak, an onlooker, just as everybody else was.
Q.- Did you have anything to do with the effects or the consequences?
A.- One must make a distinction here between the so-called "crystal night", as such, and the aryanization program as such. The destruction which was wreaked on that night was not prosecuted. However, very severe measures were taken against all those persons who had used that night to enrich themselves in some way or other. We ourselves tried such cases and we passed very heavy penitentiary sentences. The Aryanization program as such, however, did not fall within the competency of the Administration of Justice. We merely heard that police and party court proceedings had been undertaken. I do not know the reasons why such cases were not brought before the courts, but I do know that local agencies here -- as, for example, the President of the Police, Martin -- considered all possibilities, as far as possible; for passing on such cases to the courts.
Q.- As a judge were you able, in your official position, to take steps against the events that occurred?
A.- The position of the German judge was such that; according to the principle of the indictment, he could only take steps if the prosecution had filed an indictment with him, that is to say, on his own initiative he could not undertake prosecution or ask anybody else to institute such prosecution. His work always depended upon the prosecution -
THE PRESIDENT (Interposing): You have made that clear. You are just repeating yourself now.
BY DR. KOESSL:
Q.- Did you have any influence on the racial legislation?
A.- The racial legislation was promulgated in 1935. At that time I was an entirely unknown judge in Schweinfurt. I heard that those laws had been passed in the same way in which the man in the street heard of it.
I had nothing to do with it.
Q.- We will now revert to the question from which we started, that is to say, your occupation with the racial problem before 1933. You have said that you occupied yourself with that question since 1928 and that in connection with philosophical, psychological, and historical research. You have also said that in connection with the Jewish problem. What do you think is the most dangerous element in the racial problem?
A.- The racial problem has only one dangerous element: The consciousness of race produces a racial pride, and from that to racial arrogance is only one short step.
THE PRESIDENT: That is purely a philosophical discussion, it doesn't bear on this case at ail and we don't want to hear any more of it.
BY DR. KOESSL:
Q.- When you had penetrated into the racial problem in 1938, did you adopt the point of view of the "Master Race"?
A.- You shouldn't have said 1938, you should have said 1928, I did not take up that point of view, for my serious research into these problems showed not only the advantages but also the weaknesses of my own race.
Q.- What was your attitude, on duty and outside your duty concerning Jews?
A.- I am referring that question to the time prior to 1933. As penal judge and civil judge I had a great deal to do with Jewish attorneys.
Cooperation with them was no different from what it was with the German attorneys.
Q.- Were you ever, directly or indirectly, charged, with anti-Semitic tendencies?
A.- Such a charge was never leveled against me in those days.
Q.- Were you ever charged with being a philo-Semite?
A.- Before 1933 we judges in Nurnberg were particularly exposed to that charge because everybody who lost a case or a law-suit with a Jew probably thought that he had lost his law-suit because the judge was pro Jewish. The nonsensical question was once asked about me in a national socialist newspaper of Central Germany as to who was able to produce evidence that I myself was of Jewish origin.
Q. In your private life, what was your attitude toward Jews?
A. I neither had advantages, nor did I suffer disadvantages from Jews, nor was I pro-Jewish in the way that I might have thought everything that was connected with Jewry was good. For me the decisive thing was the person. I am sure it is merely an accident, but actually, before 1933, when I lived a very private life with my family in Nurnberg, apart from a purely Aryan family, I had social contacts with a doctor who was married to a Jewess; and regularly, once every week, I met an attorney with whom I had been friendly since our days at high school; and the woman doctor who was our family doctor was also a Jewess.
THE PRESIDENT: I seem to remember that this testimony has been given before. We are more concerned with the official conduct of this defendant, the charges against him, and not with whether he had a friend who was the husband of a Jewess.
DR. KOESSL: Yes.
BY DR. KOESSL:
Q. You mean to say, then, that your research into the racial problem had not caused you to draw any consequences as far as the Jews themselves were concerned?
A. That never occurred to me.
Q. I am now going to skip a few questions. Page 33, at the bottom.
Did you believe that there would be personal consequences for the Jews if the National Socialists were to come into power?
A. I did not believe in that because I did not assume that the Party program would ever be put into effect.
Q. Did you have any personal experience which made you realize that the Jews were in great difficulties? Would you tell us briefly, please? And when was it that that occurred to you for the first time?
THE PRESIDENT: Will you state to us in a few words what this personal experience has to do with the guilt or innocence of the defendant?
You are far afield. We see no relevance to the question at all.
DR. KOESSL: The Katzenberger verdict has been presented here by the prosecution.
THE PRESIDENT: And we are glad to hear anything which relates to the Katzenberger case. The Tribunal has never stopped you on a single word of testimony relative to that case. In fact, yesterday you announced that you were coming to the Katzenberger case, and from that time on we made no suggestion as to abbreviating your evidence. We have not heard a word about the case yet. You will be given full freedom to discuss that case.
DR. KOESSL: On account of the charges which have been leveled against the defendant in connection with the Katzenberger case, and because the defendant is supposed to have been activated by entirely different motives in passing that sentence, I have discussed the matter with him in order to eliminate that allegation of different motives.
THE PRESIDENT: You can do it by general questions, and you have done it.
BY DR. KOESSL:
Q. Witness, will you please refer to page 55, at the bottom of that questionnaire?
THE PRESIDENT: You had better read your questions out loud so the Tribunal will know what you are questioning him about.
DR. KOESSL: I only gave a little indication to him, because I am putting some of my questions out of their original order.
THE PRESIDENT: You can answer without the necessity of your memorandum, I think.
BY DR. KOESSL:
Q. In your affidavit you mentioned that it is difficult , particularly in the Jewish and racial question, to keep oneself free of mass psychosis --page 35, Exhibit 473. What did you mean by that?
A. My statements in my affidavit concerning that point are connected with the question of the application of the laws which are also mentioned there.
One solves questions of offense and evidence by sober, realistic considerations. It is a question of logic which can be dealt with by use of the law. As to actions where, within the meaning of the law, sexual intercourse may have occurred, and as to whether and to what extent blackout measures and war-time conditions have been exploited, even the particular serious offense covered by Article 2 of the Public Enemy Law, and--and this is the same--the particular disreputability of an offense under Article 4 of the Public Enemy Law. They are not questions which can be dealt with by the discretion of the judge, but they are the facts of the case, the basic facts of the case. That is to say, they are criteria of the facts of the case. As to the personality of the offender, the motives of the offense and the circumstances, the effects of the offense, the degree of aggression against the law and the gravity of the offense, concerning all those circumstances reasons have to be given which can be examined and evaluated according to the laws of logic.
Now, some people take the view that the increased scope of a penalty is connected with the sound instincts of the people, so that in effect people have been sentenced to death because they had erred against the sound instincts of the people. That is refuted by the text of the law, which is clear. All the same, it is important to realize what the functions of the concept of the sound instincts of the people are concerning the facts of the case under law. At first glance one can see that the facts of the case, under Article 2 and 4 of the Law Against Public Enemies, have come to grief as far as the technicalities of the law are concerned. Article 2 relates to the special facts of a case; Article 4 deals with all other facts of a case. Article 2 makes the death sentence dependent on the facts of a particularly grave offense. Article 4 appears not make that demand, it is concerned with less grave offenses than article 2.
On the other hand, an interpretation of Article 2, concerning the smallest theft in a blacked-out streetcar, leads us to sentence that with a penitentiary term in every case, and no doubt that was not within the meaning of the law, nor was it the purpose of that law.