Chapter XIV: Front Matter (14)

[sm type begins]Here we deal with the purchases in occupied territories mentioned before, resulting from instructions by the Four Year Plan. These, however, represent exactly those purchases against which Funk protested. His protests finally culminated in the decision of the Delegate for the Four Year Plan (Göring) to prohibit any such further purchases. As is known, Funk personally had no authority to issue instructions for the occupied territories. Moreover such controlled purchases by authorities must be looked upon in a different light from the uncontrolled purchases of the various State, Party, and Armed Forces agencies, against which Funk fought time and again (Questionnaire Landfried, Document Book Number Funk-16).[sm type ends]

Summarily it must be said that the evidence submitted has proved beyond doubt that the Defendant Funk took a great many measures to prevent the exploitation of occupied territories and that the fact that he succeeded in preventing the devaluation of currency in occupied countries was in itself enough to protect them from suffering damage to an extent which cannot be evaluated in detail.

With that, Gentlemen of the Tribunal, I leave this point of the Indictment against Funk and turn to a further charge against him, namely, his participation in the elimination of Jews from economic life in November and December 1938, which forms Point 3 of the Indictment against him.

Gentlemen, the charges which the Prosecution has made against Funk contain many details with which, in view of the time at my disposal, I am unable to deal fully. With regard to such details I shall refer to statements made by Funk himself in this connection. First of all, however, I must deal more fully with what seems to me the most important of all the charges made against Funk, namely, that of playing a part in the persecution of the Jews. The Defendant Funk considers this to be the most important factor in his trial.

Gentlemen, no one in Germany has ever asserted that Funk was one of those fanatical anti-Semites who took part in the pogroms against the Jews or who approved of these proceedings and profited by them; Funk always condemned such actions. This can be explained not only by his natural disposition and the environment in which he grew up, but also by his years of work as a journalist, mainly in connection with that section of the press which dealt with economic policy and consequently kept him in continuous touch with the Jewish circles of importance to economic life. Experts in that field know, and still have respect for, Funk who even at that time showed an attitude that was free of all anti-Semitism, and friendly toward the Jews rather than hostile.

It is tragic to a certain extent that in spite of this the name Funk, of all names, has been repeatedly connected in this Trial with the decree of November 1933, as a result of which the Jews were eliminated from economic life. Whether he liked it or not, all questions concerning the treatment of Jews in the economic life of Germany were under the jurisdiction of his department as Minister for Economics. As an official it was his duty to issue the necessary executive instructions.

This was certainly particularly difficult for Funk, in view of his tolerant attitude. At that time he had already been a civil servant of the Reich Propaganda Ministry and the Ministry for Economics for 8 years, and yet, during all that time, the Prosecution could not cite a single instance of any display of anti-Semitism on Funk’s part or any evidence of his having urged or approved of the use of force, terrorism, or injustice against the Jews. On the contrary, we know from the statements of various witnesses that Funk repeatedly interceded for his Jewish fellow citizens in the course of these years; that he looked after them and tried in their interests to alleviate hardships, to prevent encroachments on their rights, and to spare the lives and careers of human beings, even if they were Jews or political opponents of his own.

It is, therefore, not surprising that this man, with his wide experience in the economic field, this man of far-reaching knowledge, with his frankly tolerant views, was most painfully affected when on 10 November 1938 he had to witness the destruction of Jewish homes and shops in Berlin, and when he received one report after another confirming the fact that Goebbels and his clique, exploiting the indignation of the populace over the assassination of a German by a Jew, were organizing such pogroms throughout Germany, and that these outrages were leading not only to the destruction of Jewish property, but also to the murder of many Jews and to the persecution of many thousands of innocent citizens.

The affidavit of this assistant, Ministerialrat Kallus (Document Book Number Funk-15) of 9 December 1945, and that of Frau Luise Funk of 5 November 1945 (Funk Document Book Number 3), prove clearly that Funk condemned such excesses most severely, that he was incensed to the extent of calling them filthy outrages even when addressing Dr. Goebbels himself, and that he threatened to resign in the event of a repetition. Even at that time he told the mighty Goebbels to his face that one should be ashamed of being a German.

All this, Gentlemen, expressed the justified indignation of a man who for years had made every effort to insure moderation toward Jews and political opponents and had received many a letter of gratitude for so doing—a man who had fought for years to prevent terrorism, to secure for all his fellow citizens the rights to which they were entitled, and to raise the standard of German economic life—and who now saw all his efforts frustrated in a single night by the brutal fanaticism of a Dr. Goebbels.

Funk himself, during his interrogation, gave us a vivid description of how, ever since he entered office as Minister of Economics in February 1938, he had been subjected to continuous pressure by Goebbels and Dr. Ley to eliminate the Jews from the economic life of the country in the same way as they had been eliminated in 1933 from its cultural life.

The witness Dr. Hayler stated here that Himmler also found fault with Funk for this. Funk himself testified to the difficulties which again and again occurred during those years with workers stirred up by propaganda, who were sometimes no longer willing to work under Jewish managers, or did not dare to do so; and how, in these oppressive conditions, numerous Jewish owners sold their businesses—frequently at cut prices—to people who seemed to Funk as the Minister of Economics entirely unfit to acquire or manage such businesses. Funk tried again and again to stem this overwhelming development. He made continual efforts to put a brake on this process of Aryanization; to provide for a reasonable and just settlement for Jewish owners of businesses; and to allow them to emigrate from Germany with their property. But Funk realized more and more clearly every day that he was too weak to stop this movement and that the radical elements around Dr. Goebbels and Dr. Ley were gaining the upper hand, in which they were unfortunately able to rely on Hitler’s authority. Hitler had allowed himself in the course of time to be won over more and more to the policy of radical treatment of the Jewish question by a few irresponsible advisers who are not sitting in the dock today.

The events of 9 November 1938 burst like a bombshell into this fight between Funk and other considerate people on the one side, and Goebbels and Ley on the other. As Dr. Goebbels himself admitted later to Fritzsche, they were aimed directly at the person of the Defendant Funk, who was thus to be confronted with a _fait accompli_. As the witness Landfried testified, Dr. Goebbels did in fact attain his ends through this operation of November 1938. Goebbels was able to refer later to Hitler’s own order for the Jews to be completely excluded from the economic life of Germany, although Funk, as the minister concerned, repeatedly made allusion to the relations with foreign countries upon which the German Reich and its economy depended.

The orders necessary to carry out this program were given by Göring in his capacity of Delegate for the Four Year Plan, on the direct orders of Hitler. Funk never had any doubt that in this particular affair Göring also was to a certain degree only a puppet, because he had always known Göring to be a man who condemned extreme radicalism in this particular question of the Jews. Funk’s views on this point were shared by wide circles of the German people, and the fateful Göring meeting of 12 November 1938 (Document 1816-PS) proved this to be correct. This document has been mentioned here repeatedly. At a meeting which preceded that of 12 November 1938, Göring sharply condemned the acts of terrorism which had occurred and declared to the Gauleiter present that he would make every Gauleiter personally responsible for acts of violence committed in his district. But what was the good of that?

In the course of the second meeting, the minutes of which were submitted to the Tribunal under Number 1816-PS, Goebbels ultimately succeeded in imposing his radical demands; and the course taken by this meeting forced Funk to admit that the complete elimination of the Jews from German economic life could no longer be delayed for the simple reason that the circles in power had become far too fanatical. It became evident to Funk that legislative measures were necessary if the Jews were to be protected from further acts of terrorism, looting, and violence and if they were to get any reasonable compensation. During the Göring meeting of 12 November 1938, Funk repeatedly expressed his views again, as is shown by the records. It was due to the efforts made by the Defendant Funk, with the support of Göring, that Jewish businesses were reopened for the time being, that the whole procedure was taken out of the hands of the arbitrary local agencies and put on a legal basis throughout Germany, and finally that in order to gain time in which to carry out this action a definite date was set for its completion. Anyone who reads carefully the minutes of the Göring meeting of 12 November 1938 will, in spite of their incorrect and incomplete formulation, be able to find definite and repeated indications of Funk’s moderating influence; namely, his insistence—repeatedly mentioned in the minutes—on the reopening of Jewish stores, his proposal that the Jews be allowed to retain at least their securities, and finally his attitude to Heydrich’s demand that the Jews be placed in ghettos. The minutes of 12 November 1938 prove beyond doubt that it was Funk who opposed Heydrich’s proposal by saying: “We don’t need ghettos. Surely the Jews could move closer together among themselves. The existence of 3 million Jewish people among no less than 70 million Germans can be regulated without ghettos.” This is a literal quotation.

Funk therefore wanted to save the Jews at least from being interned in ghettos. It must be admitted that at that time Funk did not entirely succeed in securing recognition for his point of view, so that the proposal that the Jews should be allowed to retain their securities, for instance, was turned down, although Funk pointed out, as the minutes show, that to realize the Jewish securities would suddenly flood the German stock market with securities to the value of 500 million Reichsmark and would, therefore, have serious consequences for the German stock market. The decisive question in judging the Defendant Funk is not so much his success as the fact that he made an obvious effort to save for the Jews all that could be saved in the circumstances; and we must not lose sight of the fact that in all those measures Funk acted only in his capacity as Minister of Economics, that is, as an official who merely gave the order to execute a command which Göring as Delegate of the Four Year Plan had issued on the orders of Hitler. Funk found himself in exactly the same position of constraint, as, for example, the Reich Minister of Finance, Graf Schwerin von Krosigk, who at that time had to order the punitive levy of 1,000 million Reichsmark to be paid by the Jews, or the Reich Minister of Justice and the Reich Minister of the Interior, both of whom issued similar executive instructions in their respective spheres. The Tribunal must decide the difficult legal question of whether a state official whose government has been legally recognized by all the governments of the world is liable to legal punishment for putting into effect a law—and I emphasize the word “law”—passed in accordance with the legislative system of this state. This legal problem is entirely different from the other question, dealt with in the Charter and by the Prosecution, as to whether or not the fact that an official order was given by a superior can serve as an excuse. I might add here that I shall not discuss this legal question because I shall leave it to the other members of the Defense. I shall discuss only whether an official who puts into effect a law passed by the internationally recognized government of his country thereby becomes liable to punishment. That is an entirely different problem from the one dealt with by the Charter.

Gentlemen, since this has not been dealt with before, I have to state the following; I read at the bottom of Page 50: Our natural sense of justice fully approves that a citizen, an official, or even a soldier, cannot defend himself by reference to the official order given him by his superior if this order obviously implies an illegal act, and especially a crime; and if in the existing circumstances and in due consideration of all the accompanying facts, the subordinate realizes, or should realize, that the official order is contrary to the law.

If the latter condition exists, in other words, if the official order obviously constitutes a breach of the law, it may in general be fully approved that the subordinate is not accorded the right to refer to his superior’s official order as an excuse and to maintain that he was only carrying out that order. In that respect this stipulation of the Charter contains nothing essentially new, but only the confirmation and further development of legal principles which are recognized to a varying extent in the penal codes of most civilized nations today. A certain amount of precaution, however, seems to be indicated in this matter, for it should not be forgotten, on the other hand, that obedience to the orders of a superior—not obedience to the law, but to a superior—is, and must in future remain the foundation of every government in all nations if the orderly functioning of the state administrative apparatus is to be secured; and that it would be dangerous for the civil servant to decide for himself whether to keep his oath of allegiance.

But, Gentlemen, in our case something different is involved: We are dealing here with the obedience of the citizen and especially of the civil servant, such as Funk was at that time, to a national law, which was legally promulgated in accordance with the constitutional rules of this State. If we wish to find a just and correct answer to this complicated juridical question, which so far has not been treated in literature, it will be pertinent to disregard entirely conditions in Germany and the present Trial, and to ask ourselves what decision would be given in a case where a civil servant of a different country—not Germany—carried out a law. Let us assume for instance, that some foreign country embracing a minority promulgated, in accordance with its constitution, a law exiling from its territory all members of this minority, or confiscating for the benefit of the state the property of such inhabitants, or turning over to the state or partitioning among other citizens the large agricultural estates of such inhabitants. Let us assume that such a case exists and let us ask ourselves: Does the civil servant in this nation really commit a crime if he carries out this lawful order? Is it really the duty of the official charged with the execution of this law to refuse to obey the law and to declare that in his personal opinion the law concerned is a crime against humanity, or has he even the right to do so? In such a case, Gentlemen, would any state today grant its civil servants permission to examine whether the law proclaimed is contrary to the principles of humanity or to the fluctuating norms of international law? What state would tolerate the refusal of its civil servants for such a reason to execute a law already proclaimed?

[sm type begins]Or another example: Let us assume that the laws of a nation decree that certain new weapons are to be introduced into the armed forces, or that more warships are to be built, or that some preparations have to be made for war. Should an individual civil servant really have the right to refuse the execution of the law, even perhaps to sabotage its execution, and then to say, by way of explanation, that in his personal opinion concerning international law it involved the preparation of an aggressive war, consequently an international crime?[sm type ends]

The Tribunal will have to decide these legal problems. But Funk may point out in his own defense the fact that by reason of his entire ideology and background it was especially painful to him to issue these executive instructions, although he believed he was only doing his duty as a civil servant.

In this connection I wish to remind you of Funk’s circular of 6 February 1939 (Document 3498-PS, Trial Brief Funk, Page, 19), where he emphasizes to his officials that it was their duty to “insure that it was carried out in a correct manner in every respect” and where he already feels impelled to disclaim personal responsibility for these measures by expressly emphasizing: “How far and how rapidly the powers conferred by the Four Year Plan are to be exercised will depend on the instructions to be given by me in accordance with the directives of the Delegate for the Four Year Plan.” This special reference made by the Defendant Funk to the legal decrees of the Four Year Plan, which was authorized to promulgate laws, originated in the defendant’s desire to express formally and solemnly, and to establish for the future, the fact that in issuing the executive instructions in 1938 he was a victim of his obedience to the State, a victim of his loyalty to the laws of the State to which he had sworn allegiance.

Funk’s circular of 6 February 1939, already mentioned on Page 19 of the trial brief, clearly expresses the qualms of conscience which had gripped Funk in those days, although he had not incriminated himself—qualms which, during his interrogation by an American officer on 22 October 1945, led to his complete nervous collapse, so that Funk was unable to restrain his tears and told the interrogating officer: “Yes, I am guilty; I should have resigned at that time.”

These same qualms of conscience gripped the defendant throughout the entire Trial and are still haunting him; and we remember that in the session of 6 May 1946, when this point was discussed, Funk was so deeply shaken that he could hardly continue talking and finally declared here before you, Gentlemen, that at that moment he fully realized that this, meaning the atrocities of November 1938, was the starting point of the chain of events leading to those horrible and frightful things of which we have learned here, some of which he too had already heard of during his imprisonment, and which culminated in Auschwitz. He felt, as he said during his interrogation on 22 October 1945, “deep shame and heavy guilt,” and he still feels it today; but he had put the will of the State and the laws of the State above his own feelings and above the voice of conscience since he, as a civil servant, was tied by duty to the State. He felt these ties all the more strongly as these legal measures were particularly necessary for the protection of the Jews in order to save them from losing their rights completely, and from suffering further despotism and violence. These are the very words of the Defendant Funk; and they represent his actual feelings. Today Funk still feels that it was a terrible tragedy that he of all people was charged with these things—he who never during his entire life said a spiteful word against a Jew, but had wherever he could always worked for tolerance and equality for the Jews.

If during his interrogation on 22 October 1945 Funk said: “I am guilty,” it need not be investigated here whether the defendant intended these words to apply to his criminal guilt, or only to a moral guilt which he saw in the fact that he had remained in an office which compelled him to carry out laws incompatible with his own philosophy of life. Funk was not in a position to decide for himself the complicated legal question of whether an official of an internationally acknowledged state can be punished at all if he only carries out laws passed in accordance with the legal constitution of this state. For the Defendant Funk his “guilt” did not lie in the fact that he had signed the executive instructions in November 1938, since this had been his duty as an official, rather did he consider himself guilty because he had remained a member of the Government although he found the acts of terror which had occurred intolerable, and abhorred them; he was not involved in the “conflict of conscience,” of which he spoke when he was interrogated, because he acted according to the laws which he considered necessary under the conditions prevailing at the time. This conflict was a result of the fact that he had not, in this difficult situation, listened to the voice of his conscience and had not resigned his ministerial office. But the decisive reasons for his attitude and his final decision to remain in office in spite of his feelings about the matter were certainly not material considerations. His reputation as a journalist and his abilities as such would easily have enabled him to find another suitable position. Much is to be said for the opinion that the Defendant was held in office above all by the thought that his resignation would in no way improve matters, but that on the contrary the administration would become still more radical under an unsuitable and fanatical successor, while by staying in office he might hope to alleviate much distress.

These considerations, which may have guided the Defendant Funk in the first place, were certainly correct up to a point. His State Secretary, Dr. Landfried, at least has testified that later on too Funk often expressed serious misgivings concerning the action taken against the Jews in November 1938 and showed very strong disapproval of all excesses and infringements of the law committed by various Government agencies in carrying out the action. Funk could talk openly to his confidant Landfried, and he often complained to him that he had no power to prevent such excesses. But, as he said to Landfried: “We of the Ministry of Economics should take particular care to see that no one makes illicit profits out of the Aryanization—that is, the transfer to non-Jewish ownership—of business firms.” And Ministerialrat Kallus described in his deposition of 19 April 1946 the various measures taken at that time by Funk to protect the interests of Jewish owners. Kallus also told us that Funk even made personal efforts to insure that his orders were carried out by his subordinates in a proper manner.

Gentlemen, thus a sense of duty on the one hand, and humane feeling on the other, were the motives which kept the defendant in office and thus brought him into a situation where he is today charged with criminal action.

Mr. President, I am now coming to a new subject and I have altogether about 15 more pages. Does the Court wish to adjourn now? It is 6 minutes to 4.

THE PRESIDENT: Can you finish it by that time, Dr. Sauter?

DR. SAUTER: There are 15 more pages; I should say about 8 or 9 minutes. On further thought, Mr. President, it will take about half an hour.

THE PRESIDENT: We will adjourn at this time.

[_The Tribunal adjourned until 15 July 1946 at 1000 hours._]

ONE HUNDRED
AND SEVENTY-EIGHTH DAY
Monday, 15 July 1946

_Morning Session_

MARSHAL: May it please the Tribunal, the Defendant Ribbentrop is absent today.

THE PRESIDENT: Would it be convenient to Counsel for the Prosecution and the Defense if at 2 o’clock today we were to deal with those interrogatories and affidavits which have come in since the last applications were made?

SIR DAVID MAXWELL-FYFE (Deputy Chief Prosecutor for the United Kingdom): My Lord, it would be perfectly convenient for the Prosecution.

THE PRESIDENT: Dr. Sauter, do you think it would be convenient for the Defense Counsel to deal with those matters at 2 o’clock?

DR. SAUTER: Certainly, Mr. President; I will inform the other defense counsel that these applications will be discussed at 2 o’clock.

DR. RUDOLF DIX (Counsel for Defendant Schacht): I agree with my colleague, Dr. Sauter, that this should be done. But if this is done at 2 o’clock it will interrupt my final speech. I should be very grateful if it could be done immediately after Dr. Sauter finishes his speech, so that I could present my plea coherently. It would be very awkward if I were interrupted.

THE PRESIDENT: Certainly, Dr. Dix. Very well; we will do it immediately after Dr. Sauter’s plea.

DR. SAUTER: May I speak now, Mr. President?

THE PRESIDENT: Yes, Dr. Sauter.

DR. SAUTER: May it please the Tribunal; before the adjournment on Friday, I explained in conclusion the position and the attitude of the Defendant Funk with respect to the Jewish question. On this occasion I pointed out that in connection with the executive instructions issued late in 1938 on the legal exclusion of the Jews from economic life, the Defendant Funk acted only in his capacity as a Reich official and in the performance of the duties of that office.

On Friday, I finished my statements in that respect with the words:

It was a sense of duty on the one hand, and humane feeling on the other, which kept the Defendant Funk in office and thus brought him into a situation where he is today charged with criminal action.

Now, Gentlemen of the Tribunal, I turn to the last chapter of my appraisal of the Defendant Funk, of his motives and actions, and will now deal with the gold deliveries by the SS to the Reichsbank, and with the relation of the Defendant Funk to the concentration camp question. That is to say, I am going to refer to Page 58 of the written speech which has been submitted to you.

It is a peculiar tragedy in the life of the Defendant Funk that he was not only forced by fate in the year 1938 to issue executive instructions for laws which he always inwardly condemned and repudiated more than anybody else, but that once again, in the year 1942, he became involved in a particularly horrible manner with Jewish persecutions. I am thinking now of the deposits made by the SS in the Reichsbank, that is to say, the matter on which a film was shown here of the steel vault of the Frankfurt Branch of the Reichsbank and about which two witnesses have testified, namely, Vice President Emil Puhl and Reichsbank Councillor Albert Thoms.

The Defendant Funk was already examined about this matter of the gold deposits at the preliminary proceedings on 4 June 1945, (see 2828-PS); at that time, however, no details were disclosed to him, and Funk made the same statement then as he did before this Tribunal, namely, that he was only briefly told about the matter in question on a few occasions, and that he had not attached any importance to it at all. That is also the reason why the Defendant Funk could not at first recall those happenings very well during the proceedings here. He did not know anything more about them than he had already said.

Nevertheless, Gentlemen of the Tribunal, Funk had to expect that this matter would be brought up in the Trial, at any rate in the cross-examination. And this was actually done by the American Prosecution on 7 May 1946, who submitted an affidavit by the witness Emil Puhl, Vice President of the Reichsbank, in which at first sight Puhl appeared to make serious accusations against the Defendant Funk. Now it is remarkable that since the beginning of this Trial the Defendant Funk has repeatedly referred to this very witness Puhl for various points, and that since December 1945 he has repeatedly requested that the latter be interrogated. Measured by ordinary human standards, Funk would certainly not have done this if he had had a bad conscience and had reason to expect to be compromised in the most damaging way by his own witness regarding the concentration camp matter. But the oral examination of the witness Emil Puhl here before this Tribunal showed beyond a doubt that Puhl could no longer in any way maintain the incriminating statements in his affidavit, as far as the character of the Defendant Funk and his knowledge of the particulars of the SS deposits were concerned.

It is true that Funk, as he recalled after Puhl’s testimony (and concerning this I submitted on 17 June 1946 a corrected copy of his sworn testimony), was once asked by Reichsführer SS Himmler whether articles of value which had been seized by the SS in the Eastern Territories could be deposited in the vaults of the Reichsbank. Funk answered this question in the affirmative and told Himmler that he should delegate somebody to discuss the matter with Vice President Puhl, and settle the details. Himmler at that time told Funk that his Gruppenführer Pohl could do this and that the latter would get in touch with Vice President Puhl. That was all that Funk at that time, I believe in 1942, had discussed with Reichsführer SS Himmler and which he on that occasion also repeated to his Vice President Puhl who was actually directing the business of the Reichsbank and therefore responsible for this affair.

There was nothing extraordinary in this question of Reichsführer SS Himmler, at least nothing which Funk could recognize. For, as far as Funk knew, the SS was at that time in charge of the entire police service in the Occupied Eastern Territories. For that reason it often had to confiscate valuables just as the ordinary police did in the interior, that is, within Germany. Moreover, all gold coins, foreign currency, _et cetera_, in the Occupied Eastern Territories had to be turned in according to law, and these deliveries in the Eastern Territories were naturally made to the SS, because there were no other state offices equipped for that purpose. Funk also knew that the concentration camps were under the direction of the SS and thought that the valuables which were to be given to the Reichsbank by the SS for safekeeping belonged very probably to that category of valuables which the entire population was obliged to deliver.

Finally, as has been ascertained in the course of this Trial, the SS was constantly just as much engaged in the fighting in the East as the Armed Forces, and like the latter the SS had also collected so-called booty in the abandoned and destroyed towns of the East and delivered it to the Reich. Therefore, there was nothing at all extraordinary for Funk in the fact that the SS possessed gold and foreign currency and brought it in for delivery in the regular way.

Now, the essential point in this whole business is the question whether the Defendant Funk knew or saw that among the objects delivered by the SS there were unusual quantities of gold spectacle frames, gold teeth, and similar objects which had come into the hands of the SS not through legal but criminal confiscations. If—and I emphasize, Gentlemen, if—it could be proven that the Defendant Funk had seen such objects in the deposits of the SS, this would naturally have caused him some surprise. But we heard the witness Puhl say in the most positive way that the Defendant Funk had no knowledge of this and, indeed, that Vice President Puhl himself knew no further details about it. In any case Funk never saw what particular gold objects and what quantities the SS delivered.

Now, it has been said against Funk that he himself entered the vaults of the Berlin Reichsbank several times, and from this one felt entitled to draw the conclusion that he must have seen what objects had been delivered to the Reichsbank by the SS. This conclusion is obviously wrong because the evidence shows that during the entire period of the war Funk went to the vaults of the Reichsbank only a very few times for the purpose of showing these vaults and the bullion of the Reichsbank stored there to special visitors, especially foreign guests. But on those few visits to the vaults he never saw the deposits of the SS. He never observed what in particular the SS had deposited in his bank. This is established beyond doubt, not only by the sworn statement of the Defendant Funk himself, but also by the oral testimony of Vice President Puhl and Reichsbank Councillor Thoms here in this courtroom. This Prosecution witness, who is certainly free from suspicion and who by his own admission volunteered to testify, has declared here under oath that the valuables were delivered by the SS in locked trunks, boxes, and bags and were also stored away in these containers, and that Funk was never present in the vaults when the bank employees made an inventory of the contents of an individual box or trunk. The witness Thoms, who was in charge of these vaults, never saw the Defendant Funk there at all. Therefore, Funk neither knew of the proportions which the deliveries of the SS gradually assumed in the course of time, nor did he know that the deposits contained jewelry, pearls, and precious stones, and also spectacle frames and gold teeth. He never saw any of those things and none of his officials ever reported to him about them either.

Now it is the opinion of the Prosecution that Funk, as President of the Reichsbank, surely must have known what was kept in the vaults of his bank; but this conclusion is also evidently mistaken and does not take into consideration actual conditions in a large central issuing bank. Funk, who was also Reich Minister of Economics, had in his capacity as President of the Reichsbank no occasion whatever to bother about the deposit of an individual customer, even if this happened to belong to the SS. As President of the Reichsbank he did not bother about any deposits of other clients of his bank either, since this was not his job. On only one occasion, following a suggestion of his Vice President Puhl, he asked Reichsführer SS Himmler—this was during his second conversation with him—whether the valuables deposited by the SS in the Reichsbank could be converted into cash in the legal course of business at the Reichsbank. Himmler gave his permission and Funk passed this information on to his Vice President Puhl. But in this matter he was only thinking of gold coins and foreign currency, that is to say, of those particular valuables which had to be turned in to the Reichsbank as a matter of course in the German Reich and which could be and had to be converted into cash by the Reichsbank. The idea never occurred to Funk that the deposits might contain gold teeth or other such remarkable objects which had their origin in criminal acts in concentration camps. He heard about these things to his horror for the first time here in the courtroom during the Trial.

The only remaining point in the statement of the witness Puhl which might excite a certain amount of suspicion, Your Honors, was the question of preserving secrecy, which in fact played a very important part indeed in the examination of the witness. Vice President Puhl stated here at the beginning of his testimony that the Defendant Funk had told him that the matter of the SS deposits must be kept especially secret. Funk, on the other hand, has always denied this in the most insistent manner and declared under oath that he never talked to Puhl at all about any such secrecy. Thus at the very beginning, here in the courtroom, we had one statement pitted against another, oath against oath. Vice President Puhl’s statements regarding this point, however, seemed somewhat contradictory from the beginning. For on one occasion Vice President Puhl said that this secrecy had not struck him as anything extraordinary, since after all secrecy is preserved about everything that occurs in a bank. In answer to a special question, Puhl then stated repeatedly that he did not notice at all that the Defendant Funk had supposedly spoken about preserving secrecy.

When, however, the affidavit of the witness Thoms of 8 May 1945 was read and pointed out to the witness Puhl, the latter finally stated here under oath on 15 May 1946 that it was plainly visible from this affidavit that the desire for secrecy emanated from the SS. The SS considered it important that this business should be transacted secretly. The SS, as Puhl said, had been the ones originally responsible for the imposition of secrecy. This was the literal conclusion of the witness Puhl’s sworn statement and at the end of it he again confirmed that the obligation for secrecy was desired and imposed by the SS.

The initial contradiction regarding this point between the statements of the Defendant Funk and those of the witness Puhl was hereby completely eliminated, Your Honors, in favor of the defendant. Puhl himself could no longer maintain his original assertion that it was Funk who had ordered the SS deposits to be kept secret. Therefore, in arriving at your verdict, you must proceed from the premise that the statement of the Defendant Funk is correct in this point also and deserves preference, for he has declared under oath from the very beginning and with the utmost certainty that he himself knew nothing about keeping anything secret and that he had never spoken of any such secrecy to Puhl, either. Moreover, there was absolutely no reason for Funk to say anything to Puhl about any special secrecy, since Funk was obviously of the opinion that the valuables involved were only of the kind which had to be turned in and confiscated, and which came within the regular lawful business of the Reichsbank and need not be kept secret, regardless of whether these things which had to be turned in were the property of a prisoner in a concentration camp or the property of a free individual.

It was never made clear by the evidence submitted why the SS on their part stressed the importance of preserving secrecy to Vice President Puhl and why, furthermore, the SS opened the deposit in the name of Melmer instead of in the name of the SS, and the Prosecution for their part did not attach any importance to clearing up this point. However, in any case, the demand of the SS for secrecy evidently did not strike Vice President Puhl as unusual any more than it did the witness Thoms who had nothing at all to do with the matter but who confirmed the fact that this secrecy was nothing unusual. But nevertheless, Your Honors, one thing is still a fact, namely, that nothing was kept secret from the numerous employees of the Reichsbank about exactly what kinds of objects were involved. On the contrary, the Reichsbank personnel was even entrusted by Vice President Puhl with the task of sorting the valuables delivered and converting them into cash at the pawn shop. Dozens of Reichsbank officials who regularly entered the vaults could see the various articles every day, and the Reichshauptkasse, an institution entirely separate from the Reichsbank, from time to time settled accounts for the conversion of valuables into cash with the Reich Ministry of Finance in a quite open and thoroughly routine way. Naturally, the Defendant Funk did not know, and still does not know today, whether and to what extent agreements had been reached between the Finance Minister and Reichsführer SS Himmler for accounting for the gold articles to the Reich. He was never interested in it, and indeed it did not concern him.

From all these facts, as shown by the evidence, one can readily conclude that Funk himself knew nothing about the things which were turned over to the Reichsbank at the time, and that even Vice President Puhl and Reichsbank Councillor Thoms did not think there was anything bad connected with the things, although Thoms, at least, had seen of what the deposits actually consisted.

For this reason there is no longer any need to examine the obvious question as to whether the initial statements of Puhl with regard to the deposits of the SS should not have been received with a certain skepticism from the very beginning. Puhl apparently had the understandable desire at least by his written affidavit to shift responsibility from himself to the shoulders of his President Funk in order to free himself of his own responsibility for the unpleasant facts of the case when he was told during his imprisonment that the gold articles of the SS consisted mostly of spectacle frames and gold teeth and had been taken from victims of concentration camps. At the beginning, even Puhl apparently did not see anything wrong in the whole business. For him the matter was an ordinary business transaction of the Reichsbank for the account of the Reich, which he dealt with in the same manner as he dealt with gold articles and foreign currency that had been confiscated by the Customs Investigation Office or the Office of Control for Foreign Currency or any other State authority. Gentlemen, whatever one may judge the responsibility of Vice President Puhl to be, at all events these things lie outside the responsibility of the Defendant Funk who is the only one with whom you are concerned in connection with this point here. In the period after this time Funk had only two or three very brief and unimportant conversations with Puhl regarding these gold deposits with a view to converting into cash gold coins and foreign currency delivered in the regular way. Outside of this, Funk did not concern himself at all with this whole matter any more. He knew even less about the matter than Puhl, and it is not without significance that Puhl declared here under oath that he would never have permitted these gold objects to be deposited in the Reichsbank at all if he had had the slightest notion that the things had been taken from concentration camp victims under criminal circumstances by the SS. If Vice President Puhl did not know that and could not have guessed it, then Funk could have known even less about it, and Puhl’s initial statement which was to the effect that—as he said at the time—“the gold articles had been accepted by the Reichsbank with Funk’s knowledge and agreement and had been converted into cash with the assistance of the Reichsbank personnel,” was a grossly misleading statement to the Prosecution. Subsequently during his imprisonment when Puhl first learned of the true circumstances, he surely must have felt the same compunctions as Funk, however innocent the latter was in the case. In conclusion, Puhl declared here under oath that he would not have tolerated such transactions either, and that he would have brought the matter to the attention of the Directorate of the Reichsbank as well as to that of President Funk if he had known that the valuables were taken from victims of concentration camps and had been informed about the nature of these valuables.

In connection with this topic, therefore, I come to the following conclusion: The Reichsbank certainly transacted business for the account of the Reich, the subject matter of which was derived from criminal acts of the SS; but the Defendant Funk knew nothing of this. He would not have tolerated such transactions had he known the true circumstances. Therefore, he cannot be made criminally responsible for this.

The same is true, Your Honors, with regard to Reichsbank credits for the business agencies of the SS, concerning which I shall limit myself to a few sentences. In his written affidavit of 3 May 1946 the witness Puhl has given a completely misleading account of this matter also. For he stated originally that credits of 10 to 12 million Reichsmark furnished by the Gold Discount Bank upon the instruction of the Defendant Funk were used—and I am now quoting literally: “for financing production in SS factories by workers from concentration camps.”

In his oral examination as a witness, Puhl then was asked whether Funk had any knowledge that persons from concentration camps were employed in these factories at all. In reply to this, Puhl declared literally: “I am inclined to assume this, but I am not in a position to know it.” Therefore, he was not able to give any definite evidence concerning Funk’s knowledge, but only to express a conjecture. In contrast to this, Funk’s own statement in regard to this matter is quite clear and convincing. It was to the effect that he knew, indeed, about the request for credit by the SS, and that he even granted it, but that he knew nothing about the nature of the SS enterprises concerned and about the people who were employed in them. Funk stated this under oath. Accordingly, this credit transaction, which moreover occurred about 2 years before the affair of the SS gold deposits, that is, prior to 1940, incriminates neither the Defendant Funk nor the witness Vice President Puhl. At that time, in 1940, neither of them was acquainted with the conditions in the concentration camps. They only learned about them much later, that is, in the course of this Trial. Nor did the Defendant Funk know that persons from the concentration camps were working in the afore-mentioned SS factories for which the credit was intended.

Gentlemen, in this connection it appears necessary to devote a few more sentences to a discussion of the question whether Funk ever visited a concentration camp. The witness Dr. Blaha, who was examined here, stated that Dr. Funk was once in Dachau in the first half of 1944. This visit was supposed to have occurred as a sequel to a conference of the Finance Ministers at Berchtesgaden, or in some other place in this region, in which Funk is said to have participated. Yet, Gentlemen, when he was examined here, the witness Dr. Blaha was unable to say that he had personally seen the Defendant Funk in Dachau, but had only heard from camp inmates at Dachau—that is, from other persons—that the Reich Minister of Economics, Funk, was with many other visitors allegedly present. He did not see him; nor would he have known him if he had. From the very beginning Funk himself has flatly denied this visit to Dachau. He also stated this under oath, and the affidavit made by his constant companion Dr. Schwedler (contained in the Funk document book under Number 13 submitted to you) proves beyond a doubt that Funk never was in a concentration camp. Dr. Schwedler is in a position to know this, as at that time he was the constant companion of the defendant and knew where Funk was from day to day. Moreover, Funk was never a Finance Minister, as the witness Dr. Blaha assumed, and never took part in a conference of Finance Ministers. Therefore, it appears beyond any doubt that what the witness Dr. Blaha stated here purely from hearsay is based on false information, or he has confused Funk with another visitor, which was very easily possible since the Defendant Funk was comparatively unknown to the public. The conclusion, therefore, is that Funk never visited a concentration camp and never personally became aware of the conditions prevailing in such camps.

Now, by this assertion Funk by no means wishes to allege that he knew nothing at all about the existence of concentration camps. Funk was naturally cognizant of the fact, just as almost any other German, that there were concentration camps in Germany after 1933; just as he knew that there were and still are penitentiaries, prisons, and other penal institutions in Germany.

But what he did not know, and what I want to stress here, was the very large number of such concentration camps and the hundreds of thousands, even millions, of their inmates. Equally unknown to him were the countless atrocities committed in these camps, which first became known only in this Trial. In particular it was only during this Trial that Funk learned that there were extermination camps which murdered millions of Jews. Funk had no knowledge of this; he has stated this under oath and it also appears absolutely credible, for one of the most important results of this Trial, in the opinion of the Defense, consists in providing proof of the fact that the German people in general knew nothing about the large number of concentration camps or the conditions within them, but that on the contrary those conditions were kept secret in such a cunning and cruel way that even the highest officials of the Reich including the very ministers knew nothing about them.

Your Honors, the Defense have now presented their views on that part of the Indictment which, had it been true, would have tragically incriminated the man Funk. One may think as one pleases about acts of violence during a political and economic struggle, especially in stormy revolutionary periods, but in the opinion of the Defendant Funk himself there can be no disagreement on one point, namely, with regard to the concentration camp atrocities committed for years, especially against the Jewish population. Anyone who participated in such unheard-of atrocities should be made to atone for them in the severest way, according to the opinion of the entire German people.

That is also the point of view of the Defendant Funk, which he expressed here on 6 May 1946 when he replied to the American prosecutor from the witness stand that as a man and as a German he felt deeply guilty and shamed for the crimes which Germans committed against millions of poor people.

Gentlemen, I have now reached the end of my consideration of the Funk case as far as criminal law is concerned, and that is the duty of the Defense in this Trial.

The examination of the evidence with regard to the Funk case has, in the opinion of the defendant, produced proof that a legal guilt, a criminal guilt, on his part does not exist, and that he can ask you for his acquittal with a clear conscience because he has never committed any criminal acts in his life.

Your task as judges will now be to find a just verdict for the Defendant Funk, a verdict which will not make him atone for the crimes of others, crimes he could not prevent and which he may not even have known about, but a verdict which only establishes the degree of his own guilt and not the degree of his political guilt, but of his criminal guilt which is the sole object of these proceedings. This verdict should be valid not only for today but also recognized as just in the future when we shall view these terrible events in the proper perspective and dispassionately as we would ancient history; a verdict, Your Honors, which will not only satisfy the nations which you represent, but which will also be recognized as just and wise by the German people as a whole; a verdict, finally, which is not only destructive, retaliatory, and which will sow hatred for the future, but one which will make it possible for the German people to move forward toward a happier future of human dignity and charity, of equality and peace.

THE PRESIDENT: Mr. Dodd, will you or Sir David deal with this. Sir David, I have got a document drawn up by the General Secretary which shows in the first place, in the case of the Defendant Göring, that there are four interrogatories which have been submitted, and to which the Prosecution has not objected. Is that right?

SIR DAVID MAXWELL-FYFE: That is so, My Lord, so there is no further comment with regard to that first application.

THE PRESIDENT: Yes. Then, with reference to the Defendant Ribbentrop, there are two affidavits to which there is no objection, and there are three further affidavits which have not been received, I understand.

SIR DAVID MAXWELL-FYFE: That is so, My Lord.

THE PRESIDENT: And one document to which the defendants’ counsel wants to refer in its entirety, namely, TC-75, is that right?