His directives subsequently became indispensable in most cases and the Ministers are referred to then. The picture given by the Prosecution of the efficacy of a closed community assembled in Cabinet sessions is thus considerably altered. An entirely new State system has been put in operation, an absolute single, supreme direction in the person of Hitler, and intermediary level introduced by Hitler and subordinate only to him, in the form of the newly created institutions discussed above, led by men who were not all members of the Reich Government as defined by the Prosecution, and, as executive agencies who in this organizational structure ultimately and naturally became restricted solely to their own field of work. prohibition of absolute secrecy decreed by Hitler has to be considered. No Minister was to know more than was absolutely necessary for him to carry out the task specially assigned to him. Even proceedings in his own department could be kept secret from the Minister. I refer to the affidavit of Harmenin from which it appears that the preparations for the intended war with Russia were delegated to the State Secretary ever the head of the Minister who was ordered to keep it secret from his Minister. It could not be made clearer that Hitler revealed his plans only to these to whom he entrusted their execution, independent of their position, and these whom he considered specially suitable for it. interest, concerning the entire Cabinet, is here shifted to a department and considered as their exclusive task. What in itself should be an affair of the Government is simply labelled an administrative task, which is then dealt with by simple administrative instructions. This discharge is made behind partition walls of the Department over which no other Minister has the right or opportunity to peer. As a special example I refer to the treatment of concentration camps and the later so-called "final settlement of the Jewish question". By virtue of a special mandate issued by Hitler, Himmler handled this question as a pure administrative concern for which his department was competent. Also in this departmental affair the basic prohibition of secrecy was valid against the other Ministers.
This development must be considered as opposed to the prosecution's opinion that the entire cabinet from the very beginning had worked with Hitler in planning the illegal war and its results and had carried on its execution. Under no circumstances could one establish the necessary close and confidential collaboration of a conspiracy being in accordance with the shown development. Hitler's endeavor in every way to curtail and control the Ministers' field of responsibility, his endeavor to replace the total responsibility of the cabinet by a leadership if the individual department, the establishment of super departmental control offices outside of the cabinet, his endeavor finally, to prevent also the personal contact between the ministers, coincides in no way with the thesis of the prosecutions. examine the question if and when the circle of persons, circumscribed by the prosecution, can at all have conceived the decision for the planning and execution of the Charter crimes. assume this to have taken place as early as 30 January 1933, the day the Cabinet was formed. It could logically be assumed that already the purpose of the founding of the Cabinet was criminal. To this question I only need to say little and essentially refer to the statement which I made in defense of the defendant von Papen. I would like to complete the reasons mentioned therein, by adding the statement which Bruening made in 1932 to the Minister Count Schwerin-Krosigk. I refer hereby to my affidavits Nos. 1 and 3. Bruening as the then responsible Chancellor of the Reich then already admitted the impossibility, owing to the continuance of the economic and political state of crisis, to govern permanently almost exclusively with the emergency powers of the Reich President. He declared that the agitation of the NationalSocialists could be usefully fought only by obliging them to take responsibility It is interesting that this responsible-minded statesman, confirmed at such an early date, that which half a year later, after the failure of all efforts to avoid this consequence, because a fact.
the constitutional necessity of forming government and the unhomogeneous composition of this entity must in any case exclude a criminal intention in the formation of the government. In addition I would still like to say, that negotiations with individual members of the Cabinet have only taken place on a very small scale, that a great number of members were taken over in the new Cabinet because of their former membership to the government, only by the desire of Reich President, von Hindenburg. To admit the existence of a criminal act in the foundation of the Cabinet would be opposed to the fact that Hindenburg who constitutionally was responsible for the formation of the Cabinet and as a matter of fact was very active in doing so, is not mentioned in the personal statement which the prosecution has given in Appendices A and B. As moreover deceased members were also mentioned by name and the circle of the Cabinet members was not outlined according to formal constitutional law but by practical view points, I believe I can deduce from this fact that as a result the Prosecution does not consider the foundation of the Reich Cabinet on the 30 of January 1933 to be a criminal act. The Prosecution believes at last in a common planning for the commitment of Crimes according to the Charter, already before the beginning of the Cabinet's activity, and believes to be able to draw an indication of the uniform establishing of the aim at an inpermitted war from the development of the legislative activity of the Cabinet. I will now leave the discussion of this pretended evidence and consider a particularly significant moment for this question. his war Minister of the three Supreme Commanders of the Service end the foreign Minister, whereby he solemnly set forth his future plans. I need not enter in the problems started by the defense counsels of the defendants, whether Hitler developed a true picture of his plans in its full extent. One thing at least one can surely take from his declarations, that he first informed only a very limited Circle of his plans. If he solemnly confesses that he reveals his most secret plans to the personalities present, and that he purposely had omitted to inform the Cabinet as such -- as it was usual in the other countries of such far-reaching decisions, it may be clear, that he had mentioned these things at first to his selected circle, and that he purposely avoided informing the remaining Cabinet members of his plans.
28 Aug M LJG 6-1 Gallagher In his consideration of the matter Hitler developed the necessity of an imminent war. He assorted that they had come to this conclusion in the course of his four years of rule and that this conclusion was the result of the experiences gained during this time; that the assurance of the validity of the nation could not be guaranteed by economic measures. Should we even be skeptical by the truthfulness of this declaration of Hitler, there is one thing certain: The uniform plan of a criminal war by himself and a part of these Cabinet members cannot have existed since 30 January 1933, as stated by the Prosecution, considering that he now on the 5 of November 1937 announces to a number of these Cabinet members that his resolution and with it the actual planning for the war was born in this very hour as the result of the observation of the facts during the four previous years. If Hitler hereby expressly points to the fact, that he excludes the remaining Cabinet members from this communications, it clearly results that he does not consider the Cabinet as such the appropriate circle to receive informations of this kind. it is herewith clearly proved that, at least until this date, no such common Cabinet plan existed, and could only have been created under the leadership of Hitler. plan have been decided on? Cabinet session took place, on 4 February 1938, in which Hitler made known to these present only the personnel changes at that time without making known the reasons for them, let alone, to develop any war plans then. If the Prosecution considers the members of the Cabinet as an associated band with the right to take part at the Cabinet meetings, it must take the stand for the subsequent period that such a bend did not exist any more. A certain substitute for the meetings of the Cabinet existed certainly in the new exclusively employed circulation proceedings. It is however to be considered here that the circulation proceedings 28 Aug M LJG 6-2 Gallagher were probably adoptable by themselves to pursue a previously existing collective purpose by separate acts in the legislation.
It is however unthinkable that such common planning for such a comprehensive crime could be undertaken by this written circulation proceeding. The extended connection must consist in some way of such naturally necessary secret conclusion. In the sphere of a Cabinet Meeting this would be possible. In the sphere of a documentary debate in a circulation proceeding it appears impossible. that as a result of the entire evidence such a plan for the beginning of the forbidden war was never shared with the Cabinet, let alone discussed or even commonly planned. that legislation activity of the Cabinet was to commence thus that they in their entirety had pursued the aim of the war of aggression. The Prosecution believes that with the legislation the aim was to gain for Hitler complete control and to consolidate it and prepare and carry through the war of aggression. totalitarian control nor the individual decrees issued by the Cabinet violate the Charter. It, however, believes it is able to establish a relation between this totalitarian control, or the individual decrees and the crimes of the Charter by following construction: the plan was purposely designed from the first to meet the crimes against the Charter. In order to attain this aim and to avoid an opposition against the planning the totaliarian control of Germany was necessary. For the purpose of establishing it, a number of decrees were issued by the Cabinet. to promote this aim through their terroristic and inhuman character. The prosecution proceeds from the promise that dictatorship had been the necessary presupposition for the later crimes of the Charter and that the establishment of the dictatorship itself had been a part of the plan for the crimes of the Charter, Answer 28 Aug M LJG 6-3 Gallagher ing this view it must be stated that it is impossible to draw conclusions from an effect as to its cause in order to prove by that conclusion that the cause by necessity had to lead to the effect.
This view would be correct only If the establishment of the dictatorship could find its compelling motive in the planning of the crimes. The opinion is wrong if the establishment of the dictatorship could seem necessary for other reasons or even expedient. Such reasons existed. The call for unified power is a natural phenomenon in times of special crises. A unified power is able to take measures fast which are necessary for the elimination of conditions constituting a crisis. Always and everywhere, therefore, there existed a tendency towards unification in such times of crisis. This is probably provided for in the constitutional law of every country. Emergency measures then shift the power from a large body, such as parliament, to a smaller circle. We had this development in Germany already at a time when we could still be regarded as a country with a democratic government. This is proved by the emergency decree law which already at Bruening's time was applied to the largest extent. At an earlier point I have already pointed out that the thought of unification was further promoted through the Fuehrer concept pronounced in the Party. The people believed one could find the deeper cause for the economic crisis in the lack of unified leadership. It is true the German people had received the gift of purest democracy through the Weimar Constitution, but in its whole past it had not been educated to it. Lacking was the gradual, organic development towards free democratic thinking, the education to critical judgment. Therefore, it can be explained psychologically that when the democratic republic was in in great economic difficulties, the cause for it was not seen in the real given conditions, but was sought in the lack of unified leadership. Consequently, the idea of the Fuehrer principle and an exclusive direction of destiny in one hand was popular. It found its echo in the elections which in any case must be taken for a recognition of the principles of the NSDAP, and thereby of the Fuehrer idea. Neither can it 28 Aug M LJG 6-4 Gallagher be doubted that a rigid concentration on and orientation of all spheres towards the direction by a single superior authority had in some respect a favorable effect on the execution of the comprehensive economic measures which undoubtedly were indeed very daring.
THE PRESIDENT: Shall we break off now?
DR. KUBUSCHOK: Very well, sir.
(A recess was taken) DR. KUBUSCHOK: Before the recess I was saying that considerations of expediency could justify the establishment of a dictatorship. I continue. This recognition alone would already furnish the justification necessary within the framework of a consideration based on criminal law, for a co-operation of the cabinet members in the development leading to the dictatorship. In any case, the absolute conclusion made by the Prosecution would be excluded, namely that the aim at an aggressive war follows necessarily from the establishment of dictatorship. from the viewpoint of terroristic and suppressive measures, it (the Prosecution) sees aimed at a dictatorship established and consolidated for the purpose of an aggressive war. In doing so it considers particularly also the anti-Jewish legislation. This too, must be examined here only from the viewpoint off whether its purpose and contents can actually be regarded as aimed at an aggressive war. The Prosecution pointed out that Himmler stated in his Posen speech in 1942 he was happy to see the possibility of an internal danger through the Jews eliminated in this advanced phase of the war. conclusion that now actually all legislative and administrative measures against the Jews taken to a gradually increasing extent, were directed to this and welcomed by Himmler. Here, however, one will have to differentiate between what was imposed by means of legislation upon the Jews in the way of restrictions and what was carried out by Himmler's administration in the way of measures of quartering them in barracks and extermination. Only the latter measures, the removal of Jews from the physical association with the other population, their absolute confinement in Polish ghettos and concentration camps and finally their physical annihilation were what Himmler could consider making the conduct of the war easier On the other hand, although the laws issued by the Reich Cabinet, also the Nurnberg laws passed by the Reichstag, undoubtedly constitute absolute measures of suppression. None of these laws provides for the hermetical separation of the Jew: from any association with the rest of the population. The laws finally lead to an eclusion of the Jews from public positions and the industry to a personal restriction of their freedom which violated even the most elementary rights of the human individual. It can be recognized that their effects were aimed at rendering life for the Jews in Germany difficult in every respect.
Parallel to this runs the generally propagated goal of getting Jews to emigrate. Jews insofar as it was carried out through legislation, did not have an aggressive war at its goal, not even indirectly through the consolidated dictatorship. One cannot set aggressive war as one's goal on the one hand and on the other hand create by legislative measures a situation which necessity drives to emigration the people robbed of the foundation for their existence. Should one want aggressive war, it would be more than folly to expel members from one's own body of people, thereby making them enemies and driving them into foreign countries, into countries which one must consider as the future enemies within the framework of war planning. Therefore, I believe that the entire anti-Jewish legislation can be eliminated as the consideration necessary here is limited to the crimes mentioned in the Charter. In order to complete the above statements I would like to add only that a great part of these laws was not passed as one may think in full agreement of all cabinet members, but the laws clearly show the signs of compromise, too, at which a part of the ministers knew how to moderate the total tendency of the law and to limit its effect, as I have already pointed out during the defense of the defendant von Papen. From the fact that a minister participated in such legislation it does not result that he agreed with the tendency of the law and approved it. In this connection I should like to refer to the statements made during cross-examination by the witness Schlegelberger concerning the letter addressed by the latter to Lammers. Schlegelberger states that some party agency, probably the Race Office of the SS, intended to remove all partly Jewish persons to the East. In this instance the Ministry of Justice had the possibility of stating its point of view on the occasion of a divorce question. His initial standpoint outlined in the letter addressed to Lammers, which merely consisted in a rejection of the contemplated measure remained, without result. Thus, he felt obliged to moderate the measure by some practical proposal. That is the reason for his proposal, which takes up the prevention of raising mixed generations as desired by the Race Office and which contemplates to exempt all these mixed persons from whom no further offspring can be expected. In this connection, he also proposes that a mixed person be exempted from being sent to the last if he agrees to be sterilized.
In considering such a proposal it is difficult to disregard human sentiments, and to approach its judgment with an objectivity required for a trial But, in this instance, one can only come to the conclusion that an attempt was made here, however barbaric, to avoid measures which would have been worse and would surely have to be expected. It is certainly a problem to determine how far somebody may participate in an evil order to prevent a still greater evil. In any case the motives must be considered here too. For the questions to be discussed in this present case, it is decisive that also the Schlegelberger proposal wished to avoid at least the geographic elimination of the mixed persons from the German population. In consideration of the points of view expressed by Himmler in his speech made in Posen, this alone is determining in the frame-work of contemplation of the war of aggression. as far as it lies before June 30, 1934. I refer here to my statements made in the Papen case. is considered by the prosecution as the first obvious law of injustice, by which crimes were subsequently sanctioned. Here also one must first depart from the point that the measures of 30 June 1934 were in no relation with the planning of a war of aggression. What Roehm planned himself and to what extent he stood in relation with any Reichswehr agencies cannot be determined. In any case, the elimination of a man like Roehm and his followers cannot be considered as the elimination of a difficulty in the plans of a war of aggression. If beyond this, other Hitler opponents were killed, who certainly stood in no relation to Roehm, it is without doubt plain murder, but here, too, especially when considering the personalities concerned, one cannot see any connection to a war of aggression.
28 Aug M LJG 8-1 Ninabuck punishment only these who acted " in defeating aims of high treason and treason". Thus, the law does not cover these cases which concern persons outside of the "Roehm circle". These were partly sentenced, and partly Hitler decreed their exemption from punishment by virtue of his right of abolition. In this connection I refer to the affidavits of Meissner and Schwerin-Kresigk, as well as to the statements of witness Schlegelberger. Most of the ministers know that tension existed between Hitler and Roehm. The events themselves surprised them. The statements concerning the events which Hitler made at the cabinet session of 3 July 1943 were essentially the same as his declarations made at the Reichstag session of 13 July 1934. On the basis of this description the ministers were mostly of the opinion, that it was actually a question of enterprises of high treason and that the immediate defensive measures taken by Hitler were necessary in order to prevent a greater expansion of the revolt. Hitler admitted himself that excesses had occurred to a certain extent and that persons were involved who had nothing to do with the revolt. For these cases he promised a legal inquiry. If the law in its wording, actually limited itself to the persons who participated in the revolt, then the ministers thought that they could answer for this law. One may have objections against this law, but one must not disregard the fact that the crushing of this revolt could appear as an event with which a state of constant disorder and acts of violence by the Roehm followers were done away with once and for all. Therefore, one cannot draw the conclusion from this law that thereby generally, also In the future, measures which were not justified by formal law, would be sanctioned afterwards and removed from the regular administration of justice. It seems possible that one advocates the view of wishing to do away legally and once and for all with such a complex of unrest, particularly if the guilt in the cases dealt with by law appeared to the evident. In any case, many believed at that time that 28 Aug M LJG 8-2 Ninabuck they could see in such a legal treatment of the case that the principle of the obligation to prosecute political crimes was maintained.
which are connected with rearmament and for this reason alone are alleged to point to the plan of an aggressive war. In this connection the prosecution deals with the formation of a Reich Defense Council in April 1933 and the two secret Reich defense laws of 1935 and 1938. stated that as early as 1929 an interministerial working commission had been formed dealing with questions of Reich defense. This commission was not in the least concerned with operative or strate gic questions or with questions of armament or procurement of war material. On the contrary, it deliberated exclusively the measure which had to be taken in the civil sector if the Reich should be drawn into a conflict of war.
Into this category came especially preparations for evacuation in case of war, an indubitably defensive measure. Apr 1 1933 every Minister was obliged to send a specialist to the Commission, instead of the voluntary collaboration of individual specialists. It was only for this reason that the Ministers grouped together to form the Reich Defense Council. In this capacity a group never worked or had discussions, but rather, the work was done in the same manner as up to now by the Reich Defense Commission. A comprehensive view of the work it did can be found in the "Mobilization a Book for Civilian Authorities", published in 1939, which contained a list of administrative measures to be taken by the civil authorities in case of a mobilization. The contents of the book in no way show an aggressive tendency. The preparations that were made were obvious state security measures for the event of war. One cannot draw the conclusion that a war of aggression was being planned just because the work of the Commission was kept secret. It is only natural and a generally accepted fact that all measures, even those for the defense of a country, are not revealed to the public. beginning of the war. It was not changed either when the unpublished Reich Defenses decree of 21 May 1935 finally gave a legal basis to the Reich Defense Council, which had been founded in April 1933 through a closed cabinet decision. interrogation of Goering, Lammers, Schacht, Keitel and Neurath has shown. There was not a single conference, and the procedure of circulating questionnaires to consult members was also not used. The only activity consisted in the task of the Reich Defense Commission, which has already been discussed here. The Reich Defense Council itself was merely the head organization for the Commission. of the Plenipotentiary for the War Economy was also created. He was given the right to secure economic sources for the event of a war already in times of peace, and to give directions in this field. Actually, Schacht, as Plenipotentiary for the War Economy, did not issue any measures in this, his appointed official position.
In practice, these tasks already went over to the Commissioner for the Four Year Plan in 1936. Here again it has to be pointed out, that organizational and precautionary measures for the event of a war are a matter of course. They alone can by no means be considered proof for aggressive intentions. To take economic measures for the event of a war was an absolute necessity for Germany, due to its especially exposed economic and geographic position in the event of a war. One could not afford to make the organizational preparations after the outbreak of a war, since an uncontrolled German industry from the start would not have been able to survive in case of war. stated that defensive measures were uncalled for because no country had the intention of attacking Germany. In opposition to this it must be pointed out that the leadership of a country has the responsibility of taking precautions in vital points in view of even the most remote possibilities. There is never a period, in which, within a reasonable space of time, a country can completely exclude the possibility of war brought on from the outside. Hitler's decree of 4th of February 1938, it was not noticeable at first, as the Reich Defense Council did not meet at all, that its personnel composition according to the Reich Defense Law of 1935, no longer agreed with this decree. Only when Keitel as Chief of the Council pointed out these discrepancies, were they removed through the new Reich Defense Law of the 4th of September 1938 and at the same time -- as people were generous in the Nazi regime as regards organizational matters and as they loved exaggeration and artificial distension -- a huge organization was created. The Reich Defense Council was remodeled, the Commission was changed somewhat as regards its personnel. A "Plenipotentiary for the Administration" was created as well as the "Plenipotentiary for War Economy." Both together with the Chief of the OKW formed a staff of three; and most of the other ministers were subordinated to them separate groups. The entire body, however, with the exception of the Commission was to go into action only after the outbreak of a war, when the extensive legislative powers of the staff of three were also to become effective.
When the war actually broke out, Hitler did not concern himself with these preparations on paper, however, but created the Council of Ministers for Reich Defense" which thereby virtually replaced the current organizations. Only later, when the legislative machine of the Council of Ministers was too slow, did the authority of the staff of three appear again, and decrees were based on their decisions. Even if it was the duty of the staff of three just as it is the general duty of every department, to have ready these measures in its own particular field which are necessary in a purely defensive sense, still one cannot infer from this any aggressive intentions, or even the consciousness of an approaching war. Such general war preparations originate in the constant and inevitable supposition of the possibility of war. There is no indication in them of aggressive intentions. If one did regard them as such, then every country would have to be regarded as planning aggression, since no state can omit such preparations. The staff of three did not hold any discussions until the outbreak of the war, and could therefore neither have worked towards a war nor made any plans for a war of aggression. The same is true for the Reich Defense Council, It did certainly meet twice but just how unimportant those meetings were, particularly how little suited they were, especially to the making of the most secret plans, is shown by the fact that of the 12 members of the Council only a part appeared, whereas there was a very large number of counsellors from the individual departments. The large group of persons who attended - once about 40 and another time as many as 70--could not have allowed a subject to come up, which needed handling in such a discreet way. partial announcement by the defendant Goering of the contents of the nonpublished Reich Defense law. Otherwise there were no meetings or written discussions by the members of the council. actually created here for the event of the war, but that in practice it never worked. If the goal of this organization actually had been the preparation of a war of aggression, then the great number of tasks which in this case had to be undertaken more or less in view of time, would have necessitated the actual work of the organization already in time of peace.
The "Law concerning the Rebuilding of the Wehrmacht" of 16 March 1935 and the "Compulsory Service Law of 21 May 1935" have also been brought into the discussion by the prosecution. I do not wish to discuss at this point whether these laws constitute a violation of the Versailles peace treaty or not, since the only thing that is relevant for the judgement is whether the fact of the issue of these laws can be considered as a proof of plans of aggression. Already the necessary publication of the entire contents of these laws shows that they were not the basis for such a plan. The limitation to a comparatively snail number of divisions in the law of 16 March 1935 already makes it impossible to think of a war of aggression. plans of aggression. Compulsory defense service was introduced in most countries and no doubt had ideological grounds apart from the intention to increase the armed forces' reserves. tion, it must be considered that the introduction of compulsory military service in March 1935 made a new set-up of the military organization necessary. In previous years practically nothing had been planned in this field. It was not surprising, therefore, that a decree was now issued containing the principles required. This complete and compulsory reshaping of an organization necessitated the laws mentioned, without providing any reasons to conclude that a war was being planned. formed of the situation, there need be no discussion as to whether at the outbreak of war German war preparations were actually ready for an attack. The legal basis, fear only to this extent had the majority of Cabinet members to deal within their departments with questions of rearmament, could give no comprehensive insight into the actual extent of rearmament. They were restricted to whatever information was furnished them. The generals themselves were of the opinion that, given the extent of the rearmament, it could only have a defensive nature. Hitler himself told them nothing of any aim at an aggressive war. Austria's Anschluss to Germany was announced. This law was not agreed upon by the entirety of the Cabinet members.
Previously, the ministers received no information of any kind as to the march of events. They merely received word in the usual way about the fact of the entry. As regards the other laws brought up by the Prosecution, the idea that they have any connection with the planning of a war of aggression, is, in my opinion, so far-fetched that I need not go into them in detail. There are factual reasons for the creation of these laws which cannot be denied. They are included in the official grounds for the drafts of the bills, as shown in my Document Book. These grounds were added to the drafts of the bills for ministers as regards the meaning end purpose of the laws. These laws were, by the way, decreed at a later date, after which, as I have explained above, there were no longer any cohesiens between Cabinet members. issued during the war and which have not been mentioned in detail in the indictment, either. For this period we can no longer consider a collective functioning of the Cabinet. At that time, the complete organizational reshaping of the legislative already showed itself if only outwardly in the fact that the essential laws had been issued by the newly created offices which were endowed with full legislative powers and set up for the different spheres of activity. Stress was laid on the Fuehrer decrees and the Fuehrer orders, especially as regards all fundamental and general political questions. This excluded, to begin with, all other functions but the purely departmental, subordinate work of the ministers. The conception of the unity of Cabinet members making their own free decisions and cooperating together had become a phantom long ago. Consequently, the responsibility for each individual law can be charged only to the individual or to those ministers who participated in making them, but not to the Cabinet. in the activity of the Reich Cabinet especially emphasized by the fact that a close connection existed between the highest Reich offices and the Party. Individual ministers are said to have held the highest party offices. The "Law to Ensure Unity of Party and State" was to secure cooperation between the party and state offices. By this infiltration of the party into government leadership, party ideas became practically the substance of government leadership.
In reality, neither the "law to Ensure Unity between Party and State" nor later decrees could secure full cooperation of the government with the party. It was here that the difference between the opinions of the Ministers and the leading party offices became most obvious. The ministers looked on their tasks in the administration as mere matters of state. The party had to struggle constantly, supposed by Hitler's decrees, to obtain increasing cooperation in the affairs of the state offices. The witness Schlegelberger has given a clear account of this. He declared that a considerable part of the working expenditure in government agencies, especially in the Ministry of Justice of which he himself was the head, was used in order to keep off the repeated attempts of the party offices to make their influence felt. We saw Fuehrer decrees which were supposed to accomplish this until the very end of the war, a sign that the party never fully succeeded in its intended penetration into the government administration. It is, therefore, not possible to follow the prosecution in its claim that owing to its penetration by the party the state apparatus was practically an instrument of the party. no way proved that collectively the members of the groups included in the indictment ever desired a war of aggression and its criminal consequences as stated in the Charter regulations, or that they even set it up as their goal and directed all their activities towards it. Anyway, as long as one can speak at all of a certain cohesion in the Cabinet, - until 1934, - the true realization of this aim may not have been clear even to Hitler. Inasmuch as he himself reckoned perhaps with this possibility and took account of it in his decision, nevertheless, all the circumstances show that the group of people indicted hare were the least suitable to be informed of such plans or even possibilities. If on 5 November 1937 Hitler did not consider the Cabinet worthy of receiving his first pronouncement as to his purpose, when he further divided the Cabinet to a much greater extent, and even went so far in his secrecy that he withheld preparations for a war which concerned a certain department, from the minister himself, as in the case of Darre, divulging then only to a competent expert official, form all this we can see quite plainly that collectively the Cabinet neither had the knowledge of the aim which is affirmed nor could have directed their activities towards it.
Were the thesis of the prosecution correct, Hitler would have left the existing organization as it was and would not have undertaken a complete reorganization of those in the key positions. His allegedly loyal and conspiring followers would best have been suited for the actual execution of the general plan when it had been drawn up. With regard to people in the cabinet it also seems an absurdity to imagine so close and intimate a collaboration between its members and Hitler. Here were men from the most widely separated camps. The ministers of tie individual departments, who were partly taken over by Hitler and in part newly assigned, were by no means his party members. And even before, the great majority of thorn had no close connection with him. It is impossible to explain psychologically how and when Hitler won over these people not only to share his party ideas for their common purpose but also to commit the capital crimes of the Charter. And we see a constant change in the personnel of the Cabinet. People like Hugenberg, Papen, Schmidt, Eltz von Ruebenach and Schacht leave the Cabinet. All of them have differences with Hitler, based partly on far less weighty grounds than are represented in the crimes of the Charter. But according to the indictment all those people at the very start of their activities as Ministers are said to have blindly acquiesced in the criminal plot. To mention only the case of Eltz von Ruebenach which has been brought up by the Prosecution, does it seem feasible that on accepting the golden insignia of the party a man should express his religious scruples against Nazi ideas, when on the other hand he was already connected with such criminal aims and had been active in them for many years. Is it not clear from his very letter to Hitler that he had no doubts as to the integrity of the Cabinet's works. How could a man like Minister Popitz be connected with such aims and their attainment when as a conspirator on 27 July 1944 he sealed with his death his active opposition? of "Reich Cabinet" is small. And just this very thing which gives us a clear example of how dangerous it is to confirm to the explanation proposed in judging, the character of a community of persons and at the same time the character of an individual.
Council and the Ministerial Council for Reich Defense. I need say little about the Privy Cabinet Council. It never met and so never took any decisions or showed any activity. It was founded for personal reasons connected with the departure of the Foreign Minister von Neurath. In this Cabinet Council, which was merely enacted by law but which in practice was never active, no plans could have been made nor anything done towards their execution. The Ministerial Council for the Reich Defense had been founded by a decree of Hitler at the start of the war. It is incomprehensible to me personally on what grounds the prosecution places the Council of Ministers under a separate indictment, as a separate institution within the framework of the Reich Cabinet. All its members belong to the Cabinet and up to Lammers they are all present in the dock. In no case could there be any practical value for the declaration made with regard to the number of people accused. So it seems that the prosecution itself had doubts as to the acceptance of its arguments concerning the entire Cabinet and wants to ensure the sentencing of this part of the Cabinet members, at least, as a minimum of its motion. Ministerial Council. Moreover, the prosecution has permitted the absence of arguments in which it sees the Council's participation in the Charter crimes. to establish, even in the small circle of Cabinet members, the intentions, action and motives of individual members. The provision in Article 9 of the Charter is not a compulsory one. It should provide a technical facilitation for the inclusion of greater quantities of persons. The case of the Reich Cabinet embraces a numerically small circle. 17 of them are present in the dock. Apart from these there are only 20 still alive. There exist sufficient factual and legal possibilities to judge their former activities with perfect clarity both objectively and subjectively in an individual procedure, this being also necessary in view of their importance up to now in public life. To put all of them new into one category and by the verdict to outlaw all of them, including those members who are dead, and to deprive them in subsequent proceedings of an argument which would affect an essential part of their defense - for this there are no reasons of any practical nature.