Chapter XXXIII: Section 3: (Concerning Articles 3 and 4) (6)

The enclosed circular decree was issued with my approval; but I also made it known that I expect this interpolation of the competent State police offices not to cause any great delay in the forwarding of the proceedings to the public prosecutor, and that the State police offices are merely transit agencies during this part of the proceedings. They will be exclusively concerned with information on the proceedings and not with the decision about the necessity of further inquiries or perhaps even the question as to whether proceedings are to be turned over to the public prosecutor at all.

With these aspects in mind, I request that the effects of this circular decree for the police be carefully noted, and that I be informed in the event of any considerable delays.

BY ORDER:
[Signature] CROHNE
10 March

[Handwritten] Distributed [Signed] ECK 19/3

1(a) copies of circular decrees distributed to all Dept. Chiefs
and assistants.

1(b) copy with enclosure to Depts.
3262, 4026, 4007/1 taken care of [Initial] E. 19/3

2. resubmit
(notice to Reich Leader SS)
to 2: Submitted
Gsta [signed] ECK 19/3

[Initials] KLE [Klemm]
9 March

Draft Dept. IIa^3 323/37 Copy of circular decree to Reich Leader SS, for information

2. Request for copy of circ. decree.
E 22/3

3. Illegible
[Initial] KLE [Klemm] 22/3
[Illegible initials] 20/3

_Plan for distribution_

Bamberg 7 Kassel 3
Berlin 8 Kiehl 3
Braunschweig 1 Koeln 7
Breslau 16 Koenigsberg 7
Celle 11 Marienwerder 3
Darmstadt 3 Muenchen 10
Dresden 7 Naumburg 10
Duesseldorf 6 Nuernberg 7
Frankfurt 4 Oldenburg 1
Hamburg 3 Rostock 4
Hamm 9 Stettin 5
Jena 11 Stuttgart 8
Karlsruhe 9 Zweibruecken 4
__ __
95 72
TOTAL 167

[Signed] BEHRENS, 11 March

_Political dept. chiefs_ _Political assistants_[209]

* * * * * * *

[Handwritten:]
A few surplus copies are available. Distribution completed.

Gsta [Initial] E. [ECK], 8 May

to 4606--IIIa^3----248

Berlin, 18 February 1937

The Reich Leader SS and Chief of the German Police in the Reich
Ministry of the Interior

S V 1 No. 341/36

To:
a. The Gestapo Office in Berlin,
for forwarding to all Regional State Police
Offices and
State Police Offices

b. for information of:
State Governments in Prussia:
to the Regierungspraesidenten

Concerning: The forwarding of Gestapo affairs to the
office of the public prosecutor.

It is the Gestapo’s task, _to investigate and to combat all seditious movements_, and to collect and evaluate evidence of such investigation. These tasks can only be accomplished by the State police offices, if all political police-affairs dealt with by the local and district police authorities within their district are submitted to them promptly. As auxiliary organs of the Gestapo, it is the duty of the local and district police authorities to do so.

Thus, _all matters in the affairs of the Gestapo are on principle to be submitted to the office of the public prosecutor via the competent State police office_. In urgent matters of arrest, records may be submitted directly to the office of the public prosecutor after notifying the State police office previously by telephone. In such a case, a copy of the interrogation record is to be forwarded at once to the State police office.

The Reich Minister of Justice will instruct the office of the public prosecutor to direct the requests for investigations of reports of political nature, received directly by him, to local and district police authorities via the competent State police office.

_It is the responsibility of the State police offices to speedily evaluate the proceedings channeled through their offices and to forward them without delay._

BY ORDER:
[typed] signed: DR. BEST

[Stamp] The Reich Leader SS and Chief of the German Police
in the Reich Ministry of the Interior

Certified:
[Illegible signature]
Assistant

to IIIa^3----248/37

PARTIAL TRANSLATION OF KLEMM DOCUMENT 33
KLEMM DEFENSE EXHIBIT 33

PARTY CHANCELLERY INSTRUCTIONS TO PARTY OFFICIALS, 31 AUGUST 1937 AND 9 FEBRUARY 1938, CONCERNING THE EXCLUSIVE CONCERN OF JUDICIAL AUTHORITIES IN PROSECUTING PUNISHABLE OFFENSES AND PROCEDURES WHERE PARTY MEMBERS MAY HAVE COMMITTED THEM[210]

_Administration of Penal Law_

Imposing of Fines by Party Offices

A. 108/37
31 August 1937

For special reasons, I draw your attention to the fact that the prosecution of punishable offenses is exclusively the concern of the judicial authorities.[211] All cases, where persons have committed a punishable offense, must be turned over or reported to the appropriate authorities.

It is not admissible that sentences, especially fines, are imposed on punishable persons by offices of the NSDAP or its affiliated organizations. Party members disregarding this warning, who demand from the person who has committed an offense e.g., the payment of a fine, possibly with an additional hint that this would settle the affair, will run the risk of a criminal prosecution.

* * * * * * *

A. 15/38

9 February 1938

_The question of prosecuting or not prosecuting punishable offenses committed by Party members, is exclusively a matter of decision by the public prosecutor’s office or by the Reich Minister of Justice._

It has been noted, that Party offices have frequently approached the regional State police office or other State police offices with the request not to prosecute punishable offenses committed by Party members, or not to submit their investigations to the public prosecutor’s office. Since the officials of the Secret State Police are at the same time assistant officials of the public prosecutor’s office, and as such are obliged to prosecute all punishable offenses without respect to the person of the offender and without any special invitation from the public prosecutor’s office, unpleasant discrepancies would result if such wishes were satisfied. Nobody but the public prosecutor’s office or the Reich Minister of Justice can decide whether or not a punishable offense shall be prosecuted. The public prosecutor’s office therefore has always the opportunity to make investigations of its own, concerning incidents which, by the Party’s request are not prosecuted any longer by the Gestapo, or to have investigations made by the police authorities or by the constabulary, which would not exactly be in the interest of the Party. In the future, the lawful duty of the Secret State Police to prosecute all punishable offenses must be respected, and all cases of doubt with regard to such prosecution have to be reported directly to the appropriate Chief Public Prosecutor through the appropriate Gauleiter, or to the Reich Minister of Justice through the chief of the Party Chancellery, the aim being to accomplish an administration of criminal prosecution which will comply with the interests of the Party.

However, this procedure must be adopted sparingly since the same, and under certain circumstances more severe, principles will be applied to Party members as to non-Party members.

TRANSLATION OF SCHLEGELBERGER DOCUMENT 34
SCHLEGELBERGER DEFENSE EXHIBIT 92

LETTER FROM THE CHIEF OF THE FUEHRER’S NAZI PARTY CHANCELLERY TO DEFENDANT SCHLEGELBERGER, 30 JANUARY 1938, STATING THAT HITLER HAS DIRECTED THAT SCHLEGELBERGER BE ACCORDED MEMBERSHIP IN THE NAZI PARTY

Berlin W 8
Vosstrasse l
30 January 1938

The Chief of the Chancellery of the Fuehrer of the NSDAP To Under Secretary Dr. Schlegelberger Berlin

Dear Mr. Under Secretary,

The Fuehrer has directed [verfuegt], on the occasion of the 5th anniversary of the National Socialist rise to power, that you be accorded membership in the NSDAP.

I take pleasure in bringing this to your attention while requesting that you submit to me your personal data such as your first name, last name, place and date of birth, and correct address.

Heil Hitler!

[Signed] BOUHLER

PARTIAL TRANSLATION OF DOCUMENT NG-901
PROSECUTION EXHIBIT 436

TWO ORDERS SIGNED BY DEFENDANT SCHLEGELBERGER FOR THE INITIATION OF CRIMINAL PROCEEDINGS AGAINST NOTARIES BECAUSE OF THEIR ATTITUDE TOWARD THE NATIONAL SOCIALIST STATE, 19 MAY 1938 AND 6 DECEMBER 1938

_Copy_

_Order for the Initiation of Criminal Proceedings_

In accordance with article 38, paragraph 3 of the Reich Notary’s Code, and article 71, paragraph 2, German Civil Service Law, I initiate an inquiry against notary Karl Walbaum of Goettingen.

Notary Walbaum can no longer be relied upon to lend his active support to the National Socialist State at all times. This suspicion is proved by his general attitude, for instance--

(1) The notary joined the German National People’s Party [DNVP] towards the end of 1932 in order to help in preventing the National Socialist German Workers’ Party from taking over exclusive State leadership.

(2) In 1933 he was expelled from the Stahlhelm,[212] because he worked openly against the affiliation of the Stahlhelm to the National Socialist State.

(3) He did not adopt the German Salute in Court until fall 1937, and in the streets he fails to use it even today. On the occasion of his interrogation by the president of the district court on 13 April 1938, he referred to the German salute as the ancient salute given by German gladiators to the Roman emperor.

(4) He is opposed to the existence of the National Socialist Party and its union with the National Socialist State, and he expressed this attitude not only in a letter to the Kreisleiter of Goettingen, dated 11 April 1938, but also during his interrogation on 12 April at the branch office of the Secret State Police, and on 13 April 1938 by the president of the district court.

(5) In the plebiscite and general election on 10 April 1938 he voted “No.” I appoint District Court Judge Weissgerber of Goettingen head of the inquiry.

Berlin, 19 May 1938

The Reich Minister of Justice
As deputy

[typed] signed: DR. SCHLEGELBERGER

* * * * * * *

_Carbon copy_

_Order for the Initiation of Criminal Proceedings_

By request of the deputy of the Fuehrer[213] I initiate an inquiry against notary Dr. Kurt Prelle of Naumburg (Saale) in accordance with article 38, paragraph 3 of the Notary’s Code; article 71 of the German Civil Service Law and with the Executive Decree to article 71 of the German Civil Service Law.

It has become doubtful whether notary Dr. Prelle can still be relied upon to lend his active support to the National Socialist State at all times. These doubts are based on the following occurrence:

Since 1 August 1932, Dr. Prelle had been a member of the National Socialist German Workers’ Party, Membership No. 1 255 200. In the course of a Party court proceedings he was accused of having made a purchase from the Jew Max Cohn in Naumburg (Saale) on 24 December 1935. On 18 February 1936, during the proceedings he submitted a questionable justification in which he explained that not he himself but his wife without his knowledge had bought picture postcards from the Jew Cohn for a total of 10 Reichspfennig. He continued, however, to explain that in view of the speech made on 18 August 1935 by the president of the Reich Bank, Dr. Schacht, and in view of the fact that the Reich government was using Jewish banks for raising Reich loans, every State citizen was entitled to buy as much as he wanted from Jews. As a result of this, Dr. Prelle was expelled from the Party by a decision of the Party’s Kreis Court at Naumburg (Saale) dated 30 June 1936, because he had not made the Party’s fight against Jewry his concern and did not even support it.

The right to commission someone with the establishment of these facts is being reserved.

Berlin, 6 December 1938

The Reich Minister of Justice
As deputy

[typed] Signed DR. SCHLEGELBERGER

(Seal)

TRANSLATION OF DOCUMENT NG-825
PROSECUTION EXHIBIT 433

REPORT ON A CONFERENCE, 22 AUGUST 1939, BETWEEN DEFENDANT ROTHENBERGER AND SS MAJOR ECKHARDT, SD CHIEF IN HAMBURG, CONCERNING COOPERATION OF THE JUDICIARY WITH THE SD IN HAMBURG

Conversation between Senator Dr. Rothenberger, SS Sturmbannfuehrer Eckhardt, SD Subsection Hamburg and SS Oberschar [Oberscharfuehrer], Amtsgerichtsrat Moeller.

Subject: Cooperation of the Administration of Justice in Hamburg
with the SD Subsection Hamburg

1. There prevails agreement that it would be purposeless to appoint special informants in the various branches of the administration of justice to inform the Liaison Officer, Amtsgerichtsrat Moeller. The already existing circle of informants, to which Moeller should from now on belong, is abundantly sufficient to inform the senior president [of the court of appeal] about wishes and difficulties, views on the reaction to new laws, moods of the judges, etc. If from this circle things are brought forward which cannot be settled directly by the senior president, Sturmbannfuehrer Eckhardt is prepared to put his SD apparatus at their disposal on instructions from Moeller.

2. Senator Dr. Rothenberger expressed the wish to be able to fall back on the information apparatus of the SD in necessary cases, e. g., to ascertain whether there is any truth in rumors which by repetition have become the subject of a criminal procedure. Sturmbannfuehrer Eckhardt consents to this.

3. Senator Dr. Rothenberger declares that he is prepared to put at the disposal of the SD subsection current copies of such sentences as are significant on account of their importance for the carrying-out of National Socialist ideas in the field of the administration of justice, and which are being collected in the appellate court. Sturmbannfuehrer Eckhardt considers a current transmission of important judicial sentences in this way to be particularly valuable for the work of the SD.

4. Sturmbannfuehrer Eckhardt requests that employees of the judicial authorities be reminded before they travel abroad to keep their eyes open in foreign countries and to record their experiences and impressions in a report on foreign opinion. Senator Dr. Rothenberger points out that he has been kept informed up to now as to essentials, of one employee’s impressions on journeys abroad. In future, each employee of the judicial authorities is to make a report on foreign opinion at the close of his journey, a carbon copy of which will be forwarded to the SD subsection for information.

5. Up to now, informants who are at the disposal of the SD have not been nominated for the local court districts Harburg and Wandsbeck. Senator Dr. Rothenberger wants to seek out suitable individuals and to nominate them to the SD subsection.

For the rest, the parties concerned are in agreement that cooperation, with the wide consideration for the importance of the sphere of work on both sides, is best guaranteed by any debatable questions being dealt with directly by the liaison officer Moeller, either in writing or orally.

Hamburg, 22 August 1939.

EXTRACTS FROM THE TESTIMONY OF PROSECUTION WITNESS
FRIEDRICH ELKAR[214]

MR. KING: Will you please state your name?

WITNESS ELKAR: Elkar.

Q. Will you tell us briefly what your educational background and training has been?

A. I was born in July 1911 in Altenberg. Then, for 14 years I went to elementary school, and I went to the Oberrealschule, Fuerth, and there in the year 1931 I made my final examination. Then I studied for four terms each at the Universities of Erlangen and Munich. In the year 1935 I made the first state examination, the so-called Referendar Examination. Then for about 3 years I was at the Nuernberg-Fuerth court as a legal clerk in the administration for training. Then, in July 1939, I made the second state examination, that is, the assessor examination, at Munich. Thereafter, for a short time, I worked for a Nuernberg lawyer. Then, due to wartime conditions, I was unemployed for a while. In October I was taken into the Security Service at Nuernberg. That was on 16 October 1939. I was there at the SD during the entire war. In 1945 after the collapse I worked for some time as an agricultural worker.

Q. After you had passed your first state examination and prior to the time that you had taken your second examination were you at any time assigned, while you were in Nuernberg, to the defendant Rothaug?

A. Yes, first I had two cases when I was appointed defense counsel before the Special Court, and that is where I met Rothaug. And then for 2 months I was there for my legal training. That was at the end of my legal training period in February or March 1939.

Q. You said that in October of 1939 you became a member of the SD.

A. Yes, on 16 October 1939.

Q. Before I put several questions to you concerning your activities with the SD, will you explain briefly the relationship between the SD, (Security Service) of the Reich Security Main Office (RSHA) and the SS?

A. Relations between the Reich Security Main Office and the SS--well, the Security Service, SD, belonged to Office III of the Reich Security Main Office. That was the central office of the SD at Berlin. A large number of the employees of the SD, had been taken into the General SS. To that extent a rather loose connection existed between the SS and the SD. In particular, the Supreme Chief of the Reich Security Main Office was first Heydrich and after his death, Kaltenbrunner, whereas the chief of the SD who was under Heydrich and Kaltenbrunner was Ohlendorf.[215] Is that sufficient?

Q. Tell me how the SD was organized at Gau level?

A. At Gau level principally every Gau had an SD department. That, according to the Gau level, was the SD sector, and the extent of this SD sector was usually the same as that of the Gau.

Q. How were these SD organizations which were attached to each Gau organized? Were there departments in each SD organization within each Gau, and if so, what were these departments?

A. In the SD districts there were departments [Referate], as we called them. Essentially there were four--III was the designation of the SD office in general; III-A, law and administration; III-B, folkdom and public health; III-C, cultural fields, including education; and III-D, economy.

Q. When you were assigned to the Gau here in Nuernberg for the SD, to which one of these four departments were you assigned?

A. I was assigned to the department of law and administration.

Q. And what was your position in that department?

A. I was in charge of it. That is to say, for quite some time there was only one man in it, really. There was only one person.

Q. Can you tell me in general--I will later ask you some specific questions, but now tell me in general what your duties were as head of law and administration of the SD in the Franconia Gau.

A. The SD as home information service, in our case through the Reich Security Main Office had to inform about all developments in various fields of German life. I personally had to report about all developments in the field of law and administration, positive and negative developments which occurred in that field of law and administration, to investigate and to report about them.

Q. Being assigned to the law and administration section, did you confer with the defendant Rothaug in connection with your official duties?

A. Yes. On the basis of an instruction received from the inspector of the Security Police and SD at Munich who was our administrative superior, from an instruction through him we had to take up in connection with the prosecution of the Special Courts in order to inform the inspector, and in the last event, the Reich Security Main Office, about the pending criminal cases, that is to say, the activity of the Special Courts. In the course of this action, it came to a conference of my chief with the president of the court of appeal, and in the course of that conference Doebig, the president of the court of appeal, stated that he was not competent for any agreement that had to be passed here, because as the Public Prosecutor, the prosecution was under his control. For that reason on the same day, practically at the same hour, a conference was brought about with the General Prosecutor Dr. Bens. On that occasion, the presiding judge of the Special Court, Rothaug, was present. Bens justified that by saying that the first hand information about pending criminal cases before the Special Court could best be obtained from the presiding judge himself, because it was he who was in charge of scheduling the cases and therefore could give the best information, and for that reason Rothaug was drawn into that conference. The oral agreement came about to the effect that from time to time if my superior office was interested, I should get the appropriate information from Rothaug.

Q. In connection with this series of conferences, when did you first see Rothaug?

A. Well, the conference in question you mean?

Q. No. As I understood the answer to the previous question, after you had seen Doebig and Bens, you were finally told that you would confer in connection with your official duties with Rothaug. When then did you have your first conference with Rothaug concerning your official duties?

A. The first short conference took place immediately after that conference with Bens and Doebig on the same day in Rothaug’s office. On that occasion, Rothaug stated that he was quite ready to work together with the SD, as far as information was concerned.

Q. And thereafter, did you see him at regular intervals, and if so, how often did you see him?

A. At that time, an agreement was reached between Rothaug and myself that principally I should come into his office every Saturday, and there he would inform me about matters which in his opinion were interesting for me--criminal cases--and give me all the information. On that occasion, we were also able to discuss any other legal questions of interest that actually came up; and particularly during the first half year I met Rothaug pretty regularly on Saturdays.

Q. Now after these Saturday conferences with Rothaug, did you make a report to your superiors on what was said?

A. I sent reports to the Reich Security Main Office about everything in the way of information which I received from Rothaug.

Q. And these reports which you sent to the Reich Security Main Office went first to your superior located in Nuernberg, and then, as far as you know, to Berlin and possibly to the head of the SS? Is that right?

A. It really occurred that way, that whatever Rothaug considered important he reported himself. I took stenographic notes, and I had them transcribed at my office, and on the basis of this information, I wrote my report to Berlin--of course without any opinion on my part and without making essential changes which would not have been within my duties.

Q. In these conferences with Rothaug, which occurred fairly regularly every Saturday morning, can you tell the Court in general what was discussed? Later on, I want to ask you several specific questions, but now, if you will, please tell us in general what Rothaug discussed on these occasions with you?

A. Mostly the information which he gave me was in a form of instructions about developments of criminality which he explained with examples of individual cases. He informed me, for instance, that mail robberies or black-out crimes were increasing and that they constituted most of the criminal cases at that time. Then he explained to me in what manner criminal procedure had to be developed in order to present effective measures against that undesirable development of criminality and to manifest that in the way of jurisdiction. On that occasion, of course, individual cases were also discussed. In addition to that, he also mentioned matters of legal and political development; also in the field of substantive law, matters which came to his attention in the course of these proceedings, sometimes in the form of short dictation or of handwritten slips which he prepared. It was not only that the current cases were explained to show the development in criminality but also anything that occurred in the field of law and had to be corrected by higher offices, be it that it needed a negative or positive decision that he wanted to have written down and reported to higher offices.

Q. Rothaug knew, I take it, that these notes and reports which he handed to you were passed on by you in line with your official duty--passed on to higher authorities in the Reich Security Main Office and in the SS?

A. That he knew for certain, and in my opinion that was what he wanted. It could be seen from remarks to the effect that such matters had to be reported to higher offices so that from these higher offices appropriate countermeasures could be taken.

Q. Did Rothaug discuss in these conferences with you the sentences he expected to give in cases that were to be heard in his court in the near future?

A. Yes, the proceedings in the next period of time which were to be tried sooner or later, as far as they were important, were discussed partly on the basis of the files, partly on the basis of his knowledge of the files; he gave me a short explanation of the facts and also his opinion about the legal procedure, the legal dealing with the cases as far as the application of the facts was concerned in consideration of the sentence to be expected.

Q. What in general was Rothaug’s attitude, so far as he reported it to you, on the interpretation of criminal law?

A. Rothaug, in principle, was of the opinion that particularly in times of war on account of a certain laxity of security measures, be it due to shortage of personnel or other things, criminality would increase; that not only an increase of serious criminal cases would occur, but also of so-called political criminality; and that the activity of the Special Courts should be conducted in such a manner that an increase of serious criminality of that kind should be forestalled; that any attempt against the State in a political, criminal, or other manner would have to be wiped out by severe penalties.

Q. Can you tell us what Rothaug’s apparent attitude was toward foreigners, especially Poles, so far as the application of criminal law to them was concerned?

A. In my opinion, Rothaug’s position was that particularly toward foreigners--Poles and others--that no clemency should be applied; that especially these elements had to be met with severe measures in order to assure that attempts which would be made to counteract the successes of the armed forces should be choked off at the outset. It may be that he would have used more clemency towards German criminals than to foreigners.

Q. Can you tell us whether you are familiar with the decree against Poles and Jews promulgated in 1941?[216]

A. Yes, that is a concept for me.

Q. You are in general familiar with the provisions of this decree, are you not?

A. Well, in detail--of course today I couldn’t say--but in general, yes.

Q. What was Rothaug’s attitude toward Poles and Jews prior to the time that this decree was promulgated so far as you know from the conversations that you had with him and from the reports that you passed on from him?

A. I believe that it was clear to Rothaug that here, if I may say so, there was a gap in the law; that that gap should be bridged; but that a judge with the right political attitude should be in a position, in spite of this gap, to sentence accordingly. He found the juridical way to pronounce the sentences which he considered appropriate.

Q. In other words, would you say that Rothaug achieved, without a decree, and prior to the time that it was promulgated, the same legal effect that later could be achieved under it?

A. That is correct, beyond doubt. As a Special Court judge in Nuernberg, he achieved the same success. I should only think that perhaps measured by conditions all throughout the Reich, he thought that a formulation of these principles was needed.

Q. Is it your feeling that Rothaug’s outspoken comments on the need for such a decree, as was later formulated, was influential in the final promulgation of that decree?

A. Well, as far as the various things are concerned that finally led to the decree, I am not well informed about that; but that Rothaug’s information may have contributed, that I believe.

Q. In any event, prior to the time that that decree was formulated in 1941, you had sent up in line with your official duty many of Rothaug’s comments on what the law, or what the situation lacked at that time?

A. That was certainly the case.

Q. In discussing the cases with Rothaug in these Saturday morning conferences, do you recall any particular case to which Rothaug referred?

A. You mean in a particular category of a criminal act?

Q. No, I do not refer to that. Perhaps my question was not clear. I meant in spectacular cases which were to be tried by Rothaug, or other judges in his court. In other words, did you discuss, or did he discuss with you the more spectacular cases at any time?

A. Yes, he did. I remember, for instance, the case of the Dachau criminal, I think it was Poelmann.

Q. One moment. I did not get that name.

A. Poelmann. That man Poelmann, if I remember correctly, had taken a large quantity of lard from a barn in Fuerth, I believe at night. There may have been several hundred pounds and also other things. If I remember correctly, Poelmann was sentenced to death by Rothaug. The verdict I believe was not executed, but through a pardon was commuted into a long prison term, I think 8 years of hard labor. Rothaug talked to me at that time about that pardon, which technically reduced the death sentence, which in Rothaug’s opinion was a correct sentence, to a prison term.

Q. Do you remember any other cases that you discussed with Rothaug?

A. Yes, one typical case, the case of Katzenberger. That case Rothaug and I discussed also once, and I expressed my opinion that on the basis of information I had received, and also on the basis of opinion on what was known of the criminal, that the sexual relationship was not an accomplished fact, because the law, insofar as I knew, required the act of sexual relation between a German and a party of non-Aryan descent.

DR. KOESSL: May it please the Tribunal, I object against the examination. I object to the examination in this manner, because the opinion which is stated by the witness, the legal opinion which is stated by the witness shows that he is not an expert, and furthermore, he has not been called as an expert witness.

PRESIDING JUDGE MARSHALL: We see nothing in the answer in the nature of which shows anything other than he was just stating a conversation, the way we get it.

WITNESS ELKAR: I do not in any way wish to give an expert opinion here. I only wanted to explain why I came to speak about the case of Katzenberger, because I was asked whether he spoke of any other case, and particularly this case is one which was mentioned as the case of Katzenberger. Therefore, may I continue with my statement? At the time the facts were not complete, because it was not proved so far as I know that the German woman was doing anything more, according to the proof, other than that she was sitting on his lap, and Rothaug--I remember that quite clearly here--said that one had to take the human facts into consideration and could hardly expect that a man of that kind, he meant the man Katzenberger, would act otherwise once the girl had been sitting on his lap, and that consequently, he considered the proof as given.

MR. KING: Now may I for a brief moment digress to another subject. In your position with the SD you undoubtedly had an opportunity to observe the political influence that various people with whom you came in contact exercised?

A. Yes.

Q. What do you know about Rothaug’s influence with the Party men who ran the Gau Franconia. What are your impressions?

A. Rothaug had some close connections to the Gau Inspector Haberkern. Haberkern as Gau Inspector could gain an insight in all matters going on in the Gau, and in my opinion for a discussion of such matters, particularly in the legal field, he took the advice of Rothaug, so that, since the Gauleiter depended on Haberkern, Rothaug certainly could have his opinion go to the Gauleiter on legal matters.

Q. What men besides Haberkern were influential in directing the affairs of the Gau Franconia?

A. Well, first, Streicher was Gauleiter. After he left, there were several staff office chiefs who were acting, and then Holz became acting Gauleiter. Then Holz went to the army, and at that time the Kreisleiter Zimmermann was in charge of the official business of the Gauleiter and as far as I know, the relationship between Zimmermann, Haberkern, and Rothaug was very close.

Q. May I at this point ask you to clarify one matter. You say that Streicher, Haberkern, Holz, and Zimmermann, as leaders of the Gau, were, of necessity, members of the Party Leadership Corps?

A. Yes.

Q. Now in your opinion from what you were able to observe, did Haberkern’s reliance on Rothaug, and Rothaug’s influence over him result in Rothaug having a very great influence on the Party Leadership Corps here in the Franconia Gau?

A. Insofar as Haberkern could indulge in the influence as to the Leadership Corps, Rothaug through Haberkern had the same influence, and I should like to assume that in the question of law Rothaug certainly was the man who was the higher authority so far as the Gau was concerned.

Q. Do you know whether Rothaug had ever taken an oath of secrecy as a collaborator with the SD?

A. Yes, he did.

Q. Do you know when that happened?

A. That must have been in 1940, because in May 1940, approximately in the spring of 1940, that is before the French campaign, the conference of prosecutors which I had mentioned took place, and I believe a short time afterward Rothaug was drafted for the SD and was put on oath by the SD.

Q. What was the higher, more responsible position in the SD, the position of informer [Nachrichtenmann], or the position of collaborator [Mitarbeiter]?

A. May I correct that? There were no official informers. You mean the confidential agent [Vertrauensmann]? Then there was also the term of honorary collaborator [ehrenamtlicher Mitarbeiter]. The confidential agent was the man who in a certain field of law, penal law or the administration of justice, occasionally was used for information that had to be kept secret. On account of the shortage of men, which existed during the war, it had become necessary to bring in also honorary staff members [ehrenamtliche Maenner] who had certain functions, and who in a definite special field, also had the function of rendering information; the informative material which had come from other places was digested by them and put together in reports. All such people in the special field, that is the field of penal law, were a source of information. The honorary collaborator I would like to put on a higher level than the confidential agent.

Q. I think I did use the wrong term in referring to the confidential agent as informer, but in any event, you understood my question, and I think I understand your answer.

Did you ever attend a trial which was presided over by Rothaug?

A. Yes.

Q. From your observation, can you tell us briefly how Rothaug conducted his trials?

A. Once it was the case Heller and Muendel, well known highway trap-setters [Autofallensteller]. Then the case Feldstengel. There were several others. These were cases of burglary during the black-outs, black-out crimes.

May I pick out here the principal matters such as they presented themselves to me after my experiences as an SD man. I think I am not mistaken in assuming that Rothaug considered the trial before the Special Court as a means of direction and education and that accordingly he conducted the main trial on a broad basis and facts which constituted transgressions against the program of the Party, the directives of the political leadership, such facts were developed to such an extent that the illegal elements which were contained in the opposition against the political leadership were brought to the foreground. I would like to say that he rather disregarded other circumstances concerning the defendant, his office, his position. He wanted to remove those circumstances, to leave them aside, in order to develop clearly the criminality of the act of the defendant, and just because he considered the trial as a means for the direction and education of the people, he used every means to make it possible for as many people as possible to attend and underline matters which offered possibilities for the political education in order to exert influence on the listeners in that manner.

Q. In your conferences with Rothaug did he express the view that trials were to be used as a means of political education?

A. Yes, of course.

Q. From your observation of Rothaug’s conduct of trials where he was the presiding judge, your answer is that in practice they actually were conducted that way, as a means of political education; that was the purport of the answer to the next to the last question, I believe.

A. Yes, that was my personal impression, which I gathered from the comparatively few trials which I attended myself and also from information on the basis of the material about the trials. From those reports, it could be seen that Rothaug had the intention to use the many trials as a means for political education.[217]

* * * * * * *

_CROSS-EXAMINATION_

DR. KOESSL (counsel for defendant Rothaug): Witness, your position was that of chief of a department?

WITNESS ELKAR: No, in an Abschnitt. May I point out that there was no such expression as Abteilung; there were special departments, Referate.

Q. So it was Referat III-A?

A. Referat III-A.

Q. Referat III-A was part of the home forces?

A. Yes.

Q. Your work with Rothaug was based on general directives, on the basis of which the SD groups had to get in contact with the Special Courts; is that correct?

A. The real cause for the contact with Rothaug as presiding judge of the Special Court was, as I explained yesterday, the desire of the inspector of the Security Police and the SD in Munich to be informed about the decisions of the Special Courts, or to remain currently informed about their decisions, because the inspector of the Security Police and the SD in Munich was, at the same time, supposed to send reports to the Reich defense commissar who, at that time, was in Munich, but whose field was all of Bavaria. A measure of that kind was of a local nature, at first only for Bavaria, an internal instruction, let us say, from the RSHA, because a contact of that kind did not exist at that time.

Q. But it was a contact which was taken up all over Bavaria?

A. Yes.

* * * * * * *

Q. Do you still know what the purpose of the visit of the SD leaders with Doebig and Bens was and what considerations, what principal considerations were discussed on that occasion?

A. As I have already explained, subject at first on the occasion of that official contact, taking up of contact, was that from an authoritative source the reports should be received about pending criminal cases, and of course also about legal problems in connection therewith. The SD through all its reports from the outside, received information about the consequences of court decisions on morale. It is clear to us today that the layman’s point of view frequently deviates quite essentially from the facts established in court. And in order to provide a correction, a possibility of checking our reports, it was necessary that we establish the official connection to the court authorities.

Q. Therefore, it was intended that this contact should correct mistakes in the reports received from other sources, which mistakes were based on reports from laymen and frequently caused misunderstandings of the facts?

A. That is essentially true.

Q. Now, you discussed at first the conferences. You came to Rothaug first on Saturday mornings in order to get information?

A. Yes.

Q. Did you stick to that in the course of the following period, or were there larger intervals between these meetings?

A. If I should indicate a period first--

Q. I asked only, was that regularly on Saturdays?

A. In the beginning yes, the first half year.

Q. And later?

A. Later, either if an inquiry had been sent to us from some other source or when, on the basis of reports which we had received from other sources we had questions to put before him, or when Rothaug on his part had to report anything on the basis of his activity, and I emphasized yesterday that he was very productive for us, that in the field of political law, not only in the field of general law, but beyond that and also in the field of civil law, he brought to us experiences and inspirations.

Q. If I understand you correctly, Rothaug dealt with matters of principle of a general nature not, for instance, the treatment of individual cases, the manner in which individual cases were handled.

A. You have to distinguish here between the--you have to start here from the assignment which the SD had as information sources for the whole country. As I emphasized yesterday, the purpose was to eliminate wrong developments first, to point them out. In case of these developments in the wrong direction it could only be matters of principle in the beginning. According to the instructions we had received, it did not suffice to point out a principal wrong, that is to say a gap in the law, but it was necessary that on the basis of concrete examples of definite individual examples that gap be proved, and if possible at the same time in this case, of course, by the expert, recommendations had to be made for modifications. And on the basis of this activity individual cases were the subject of discussions and conferences. Frequently, as far as I remember, it occurred that at times the individual case itself was discussed as, for instance, the case of Katzenberger and another case which I still remember.

Q. So it was a matter of justifying opinions if individual cases were mentioned?

A. Yes.

Q. It was not a matter of interfering into an individual case on the part of superior offices, an interference into a pending, into an actual proceeding?

A. Well, of course it was possible that the individual case itself, through the leadership office, became known to the Ministry and caused individual measures. I can give you an example. In the directives concerning files there is a provision according to which wills are to be attached to the files of the court. Furthermore, there is some directive of some sort according to which last letters of soldiers who have been killed could be considered, under certain circumstances, as having the force of a “last will.” That was particularly customary in the air force, that, in case a flier died, these letters were considered, and if there were any provisions in these letters concerning the heritage, and there was no other proof of any will existing, they were considered to represent the will. That happened, for instance, in one case. There was a soldier by name of Schneiderbanger. The woman who had lost her husband in the First World War, and I believe already one son in this war, lost her last son. It was in air combat over London, I believe. She presented to the court the letter in which some provisions were included about his luggage, I believe. The court considered that letter to represent his will, and asked for the original from the woman--asked that the original be put in the files. Since for sentimental reasons she objected to that, she was threatened with a fine or a prison term. That affair raised a lot of discussion. Various offices of the Party intervened, and it came before us. I reported that case. In the opinion of the RSHA it was not a rare case, but a development which would have to be taken into account either by law or by directive from the Ministry. It was strange that in this case the reaction of the Ministry of Justice was not the issuance of a general instruction, but an order through channels that the woman in this particular case be permitted to keep the letter.

PRESIDING JUDGE MARSHALL: One moment, please. The witness answered, some little time ago, that these reports to the RSHA and the answers from them were for the purposes of justifying the opinions of the lower court. At that point, Dr. Koessl asked the question whether it was intended as an interference of those opinions. I couldn’t observe that the witness answered that question, and I should like to know whether it was an interference and not merely an attempt to justify.

WITNESS ELKAR: In as much as we discussed these cases at our level, one could not speak of interference in the individual cases. How far the RSHA, through conferences with the various ministries--in this case, the Ministry of Justice--could interfere, I am not in a position to estimate.

Q. I am not so much concerned as to how much they could do, but I am very much interested in knowing what they did do, if anything, in the matter of interference.

A. Well, of course we reported with the intention that a wrong development in individual cases should find correction occasionally, but I am not so familiar with that in the legal field. We received instructions from superior offices that in this one or the other case a measure from the Ministry or the respective superior office was caused by the report.

DR. KOESSL: Wasn’t it so that at that time the fact had become apparent and noticed that offices which were outside the administration of justice were frequently concerned with matters of justice; for instance, offices of the NSDAP, Kreisleiters, and so on?

WITNESS ELKAR: Yes.

Q. Were the conferences also concerned with the attempt of preventing such interference?

A. I can hardly remember that when speaking to Rothaug that problem was ever discussed to any extent. Occasionally, when mention was made from the outside, that question was touched too; but if I remember correctly, Rothaug was of the position that the Party, for instance, was definitely justified to make its intentions known to the court; he said in the same manner which, for instance, the administration of mail service--in case of a fraud on the part of one of the officials--gives its expert opinion about the case, then in the same manner that right should be conceded to the Party. For that reason, he offered at all times information to the Party and gave also advance information about pending cases and an opportunity to state its--the Party’s--point of view.

Q. That was originated by law, if I remember correctly, Witness. Wasn’t it provided that in penal cases against members of the Party, on the basis of a legal decision, the Party had to be informed?

A. Yes, that of course.

Q. That is what I mean. Was there more involved?

A. For instance, in cases of insidious attacks[218], a directive by the Ministry of Justice was required. That directive, as far as I know, came about in cooperation with the Party Chancellery.[219] It is true that the Party Chancellery, certainly before it rendered its decision, received information from the Gauleitung concerned with that case. But I believe that I am not mistaken to assume that Rothaug, even beyond that in local cases of political significance, tried to get the opinion of the Gauleitung concerned.

Q. You told us yesterday that you discussed pending cases on the points of view of the general development of criminality. Was that the basis of your conferences on Saturdays and later on at more frequent occasions?

A. Perhaps I can make the answer a little clearer by emphasizing the circumstances under which this more intense cooperation with the Special Court under Rothaug, in particular, came about. The conference between Doebig and the others was concerned with the official agreement, as I have said. The position and the tasks of the SD are known to you. I assume that the SD was in a position to obtain these official informations and opinions from the official sources, but we had to try to find out about the matters which were, for instance, in the more detailed files--matters about which information cannot be obtained through regular channels--or to find out about matters which went beyond the pattern of an official opinion about a penal case; that is to say, as we have explained before, a particular experience or an opinion about another court. The obtaining of that information could only be the case if as an SD man I had a closer connection to Rothaug beyond the official character of my mission. And Rothaug, after that first official conference with Doebig--in a conference between himself and myself--stated that he was prepared to do so.

Q. Did you take up contact with other officials of the administration of justice in your position at that time?

A. Here again I have to deal with the administrative organization. As you have heard yesterday, the Abschnitt, after the SD Main Office, was the next lower echelon. It was not our task as such in all fields, let’s say of law and of administration, to obtain and to collect material of information. That task remained to the so-called field offices. I believe we had five in Nuernberg. These field offices as far as I am informed had their confidential agents again; and that there were legal men--members of the court--among those, is quite known. As far as my mission was concerned, that is to say, in order to appraise and evaluate the material which came from the field offices, I needed of course a qualified person, an expert, who had a wider field of experience; and for that purpose I needed Rothaug. He agreed, and he also had the right attitude.

Q. Yesterday you spoke about the slackening of the security machinery during the war. Could you remember that preventive measures against danger arising through conditions of war was part of the discussions and conferences with Rothaug?

A. You mean measures to be taken by leadership offices?

Q. In order to prevent possibilities of dangers arising from special conditions, arising from emergencies of war.

A. Of course.

* * * * * * *

Q. Witness, I want to go over to another point. What concrete reasons do you have for judging what influence Rothaug had on Haberkern in regard to the leadership of the Gau; what influence was exerted through Haberkern on the Gau leadership?

A. I know that Rothaug was at the Hotel Haberkern, at the so-called Stammtisch [club table], that he was seen there frequently; I know, furthermore, partly from having been present there myself, in the “Blaue Traube” restaurant [Hotel Haberkern] that other leading men of the Gau were also present there. For example, the Kreisleiter Zimmermann occasionally; also the Higher SS Police Leader Dr. Martin and several other people; and I know furthermore that, at this Stammtisch, matters concerning the Gau were discussed. I can further say with quite a good deal of certainty that Haberkern, especially in legal questions, based himself on the advice and actions of Rothaug, since Haberkern, as I believe I emphasized already yesterday, as Gau Inspector, at any time could have insight into any matters which were of interest to the Gau and what was going on inside the Gau; he could, of course, on the basis of this insight inform the competent Gauleiter.

Q. Did the Gau not have a definite office for handling legal questions?

A. Yes, the Gau had a legal office, the Gaurechtsamt.

Q. Was Rothaug in charge of this office?

A. No. Rothaug was in the National Socialist Legal Workers Association [NSRB] the head of which in Gau Franconia, at times was also the head of Gaurechtsamt, namely Oeschey. In the NSRB, Rothaug had the position of a Gau group leader of the [group] judges and prosecutors; you know that the NSRB was composed of [several] groups.

As Gau group leader of [group] judges and prosecutors, Rothaug was in the Gau Franconia, the judge, the leading jurist, politically; who also from the political point of view, especially the personnel policies of the Party had the primary influence on it--the most important influence, that is, on the Gau leadership. The Gau leader depended a great deal on its own initiative or due to the questions by the Party Chancellery, who had to advise and give opinions on certain personnel policies, questions of personnel policy. The Gau leader and the Gaurechtsamtleiter had to find out Rothaug’s attitude.

Q. But, Witness, is it not evident already from the fact that the Gau leadership had to turn to Rothaug via the Gaurechtsamtleiter that the Gaurechtsamtleiter was the decisive man, the advisor of the Gau leadership?