THE PRESIDENT: All I was saying was that from Page 1 to Page 21 July M LJG 10-3 10 the Tribunal will not hear that read.
The question of whether Bormann is dead or not is a question with which you deal later in your argument, and the Tribunal will hear you upon that. But from Page 1 to Page 10, the argument does not deal with the death of the defendant.
If you will begin at Page 10, with the words, "I cannot" -it is the last paragraph on Page 10 -- the Tribunal will hear you.
DR. BERGOLD: I shall submit to the decision of the Tribunal.
Gentlemen of the High Tribunal:
I cannot and will not criticize the Charter. I wish merely to establish the feet that the Charter has created an unheard of novelty in the loyal history of all times and countries, the High Tribunal should carefully consider whether at the present stage of the proceedings it will enforce the right, granted by Article 12 of the Charter, to prosecute in absentia. Since a revision of the sentence is no longer possible, the proceedings in my opinion should be carried out only if by a corresponding application of the fine and clear principles of Russian law it is first proved that the defendant Martin Bormann is wilfully evading the court and secondly that the circumstances are not in any respect subject to the slightest doubt.
As the Charter does not stipulate more clearly when and under what conditions the Tribunal is to enforce its right, the latter must make a law for itself.
Owing to the incontestable nature of the sentence, the Tribunal's responsibility in this particular case is a heavy one. My opinion that the sentence is final, is also shared by the high Tribunal, as in the last phrase of the public charge against the defendant Bormann it is stated explicitly, that should the defendant be found guilty, the sentence will be applied without any further procedure as soon as he is apprehended. wilfully keeping away from justice. I think that as revealed by the examination of the witness Kempka it is even highly probable that the defendant Bormann is already dead. Witness Kempka has stated that, on the night of 1st to 2nd of May 1945, together with State Secretary Naumann as first, the defendant Bormann as second, the Standartenfuehrer Dr. Stumpfecker as third, and himself as the fourth in that order, he had tried to flee through the Russian lines by keeping close to theleft hand side of an advancing tank. Bormann was walking close to the middle of the tank, so the witness had the impression that Bormann's hand was holding on to the tank. That action seemed to the witness necessary in order to keep pace with the rolling tank. That tank, having passed anti-tank obstacles and having advanced some 30-40 meters beyond was blown up into the air, presumably by a direct hit of an anti-tank grenade. immediate vicinity of the tank just where Bormann walked, a darting flame burst forth from the exploding tank, knocking down Bormann and State Secretory Naumann walking immediately ahead of him. Thus Bormann found himself in the centre of the explosion which was so violent that the witness is convinced that Bormann must have died under such circumstances without a doubt. It cannot be maintained that Owing to the fact that the witness had escaped the violence of the explosion Bormann also must have been saved. It should be noted that Kempka was running behind the tank on the left hand side and thus was at a distance of some 4 meters from the explosion proper.
Furthermore, he had additional protection in the person of Dr. Stumpfecker, running in front of him, whose body was thrown against him by the explosion, serving as cover. Kempka has testified that Bormann was wearing the uniform and the rank insignia of an SS-Obergruppenfuehrer at that time. certainly have been wounded so seriously that it would have been impossible for him to escape. Unquestionably he would have fallen into the hands of the USSR troops who, according to the affidavit of the witnessKrueger, had already been quite close to the Reich Chancellery and had occupied it already on 2 May 1945 owing to the fact that the defenders had fled. With the loyalty the USSR is showing in these proceedings, she would have transferred Bormann to the High Tribunal for trial. the first of which, namely that the wounded Bormann fell into the hands of the USSR, has been proved not to be true; then only the second possibility can have happened, namely that Bormann lost his life. I am therefore of the opinion that I have proved with sufficient likelihood that Bormann is dead. is established with absolute certainty a man is to be supposed alive. This is a supposition which I, the defense counsel, would have to refute. A legal assumption of aperson being alive has existed in all countries of the world but only in the field of private law, and only for the purpose of regulating conditions pertaining to inheritance or matrimonial property laws. However, a legal assumption of a person being alive has only very seldom been stipulated, e.g. in Common Law and in the Prussian Law and even there it is contested. but instead only admits the declaration that a person is missing in the eyes of the law. Common Law neither provides a declaration as to the death of a person nor a special one as to a person being alive. Russian law permits already after a short period of time a declaration as to a person being missing in the eyes of the law, and this may be followed by the declaration of the person's death. But even in these stipulations no assumption can be found as to the person being alive.
fact that in the field of criminal law there exists no assumption as to a person being alive in any country. If, however, criminal law does not recognize such an assumption as to a person being alive, it is not my duty either to refute such an assumption as to a person being alive. It must be enough when such circumstances are proved by the defense as lead one through a reasonable evaluation of the usual course of life -- as I have already shown -- to conclude that a defendant is dead. defendant Bormann was proved with sufficient probability; in fact with such great probability that the proceedings would accordingly have to be suspended entirely and forever since the charter does not recognize a trial of dead persons. If there were such a thing as the trial of a culprit after his death the prosecution, according to all logic and reason, would have had to indict the real heads of National-Socialism. defendant Bormann is intentionally evading the trial as long as the possibility exists that the defendant is dead. It is correct that the Charter does not recognize such an assumption for the procedure against a defendant who cannot be found. However, the Charter is rather tacitunr on this subject and I have already stated that I am convinced that the High Tribunal should examine very carefully whether it should exercise its right in this special case of the defendant Bormann. Considering the finality of the verdict it seems to me fair and just in the case of Bormann to consider at least the general legal principle of all civilized countries by which a defendant must be guaranteed a hearing even if only after his arrest. Thus by suspending the proceedings one would avoid creating accomplished facts as long as it is still possible that Bormann's absence can be excused. section, expressly refers the Tribunal to the interests of justice which it should consider in examining the question of whether it intends to try in absentia cases other than where the defendant cannot be found. These interests of justice are not unilateral and are not directed against the defendant exclusively. True justice is always universal. In all laws of the world it demands that as far as possible in the eyes of justice the interests of the defendant shall be protected as well.
In the case of the defendant Krupp's illness, the Tribunal already exercised its right not to try a person in absentia. Even if this case cannot quite be compared with that of the defendant Bormann the decision should be considered in the present instance , too. testimony of the witness Kemka, one can by no means consider the fact as proved that the defendant Bormann deliberately stays away from the Tribunal, because however the matter is viewed, one cannot ignore the possibility that -- even if he had been saved and had not fallen into the hands of the Allies -- he may have been injured permanently and to such a degree that neither physically nor mentally he is in a position to surrender to the Tribunal. It is for this very reason that after thorough consideration I believe that in the interests of true justice the Tribunal should suspend proceedings against the defendant Bormann. principle which was formulated by the Russian law, namely that proceedings shall as a rule be permitted only if the circumstances of the case are no longer subject to any doubts.
The defendant Bormann is absent. He has not even been able to defend himself against the charges made against him. He has not been able to give me any information and I have not been able to find any witnesses who would have sufficient knowledge of the matter and who would be able to disclose to me any exonerating evidence concerning the accusations made.
Now as ever in the course of these long proceedings, Bormann's person and activity remained in that obscurity in which owing to his character the defendant already kept himself during his lifetime. The charges which many co-defendants have made against him, perhaps for very special reasons, and obviously in order to further their own defense and exonerate themselves, cannot for reasons of fairness, be taken as the basis of a judicial decision. The prosecution has already stated quite frequently through its representatives that the defendants would endeavour to throw the main blame upon dead or absent men for the acts which are subject to the Tribunal's jurisdiction. Some of my colleagues have followed these tactics of the defendants in their defense speeches.
Perhaps it was right to do all this. I cannot judge the matter.
Besides, I have no authority to form such a judgment. men if he had been present. Perhaps he would have been able to show that his entire activity was not the case for the happenings which the indictment deals with; furthermore, that he did not have the influence which is imputed to him as the secretary of the Fuehrer and the Party. chancellories, just like to the princely valets in the times of absolutism, has always been ascribed considerable influence upon their superiors, as it is in the nature of things that through the hands of such secretary must pass everything which can only be handled officially. But what in a modern State can evad the Moloch of bureaucracy? no case contain a definite indication that in the incriminating events and measures Bormann personally had effective and outstanding influence on the action and measures of the third Reich, of the NSDAP, and even of Hitler himself and of how strong that influence had become. official compilation "Instructions, Directives and Announcements of the Party Chancellery", page 228, presented as Bormann Exhibit No. 11 in my book of documents, it is stated that the party chancellery was an agency of Hitler, which he used to direct the party. Expressly emphasized is the fact that since 12 May 1941 Hitler had again taken over the full and exclusive direction of the party. The head of the party chancellery, at that time Bormann, had been charged to inform Hitler continually about the work situation at that time in the party, and to let him know of all circumstances which were important for the taking of decisions in party affairs. This had to be done according to Hitler's fundamental directives, and the determination of the latter, especially as regards their political aspect, the supreme chiefof the party had reserved for himself. matters concerning the home policy of the Reich leadership, and through this channel were sent up to Hitler all suggestions and information coning from below. whilst directives coning from Hitler were passed down byit to the lower levels.
THE PRESIDENT: The Tribunal will adjourn.
(A recess was taken until 1400 hours) (The hearing reconvened at 1400 hours, 22 July 1946)
DR. BERGOLD: May it please the Tribunal, I shall continue on page 19 in the center of the page. ly influenced at the top, but it is equally correct to say that a man in such a chancellery can play a purely formal rule as the head of a liaison agency if at the top there is a dictatorial autocrat who cannot be influenced, and the chief of the chancellery has no special ambition nor any special abilities have shown which of the two alternatives is more likely. It is obvious that seen from lower levels the head of the chancellery would appear influential even in the case of the second alternative because everything went through his hands, and because any blame for subordinates passed through his agency, and because all mistakes, which arose in the country with the other officials were reported there. These officials and subordinates, however high a rank they may have held, and even though in part they may have feared the chief of the party chancellery, -perhaps indeed only for reasons due to their personality or mistakes,- these are not the right people to enlighten us as to which of the tw alternatives described is the proper one. As long as does not appear and is not heard personally, the true part he played remains obscure. Nobody, even the High Tribunal, could ever pass a reliable sentence The whole case remains dubious. It remains dubious even in the individual points. I would like to demonstrate this by just a few examples.
My esteemed colleague of the defense, Dr. Thoma, has stated that Bormann prevented the defendant Rosenberg from following his policy. For this he referred to the memorandum of Dr. Markulls, submitted as R-36. But this document is nothing other than a comment on an unknown unproduced Bormann document.
Markulis declares expressis verbis, that he translated Bormann's formulations into the language of a simple member of the German civil service, and presented them more pointedly.
So, only Bormann could enlighten us in this case, and tell us whether he wished his writing to be understood in this way, or whether Markulls twisted the meaning and sense of Bormann's writing, so that only Bormann could disclos whether this writing, like almost all the Bormann documents submitted, did not simply transmit the utterance of a Reich leader or of Hitler. So this case, too, seems altogether doubtful. An explanation can hardly be expected. Furthermore, it must be pointed out that almost all the documents which the rposecution has gathered together in its document-book are in general mere reproductions and publications of a Hitler decree or a Hitler instruction. Bormann transmitted these instructions to the subordinate agencies with an accompanying letter, in order to inform the agencies concerned. This is an activity which like office work has to be done even in the most terrible tyrany and in they most reprehensible despotism, -how much more so in a modern state structure like the National Socialist Reich. Some man has to forward all the instructions and orders to the subordinate agencies; that is a purely formal activity. It could be done as well by a plain office boy as by a brilliant Reich-Leader. the famous document 057-PS, can only be considered as a transmission of a Hitle directive and opinion-, from such a method of transmission nobody can draw the conclusion that the forwarding party had an influence on the decrees, orders and decisions. It is possible, but its certainty has not been proved,. entirely clarified. Because if in the transmission of an order, according to chancellery routine, one could see any offense whereby one would even come to condemn the women who wrote such orders on the typewriter, the verdict of justice must judge different, the importance and severity of the punishment for such clerical work on orders, from that which should fall upon a man whose collaboration was a decisive factor in causing such orders and decisions, and who, by his influence and advice, led the chief of the state to deliver them. All this is not clear in Bormann's case, and remains dubious. The empty word of the co-defendants, whose motives can never be entirely unveiled, saying tha Bormann exercised great, even diabolic influence is no proof.
ding to the decree Of 29 May 1941, 2099-PS and to the decree of 24 January 1942 2100-PS, arranged for an exchange of correspondence between the individual Reichslieters and forwarded their desires and suggestions. As an example I mention documents 056-PS, 072-PS, 061-PS, 205-PS and 656-PS. Nobody can derive with certainty from these activities as a go-between, which were necessary from the standpoint of adminitrative work, the extent and true nature of Bormann's influence.
Further documents show that Bormann very often served as a mere stenographer, and took the necessary notes during Hitler's discussions with some of the defendants. This is proved by document L-221 concerning the annexation of the "Eastern Territories" and the Russian document USSR-172. But in any case such documents do not make clear whether and how he influenced during such meetings in such sessions the policy and the measures of the Third Reich. According to all rules, a stenographer has no influence at all. He only fulfills an automatic activity.
I would not like to be misunderstood in this. Far be it from me to dispute the fact that Bormann occupied quite an important position in the leadership of the Third Reich. But no clear view has emerged during this trial as to the real weight Bormann could throw into the scales or to what extent his importance was increased and inflated by the bad conscience of third parties, and finally of what his influence actually consisted. Statements of the other defendants, which were made for their own defense, do not constitute relevant evidence. At any rate, the document book of the prosecution contains almost exclusively documents like those I have just examined closely. Accurately speaking, Bormann only did what was legal in Germany. This is revealed in the documents I submitted, e.g. Bormann-Exhibit Nos. 2, 3, 5, 7, in which he repeatedly pointed out to party offices, that any illegal action against Jews was not permitted.
It is characteristic for Bormann's case that not even measures against Jews could be proved against him. He never did more than forward such instructions and bring them to the notice or publish them, as it was prescribed by the law and as it followed from his clerical position as party secretary. Even the great conference of 12 November 1938, which was held under the chairmanship of Mr. Goering and from which emanated a series of law against the Jews, is only connected with Bormanns' personality insofar as Bormann forwarded to Mr. Goering Hitler's instruction ordering that such a conference be held. In any case it has not been made clear at all what influence Bormann himself had on these questions. But how can a just Tribunal determine the extent of an appropriate punishment. for the part played, if the participation of the individual defendant in the offense is not clearly established?
Nobody can say that there is no doubt about the circumstances of the case. the Document Book of the prosecution that Bormann was one of the most zealous in the fight against Christian churches. Most of the documents quoted in the Trial Brief referred to this point. It is certainly correct to say that Bormann was philosophically and according to his attitude a violent opponent of the Christian doctrine. But, such a spiritual attitude in inself is neither an offense nor oven a crime before the whole of mankind, which embraces so many different conceptions of the world and the higher connotations and will perhaps give birth to many more.
In modern times there are countless convinced atheists. In other countries of the globe, too, there are officially recognized organizations which oppose the Christian interpretation of the world, and at the turn of our century there were big associations in many countries which had pure materialism as their philosophical system and the negation of spiritual things openly inscribed on their ba**er. No one can be punished for wishing to teach others the precepts of his ideology or for wanting to convert them to his point of view. The modern world still recalls the horrers of the Inquisition. Therefore, Bormann could only be punished if it were proved that he participated in a real religious persecution and not merely in an idealogical or for struggle. which the prosecution has produced against Bormann, namely documents L-75 and 089-PS, do not show that the defendant Martin Bormann in his official position undertook anything against the churches as religious institutions. The quintessence of document L-75 is contained in the sentence which says that from the incompatibility between National-Socialist and Christian ideology it must be deduced that any strengthening, of existing Christian confessions and any furtherance of new ones arising is to be rejected by the party. It is of no importance for what urgent reasons Bormann came to write such a sentence at the end of his letter. One need not discuss the fact that failure to strengthen a religious conception which one opposed on philosophical grounds does not constitute religious persecution.
Nobody is obliged to support a religious conception. It is not permissible to direct one's attention only to excited arguments, stating that a religion should not be strengthened, and to disregard the conclusions from such considerations. copy of this document, a copy which a Protestant minister by the name of Eichholz made out for himself. Whether the reproduction of the contents of Bormann's statement in this document is fully correct has not at all been proved. In any case the document in this form does not represent true evidence takes indeed a very definite stand against the church. It finishes, howeverand this is the only fact which should be considered for the verdict -- by saying that no National-Socialist teacher be reproached for teaching Christian religion and in such a case the original text of the Bible should be used; any new interpretation, comment or taking apart of the text of the Bible is to be avoided. Therefore, Bormann, despite his previous philosophical attack against the church, takes here the legal standpoint that the Christian dogma may be freely propagated. Could a more loyal action ever be expected of sucha strong opponent of a doctrine? measures either. The fact that Bormann on Hitler's order prohibited the admission of priests or of members of certain religious association to the party and that on Hitler's order he forbade priests to be appointed to loading positions in the party in order to prevent dissensions is no religious persecution. The fact that during the war he demanded that the church make the same sacrifices as the other institutions of the State does not represent a criminal measure for religious reasons. That within the closing of many lay institutions which was to take place in order to make a better use of human reserves of the nation he strove for the closing of church institutions, too; that within the limitation of the number of copies and number of pages of lay publications he wished that church publications be limited also does not come under the provisions of Article 6 of the Charter.
It is true that he let himself be guided in this respect among other things also by his anti-clerical attitude. But when otherwise the same measures were takne in Germany against other institutions and other publications, too, measures which as war measures were supposed to be only temporary, one cannot speak of an actual religious persecution. Not even Bormann's participation in orginating the persecution of priests has been submitted or proved at all. It results from ail documents that Bormann always adhered to the effective legal stipulations so that he, who as so eagerly intent on complying with Hitler's orders, certainly observed strictly Hitler's decree which directed at the beginning of the war that al measures against the church he discontinued. be really cleared up despite the numerous documents presented. Documents alone do not suffice to dissipate all doubts on the case. Especially with respect to the importance and weight of Bormann's share in persecution measures against the church it seems necessary to determine Bormann's personal responsibility. Thus, this fact also remains somewhat obscure. A basis for a just determination of the amount of punishment cannot be established. details. I think that the indications I have given are sufficient to show that oven the documents presented by the prosecution prove, in any case, only one thing with certainty, namely, that Bormann, in his capacity as chief of the Party Chancellery, held "as ordered by the law" an intermediary position in the clerical, secretarial dealings between the head of the Reich and the subordinate agencies and in the dealings among those subordinate agencies. Anything else is only an assumption which has not been definitely proved, in any case not with that certainty which must seem essential for the sake of justice in order to pass a verdict in absentia and without hearing the defendant, especially with respect to the severity of the punishment. Unfortunately, a legend has been woven around Bormann's personality, his activity and his survival. But for the sober judgment of jurists, legends are not a valid basis for a sure verdict free from any doubt.
all times and all nations in passing a final, irreversible sentence upon an absent defendant, I beg the High Tribunal to make use of its right to carry through such a procedure only after having considered the hitherto existing legal conceptions and especially when examining the case to consider the prerequisites set down in a particularly precise manner by the Russian law. I, therefore, expressly propose that the Tribunal decide to suspend the proceedings against the defendant Bormann until he is personally heard and can personally state his case, and that the Tribunal make no use of its right according to article 12.
THE PRESIDENT: I call on Dr. Kubuschok on behalf of the defendant von Papen.
DR. KUBUSCHOK: Before beginning my final plea, I should like to submit to the Tribunal a few interrogatories which have since been received and which have also been translated. Since I am referring to them in my final plea I would consider this a suitable moment for their submission.
THE PRESIDENT: Yes, Dr. Kubuschok.
DR. KUBUSCHOK: First of all I am submitting the interrogatory which has been received from witness Tschirschky as document No. 103. I shall submit the copies for the judges immediately, four English and two French copies. Tschirschky is the secretary of the defendant von Papen, who, at the time when he was in Vienna, had been called by the Gestapo in Berlin, and then emigrated to Great Britain, where he has presumably obtained British citizenship. With reference to the very numerous questions dealing with Papen's vice-chancellorship and his activities in Vienna, the witness has expressed himself in great detail and in many cases answered in the affirmatice. detail now. The copies submitted to the Tribunal will be sufficient. But perhaps I could quote the last paragraph from Question 1: "Regarding his relation to the NSDAP, I can say that during the time when I was working with von Papen, von Papen's attitude was negative and, in fact, a hostile one in every respect."
Question 3, Which deals with the safety measures adopted during the formation of the government on the 30th of January.
THE PRESIDENT: Dr. Kubuschok, the Tribunal does not wish to comment twice on the interrogatory. If you want to comment upon it to the Court in your speech, well and good. You comment now, as you put it in, and then presumably you may make some observation later on in your speech.
DR. KUBISCHOK: Mr. President, during the plea I will refer very briefly to this document. The special questions which are answered are not referred to in my plea. I will merely refer to my resume. I an not dealing With the question and answers individually.
THE PRESIDENT: Doctor Kubuschok, the Tribunal thinks the appropriate course for you to take is to put in these interrogatories now, and when you deal on them in your speech, you can refer to any particular passage that you want
DR. KUBUSCHOK: Yes. In its present written form, it is very brief. It is not even a sentence. It is an aside.
THE PRESIDENT: When you get to it -
DR. KUBUSCHOK: Then you want me to deal on it.
THE PRESIDENT: Yes.
DR. KUBUSCHOK: Very well. But on the other hand now, I have submitted to the interrogatory as Document 103. Then the completed interrogatory of Archbishop Groeber as Document 104. Groeber is connected with the Concordat. 0 0 I am also submitting interrogatory of Archbishop Roncalli under Document Number 105. And finally, the interrogatory from the Polish Ambassador Jan Gawrouski which is Document 106. These are documents the translations of which I have not yet received. I wouldlike to have the Tribunal permit me to enter any document, which, in spite of my pleadings, I have not been able to have translated. I have an affidavit from a foreign journalist, Rademacher von Unna. He had written a letter to my colleague. Doctor Dix, on the 29th of May, which arrived here about three weeks ago. What is of interest is mostly one paragraph. I should be most grateful to the Tribunal if I could read the paragraph over and so the Tribunal would be in a position to see if it is relevant, and if so, to permit me to submit the document. Then I would submit the original and the translation could be supplied as soon as completed.
THE PRESIDENT: You have not shown it to the Prosecution, yet, have you DR. KUBUSCHOK: I had submitted the German text at the time but now it has been in the translating department for two weeks and I have not been able to get it today.
I had already mentioned the document during the last session where we discussed evidence, and the Tribunal informed me that I should submit it on another occasion, when the matter came up for discussion.
THE PRESIDENT: Is it long?
DR. KUBUSCHOK: It is not long, it is a page and a half, and I really want to read the paragraph which is shorter than half a page. Only that paragraph is of real importance to me.
THE PRESIDENT: Does the Prosecution object to this?
MR. ELWYN JONES: I have not seen a copy of this document, but we have no objection in principal. I have not seen the document myself and it is a little difficult to give any opinion as to whether we would object, if we had the opportunity of examining it.
THE PRESIDENT: Dr. Kubuschok, perhaps the best would be for you to read the document and the prosecution can move to strike it out of the record if they object to it.
MR. ELWYN JONES: That would be quite a convenient course for the prosecution, my Lord.
DR. KUBUSCHOK: Well then, I shall read from that affidavit from Rademacher dated the 29th of May 1946, which was executed in 'Milan, half of the penultimate and the last paragraph. The executor of the affidavit in this communication is referring to a statement made by Von Papen which is worded as follows: "He, Papen, would however, not be deterred from his views by anybody and carried out his mission in the way that lie himself understood it. Merely to be an intermediary and peacemaker, and therefore he would throw anyone out of the door who would misuse him in Austria for obscure purposes. In this connection it is worth mentioning that a member of the Austrian Government, a Secretary of State, the name of whom I have forgotten, was making efforts to establish personal, but secret, contact with the special German Ambassador, in order to offer him his services for the German cause. Herr von Papen turned down this offer giving as his reason that he was refusing to participate in the conspiracies which were directed against the official policies of the Ballhaus Platz. He had attempted to cooperate openly and loyally with the Federal Government, and, he, on his part, would not use any other means as far as he himself was concerned."
As an explanation, I should like to add that the member of the Austrian Government who is mentioned in this is Neustadter Stuermer.
Your Lordship, Gentlemen of the Court: peace. With respect to time the prosecution limits the discussions of the facts of the case to the termination of his activity in Vienna. It admits that for the subsequent period, especially during his activity as ambassador in Ankara, no indications were found to support the accusation. In other words, according to this viewpoint Papen is said to have taken part in the preparatory actions for unleashing a war of aggression - which actions as regards time, -the prosecution has placed very far ahead, but he is not said to have actively participated in the immeidate preparations and in the crimes against thepeace itself.
The prosecution deals with Papen's activity as Reich Chancellor in the last pro-Nazi cabinet, with thepart he played as vice-chancellor in Hitler's cabinet until 30 June 1934, and with his activity as Minister Extraordinary in Vienna. It was faced with the task of proving that during this period preparatory actions for a crime against peace actually took place and that Papen in full recognition of these aims collaborated in the preparations. Since the counts of the indictment deal with a field of activity which is in itself a legal one and since the criminal element cannot be introduced into the individual acts except in the direction of their aims, judgment of the Papen case lies essentially in the subjective field. The prosecution is faced with the fact that Papen's own sentiments which often came to light and the policy which he actually pursued cannot be made to agree with the interpretation, given by them. Therefore, they seize upon the promise that he is a double-faced opportunist who has sacrificed his real sentiments or those displayed, to the existing conditions of the day and Hitler's will. In consequence, it must be the task of the defense to bring about an elucidation of his personality in order to prove that Papen's actions and statements constitute a uniform, consistent line and that his entire attitude de facto was such as to forbid connecting him with the offenses of the Charter; and that those of his actions which a re under discussion must have been undertaken in. pursuit of other aims than those which the prosecution thinks it can recotnize. Furthermore, the defense will outline Papen's entire political activity in its legality and within the frame work of this activity it will deal with the actions considered punishable by the prosecution and will finally submit counter-evidence showing that he actively worked against a political development as represented by the facts of the case brought forward in this Indictment.
away from the question of political suitability and correctness and if we accept the politician as he reveals himself to us with the opinions which he developed from origin and tradition. Moreover, an essential element in judging fairly willbe the elimination of that knowledge we have now received at the trial from later years and concerning this later period. themselves, and only then shall we obtain a clear opinion of what Papen could see and expect at that time.
The prosecution places the beginning of Papen's participation in the conspiracy on the 1 June 1932, the date of his appointment as Reich Chancellor. However, it gives no answer to the question from what circumstances we are to see Papen's entry into the association of conspirators which is alleged to have been already in existence. It is impossible indeed to give an answer to this.
Papen's activity as Reich Chancellor cannot either be regarded in the least as an activity in the sense of a Hitler conspiracy. The idea behind the formation of the cabinet, the entire leadership of the government during his chancellorship, and finally his departure from office are too clearly manifest, to allow us to read into them a promotion of Nazi ideas, a paving theway for National Socialism or even a participation in a conspiracy allegedly already on foot. The Papen cabinet was formed at the time of an unusual economic, political and parliamentary depression. Unusual means had already become necessary under the preceding cabinet. They were to be continued now in part on entirely new lines. In times of unusual crises a parliamentary legislative body probably always offers a certain difficulty.
Therefore, even in the days of Bruening's cabinet the Reichstag was almost completely excluded from legislation and for all practical purposes was placed in the hands of the Reich President by means of the Emergency Powers Law It was now thought necessary to work on new lines. A cabinet of non who were exports in their own field but who were not bound to any party, was to do away with these difficulties. Therefore, it was with this intention that the new cabinet was composed without the collaboration of parties. The tasks with when the now government was faced and the program necessarily resulting from the conditions of the time brought with then of necessity an attitude which was hostile to National-Socialism. Any wish to strike at the roots of the depression must involve a fight on the part of government policy against the roots which would lead to the growth of National-Situation. These lay in discontent over economic conditions and the political situation abroad. reconstructive work of any benefit if some modus vivendi could be found with the National-Socialist Party. Not only according to constitutional law alone had the party the power practically to paralyze every government activity. With nothing more than the possibilities it had as regards propagandistic influence on the masses it offered the key to a possible pacification of inner-political conditions, the first prerequisite for the start of far reaching economic measures. without anything of his doing and to his surprise, he was commissioned by Hindenburg to form a presidential cabinet. defense against the Indictment to the following details: previous parliamentary custom without any preceding consultation with the National-Socialist Party. Now pioneer economic laws with hitherto unknown financial commitments were decreed in order to fight unemployment and at the same time to eliminate the previous inexhaustible reservoir for the growth of the National-Socialist Party. The purpose of the new economic measures and the limited financial possibilities were the conditions for a great enlargement of the frame of these laws in time.