Chapter LVIII: Section 60: , Penal Code. Costs: Section 465, Code of Criminal Procedure (4)

A. This letter came to Bormann personally, and in the same way as the preceding letter from Lammers to Bormann which was written by him personally. Group III-C, Bormann-Lammers, was not informed about this correspondence. I have to add something here. Bormann had, after all, two functions. He was leader of the Party Chancellery and he was secretary to the Fuehrer. He stayed almost exclusively in the Fuehrer Headquarters. It was often difficult to find out whether Bormann acted as leader of the Party Chancellery or as secretary of the Fuehrer. In a case like the one here, Exhibit 70, certainly the Fuehrer exercised criticism and to that extent Bormann then acted as the Fuehrer’s secretary. He then referred the matter to the State sector via Lammers. In addition, an exterior circumstance must be considered between the Fuehrer Headquarters and the Party Chancellery in Munich; there were thousands of kilometers. For some time the Fuehrer headquarters was in Vinnitsa in the Ukraine. In the immediate proximity of the Fuehrer Headquarters were the field headquarters of Lammers, that is, of the Reich Chancellery. For purely technical reasons the mail went immediately back and forth between the Fuehrer Headquarters and Lammers’ field headquarters.

Q. Another interim question, Mr. Klemm. You characterized Bormann in two capacities; one, as leader of the Party Chancellery, and secondly, as secretary of the Fuehrer. This letter which I am just showing to you, however, contains the designation Reichsleiter Bormann. Was that a third capacity in which Bormann worked?

A. In contrast to other Reichsleiters, as far as I know, Bormann became Reichsleiter, more or less, in title only. Goebbels, for example, was a Reichsleiter too, because he was in charge of the Reich Propaganda Office. On top of that, he was also Reichsleiter Goebbels, the Gau Leader of Berlin. At the very moment in which Bormann became leader of the Party Chancellery and in addition secretary of the Fuehrer, the concept Reichsleiter did not signify a special office or a special function any more.

Q. That is enough. Since you have described the geographical and technical conditions in which the correspondence went as a rule, I now want to ask you in principle, did you at all receive information about that correspondence which went to Bormann to the Fuehrer Headquarters or which went from Bormann from the Fuehrer Headquarters or which went from Bormann from the Fuehrer Headquarters to other State offices or Party functionaries?

A. That depended. There were several possibilities. Either Bormann answered such letters immediately himself, or those parts of the Reich leader’s office which were also in the Fuehrer Headquarters dealt with them. I have already mentioned that sometimes up to three jurists belonged to the Reich leader office who advised Bormann.

A certain proof of the fact that Bormann dealt with a matter himself is the initials “Bo.” Very frequently we were not informed about such matters, because often they were put in the files of the secretary of the Fuehrer which did not concern us in the Party Chancellery after all.

* * * * * * *

Q. Mr. Klemm, you spoke about several possibilities concerning Bormann receiving letters or sending letters. You said it all depended on the circumstances. I now ask you to explain to the Tribunal further what additional possibilities existed in order to clarify whether you were informed about any measures taken by Bormann or not.

A. The second possibility was that Bormann wrote his decision or his opinion on the margin of the letter and then gave it to the Referent in the Party Chancellery and left it up to him to draft the answer in accordance with the decision he had written in the margin. Whether the answer to the letter then formulated was signed by Bormann himself, or whether the Referent, his group leader, or the division chief signed it, depended in each case on who signed the first letter.

Q. The documents which I just mentioned were all brought into close connection with your person by the prosecution, apparently solely because the Party Chancellery is mentioned on these documents. I now come to Document NG-412, Prosecution Exhibit 77.[414] On this, there is your name. The connection with your person is very clear here. It concerns an approval that you gave to a draft of a law which the Reich Ministry of Justice had drafted on order of the Party Chancellery. The contents were retroactive application of regulations concerning treason. I would like to ask you on the basis of what you explained, was this approval given on your own decision or on Bormann’s instructions?

A. I did not give this approval by my own decision. In the case of drafts of laws in particular, Bormann always reserved the right to make the decision for himself. In this case the letter concerned, which the Ministry of Justice had, among others, probably also addressed to the leader of the Party Chancellery, was returned from the Fuehrer Headquarters. Probably on the margin it said “approved,” or “yes,” or “in accordance,” those were the words which Bormann used; and since in this letter of the Ministry of Justice a wish of the Fuehrer was referred to which he had expressed already before in discussions, it was quite clear for Bormann that he would agree, and in such a case I could then sign.

Q. This letter of the Party Chancellery is dated 18 June 1942 and also has the file number III-C; that evidently was issued by the legal group. I would like to ask you now to describe somewhat more in detail the sphere of the task of the legal group.

[_Recess_]

Q. We discussed Exhibit 77, that was the approval of the Party Chancellery to a draft or law which was prepared by the Ministry of Justice. I had asked you what matters in the legal group of the Party Chancellery were dealt with by you in addition?

A. I want to summarize the tasks of the legal group briefly. First it had to deal with laws and drafts and decrees of the Reich Ministry of Justice, unless for reasons of their subject, they were dealt with by another group, because that group appeared to be competent. Secondly, penal matters based on the law on insidious acts, as far as on the basis of legal provisions the approval of the chief of the Party Chancellery was required for the prosecution. Thirdly, complaints from Party offices or individuals against decisions by the courts. Fourth, complaints from the administration of justice against interference by Party offices into pending trials. Fifth, to observe especially civil and penal cases which concerned the Party. Sixth, matters of legal reform, and seventh, expert opinions in the field of the Party law.

Q. As for the first group, approval of laws and drafts, was that approval of the Party Chancellery for drafts of law based on a legal foundation?

A. I have already made statements concerning that question when I explained why there was a Department III, the so-called state law and constitutional law department in the Party Chancellery. The chief of the Party Chancellery, on the basis of certain legal provisions in the case of any law or draft or any decree was a minister who had to participate in its drafting, that is to say, he had the same position as a minister participating in legislation.

Q. In discussing the first part of your activities you made the reservation that the legal group in the Party Chancellery dealt only with those drafts which for reasons of their subject did not belong within the competency of another group. Would you please elucidate to the Tribunal what you mean by that?

A. First I have to make a more general reservation. It was not the task of individual groups of Department III or of Department III itself to display any political activity. The Party political elements connected with a problem were to be dealt with by the political offices of the Party. I had listed before the Reich Legal Office, the Office for Agrarian Policy, the Office for Public Health and others. These offices within the Party developed their policies through the Reichsleiters who were in charge of these offices, and did that directly with the Fuehrer. The groups of Department III, and above all not the Legal Group, could not deal with the individually specialized matters to the extent that it would have been necessary. I have already explained that Group III-C comprised four to six officers. That group was balanced in the Ministry of Justice by well over 200 experts. Our tasks--and above all because each individual in that group considered himself a representative of the thought of the Ministry of Justice,--were to prevent difficulties which might arise by some legal arrangement between the Party and the offices of the administration of justice. For instance, in Group III-C, we always were very skeptical to any general clauses which were contained in a draft and laws because such general clauses are the pets of the layman, and he sticks to them because that affords him the opportunity to criticize. That arrangement which was as such provided by law that the chief of the Party Secretariat always had the capacity of a participating minister, was not agreed to by various sectors of the administration of the State, and thus, for instance, Goering in his various positions which he held at the same time, as Minister for Aviation, as Plenipotentiary of the Four Year Plan, and as chairman of the Ministerial Council for the Defense of the Reich, never stuck to it, and never submitted any drafts. Likewise, the High Command of the Armed Forces never submitted the drafts of laws as far as they concerned the administration of justice, penal regulations, et cetera, to the Party Chancellery. The individual group, however, the legal group could not independently deal with a draft, if problems were dealt with in that draft which did not immediately concern the legal group but in their essence concerned other ministries, for instance, all questions of nationality, were dealt within Group III-A. For instance questions of Poles and Jews, Group III-C, to cite another example, in the field of law concerning hereditary estates, could not decide independently. That was claimed by Group III-B, which was in charge of questions of food, the Food Ministry, to which the hereditary estate court belonged also. I believe these examples should be sufficient.

Q. You had set forth that the various subgroups of III were offices corresponding to the institutions of the State, that you would consider the Ministry of the Interior as analogous to Group III-A. I ask you now since you mention Poles and Jews, the problems of which were to be dealt with by III-A, whether the purpose for that was that as far as the organization of the State was concerned, the Ministry of the Interior took a leading part in dealing with these questions?

A. Group III-A had dealt with these problems because it was the equivalent of the Ministry of the Interior. It was dealt with there only and if on the one side the Ministry of the Interior took the leading part, then Group III-C had nothing to do with those matters at all.

* * * * * * *

Q. Then, since you worked in the Party Chancellery, Document NG-151, Prosecution Exhibit 204[415] was submitted in connection with you. It is a proposal on the part of the Reich Minister of Justice of 3 August 1942, with the designation “Limitation of Legal Remedies in Penal Matters for Jews.” On page 108 of the German text, a letter is submitted which has the signature of Bormann. Next to Bormann’s signature there is also the file note “III-C,” that is to say, the symbol of the Legal Group [in the Party Chancellery].

I ask you to comment on that and to tell us whether you or your Legal Group had anything to do with that matter.

A. To answer this intelligently, I have to refer to the entire document submitted by the prosecution. The document comprises 25 pages, and that letter from Bormann is put at the end. The entire procedure, however, can be understood only if one puts these various documents in the correct chronological order, for only then can one see how this entire development can be subdivided into three phases.

On 3 August 1942, the Ministry of Justice distributes its first draft, which is draft number 1. The letter of 13 August 1942 shows the approval of the Reich Ministry of the Interior, with supplementary suggestions. In the meantime, however, the Ministry for Propaganda quite apparently, although there is nothing contained in this file about that, has made counterproposals and distributed those to all offices concerned. That can be concluded from the fact that on 13 August--that is to say, on the same day when the Ministry of the Interior first approved proposal number 1 with certain supplementary requests--on the very same day, the Ministry of Justice distributed suggestions for draft number 2, at the same time referring to suggestions made by the Ministry of Propaganda. That draft number 2 was approved on 20 August 1942 by the Food Ministry, which also stated requests for supplementation in its field, that is, in the field of civil administrative law. Then, on 9 September 1942, the chief of the Party Chancellery states his approval, and in that letter also the request is expressed that the suggested draft concerning a restriction of legal remedies for Jews should be supplemented.

As for the second phase, dealing with draft number 2, there are two events to be noted--one, a certain activity of the Reich Chancellery, that is to say Lammers, who suggests to the General Plenipotentiary for the Administration of the Reich, that is, the Reich Minister of the Interior, that he should see to it that these suggestions are adjusted to meet the requirements and then submitted.

And the second is a letter from the Reich Leader SS of 25 August 1942, who suggests a conference regarding draft number 2. On 10 September 1942, the High Command of the Wehrmacht also states its approval, and that second phase of developments ends with the result that the leading part is transferred from the Ministry of Justice to the Ministry of the Interior. The final conclusion of that phase is the letter from the Plenipotentiary for the Administration of the Reich, that is to say, the Ministry of the Interior to the participating supreme offices of the Reich containing draft number 3. Now the third and last phase of this development starts, and the procedure as submitted in documentary form by the prosecution for more than half a year does not produce any results as far as matters developed. In the documents submitted by the prosecution the only further development is that on 3 April 1943 the Minister of the Interior writes to the Reich Chancellery, that is to say, to Lammers and encloses a letter by Kaltenbrunner from the police of 8 March 1943 where the demand is made that the Jews should be completely removed from the administration of justice. These documents then contain only two further notations of the Reich Chancellery of 6 April 1943 and of 21 April 1943. The first notation deals with a conference between the Under Secretary Kritzinger on the part of Lammers, Reich Chancellery, Stuckart on the part of the Ministry of the Interior, and Klopfer for the Party Chancellery, the Party Secretariat. And the last notice of 21 April refers to a conference of various under secretaries from the Reich Chancellery, Party Secretariat, Ministry of the Interior, Ministry of Justice, and Kaltenbrunner on the part of the police. The result of that conference is what we designate as the 13th decree amending the Reich Citizen Law. The Party Chancellery letter from 9 September 1942 does only refer to draft number 2 of the Ministry of Justice, that is the draft of 13 August 1942. The problem of removing the Jews entirely from the administration of justice and to declare them incapable of inheriting property, that problem was not all under discussion at the time when that letter was written, and the suggestions made in that letter do not represent any change against the fundamental character of that draft. They supplement the draft only to the legal systematic side. In as far as the Party Chancellery suggests that legal remedies should be included, they are suggestions of a minor weight compared to those that are already planned in the draft. According to the draft, limitations were provided to appeals and revision, that is, matters which are directed to the next higher resort. Whereas in the suggestion for supplementation made by the Party Chancellery legal remedies are referred to which are normally directed to the same court in the form of a reminder or a complaint. The next suggestion to limit the right of challenging a judge is the same provision which is also part of the IMT charter. This letter of 9 September 1942 I did not draft. Besides since it was issued more than 1 month after the letter of 13 August, other offices must have participated. Who it was in Group III-C who drafted that letter and who was the referent dealing with the matter I can no longer tell. I cannot even recall ever having seen that letter such as Bormann signed it. It is quite possible that I was away on a duty trip and that my deputy signed it for me.

Q. I believe, Mr. Klemm, that that is sufficient.

* * * * * * *

Q. Then, concerning Poles, Jews, and members of the Protectorate, Document 664-PS, Prosecution Exhibit 348,[416] was submitted, that is a circular letter from Himmler with the classification of secret, and was sent to all Reich authorities. Your initial is on that letter because it was received in the Ministry and apparently came to your attention. In this letter it is stated that posters such as “no Jews permitted to enter public places and stores” should disappear. It was no longer necessary to show such practice to the public because the people concerned by evacuating and isolating them were no longer there. I ask you, did that lead you to the conclusion that the Jews were to be exterminated or already, at the time of this circular, had been exterminated?

A. I would never have gotten a thought of that kind. I know nothing about the places in the East. I knew that Jews lived in a city for themselves in Theresienstadt near Leitmeritz. On the contrary, I remember having seen series of pictures in magazines, I believe pictures from Theresienstadt were shown of the Jewish mayor, of the Jewish police, also of the baths and restaurants, and similar things. Also, I believe from Warsaw, such pictures were shown in German illustrated magazines. One could not gather any more from that circular letter than that or conceive the thought that it had anything to do with the extermination or anything similar to it.

* * * * * * *

Q. In addition, Document NG-900, Prosecution Exhibit 453,[417] was submitted against you. This concerns a document which treated so-called complaints of descent of Jews. The decisive question in this document is whether you, from the letter which is contained in this document, which was written by the chief of the SD and the Security Police, could gain the conviction that Jews should be exterminated. If you have the document in front of you--it consists of several letters--the first is of 3 May 1944, there the chief of the SD writes to the Reich Minister of Justice in this letter, and the subject is a request for information about reports regarding Jews. Please comment on this.

A. In regard to the first question I can only repeat what I have already stated in regard to Prosecution Exhibit 348. No such thought ever occurred to me. Moreover, I only saw the introductory letter of this document on which the Minister had written “V”--which meant “Vortragsanordnung,” schedule of report. With that, the matter was taken out of my sphere of activity.

EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROTHAUG[418]

_DIRECT EXAMINATION_

* * * * * * *

DR. KOESSL (counsel for defendant Rothaug): It has been asserted that you had coupled together the Katzenberger and Seiler proceedings in order to exclude the Seiler woman as a witness.[419] What was the situation there?

DEFENDANT ROTHAUG: Under the German Code of Procedure, there are always as many penal proceedings pending as there are defendants. Under certain conditions, such penal proceedings can be tried together for the purpose of uniform trial and decision. That is what we call joinder of penal cases. That joinder may be decided by the court, concerning cases which are pending with it separately. But such joinder may be established by the prosecution itself by one combined indictment. That was what was done in the Katzenberger-Seiler case. The prosecution, by filing one indictment for both defendants, had already established the joinder prior to the files reaching the court. The joinder of the two cases was therefore neither due to a file prepared by me, nor to a file prepared by the court.

Q. Would it have been possible for the prosecutor to proceed differently?

A. Naturally. He could have filed separate indictments. The question was merely whether that would have been correct from the technical point of procedure.

Q. What are the legal provisions on which a joinder of penal cases is based at the Special Court?

A. A joinder is based on article XV, section 2 of the competency order.

Q. When do the conditions exist for a joinder, such as demanded by the law?

A. Such conditions can arise from all sorts of situations. They exist in particular if one offense developed from another offense, and if the judgment has to be based on the same facts. That was the case in the Katzenberger-Seiler affair, which we have been discussing.

Q. What was the reason for the prosecutor to connect the two cases?

A. Both cases, as is proved clearly by the opinion of the court, had to be decided on the basis of the same facts. Therefore, a joinder was altogether natural and corresponded to the customary treatment such as was applied in other cases as well.

Q. What was the legal nature of such joinder?

A. It was purely a measure of expediency.

Q. Is a defendant entitled to ask for not combining his case with that of another defendant because in the case of a joinder he loses evidence?

A. The defendant does not have such a claim. According to the general legal doctrine, which existed prior to 1933, a joinder is admissible even if, as a result of a joinder, one codefendant can no longer appear as a witness. But if it is decisive that the codefendant should appear as the witness, the two cases can be separated after all so as to have an opportunity to examine the codefendant as a witness. But that is left entirely to the discretion of the court, and the defendant has no claim to have that question decided in one definite way.

Q. When several penal cases are combined, does that mean that all possibility is excluded to examine one of the codefendants in the same proceedings as a witness? I would like you to supplement your previous answer and to tell us whether it is possible temporarily to separate proceedings.

A. Such temporary separation is allowed expressly by jurisdiction. Therefore, during one proceeding, temporarily a separation can be ordered. One codefendant can be examined as a witness, and after he has been examined the case can be recombined.

Q. Did anybody at any time--be it the prosecutor, the defense counsel, or the defendant--during the trial make a motion to separate proceedings?

A. Such a motion was not made either at the trial or outside of it by anybody. Not even the mere idea of doing that was ever mentioned, and the reason was that at that time nobody regarded the joinder of the two cases as a defect.

* * * * *

Q. In the case under discussion, was it likely that the chances of the two defendants might be affected by joining their cases?

A. As I have stated before, the legal position of the defendants could not be affected, and their chances were not affected either. If one had thought that their chances might be affected, I think in that case the two defense counsel would have made a motion to have the two proceedings separated. If one wishes to judge the situation properly, one has to bear in mind the following: that is to say, one has to think of the situation such as it would have been if the Seiler woman had not been a codefendant but a witness. In that case, she would have made no different statements at the trial than she had made at her interrogation under oath before the investigating judge, for she made the same statements as a codefendant, and we had to discuss her statements under oath before the investigating judge from every point of view for the purpose of the verdict. What difference would there have been, as far as our judgment was concerned, if she had repeated the same statements at the trial in her capacity as a witness? The real problems of the proceedings would and could not have been affected in any way by that.

* * * * * * *

PRESIDING JUDGE BRAND: Were tickets issued for admission to the trial?

DEFENDANT ROTHAUG: Yes, Your Honor.

DR. KOESSL: I shall come back to those tickets later. What importance had to be attributed to the fact that a trial was held in front of such a large public?

DEFENDANT ROTHAUG: Under the German Code of Penal Procedure, the fact that the public is admitted to a trial constitutes one guaranty that the proceedings will be conducted in an orderly manner.

Q. Did Katzenberger have a defense counsel?

A. Yes, he had.

Q. Was that defense counsel a Jew?

A. Yes, he was.

Q. Did the Seiler woman have a defense counsel, too?

A. Yes, she had.

Q. What sort of a man was the defense counsel for Seiler? Was he a National Socialist, or what was he?

A. I knew him. He wasn’t a National Socialist for certain. My impression was that he was entirely uninterested in politics and devoted to his profession.

* * * * * * *

Q. Now, we’re going to examine the statements by the witness Seiler. The statements by the witnesses Ferber, Seiler, and Dr. Baur[420] are criticizing your method of conducting the Katzenberger case.

According to the testimony of the witness Seiler, you addressed the audience and said--“The Jews are our misfortune. It is the fault of the Jews that this war happened. Those who have contact with the Jews will perish through them. Racial defilement is worse than murder, and poisons the blood for generations. It can only be atoned by exterminating the offender.” (_Tr. p. 1053_).

Did you make remarks of that kind, or of a similar nature, or what exactly did happen?

A. That expression--“The Jews are our misfortune” or “It is the fault of the Jews that the war happened,” or “Those who have contact with the Jews will perish through them”--those expressions are well known slogans from the Stuermer, which I think appeared in large letters in every issue of the Stuermer.

PRESIDING JUDGE BRAND: Mr. Witness, the only question before you is whether you used, in substance, the language which was attributed to you. You may answer that question. We are not concerned with who else used the same language.

DEFENDANT ROTHAUG: Neither on duty nor in my private life did I use such generalizations, but the facts which have been discussed here, and which were mentioned in that issue of the Stuermer, concerning all that I would like to give my view on one point. That is the question as to war guilt. I can remember more or less exactly--and that idea is also mentioned in the opinion of the judgment in the same way in which I expressed it at the trial. Naturally, it was not the purpose of the trial to prove that it was the fault of the Jews that war had broken out. The point was, however, this. As is known, both defendants tried to make the situations which incriminated them appear more harmless, as if their relations had been everyday matters. And in that connection, I remember that I put it to Katzenberger that, particularly here in Nuernberg, he must have known that such relations were particularly dangerous even if the relations had been harmless, because, ever since 1933, he had observed the developments, and then, finally, war had broken out and the Jews were held responsible for the war, and all these events should have caused him to be wise and to abandon relations which were bound to endanger him, even if those relations had been only harmless--and if they had been harmless it would, after all, have been easy to abandon them. That thought of which I made use by way of arguments, both at the trial and in my oral opinion, that thought appeared in the Stuermer. It said, if I remember correctly: “He also mentioned the fact that it was the fault of world Jewry that war had come.”[421]

DR. KOESSL: Now, it has been alleged that in other cases too, you addressed the audience. What were the speeches about? What was the purpose of those speeches?

DEFENDANT ROTHAUG: I am charged with having addressed the audience, particularly in connection with the Katzenberger case. In addition to the generally acknowledged fact that, under the German Code of Penal Procedure, trials have to be held in public, there is also a fact that by the trial this general law consciousness should be deepened--

PRESIDING JUDGE BRAND: We have extended beyond our time for the recess. We’ll take 15 minutes’ recess now.

[Recess]

DR. KOESSL: Witness, you came to the explanation of the connections where you have made the so-called speeches to the audience. Will you explain the purpose and the connections for making these so-called speeches?

DEFENDANT ROTHAUG: I base myself on the fact that the reason for the trials being public according to the German rules of procedure was that the conscience of law should be strengthened and that the population should be educated in the meaning of the laws. Our sphere dealt with entirely new legislation, new in consideration of the basis on which it was founded and of its purposes; for that reason--and of course one has to consider that this new legislation provided severe and most severe consequences, and that makes it understandable why I--and that was with approval of all interested offices of the administration of justice--was of the position that it was necessary to bring as quickly and as effectively as possible this legislation before the population in order to warn them because that warning in a certain sense is a justification of the severe sentence, particularly the extent of the sentence; and that explains why I had the intention to conduct my trials before the public and as many people as possible and as broadly as possible. That also explains why it was not only my intention to describe the bare legal facts but the offenses regardless in what field they were committed and to explain them from the point of view of the doctrine of the State and from the points of view of the legal system and the political point of view. The guiding thought for me was that it was our duty, and at the same time, our justification before the public, to explain that the sentence pronounced in any individual case was the direct consequence of the legislation provided therefore. It has to be added that fundamentally according to German rules of procedure, the sentence can only be based on the entirety of the trial; that is to say, that all points of view which are concerned with the penalty or the extent of penalty have to be discussed in all details during the trial because that alone puts the defendant in a position to recognize the main points which may be directed against him; and I also want to emphasize that at no time were lectures made for their own purpose, but that such statements were made in connection with the testimony of the defendant or the witnesses at the time and at the place where it seemed proper.

Q. Ferber charges you generally, and particularly, in the case Katzenberger.

A. I intended to add, that it is therefore quite certain that at that session I also stated my opinion concerning the problem of race defilement on the basis of the doctrine of the State and on the basis of the legal system, and on the basis of our political and legal foundations. That I also discussed the danger in the manner that these things were regarded at that time according to the legal situation, the danger arising from the mixture of races to coming generations, that I consider to be a fact. What words I used and what thoughts I may have expressed in detail in discussing these matters, that, of course, I could no longer tell today. But what I object to is the assertion that these may have been statements of the level of the “Stuermer;” and with absolute certainty I should like to exclude the possibility that in that connection I demanded any physical destruction. That, according to the law, would not have been possible. That, of course, based on the fact of the war which went far beyond any racial point of view.

* * * * * * *

Q. The witness Seiler in her direct examination testified that she and the defendant Katzenberger had denied under oath at various times those relations. Was Katzenberger heard under oath?

A. No, he was not heard under oath. That was not admissible under German law because German law holds that the defendant had to be entirely free to use all possibilities for his defense. That is considered a certain guarantee to aid in finding the truth.

Q. The witness Seiler also stated in her direct examination that the judge, Rothaug, used the assumption of her guilt as the basis for the entire conduct of the trial. The reason for that discrimination in her opinion had been that Rothaug did not want to hear any answer. Did you examine the witness Seiler thoroughly?

A. Of course, she was examined thoroughly, and I may point out--and that can be found also from reading the opinion--that this was a so-called case of circumstantial evidence, that a large number of individual situations of more or less importance were compiled in order to make it possible to reconstruct the circumstances which were of importance for the evaluation; and it was always like that, and it was no different in this Katzenberger-Seiler case, that I discussed with the defendants every phase and every little detail; not only in order to completely clarify any particular action, that of course, was the main purpose; but beyond that it was of importance to establish what the point of view of the defendants was, and how they described matters; that is the reason why that matter took a day and a half, and in addition to that, after the examination of every witness who offered something new, again the two defendants were heard thoroughly concerning the new situation. At any rate the evidence which was taken as the basis for the judgment, was discussed in all possible detail.

* * * * * * *

Q. Among the judges concerned during the deliberations, was there any doubt about the guilt of Katzenberger?

A. I remember the deliberations very well. That conference was as peaceful as could be; for in the course of the trial, which lasted a day and a half, the entire occurrence, as far as the facts were concerned based upon the statements of the defendants and on what the witnesses testified to, had developed into such a clear picture that there could not have been any differences of opinion; and, after a very short time--and I remember that very well also--we arrived at a decision and actually started to write the judgment down, but considering the importance of the case, we extended the time for deliberations so that the impression should not be given that we wanted to pronounce a hasty decision. There were no difficulties at all, the reason being that the facts themselves were of compelling logic, and that anything else which was the consequence of the facts just arose from them logically and in the way one had to evaluate those things at that time, and of course, we could not evaluate it based upon any different philosophy.

Q. Which motions were made by the defense counsel?

A. I would like to say with certainty that one of the defense counsel, without being able to tell who it was, made an attempt in the direction of a lenient sentence, and he was trying to combat its evaluation as a serious case, but there was no doubt left about the basic facts in the case. That is the way I remember the case, and it must have been like that; and that was also manifest by the calm deliberations where no points of argument came in existence.

Q. Was any one of the associate judges of a different opinion concerning the extent of punishment? Did any one of them vote against the death penalty, for instance?

A. The core of the question from the very beginning was the following.

PRESIDING JUDGE BRAND: Let me ask you a question. Did all of the judges vote for the death penalty? Answer yes or no.

DEFENDANT ROTHAUG: Yes, absolutely.

PRESIDING JUDGE BRAND: Next question.

DR. KOESSL: At that time, among the jurists around you--but those who were not in direct contact with the case--were there any discussions about that sentence?

DEFENDANT ROTHAUG: In no way at all. That sentence was never criticized in any way or considered doubtful by jurists who were not connected with the case which would normally be possible.

EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROTHENBERGER[422]

_DIRECT EXAMINATION_

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DR. WANDSCHNEIDER (counsel for defendant Rothenberger): We come now to a new subject which plays an important part within the scope of national socialism; that is, the Jewish question. Will you please tell the Tribunal quite generally what your point of view is concerning the Jewish question.

DEFENDANT ROTHENBERGER: Concerning the Jewish question, there were in the NSDAP already before 1933 two factions which opposed each other. One was the so-called Streicher wing which put the racial problem in the foreground. The other wing was the so-called social wing, led originally by Gregor Strasser. Gregor Strasser, already as early as the end of 1932, went into open opposition, and in 1934 was killed together with Roehm. Among the men who emphasized the beliefs of that social group was Kaufmann. That was conditioned by the fact that in Hamburg, of course, social problems played an important role. The Jewish question did not play the same part in Hamburg as in many other parts of the Reich. One reason for that was that on account of a large Portuguese immigration in Hamburg, the connection to western Jewry had been very strong for centuries; particularly the so-called good old Hamburg families are greatly mixed by intermarriage. Furthermore, it was due to the fact that the people of Hamburg are generally more tolerant in their basic temperament.

Another indication of the attitude of the people of Hamburg to the Jews was, for instance, that the display of the so-called Stuermer boxes in Hamburg was prohibited by Reichstatthalter Kaufmann. I, of course, officially and also privately was in close contact with Jews. I knew the advantages and disadvantages of Jewry.

Q. Now, of course, it is known to you, Dr. Rothenberger, that the Party program ambiguously states its position to the Jewish question. I assume you knew the Party program at that time. Could you comment on that as to what thoughts you had concerning the attitude the Party would take to the Jewish question?

A. In the beginning of 1933, I believed that just as in many of the Party platforms many points are made which later do not play an important role. Gradually, however, I realized that the general line became more severe. It is beyond doubt that any German under the influence of propaganda considered a limitation of the Jews in cultural and spiritual life absolutely required, and so did I. But what was generally rejected in Hamburg was any method of violence, any economic exploitation and any kind of hatred. As for the general line, such as it developed gradually in Germany, I could not change anything anymore. In each individual case of my personal and official sphere of influence, individually and from the human point of view, I helped.

Q. In connection with this question, the pogroms against Jews of November 1938 play a part. Will you please state to us what experiences you have made of these pogroms and what your attitude was.

A. On the day before the pogroms--that is the night before--by way of rumor I heard of the intention that Jewish shops were to be looted. There again to obtain information I got in touch with the Reichstatthalter Kaufmann who told me that he had asked for information in Berlin because he had also heard about it, and he had already alerted the Hamburg police too. He had posted them before the Jewish shops so that nothing should happen, and in fact, in Hamburg nothing did happen with the exception of a few individual cases. About that, in the document submitted, NG-629--

Q. I refer to Document NG-629, Prosecution Exhibit 28[423] which has already been mentioned.

A. It also mentions that due to the attitude of Reichstatthalter Kaufmann, nothing happened.

Q. Will you please discuss now the question of the legal position of Jews, as far as you had to do with it.

A. As for the legal point of view, of course in the course of years many instances of conflict occurred to everyone; also to me. In a meeting in Berlin about various legal questions negotiations were made, and the result of these negotiations as far as it concerns questions of civil law was passed on by me to the subordinate courts. As far as matters of penal law were concerned, it was passed on by the General Prosecutor at Hamburg. The opinion which the Ministry stated at that time in matters of civil law was just about in accordance with my own opinion.

Q. Here again we are concerned with Exhibit 28, which has already repeatedly been mentioned; specifically the point of view of the Ministry which Dr. Rothenberger mentioned and which he shared and passed on to the subordinate officials can be found on the last page of Exhibit 28.

A. If I may be permitted, I would like to point out that during the same press conference I mentioned two further points; one the question of sensational reports in the press about trials, where I promised to get in touch with the competent agencies to see that such sensational reports would have to cease; and the other concerning the speed of signing the sentences. I pointed out that no pressure should be permitted to be exerted on judges so that they should be given an opportunity to work on their opinions in all peace and quiet.

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Q. Dr. Rothenberger, we will now go over to another subject. Now we are going to deal with the beginning of the war. I want to ask you about the Jewish problem which we have already discussed. In what way did the Jewish problem develop after the outbreak of the war, as far as your opinion goes.

A. The outbreak of the war increased the difficulties of the Jewish problem in Germany considerably. The situation became considerably more acute, and in particular under the influence of propaganda. Under that influence, naturally difficult legal conflicts arose as far as the situation of a Jew in court proceedings was concerned. Previously, as Dr. Schlegelberger emphasized, already there had existed separate welfare institutions for Aryans and non-Aryans. There was the NSV for the Aryans, and there were separate welfare institutions for the non-Aryans. For the jurisdiction, that resulted in complete uncertainty on the part of the judges as to the question whether a Jew can be allowed to conduct proceedings without paying costs. There were courts which granted that privilege; there were other courts that did not. I considered that a uniform jurisdiction on these matters was necessary. Naturally I was not uninfluenced by the situation then prevailing; and, therefore, I supported a proposal to the Reich Ministry of Justice that a uniform jurisdiction should be developed to the effect that such privileges were not to be granted to the Jews. The importance of those privileges concerning costs and nonpayment of costs has been characterized by Dr. Schlegelberger who said that the State makes an advance which the person concerned has to pay back, that is to say he is not exempted from paying costs caused by court proceedings. The prosecution in submitting evidence read out a sentence which is supposed to have originated with me. I only want to correct the matter to say that Document NG-589, Prosecution Exhibit 372,[424] shows that that sentence is not mine, but was phrased by the Gau economic adviser. The other exhibits which refer to that question are NG-392--

Q. Dr. Rothenberger, may I interrupt you for a moment so that we can quote the correct exhibit numbers to the Court? They are Exhibit 373,[425] Exhibit 462,[426] and Exhibit 372. Would you please continue?

A. The only thing I can add is that it happened fairly frequently, and that it appears altogether understandable that the Jews in order to avoid having their property confiscated upon their emigration, transferred their property to somebody else in a fake transaction. Thus, the whole problem became more complicated and more difficult for the courts.

Q. In what way were you concerned with curtailment of Jewish legal rights which emerged in the subsequent period?

A. I had to deal with that question once again in the spring of 1943. At the end of April, Thierack one day asked me to go see him and told me that on the same day a discussion would take place, a so-called conference of under secretaries. That conference was to be held at the Reich Ministry of the Interior. I believe I had no knowledge of those developments until then.

Q. May I interrupt you, Dr. Rothenberger? At the moment we are concerned with Document NG-151, Prosecution Exhibit 204,[427] which Dr. Rothenberger wants to discuss. This Exhibit 204 is composed of a number of letters in which a draft on curtailment of legal means and legal recourse for Jews is discussed and in which various ministries give their views. Will you tell us, please, whether you had anything to do with that matter?

A. Until that conference I had nothing to do with the previous history. That is due to the fact that the first draft originates from a time before I had assumed office. It is dated 3 August 1942, and it is signed by Dr. Freisler. The second draft is dated 13 August, and that also was before I assumed office. As this was a matter concerning penal law I was not informed about the developments during the subsequent period. As I can see from the documents now, in September 1942 the so-called GBV, the Plenipotentiary General for the Reich Administration--that was the Reich Minister of the Interior--was in charge of the drafting and conference which I have mentioned took place at the Reich Ministry of the Interior.

Q. Would you tell us something about the course of the conference of April 1943?

A. Thierack, before I went to the conference, handed me a draft. That was the draft by the GBV of 25 September 1942. That was already 6 months old by that time because the conference took place in April 1943. I was annoyed anyhow that I was now to deal with a matter the previous history of which I did not know. I had a look at the draft in Thierack’s office and when I had read it, I said to him that I was against such far-reaching restrictions.

What seemed embarrassing to me, in particular, was the provision that if the Jew was not to swear an oath, he was yet to be punished for perjury. Thierack said to me that doesn’t matter. In his somewhat brusque and curt manner he said, “You will have to go there, for I am the minister and I cannot attend a conference of under secretaries.” That, as a matter of fact, was not the custom. I went to the Reich Ministry of Interior. To begin with, I maintained reserve, because I had not dealt with the matter beforehand. Then I heard from the others who were present there that they too were against such an ordinance. Thereupon, I said that that was my personal opinion, too. Of course, I could not say as to the minister’s decision. He was in favor of it, as he had told me beforehand.

Then the provisions of that draft were dropped. Only one person who was present objected; that was Kaltenbrunner. Kaltenbrunner said he had to attach a decisive importance to at least two provisions becoming law. He was referring to 2 provisions which, in effect for some time, had already been applied, which however, required subsequent legalization. One provision was that the property of a Jew who dies goes over to the Reich. He said--as is evident in detail from the exhibit--that until now Jewish property in the case of death had been regarded as so-called property of an enemy of the State and had, therefore, been confiscated all along. But he would like to have a legal provision, because that would constitute a technical administrative simplification.

That provision, as I see from the file, had not been incorporated into the draft before by the Reich Ministry of Justice, but by the Reich Ministry of Interior. It appears for the first time in the draft of 25 September 1942. The Ministry of Justice, thus, did not deal with it. The second provision--

PRESIDING JUDGE BRAND: Would you mind telling us what happened to that provision?

DEFENDANT ROTHENBERGER: Yes. That provision did become law afterward. Yes, I meant to say that.

The second provision which Kaltenbrunner wanted to become law and considered necessary was a provision, which has already been discussed here, and it concerned handing over the penal jurisdiction over Jews from the administration of justice to the police. As far as I was concerned that resulted in an entirely new situation, for that provision was not contained in the previous draft. I felt I could not assume any responsibility for such a provision, all the more so as I had no formal competence for penal matters. I would have to report to the minister as I had been requested by him to do.

DR. WANDSCHNEIDER: Did you make a report to Dr. Thierack?

DEFENDANT ROTHENBERGER: I went to see Thierack on the same day, and I told him that he had now for the second time confronted me with a very embarrassing situation, by bypassing me in a fundamental question of the administration of justice which did not concern me formally, but which concerned me as a jurist and as a human being. I could not assume the responsibility and I offered him my resignation.

Thierack was very angry and said, “I shall decide the day when you will leave the office.” In saying that, he referred to the compulsion to which all of us were subject in time of war, that is to say, the compulsion of not being able to leave our service voluntarily.

He then added ironically, “For the rest--in the future you will have nothing to do with penal matters even when I am away for I have already asked Lammers to appoint a second under secretary,[428] and I shall get some help that way.” I mentioned these facts briefly in another connection this morning.

Subsequently I had nothing to do with the ordinance. I merely read that later, on the first of July 1943 with both provisions; it took effect. I felt unfree, and from that time on I stuck all the more to the one task, which still remained to me, that is, the task of the administration of justice proper; the strengthening of the judiciary.

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_CROSS-EXAMINATION_

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