He also point out on this issue that the fact that German Courts, construing Law 10, have found that the Crimes Against Humanity therein defined were crimes when committed is of strong probative value upon this factual issue, if not controlling.185 We conclude that this court is competent to try the defendants for Crimes against Humanity as defined by Control Council Law 10 and charged in the Indictment and that the crimes so defined and alleged are valid and binding upon this Tribunal.
184-U.S. v. Flick, Case V, Tribunal IV (Tr. pp. 107-108).
185-The German District Court of Constance, on 20 Feb. 1947, tried and sentenced one Tillesen to 15 years, under law 10, for murdering Matthias Ersberger, in 1922. Deutsche Rechts Zeitung 1947, p. 267. The Court in the above case cited and followed the ruling of the highest French Court in Germany, the Supreme Military Court at Rastatt, made on 6 Jan. 1947, that under Law 10 crimes committed by Germans against Germans, even before 1933 may be Crimes against Humanity.
See also ruling under Law 10 by German Court at Aurich, in British Zone, sentencing a German to six years penal servitude for brutal assult against Jewish population of Leer during the 1938 pogroms.
In discussing Crimes against Humanity, we stated earlier that we would treat the crimes in two categories - those arising subsequent to 1 September 1939 as charged in Count III of the Indictment, and those occuring prior to 1 September 1939 which are charged in Count I of the Indictment. We do not predicate this division into categories on any other reasons than those found in the indictment itself.186 It is our position that Count III alleges the factual evidence of substantive crimes which are Crimes against Humanity under Law 10.
Count I of the Indictment, particularly Par. 2 thereof, sufficiently alleges the crime when read in connection with Pars.
4, 5, 6 and 7 in Count I of time Indictment. We construe the Courts ruling denying the existence of a substantive crime of conspiracy as a ruling which left intact all allegations in Count I sufficient in law to allege the commission of the substance of the Crime against Humanity. This being true, when we refer to Pars. 2, 4, 5, 6, and 7 of Count I, we refer only to those provisions which allege the commission of a Crime against Humanity and the guilty relationship of the defendants to the crime which are found in Par. 2 of Article II of Law 10 and which the court has left intact.
It is further our position that the date of September 1, 1939 charged in Count III of the Indictment is only a limitation upon the period of time within which proof of Crimes against Humanity may be made. It is not a limitation upon the substance of the crime as indeed 186- Since we don't find the words "in connection with any crime within the jurisdiction of the Tribunal", which were in the Charter contained in the definition of Crimes against Humanity, set out in law 10, it follows that the construction placed upon those words by IMT is no longer controlling.
First, there need be no connection with any other crime, particularly Crimes Against Peace, but also since this language is no longer contained in Law 10, the date of September 1, 1939 is of no legal significance.
Factually, the evidence shows that Crimes against Humanity in this case were connected with the prosecution of an aggressive war, but this fact is not urged as proof of an essential element of the crime, but is presented as evidence of strong probative value on an intent to commit the crime.
The Prosecution's position is that the substantive crime defined in Law 10 is subject to no limitation.
it could not be. Law 10 defines the crime and fixes its substance. It follows that in pleading a crime under Law 10 in Count III, the Prosecution does not limit the substance of the crimes alleged therein by alleging the date of 1 September 1939, but merely places a self-imposed time limitation upon the facts which it can present under Count III of the indictment.
From the foregoing reasoning, it follows that when Count I alleges that the defendants, subsequent to January 1933 committed Crimes against Humanity as charged in Count III, they fully and sufficiently advised the defendants of the substance of the crimes with which they were charged. The effect of Count I is to put the defendants on notice that if they did acts which constitute Crimes against Humanity, as those crimes are alleged in Count III; between January 1933 and September 1, 1939; they are charged with committing Crimes against Humanity which are defined in Law 10 as specifically charged in Count III.
CRIMES AGAINST HUMANITY - Schlegelberger As we pointed out in discussing the law controlling Crimes against Humanity, the plan and enterprise in this case is governmentally sponsored and under the evidence here, national in scope.
It is to murder, exterminate, enslave, imprison and persecute individuals on racial, political and religious grounds only. This means, as the evidence proves, that the plan and purpose of the Nazi State was to exterminate Jews, members of other European races which were inferior to Germanic stock according to the Nazis, and those who were opposed to Nazi purposes, including those opposed to the prosecution of aggressive war.
In this context, we find that the defendant Schlegelberger testified: "The Jewish problem was the central problem of the Nationalist Socialist State and the entire life of Germany was to be placed in line with that." (Tr.4409). He also testified that he personally had no anti-Jewish feeling, He stated correctly the laws of living in which decent people believed, namely, that all men are created by the same God, and that it is wrong for any race of people to set themselves above any other as a race. (Tr.4408-9) This is the same Dr. Schlegelberger who on the 29 October 1941 reported to his Fuehrer that he had turned the Jew, Marcus Luftgas, who had been convicted and sentenced for a term of two years, over to the Gestapo for execution.
187 This is the same Dr. Schlegelberger who cooperated with the Ministry of the Interior, the Reich Chancellory, the Ministry of Churches and the Foreign Office on proposing to go beyond the express provisions of the Nurnberg laws to prevent children of Jews, mixed Jews or unrelated blood from obtaining citizenship.
188 This is the same Dr. Schlegelberger who, with knowledge obtained in November 1941 that of the 20,000 Jews then in Berlin, 7,000 had been deported and that all of the Jewish lawyers had received deportation 187 - Pros.
Exh. 88, NG-287, I c l.
188 - Pros.Exh. 460, NG-891, V sup. 27.
orders,189proposed to Dr. Lammers at the Reich Chancellory that half Jews be sterilized as an alternative to going to the East.
This is the same Dr. Schlegelberger who on April 3, 1941 removed three judges who passed too light a sentence on a Pole for alleged rape of a German woman at Hitler's request.
The defendant Schlegelberger also testified that he was never fooled by Hitler (Tr. 4380),and that in 1939 he came to the conclusion that Hitler was a dictator (Tr. 4534).
But this is also the same Schlegelberger who on March 10, 1941 promised Hitler that he would correct sentences which were too light.
This is the same Dr. Schlegelberger who ordered, on three separate occasions, beginning in 1938, investigations into the record of three notaries who were not "politically right." 190 This is the same Dr. Schlegelberger who, on 24 July 1941, urged severe sentences against Poles and noted that "in five cases out of 9" where there were lenient sentences, the prisoners had been "shot while escaping arrest."
As this Tribunal knows, this record is replete with similar testimony. Dr. Schlegelberger knew that the national program, plan and central motivating force of the Nazi state was morally wrong and illegal under the laws of all civilized nations.
Dr. Schlegelberger Knew as early as 1939 that Hitler was opposed to any state in which order and development under law would be an accepted premise and that Hitler's regime was a dictatorship. But in the fact of all of this, he continued to act until he left his office; to support the racial policies and the dictatorial policies of the Hitler regime.
Furthermore, this record evidences the fact that Schlegelberger knew of the nationalistic program, and the program for expansion through aggressive war if necessary at the expense of every neighboring state which had any territory which the Reich coveted, and coveting, was de 189 - Pros.
Exh. 527, NG-839, p. 3 of exhibit.
190 - Pros.Exh. 436, NG-901, I Sup. 38 termined to take by force.
191In fact, there is not a word of his own testimony in which he repudiates the foreign policy of the Reich under Hitler. At most, he professes to be concerned about internal policy.
We should also measure properly his concern about internal policy. Time and again he expressed the thought that he objected to actions by Himmler, or Bormann or Goebberls, not because it was basically wrong, but because it intruded upon the authority of the Reich Ministry of Justice. He was more jealous of the prerogative of the Ministry of Justice, which under normal conditions is a commendable thing, than he was with opposing or taking any action against the advancement of Hitler's racial policy, the tightening of the grip of dictatorship, or the overrunning of neighboring countries. With the exception of the legislation set out in Groups 4 and 5 above in our discussion of the law of Crimes against Humanity, all of the legislation which was clearly designed to enable Hitler and those in authority in Germany to use the courts and the normal legal processes as a weapon for their racial policy and policy of domestic dictatorship, and their foreign policy of enslaving neighboring nations, was passed while he was Under-Secretary or acting Minister.
"We must conclude, therefore, that in addition to the specific crime against humanity which he committed in the Luftgas case, that he took a consenting part in and was connected with the government-sponsored plan to murder, exterminate, imprison, enslave and persecute individuals on racial, political and religious grounds which he professed to despise and which in his inner conscience he knew was wrong.
There was a duty imposed upon Schlegelberger to produce some evidence before this Court of real probative value that he was obliged to take the steps he took if he expects to present evidence mitigating his offenses. We do not believe under all of the evidence in this case that 191 -His speech at Rostock, Ex. 27, 075, Ib 1, approves the taking overof the Saar, and the Nurnberg Laws, among other things, and Pros.
Exh. 339, NG-420, VA 27, shows that he was fully supporting the taking by force of the Sudentenland and Exh.
522, NG-1513; Cross-exam,shows that he was apprised of the mobilization for war and was preparing a simplification. of legal procedures to go hand in hand with the aggresive war effort.
the Court can say that the evidence which he produced raises a reasonable doubt in the Court's mind. His defense substantially falls into two categories which are recognized the world over. One of them is the "this is a good boy who fell into bad company" defense, and the other amounts to this. If he had not worked out methods by which only five people could be killed, Hitler, Himmler, Bormann and Coebbels would have killed twenty-five.
The Prosecution believes that Schlegelberger had a conscience. It also believes that that conscience must still bother him because taking human life as so serious that a man can hardly be found to take a consenting part in and be connected with a plan, to kill 20% as many people as some other group proposes to kill, and believe that he is guiltless in the eyes of humanity and under the laws which human beings assembled in civilized society, enact for their protection and their moral advancement.
There is also one other story in the Schlegelberger myth that should be exploded, and that is that "after Hitler's April 26th speech, even I could not take it any longer and resigned in protest under the excesses which I was asked to participate in."
We wish to call to the court's attention two exhibits on this issue which will lay this myth to rest permanently. One is the famous Ex 75, 192(Pros Exhibit 75) which is the series of letters beginning on May 6th, running through to May 12, 1942, which Schlegelberger wrote to Lammers for transmission to Hitler. In the letter of May 6, with apparent dignity, the defendant addressed Dr. Lammers ad "Dear Sir' and stated that he had certain measures which he proposed to transmit to the Fuehrer for rejecting sentences which were not severe enough. He attemtps to retain his dignity, but even in this letter, the closing paragraph reads as follows:
"In view of the general situation, I would be particularly thankful to you for accelerating the matter.
"Heil Hitler!
"Yours respectfully "Dr. SCHLEGELBERGER."
192 - NG-102, Bk I C 43.
Prosecution Exhibit 525, NG-670, introduced in the cross-examination of Dr. Schlegelberger shows that on the 29th of May, Schlegelberger wrote to Goering saying:
"I am deeply indebted to you for your letter of the 8th instant. I will continue to keep for a year under lock and key the files of the deceased attorney at--law von Birckhahn in connection with the criminal proceedings and various civil law suits against Pieper and then have them destroyed after the removal of any deeds of execution and documents which may be among them.
"Assuring you of my special devotion "Heil Hitler!"Yours respectfully "Dr. Schlegelberger" This exhibit, the court will recall, contained a copy of a proposed indictment and papers involving Goering's brother with embezzlement from the Nazi Winter Relief Funds in 1934 and 1935.
Then returning to Exhibit 75, we find the Schlegelberger letter of May 12, 1942. This is addressed to Dr. Lammers, and in this, Schlegelberger refers to a visit to Goering at Karinhall, and to the support of Goering for Schlegelberger's plan of meeting Hitler's requirements for severe sentences. The letter closes with this paragraph:
"I would be specially grateful to you, dear Reich Minister Dr. Lammers, if you would present the matter to the Fuehrer main. I have the hope therewith that if the Fuehrer rejects the present handling of criminal justice and on the strength of your argument knows that the confirmatory proceeding is the only and safe remedy, he will not withhold this remedy from the Reich Minister of Justice.
"With best wishes and "Heil Hitler!"Yours very sincerely "Dr. Schlegelberger" We have here a man seeking Goering's support, paying a price for it by agreeing to hide evidence of unsavory transactions of Goering's own brother, and then asking "Dear Dr. Lammers" to see the Fuehrer again.
This is hardly the conduct of a man who is so disgusted by a speech made on the 26th of April 1942 that he no longer cared to have anything to do with the Administration of Justice in Germany. The truth of the matter is that Schlegelberger did not resign in disgust; Schlegelberger did all that he could to keep office. He paid for the support of Goering and he begged for the support of Lammers.
The Prosecution also claims that the defendant Schlegelberger is guilty of the Crime against Humanity, consisting of the persecution of Jews by his conduct with reference to the aryanization of Jewish properties in Nurnberg during the Program of 1938. Evidence submitted during the cross-examination of the witness Joel clearly establishes that more than 98% of the properties taken never were returned to their Jewish owner. It is true, only, that Gauleiter Holz was required to disgorge his personal gain and give it to the Gesstapo. During the height of this activity, the witness Doebig, who was then Oberlandesgericht president at Nurnberg went to Berlin and saw Schlegelberger, who was the Under-Secretary in charge of all civil matters and requested that the Ministry of Justice take action to stop this proceeding. Doebig pointed out that the officials taking acknowledgment of transfers of land knew that the transferors were being coerced. Schlegelberger defends this by saying that there was nothing he could do, that he could not issue a ministerial order and that new legislation was out of the question.
We ask the court to measure this defense in the light of Schlegelberger's removal of three judges who gave too light a sentence against a Pole and in investigating and obtaining the removal of three notary publics who politically were not acceptable to the Nazis.
The evidence discloses that Schlegelberger had the power to act. He didn't act. Certainly, having the power and the duty to act he must be held to have taken a consenting part in this program. It is equally certain that the depriving of people of their property because of their race, is evidence of a persecution on the ground of race.
The record in this case reveals a weak man who knew better, but he committed crimes knowingly, willingly and without coercion. As a matter of fact the Court also knows that Schlegelberger received RM 100,000 when he left and that in late 1944 Hitler agreed to make him a special dispensation and permitted him to buy a farm, even though food conditions in the Reich were such that under the regulations then prevailing, only export agriculturists were supposed to own land.
The record further shows that the RM 100,000 was on deposit to Schlegelberger's name in a German bank when the crash came.
The defendant is guilty. There is no evidence justifying mitigation.
MR. LAFOLLETTE: Miss Arbuthnot will continue to read.
MISS ARBUTHNOT: The defendant Herbert Klemm has testified. One would believe from his testimony that he was a shy violet, a believer in the constitution state, a man who not only never harmed a Jew, a Dutchman or a Pole, but never heard of any harm ever coming to them. Indeed, this a modest, unobstrusive, inconsequential believer in all things that are true and pure, working ardently among piles of Nazi dreck to cleanse the Aegean stables -- Hercules with Sir Galahad's heart.
The documentary evidence in this case, read intelligently, proves otherwise. It also proves him guilty not only of taking a consenting part in and being connected with the government sponsored program to commit Crimes against Humanity, but an instigator and principal in the program.
In 1935 Klemm came to the Reich Ministry of Justice where he had served under Thierack as a mere Second Referent. He had not passed his legal examinations with a grade which was outstanding, and by his own estimate of himself he was unassuming. Yet by the end of 1935 he was a General Referent for political matters. In April 1939 he was made a Ministerialrat and in September 1939 he went to war.
If this such an unobstrusive, unimportant man working on political matters, then why do we find that in December 1936 he was recommending five SA Leaders for lay judges of the People's Court,193and if he was only concerned with political matters in his relatively unimportant position, why is it that in June 1937 194there is sent to him Heydrich's agreement for the SS with the Reich Justice Ministry that Jewesses who committed Rassensohade should be taken into protective custody after their sentences had expired? (This 193.
Ex. 438, NG-229, VA 1.
194. Ex. 456, NG-376, V Supp. 7.
man who never heard of anything happening to a Jew). And, why was it, that in January 1939, while he ostensibly was still an unimportant referent for political affairs, he again was especially advised of the extention of the Nuremburg Racial Laws into the Sudentenland. 195 The answer is plain he was the planted man of the Nazi racists in the Ministry of Justice.
He had to be advised on these matters.
Now this "unimportant and unobtrusive" man and this undistinguished and rather dull lawyer went to war. It was an aggressive war and he knew but he is not charged here because of that. The revealing thing is this, that both the Forty Chancellery, Hess and Borman and the Reich Chancellery Dr. Lammers busied themselves urging the Ministry of Justice to send Klemm to advise and assist the iniquitous Ssyssjnquart in Holland.196It is also revealing that this same "unobtrusive and unimportant" man should be called for by Borman himself to come back from Holland to Munich to serve in the Party Chancellery which had been the deputy of the Fuehrer's headquarters.
The answer, of course, is that Klemm was not an unimportant figure but a very important cog in the machine of those who wished to carry out the Nazi program of extermination and persecution most effectively through the Ministry of Justice. It must be remembered that by this time the Party Chancellery had to approve all legislation.
Klemm came back by his own testimony in the Spring of 1941. He worked under Kloepfer but he was the head of the Legal Division III-C and, despite his denials, apparently was Borman's most relied on attorney. We find him busy there at his trade of aiding persecutions on racial 195.
Ex. 376, NG-767, VD 323.
196. Ex 528, NG-584, X-ex. Klemm-Klemm's personal file in the Reich Ministry of Justice.
and political grounds. On June 12, 1942, he approved, on behalf of the Party Chancellery the notorious Lautz recommendation that the German High Treason statute be made to apply against foreigners who had, on behalf of their own governments and before the war, done acts which were calculated to make it difficult for Germany to over-run their countries.
This, of course, is an atrocious concept of law. Klemm approved it enthusiastically.197Klemm would have us believe that he had nothing to do with the appointment of Thierack as Minister of Justice. Be that as it may, Thierack was the Party Chancellery's candidate, probably because Dr. Rothenberger was the candidate of Martin Borman's brother and the Borman brother feud is factual and real. In any event, it is very clear that the ascendancy of Thierack was a great victory for the BormanHimmler-Klemm forces in Germany and we find Borman sending out a notice to the Gauleiters and Kreisleiters and the other little party Leiters. This was done on the 27 of August just after Thierack had come into power and, between the lines, one reads this -- "We have our man in now as Minister of Justice. Anything you want out of the Ministry, just write the Party Chancellery and we'll take care of it, particularly through our friend Klemm who is a great buddy of Thierack's." In any event, this very "unobtrusive" man, Klemm, initialled this circular which Borman sent out.198 Klemm also kept up his steady past-time cf working on racial problems for we find him on the 9 of September 199reviewing the draft which was to make more severe restrictions against the legal rights of Jews in judicial proceedings and making a few suggestion of his own as to how this matter could be made worse.
This draft and the series 197.
Ex. 77, NG-412, Y C, 81 198.
Ex. 38, NG-541, I B, 26 199.
Ex. 204, NG-151, III H, 38 of conferences which followed it, led up to the notorious law of 1 July 1943 which deprived the Jews of all rights and turned them over to the police.
Klemm finally became State Secretary in January 1944 and now, since most of the Jews had been eliminated from Germany completely, we find him specializing in persecutions and exterminations on political grounds.
We have reviewed as extensively as we can in this statement the provisions of Prosecution Exhibit 252, NG-414, Book III, 1, pagel, the oft-referred to list of death sentences. We shall not review them again, but we do point out that in July 1944 Klemm decided that the sentences given at Stuttgart in political matters, as he reviewed political matters, were not severe enough and wrote a stern letter of protest in July 1944, demanding that exterminations be stepped up.200Also, in order to make sure that the Nazis could beat the German people themselves to a pulp in order to support the war, we find Klemm himself signing the decree which made mere negligence in the operation of any war plant or any act negligently done which affected the war effort, a crime for which the death sentence could be imposed.201But Klemm is still not satisfied and we find again that as late as March 1, 1945 he writes a denunciatory letter to Hamburg because they weren't exterminating people fast enough in political cases.
Klemm justifies all this in his own mind by saying that when Germany was fighting the war the people at the home front should be made to sacrifice. He ignores two things, one, that this was an aggressive war which he well knew, and that if the world can be a better place to live in, it must be a crime to drive people into supporting wars of aggression. The IMT so found and we follow their 200.
P. Ex. 178, NG-676, III E, 95.
201. P. Ex. 531, NG-1918, X-Exam. Klemm.
202. P. Ex. 474, NG-627, III Sup. 46.
findings. The documentary evidence in this case, therefore, not only establishes the falseness and the fraudulent character of Klemm's testimony, but it further shows that here was a man who willingly took a consenting part in, was connected with, and in fact, instigated the governmentally sponsored plan to murder, exterminate, enslave, imprison and persecute human beings, purely on racial, political, and religious grounds. This man, as we trace his caree, was always striving to make administration of justice a tool to carry out this philosophy. He is responsible for the crimes against humanity which have been committed and which are in this record, not only on the cases from the People's Courts at Nuernberg and Stuttgart, but from the documentary reports of Oberlandsgericht Presidents throughout Germany, the incorporated East territory, also by the records from the Peoples Court and the Special Courts which were created as a special favor for the people of Bohemia and Moravia, Austria, and the western over-run countries.
Finally we point out that early in May, a few days before the surrender, Klemm and his superior, Thierack, and one Franke, an official in the Criminal Division of the Reich Ministry of Justice, stood together near the Doenitz Government headquarters, and just before Doenitz issued the order of surrender Thierack, in Klemm's presence, ordered Franke to take false papers, assume a false name, and to go underground. Franke testified on the stand under cross-examination and he was not asked whether Klemm objected at any time to Thierack's instructions to Franke or advised Franke to do otherwise. We are not concerned with Franke's conclusions as to the reasons which prompted Thierack's action. We do, however, say that it has always been the law that whore the testimony shows an attempt to hide evidence of a defendant's actions, that this is evidence of guilt having probative value worthy of serious consideration by the court. It is the Prosecution's position that this is the final demonstration of perfidy in the saga of Klemm. He was perfect ly willing to see a man hide himself so that he could not be brought to testify against him.
He would not have done that had he not considered himself guilty of actions for which he could be criminally convicted by German courts as well as any international court which might be set up.
The record in this case demonstrates that Klemm is not entitled to be believed. He did not tell the truth on the stand. The court should take these facts into consideration not only in finding him guilty of crimes against humanity, but also it is our opinion that the court is required under the rules of evidence to disregard the testimony of Klemm in matters involving the massacre at Sonnenberg and the murder of Allied Flyers. He has repeatedly been proved to have made false statements on material issues in the cross-examination and this destroys his credibility for all purposes.
The defendant Klemm is guilty of crimes against humanity, as well as of the criminal responsibility for the massacre at Sonnenberg and the murder of Allied flyers.
ROTHENBERGER The rise of the defendant Rothenberger to power in Hamburg coincides with the rise of the Nazi Party.
We do not say that Rothenberger could not have achieved in time the high judicial office which he held. But it is reasonably obvious that his appointment as Chief of the Hamburg Administration of Justice in March 1933 by Gauleiter Kaufmann was not on the basis of his judicial ability alone for Rothenberger himself was then a man not yet 37 years old with little judicial experience. Within a matter of months after the seizure of power, as the evidence shows, Rothenberger began to warp the law, which he was duty bound to uphold, to fit the crimes and misdeeds of high Nazis in the district. We have seen how Rothenberger participated in covering murders, brutalities and other inhumanities, committed by Gestapo and SA men in concentration camps.
We have seen how Rothenberger removed courageous judges who tried to withstand the pressure brought to bear on them to conceal violations of the law, and we have seen that this defendant urged, encouraged and approved the judges who were his subordinates to join the Party, to participate in Party formations such as the SS in their capacity as judges and servants of the law. We were first told that Rothenberger and, in fact, the whole Hamburg Nazi hierarchy were friends of Jews and that little or no harm came to them even in the pogrom of November 1938. Evidence now before the Court and testimony by witnesses whose credibility cannot be denied have given the lie to these assertions. While proclaiming that he was a friend of the Jews, Rothenberger himself ordered, as one of his own witnesses has testified, that indigent Jews he denied even what little benefit the law could offer them at that time. Under Rothenberger's direction the Special Courts were made "court martials" - which is his own definition and limited to severe cases.
It is true that in the main these acts were committed and acquised in by the defendant Rothenberger prior to September 1, 1939. Nevertheless we ask the Court to take notice of these acts in order to be able to judge more accurately the capabilities and inclinations of this man who later was to rise to the second highest position in the Reich Ministry of justice.
The great bard has said "What is past is prologue" and so it was with Rothenberger. A decade in the Hamburg judicial system had not been idly spent. During this time under the aegis of the Party he rose from an unknown to the highest judicial office in the Hanseatic District, the "Little King" of Hamburg, as both his friends and opponents called him. Ability? Unquestionably. But this was a period in which ability alone meant nothing unless one had the proper Party connections. Rothenberger made sure that he was properly connected. An intimate of Gau leiter Kaufmann, friend of the notorious Gestapo head Streckenbach and a familiar figure to every other Nazi worth knowing, he achieved his position quickly and, once achieved, he secured it by remembering how he achieved it.
We have seen in the period from 1933 on for the next 9 years how Rothenberger cooperated with the men to whom he was responsible for his office.
We now come to the second phase of his career. Of the many notable documents in history, Pros. Exh. 27 203 will probably be one of the least remembered, yet in the legal history of Hitler Germany it indeed played a decisive role. This is Rothenberger's memorandum to Hitler, on the basis of which he was appointed to the position of Under Secretary in the Reich Justice Ministry, but it served a more significant purpose than the mree elevation of a scheming ambitious man to the position of prestige in high Nazi officialdom. When Rothenberger begam work on his memorandum, we do not definitely know, but we do know that it was completed on or before March 31, 1942 and that a copy of it was handed to Hitler's personal adjutant, Brig. Fuehrer Albrecht, who was a friend of Rothenberger's, for immediate delivery to Hitler. Even Rothenberger himself cannot deny and, in fact, admits that the document reached Hitler soon thereafter. It would have been strange indeed if Albrecht had not handed the memorandum to Hitler at once for that was obviously Rothenberger's purpose in giving it to him rather than sending it through regular channels. This too, Rothenberger admits. Reich Minister Lammers of the Reich Chancellery says that Hitler told him on the 7th of May that he had received the memorandum "some time ago". The plain meaning and ordinary construction put upon these words makes it clear, we submit, that the memorandum was in Hitler's hands long prior to the date of his speech directed against the judiciary. But now comes from the 203 - NG-075, IBI.
mouth of this defendant a strange denial. After carefully arranging a medium for sure and quick delivery of the document to Hitler, he tells us that he is morally certain that Hitler did not find time to read or until after the infamous tirade against the judiciary delivered by Hitler on 26 April 1942. Why, one may ask, is Rothenberger so persistent in this denial? The reason is not far to seek. Now, some five years after the occasion of the speech, which spelled the doom for the last remaining vestige of judicial independence in Germany, Rothenberger does not dare to admit responsibility for the forces set in motion by this memorandum. Like so many other of this defendant's denials, this one, too, does not stand up in the face of documentary evidence. In a latter from Albrecht to Rothenberger shortly after the speech had been delivered, (Pros. Exh. 536) Albrecht says, "The Fuehrer read your memorandum immediately after it was submitted", and in reply to this letter Rothenberger says, "Your letter brought great joy to me", and goes on to say, "I believed because of the Fuehrer's speech to be on the right track." What better proof could there be than these words of the man selected by Rothenberger to carry his work to Hitler?
There are two interpretations to be placed upon this memorandum. One is what Rothenberger now says he meant to convey in the writing of it; and the other is the clear impression which anyone, knowing Rothenberger' s background and the inexorable ambition of the man, gets from even a casual reading of the document. This memorandum cannot be read, knowing what we do about the defendant Rothenberger, without coming to the conclusion that Rothenberger was suggesting to Hitler that he should take over by direction and action the judicial thinking of the Reich. There is no other interpretation to be placed upon such phrases as "The Fuehrer should be the supreme judge" and "All judges must judge like the Fuehrer" and "A judge who is in direct relation of fealty to the Fuehrer must judge like the Fuehrer." The defendant Rothenberger is not so careless in his writing as to have unintentionally misstated his true thoughts when he wrote these words.
We have heard denials that this was not the interpretation he meant to convey; and have heard other denials from this defendant which have been proved to be deliberate falsifications of facts which were known to him. We have even heard him say that he did not know how the memorandum happened to get into Hitler's hands in the first place. He did not change his position until he sensed that we had conclusive proof to the contrary.
THE PRESIDENT: Miss Arbuthnot, we will take until eleven o'clock for our morning recess.
(A recess was taken.)