Chapter XXXIV: Section 3: (Concerning Articles 3 and 4) (7)

A. One should suppose that from the outside, just from looking at the organization, but actually I should suppose--I think I can say that with certainty, that the Spiritus Rector, shall we say the guiding and thinking spirit even under the leadership of Oeschey, was Rothaug.

Q. Now, did you have an insight into the attitude of Rothaug with his associates from the political point of view?

A. Do you mean the association on the Special Courts?

Q. Yes.

A. In order to do so it is necessary--

Q. Please, did you have an insight or not?

A. Yes.

MR. KING: May I ask if the witness wants to expand his answer or not. I think the witness should be permitted to if he so wishes. What is the ruling of the Court on that?

PRESIDING JUDGE MARSHALL: Yes, he may answer it further if his answer requires an explanation. Sometimes a question calls for a direct answer; sometimes that answer is not fair to the witness unless he explains why. In this instance he may answer.

WITNESS ELKAR: Rothaug was operating on the principles from the National Socialistic point of view, that was correct; that a judge in a Special Court had to fulfill a certain minimum requirement from a political point of view; that it was not enough for Rothaug that Special Court judges were appointed who, from the technical point of view, met the requirements, but they must also have, politically, a certain maturity--shall we say, a certain political maturity.

DR. KOESSL: Are you finished?

A. Yes.

Q. Insofar as the political maturity of the associate judges goes, did Gross and Ferber fulfill that and Hoffmann--were all of those taken from the Special Court by Rothaug removed from the Special Court, or am I correct?

A. It was so, the basic attitude of Rothaug toward the requirements of judges in the Special Courts was that he emphasized occasionally, again and again, that these requirements were, of course, not fulfilled in all the points of the requirements, because in his opinion the political orientation did not exist to the extent he desired it. He said, however, that under his leadership, weaker judges would, shall we say, fall in line.

Q. Did the associate judges of Rothaug suffer politically in any way, such as through the SD, because they had different legal opinions and different conceptions of law, because they had voted differently in the discussions?

A. By the SD? Do you mean to say by that that steps were taken from the higher authorities?

Q. Did Rothaug report about the unfavorable comments about his associate judges in order to have them reprimanded?

A. That was not the case, for Rothaug stated again and again that under his leadership the judges followed the corresponding course.

* * * * * * *

Q. Can you remember whether it was Rothaug who made efforts to have the severity of wartime legislation explained to the people--whether these efforts of his were successful?

A. You mean to say that the hints upon the enlightening form of these sessions brought it about also that the population would understand it better now?

Q. Understanding on the part of the population, of the severity as well as a warning.

A. As far as I remember, the material that was reported was not sufficient in order to judge this--in order to draw such summary conclusions.

Q. Did you, yourself, make observations that the people, the population, felt that they had been warned?

A. That there was a fear of the Special Court is a matter of general knowledge. That this was in connection with the efforts of Rothaug, I cannot judge whether this was so.

* * * * * * *

Q. You, yourself, were SS Hauptsturmfuehrer or SD Hauptsturmfuehrer, how was that called?

A. During the course of the war I came to the rank of SD Hauptsturmfuehrer, in 1942.

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EXTRACTS FROM THE TESTIMONY OF DEFENDANT KLEMM[220]

_DIRECT EXAMINATION_

DR. SCHILF (counsel for defendant Klemm): I shall now ask you to describe to the Tribunal the work you performed at the Reich Ministry of Justice. First of all, how was it that you got into the Reich Ministry of Justice?

DEFENDANT KLEMM: That happened in the course of the centralization [of the administration of justice in Berlin]. The Minister of Justice, Dr. Guertner, appeared to have the desire that the Reich Ministry of Justice, which comprised the administration of justice of 16 states [Laender], have the Laender represented at the agencies of the Ministry approximately according to their size and their importance. That is how it happened that on 1 April 1935, officials from every former Ministry of Justice in the states were at that time, I believe, transferred to Berlin. From the Ministry of Justice for Saxony, four officials were transferred to Berlin. I never expressed the wish to be transferred to Berlin. The fact that I too was transferred to Berlin is probably due to the fact that negotiations had been held between Thierack and Guertner. I don’t know though. About my being transferred to Berlin, I heard at the middle of March 1935. A fortnight later, I was due to start work in Berlin.

Q. What was this sphere of work which was transferred to you at the Ministry in Berlin?

A. Because from 1929 I had worked for the prosecution, and also because at the Ministry of Justice for Saxony, I had dealt with special measures concerning penal law, I was given at the Ministry of Justice a position in Division III at that time, which later became Division IV. I was appointed auxiliary advisor on high treason cases, and as district Referent [Bezirksreferent] for several districts of district courts of appeal, both in political and nonpolitical cases.[221]

* * * * * * *

Q. As an expert on political penal cases in those days, that is in 1935 and 1936, did you have close connections with the Gestapo?

A. The Referent for political penal cases for district courts of appeal entertained no relations with the Gestapo. When general questions, questions of particular importance arose, they were dealt with by the Special Referat, or if there was just one question, it was handled by the one Referent charged as the SS liaison officer to the police.

Q. The prosecution submitted a document, which is Exhibit 31, NG-266. Unfortunately, I can only quote the pages of the German text. In the German document book, page 44, following. Mr. Klemm, I suppose you have Exhibit 31 before you?

A. Yes, I have.

Q. You know the contents?

A. Yes, I know the contents.

Q. This is a letter of 13 June 1936 from the Reich Minister of Justice to the chiefs of the various agencies, particularly the Oberlandesgerichtspresidenten, and general public prosecutors, informing them that in September or October of the same year, that is 1936, a discussion with experts of the Gestapo was to be held, I ask you now whether that document is suitable to confirm your personal statement that you never had anything to do with the Gestapo?

A. That conference was a conference of prosecutor generals and of the Presidenten of Oberlandesgerichte. They were to be informed about stopping crimes, particularly concerning high treason and treason. For that reason police experts discussed the subjects. I did not attend this conference, but the speeches made there dealt purely with technical matters. They were speeches by experts from the central organization of the police, which had the most comprehensive view of these matters. I know that it has been tried to find out a little more about this exhibit.

Q. Mr. Klemm, in this connection the prosecution has submitted another exhibit, that is, Document NG-323, Exhibit 32.[222] The first part of the document is a letter from the Reich Leader SS, Himmler, of 18 February 1937 to the Gestapo office in Berlin; and on that subject the Reich Ministry of Justice stated his opinion on 10 March 1937 giving instructions to the general public prosecutors concerning the collaboration between the office of the public prosecutor and the Gestapo.

I ask you whether what you have said before is to be changed by this Exhibit 32?

A. No, I do not have to change it. That circular instruction by the Ministry of Justice, as one can see from the file note, was drafted in Department II, not in Department III to which I belonged. Besides, this regulation is a purely technical one as to how the files are to be handled during the investigation made by the police.

DR. SCHILF: May it please the Tribunal to refer to the fact that the file note which the witness mentioned is to be found on the letter of 10 March 1937, left upper corner. It is IIA and then there are some Arabic numbers. In this connection, the prosecution has not submitted any further documents against you.

* * * * * * *

EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROTHENBERGER[223]

_DIRECT EXAMINATION_

* * * * * * *

DR. WANDSCHNEIDER (counsel for defendant Rothenberger): Now [beginning in 1933], a great change occurred in your career. Could you tell the Court when and on the basis of what considerations you decided to give up this quiet and secure life?

DEFENDANT ROTHENBERGER[224]: The year 1933 came. On 5 March 1933, there were parliamentary elections in Hamburg, as everywhere throughout the Reich. In these elections the National Socialist Party obtained about 40 percent of the votes. Therefore, it was ordered to form a new government, because it was the strongest Party in the Parliament.

Until that time Hamburg had the government majority which consisted of Social Democrats and Democrats. The NSDAP, which was ordered to form a new government, formed a coalition government with the Democratic Party, the German People’s Party, and the German National People’s Party.

The day after the election, that is on 6 March, the Reich Governor and Gauleiter of Hamburg Kaufmann, called me up. Until that time I had not known him personally. He asked me whether I would be willing to assume the position of the acting mayor in this new government of Hamburg. He told me that he had heard about me, and therefore he was making this offer to me. I requested him to give me one day to think the matter over, and then I refused his offer. I gave as a reason that I considered that my task lay in the administration of justice, that I wasn’t inclined for representative nor for political tasks, and these were connected with the position of mayor of a city like Hamburg. Thereupon, he asked me whether in that case I would be willing to take over the administration of justice of Hamburg as its chief, and I answered that I would.

Q. In the subsequent time did you again refuse leading positions in the Reich? Perhaps you can mention that in this connection here now.

A. In March 1933 I thus became Justizsenator, as he was called, in Hamburg, chief of the administration of justice. And the Tribunal already knows that these Ministries of Justice of the individual states, of which there were, I believe, 18 at the time, in 1935, were dissolved by the so-called centralization of the administration of justice. Therefore, toward the end of 1934, the Reich Minister of Justice, Dr. Guertner, approached me in Kiel where we met on the occasion of a university festival, and asked me whether I would be willing to become presiding judge of the People’s Court, which at that time was being created. I rejected that offer, even though this was the second position of a judge in Germany next to the president of the Reich Supreme Court. But for administration of criminal law I had neither the experience nor the inclination. The political development of the People’s Court, of course, one could not predict in any way at that time. But I remained in Hamburg and when in 1935 the administration of justice was incorporated into the Reich and my office as chief of the administration of justice, Justizsenator, was eliminated. I became president of the Hanseatic District Court of Appeals. That is a position of judge which, however, at the same time also includes administrative jurisdiction. I believe that the Tribunal is already familiar with the fact that, from 1935 on, Germany was divided into, I believe, 35 or 37 areas of district courts of appeal, and at their top there was each time a president of the district court of appeal. In 1936 to 1937 the Reichjustizfuehrer [chief of NSRB] Frank[225] approached me through a representative and asked me if I would like to be his representative in Berlin in his capacity as Reichjustizfuehrer. It was not difficult for me to reject that offer, because during the course of those 2 years I got to know Frank. The personal characteristics of Frank have repeatedly been emphasized in this trial, but I want to add one more attribute, that he was extraordinarily vain and that he never forgave me that I could refuse to become his assistant.

Q. In conclusion, in regard to this question, would you please state something about your additional positions in Hamburg which you had in addition to your position as president of the district court of appeals?

A. In Hamburg I had several extra duties during the years when I was still in Hamburg, that is, from 1935 on. That is in addition to my main duty. I was Honorary Professor at the Hamburg University for civil law, and there I, in a certain sense, continued my activity as repetitor, that is, tutor, so to say. That is, I held lectures for students. From 1938 on I was president of the Reich Maritime Office. That was the final authority in decisions about collisions at sea and about the litigations regarding the withdrawing of a license which resulted from this for captains who were found guilty in case of a collision. From the beginning of the war I was president of the Prize Court [Prisenhof] in Hamburg. The Tribunal probably knows the functions of such a Prize Court. Until August 1942 I remained at Hamburg, and from August 1942 until December 1943 I was in Berlin as Under Secretary. In December 1943 I again left there, returned to Hamburg, and was a notary in Hamburg.

* * * * * * *

Q. We now come to the question as to why you became a Party member and a Gau Leader [Gaufuehrer] of the NSRB. Those are phases of your political life during which you participated actually and formally in the NSDAP. Can you explain why you first became a Party member?

A. For reasons of full conviction I became a Party member in 1933, because at that time this party appeared to me to be more united and less split up than the other, earlier parties; and in 1934 or 1935 when Gauleiter Kaufmann approached me and asked me to take over the Gau leadership of the NSRB, I had already gained my first impressions and experiences in the struggle between the administration of justice and the Party. It has been emphasized here time and again how, during the first period, after the revolution of 1933, every Kreisleiter attempted to interfere in court proceedings; the Gestapo tried to revise sentences, and it is known how the NSRB tried to gain influence with the Gauleiter and Reichsstatthalter in order to act against the administration of justice. In this respect I gained very bad impressions in Hamburg with the Gaufuehrer at this time of the NSRB, Dr. Haecke. The Reichsstatthalter removed him from office and asked me to take his place, and I do not regret having taken that step because only owing to the fact that I myself held that office, I was in a position to eliminate attacks on the part of the Party against the administration of justice from the outset. And that may only have been possible because I had a Reichsstatthalter in Hamburg who was smart enough and objective enough to realize pretty soon that any fight against the administration of justice can only lead to the destruction of the state itself. I gained influence on the man particularly by two events. First, because at the first opportunity when the attempt was made to put an incapable man in charge of a penal institution, I refused to do so. I asked to be sent on leave and asked him to assure me that that man would be removed. The case was mentioned here again--a man by the name of Laatz.

Q. I shall submit an affidavit about that case.

A. To describe the attitude of the Reichsstatthalter in Hamburg, it is important also to stress that the mayor of Hamburg today, who, after the surrender in 1945 was appointed officially and publicly expressed his gratitude for the calm and objective attitude displayed by Reichsstatthalter Kaufmann during all these years in Hamburg. It belongs to the same field that 2 years later I took over the Gau legal office and thereby excluded any competition; and it belongs to the same complex of questions that during the same year my membership in the Party was put down as 850,000, which gave me a possibility to stand up more strongly against the so-called “old fighters” [Alte Kaempfer--earliest Nazi Party members]. On account of the identity, of course, between president of the district court of appeals and Gaufuehrer, I was envied by all other district court of appeals because they continually had to struggle against the Party while I was saved this struggle.

Q. How long did you hold these offices?

A. I held these offices until August 1942 when I was transferred to Berlin; then the Gau legal office was dissolved; and the office of the Gaufuehrer of the NSRB, I gave up.

Q. Then, you became deputy [Under Secretary in the Reich Ministry of Justice] in Berlin.

A. Yes, I became deputy in Berlin until December 1943.

Q. What was your attitude toward the SD in Hamburg; could you tell us something about that? I am referring to Document NG-825, Prosecution Exhibit 433,[226] in that connection.

A. The SD in Hamburg during the first few years had a bad selection of personnel. There was the usual system of informers; I was spied upon; the Reichsstatthalter was spied upon and that led to their removal. The Reichsstatthalter, when he found out about that, removed the entire personnel from office from Hamburg. The new men whom he appointed, as far as they were concerned with matters of administration of justice, came to me in 1939. In the meantime, the directive had been sent down from the Reich Ministry of Justice to the effect that the SD should be considered and used as a source of information of the state by agencies of the administration of justice; and here also I was independent to nominate individuals who would not submit reports intended to go against the interests of the administration of justice, but who themselves were in favor and sympathy with the principles of the administration of justice, and that is the basis for the conference with the SD Fuehrer in Hamburg which is contained in NG-825, the fact that I made suggestions to nominate men who were judges and whom I knew would never submit reports which were against the administration of justice. Since that time, also in Hamburg, no SD informer appeared in court proceedings, and, as far as I know, no reports were submitted which were against the administration of justice.

* * * * * * *

EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROTHAUG[227]

_DIRECT EXAMINATION_

* * * * * * *

DR. KOESSL (counsel for defendant Rothaug): In what places and what official positions were you employed before you became presiding judge of the Special Court of Nuernberg?

DEFENDANT ROTHAUG: I have already mentioned that after the result of the state examination had become known, I was soon called into the Bavarian administration of justice. My appointment was first with the public prosecutor’s office in Ansbach for the so-called post-practice [Nachpraxis]. This post-practice was supposed to last for about 3 months. In my case, however, it was interrupted after only 3 weeks. Perhaps I had proved myself a good student, and after that I was first transferred to the local court in Weissenburg. I want to mention that I was called to the prosecution in Ansbach on 1 May 1926. Until approximately August 1926, I was working at the local court at Weissenburg. Subsequently I came to the local court at Pfaffenhofen on the Ilm.

Q. You just mentioned Pfaffenhofen on the Ilm. Where were you living at that time?

A. I would consider it more to the point if I would first describe my official positions now, up to the Special Court in Nuernberg. That’s what you asked me, isn’t it?

I believe I have already mentioned that I came to the local court at Pfaffenhofen on the Ilm. There I was employed until the turn of the year 1926–1927. Subsequently I came to the local court at Ingolstadt on the Danube. I was court assessor during all this time up till 1 June 1927. At that time I became public prosecutor in Hof. In the late fall of 1929 I became Amtsgerichtsrat at the local court of Nuernberg. In the middle of 1933, I became first public prosecutor at the public prosecutor’s office of Nuernberg-Fuerth; in the late fall of 1934, district court judge at the Schweinfurt District Court; and on 1 April 1937, district court director at the District Court Nuernberg-Fuerth, and there I was, among other positions, employed as presiding judge of the Special Court of Nuernberg.

Q. You mentioned Pfaffenhofen on the Ilm. With whom were you living at the time?

A. In Pfaffenhofen on the Ilm I was looking for a room. I was advised to take a room with a family who were from Franconia because I myself was from Franconia. This family had a small meat factory outside of Pfaffenhofen on the Ilm. The family’s name was Haberkern. That was in 1926.

Q. Is that the later Gau Inspector Haberkern who was the owner of the “Blaue Traube” where the club table [Stammtisch] was that was supposed to have been the basis for your political position of power?

A. That is correct. That is the same Haberkern who later on became Gau Inspector of Nuernberg or more correctly was working with Gauleitung of Nuernberg.

* * * * * * *

Q. On 1 May 1947 [30 April 1947], the witness Elkar[228] called you, and I quote, “the highest authority on legal questions in the Gau of Franconia.” (_Tr. p. 2896._) A little later he calls you “the Spiritus Rector in the NSRB.”

Doebig says you had been the leading spirit in the NSRB. (_Tr. p. 1775._)

What influence did you exert on the NSRB as a whole?

A. First of all, may I say in general, particularly to the introductory question, that I consider that those opinions expressed about me are considerable exaggerations. As for having been an authority on legal questions, that is out of the question. I have always found that other people found it a great deal easier; they always dealt with problems far more quickly, particularly those who passed these opinions. In effect, the way with us was that questions which concerned my Gau group, that is to say, the judges and prosecutors’ groups, were passed on to me. I then gave my opinion on those questions. My opinion was passed on to the Gauwalter and he then passed the matters on in the routine way which is the custom in every state; it was just passed on then to the next authority.

I really don’t think that at any time or at any place I had to cope with a problem of world importance.

Q. Did you receive immediate instructions from the NSDAP and the Gauleitung concerning your work in the NSRB?

A. I never received such direct instructions from the Gauleitung.

Q. What were your duties as Gaugruppenwalter in the NSRB for the judges’ and prosecutors’ groups?

A. In part, that question has already been answered. All problems which fell within the scope of that professional organization, the Jurists’ League, all problems which reached that organization could come to us from any quarter, as they could come from the population itself. All those problems were passed on to the Gaugruppenwalter to deal with, and they were forwarded to that group, the members of which were in some way affected by the event under discussion.

On the other hand, naturally, we also had to cope with the particular difficulties and problems of our members and we had to take care of their affairs because, after all, they had joined a professional organization like ours for that purpose.

I should like to give a practical example to explain this matter, and I will give an example of an event which actually occurred, an event with which we had to deal.

When the administration of justice was centralized, certain offices of judges were downgraded. Here at the district court of Nuernberg, for example, the department chiefs who had had the rank of local court directors [Amtsgerichtsdirector], overnight, and only because the administration of justice was being centralized, were downgraded by one grade. That was done without it being their fault in any way. Naturally that caused a tension, and naturally the people whom it affected were very much annoyed. They came to see me and told me about the matter. As far as I remember they were not Party members, they were of the older generation, and they said that they had been treated in a way in which people should be treated only if they had violated service regulations. I then gave a precise account of the occurrence, made a report, and drew attention to the fact that such treatment of officials was untenable. To begin with, Berlin was against taking any interest and they used the well known slogan, “The interests of the people have to take precedence over the interests of the individual.” However, by again and again digging away at the matter, we succeeded in solving the problem in a way which was satisfactory to everybody concerned.

That was, for example, one of the duties with which we had to deal.

Q. As Gaugruppenwalter for the judges’ and prosecutors’ groups, did you have an office of your own?

A. I neither had an office of my own nor a staff of my own. I merely had my chair and my two hands. The work that I had to do there I did as an individual, and as a rule I wrote it out with my own hand. I then submitted the matters to the Gauwalter.

Q. Did you wear a uniform in that capacity?

A. Except when I was in the army, all my life I have never worn a uniform.

* * * * * * *

Q. What offices were asked about the political attitude of a judge and a prosecutor, and who made out the final qualifications?

A. Political qualifications were exclusively made under the responsibility of the competent bearer of the sovereignty, that is, the Kreisleiter or the Gauleiter. For these questions they had a so-called Kreis personnel office, or Gau personnel office. When a so-called political qualification of a civil servant was to be made, these offices addressed inquiries to offices where the civil servant or official concerned was known; that is to say, if he was a member of the NSRB, they addressed an inquiry to the Gauwalter of the NSRB, or in another instance to the competent office of the Civil Service League, or to the Ortsgruppe, local group of the Party, or to the SA, or SS. The answers to these inquiries were then gathered at these offices and from there, if necessary, by reviewing or examining the facts that were reported the so-called political qualifications report of an official was made out. This political qualification report was made out because the supervisory offices of this civil servant by provisions of the law were obligated to form a judgment on this question with the intervention of the Party.

Q. How did this develop in your case, and according to what principles did that proceed?

A. That was an affair which caused the least difficulty. The Gauwalter gave the slip that had been sent in by the competent Party office to the Gau group administrator who was competent for that official. That was I, myself, in the case of inquiries regarding judges and prosecutors, as long as I was entrusted with that function. I then returned the slip after it was filled out to the Gau administrator again, who on his part then reported to the Party office.

It is important to know here that according to an express order a man who was a Party member was not permitted to be judged as politically unreliable as long as a Party disciplinary proceeding had not been carried out against him because of some established facts.

During the time of my activity in regard to that function, it is of significance that at that time almost all judges and prosecutors were members of the Party on account of the well known action on 1 May 1937.

Q. Did you hear of a case in which a judge or a prosecutor was described as politically unreliable? And if so, what happened to that man?

A. In my time I did not hear of such a case. The declaration which we made in every case had the following stereotyped contents: “Circumstances which could raise doubts as to the political reliability of the person concerned did not occur.”

* * * * * * *

Q. The witness Elkar said literally, and I quote, “As far as I know, the relations between Zimmermann, Haberkern, and Rothaug were very close.” (_Tr. p. 2896._) [Page 374, herein.]

How did you come to know Zimmermann, and what were your relations with him?

A. I have already pointed out that it was only in the course of 1940 that I met Zimmermann by accident when he was at the Blaue Traube.

Q. How often did he attend sessions of the Special Court when you were presiding judge, and do you know why he attended those sessions?

A. I cannot remember one single case when Zimmermann attended one of my sessions. However, it is possible that he attended at the case of Schmidt-Fasel, which has been discussed here several times.

Q. As to Haberkern, you have already testified that quite by accident, as a young assessor, you met him in 1926 and that for many years you had no contact with him. How and when did you hear that Haberkern was in Nuernberg?

A. That was in connection with the National Socialist change-over in 1933. In those days his name often appeared in the newspapers, and that was how I discovered that he was in Nuernberg and that he played a political role.

Q. You have already said that you did not resume contact, not even when against your will you were transferred to Schweinfurt. You have also given us your reasons. When and how was it that you renewed your relations with Haberkern?

A. It was in 1938 as far as I recollect. One day Haberkern rang me up and asked whether I was that Rothaug who in 1926 had stayed in his home. I told him that I was that man, and he was very pleased and asked me to come to see him and his wife. They were the owners of the Hotel Blaue Traube, Nuernberg. I told him that I would go to see him some day, and one day I did go to see him. That was how I came to the Blaue Traube.

Q. What were Haberkern’s offices in Nuernberg and the Gau Franconia?

A. He was Gau inspector, the leader of the Hotel and Restaurant Association, and he was also an Ortsgruppenleiter. I believe he was the Ortsgruppenleiter of the old city.

Q. Through this function did he have any contacts with your official position as judge?

A. No. The Gau inspector, according to his official duties, has to take care of internal matters of the Party. As a leader of the Hotel and Restaurant Association all he could have done was to find me some rooms for my summer holidays. I had nothing to do with his local group [Ortsgruppe] because I belonged to a different group.

* * * * * * *

Q. Witness, did the Party offices in Party affairs have their own legal consultants?

A. In this connection, one must point out that every Party office, even the Ortsgruppenleiter, the leaders of the local groups, had their own legal offices. I had nothing to do with that matter.

Q. When were matters concerning legal questions brought to you?

A. Only if simultaneously they affected the interests of the NSRB, and even then only if they affected the interests of the Gau Group for judges and public prosecutors.

Q. Did the Gauleitung take any interest in the general administration of justice?

A. I never noticed that the Gauleitung of Franconia ever took any interest in the development of the legal situation.

Q. Did the legal situation play a decisive part in the Gauleitung?

A. I never noticed anything of that sort.

Q. At the table at the Blaue Traube that has been mentioned here so often, were there ever any discussions which have been laid down previously?

A. May I summarize my statement and perhaps say for the last time that I went to the Blaue Traube with the same intentions that other people had when they went there, and with which other people are in the habit of going to other pubs. As for conferences with agendas, they weren’t held there for the simple reason that that would have been parliamentary. I met other people there, too, but I didn’t meet anybody who went there with any political aims.

Q. Were official matters discussed there?

A. Not official, though Party matters were discussed there; but there, as I think happened in those days at every table in every pub, political things were discussed, and the war was discussed. If somebody were to ask me today what we talked about, I would not be able to give an account of even one trend of ideas that we discussed there.

Q. Did you ever go to Haberkern with your own affairs, that is to say, to get any of your own wishes of a personal nature fulfilled?

A. I never bothered Haberkern on any matter of that kind.

Q. Do you know whether other people from your entourage asked Haberkern for his help on their own behalf?

A. I heard that they did.

* * * * * * *

Q. When the witness Ferber[229] mentioned the doubts which the Reich leadership harbored for your political reliability, he said that the SD took an interest in your remaining at Nuernberg. From the account of the witness Elkar, English transcript, page 2888, [page 369, herein,] we know that approximately in May 1940, you were called to a conference which was attended by Doebig, Bens, and the SS section leader, Friedrich, and that in that way you got into contact with the SD. What was the topic of those discussions when you joined in?

A. That matter was rather different. To begin with, Elkar came to me at my office. Then Obersturmbannfuehrer Friedrich called and also a Standartenfuehrer whose name I no longer remember. All those three men belonged to the SS. Those three men told me that they had come to call on me because they wanted to introduce themselves to me, and they wanted to try and establish good relations between their office and the administration of justice authorities.

Conditions in general were then discussed, in particular the fact that the administration of justice in certain press organs, above all the Schwarze Korps, was being subjected to continuous attacks. They considered that state of affairs undesirable, all the more so as they also knew that those articles were generally written on the basis of one-sided information. They also asked for my opinion as to what I would think of all questions which arose here in Nuernberg concerning the administration of justice, if they were to be dealt with to start with on a lower level before a report was made on a higher level. I thought that was a good idea. They asked me whether I would care to be the mediator. I suggested district court of appeals and the general public prosecutor since as it was, they had told me that they intended to call on those officials, too.

I would like to point out that the three of them had only called on me because Elkar had brought them along. As you know Elkar had been with me for training as a Referendar. At that time I had no idea what the SD was about, and what its functions were. The conference with Doebig and Bens was along the same lines and both men saw the point and agreed that it was quite a reasonable plan which had been submitted to them. They suggested that it might be a good thing to let these matters be dealt with through me because the cases which occurred with me were cases which were to be treated later.

I would subsequently be asked to attend that conference. I, myself--and I think it would have been the same with every human being--couldn’t imagine, or anyway, couldn’t imagine very well what was going to happen at that conference. That was the basis on which developments went along.

Q. What was Doebig’s attitude to Friedrich’s wishes?

A. I believe I have already answered that question. As usual, he was in favor of cooperation.

PRESIDING JUDGE BRAND: May I ask you a question. It wasn’t entirely clear what you meant in your testimony. You suggested that investigations on a lower level should take place before the higher level. Investigations of what--what kind of matters?

DEFENDANT ROTHAUG: Investigations is not the word I meant to say. I wanted to say that by negotiations, matters which concerned the administration of justice were to be settled on a lower level.

Q. What kind of matters--which concerned the administration of justice?

A. What we had in mind was attacks which within the sphere of the Party were made against the administration of justice. I can illustrate that by an example.

Q. It is not necessary now. No, I understood you to act under this suggestion as an intermediary. Was that your word?

A. That I was to become the intermediary?

Q. Yes, between what parties or what groups?

A. Between the SD and the administration of justice.

Q. Yes, and then you said since these matters are all matters to be dealt with by me afterwards, it was reasonable that you should be the intermediary. Did you refer to legal matters?

A. That concerned matters--cases which might be brought before me or which were already pending before me. Matters in which those agencies were interested for reasons of criminological developments, but they were not interested in the individual case as such, in its treatment, or in the decision.

Q. And what was the lower level where the matters were to be first discussed?

A. The main difficulties which arose and which gave cause to discuss this matter at all were made from up above--from a higher level. A report was made on some occurrence or other to the SD; the SD passed the matter on to Berlin; from there it was passed on as a rule without having been settled or even examined to the press where it caused a great deal of sensation.

Q. Was this lower level, to which you refer, the local representatives of the SD?

A. Yes, naturally.

PRESIDING JUDGE BRAND: Go ahead.

DR. KOESSL: Now, Witness, tell us please, what was to be prevented by the discussions, the report to the higher level; what was it--was it that things were to be clarified after the higher level had dealt with it?

DEFENDANT ROTHAUG: One cannot state all that in one reply in such a general way. With these questions it always depended on what the individual case was like; what the attending circumstances of the individual case was like; and it depended upon what the aims and object of the participants were. Without going into the matter of the individual case, it is impossible to give an objective answer.

Q. The witness Doebig said, “It was only a great deal later after I had left Nuernberg that I heard for certain that Rothaug worked in the SD.”[230] Later, Doebig stated that he remembered that the SD Leaders Friedrich and Elkar paid him a visit, but that he could not remember the subject which was discussed. Anyhow, he had never given an inference that the administration of justice would cooperate with the SD. (_Tr. pp. 1865–1866._) What position did Doebig take?

A. I have already answered that question when I said that Doebig was altogether in favor of settling matters in that way.

Q. How often would Elkar call on you in the subsequent periods?

A. He said on Saturdays, and that makes it sound as if he had come every Saturday, but that is quite out of the question. He came on some Saturdays, but sometimes weeks passed or months until he came to see me again about some matter or other. As was the case with many other things that were organized within the sphere of the Party, they dragged on and finally nothing much was done.

Q. What did Elkar tell you during these discussions about the functions of the SD, regarding the state of the Party?

A. He told me, and I think that was probably right, that the SD as we saw it was an institution of the nature of an official agency; that is to say, it was an organization of the police type; its activities and functions can best be described as an agency that gathered the opinions of the people; one intended to find out what the people really thought on official measures taken by the government, that is to say what they thought about laws, about judgments, about other administrative measures, etc. Those reports were then to be evaluated and passed on the competent Supreme Reich Authorities to enable them in their governmental transactions and measures, to remain aware of the thoughts of the people. In all these reports therefore, what mattered was not to find out who the people were who were critical and undesirable, but on the contrary, the intention was to find out what people were really thinking; and therefore, it was undesirable and prohibited to prosecute in any way an individual who stated his opinion in this connection. That was roughly the scope of the functions of the SD.

Q. In the English transcript at page 2912, the witness Elkar mentioned the official character of the SD. I am showing you a book, and would ask you to tell the Tribunal what the title is.

A. The book is entitled Ministerial Gazette [Ministerialblatt]; it was issued by the Reich Minister of the Interior; it was published in 1938.

Q. Please turn to page 1906. At the right hand corner you will find a circular decree by the Reich Leader SS and Chief of the German Police at the Reich Ministry of the Interior, dated 11 November 1938. Please read out section 1 of that circular decree.

A. Under the heading police administration, it says, “Collaboration of the authorities of the administration with the SD was the subject of the Reichsfuehrer SS (SD) circular decree by the Reich Ministry of Interior, dated 11 November 1938.” Then, there is a file note. Then--“one: The SD of the Reichsfuehrer SS (SD), as information organization, intelligence organization for Party and State, has to work in particular in support of the security police and has to fulfill important duties. The SD thereby acts on the instructions of the State. That necessitates close understanding and cooperation between the SD and the authorities of the general and internal administration. In reply to inquiries by the SD, information has to be imparted therefore to the same extent as if inquiries had come from a government authority. The official agencies of the SD, in the same way, are under obligation to reply to inquiries of the general and internal administration.”

Q. Witness, what were the motives for which you met with Elkar and discussed matters with him?

A. The main cause was that he knew me from his former training period.

Q. You may continue.

A. I said Elkar knew me since the time when he was in training, because he was assigned to me. He was by nature a very faithful person, and at the time when he was not yet with the SD, I was connected with him by purely human relationships. That is how it came about that at that time, after he had taken up service with the SD and a connection with the administration of justice and the SD was sought, he came to me first for I was known to him; and that is how in the subsequent period the entire relationship was purely a matter of comradeship. This is shown best perhaps by the fact that one day Elkar informed me that he would probably be transferred to the RSHA in Berlin for further training. Thereupon, I told him that in that case I would also discontinue my activity because I would not start all over again with a new man.

Q. What descriptions did Elkar give you about the further handling of the SD reports in Berlin?

A. He said that the information which I gave him--which was usually an opinion on problems which were connected with the collection of comments from the people--he would incorporate into his reports. These reports in Berlin would then be divided according to whichever participating Reich agency was interested and put at the disposal of those offices.

Q. Did you have an insight into questions and tasks which were outside of the administration of justice?

A. I did not gain any insight into those questions.

Q. Did Elkar tell you anything about the activity of the SD Einsatzgruppen in the east?

A. No. I only found out about that now.

Q. Did Elkar speak to you about the so-called final solution of the Jewish problem by extermination, execution, or gassing?

A. No word was ever spoken about this. I do not believe that Elkar was informed about matters of that kind either.

Q. Did Elkar tell you about individual SD Fuehrers being entrusted with special tasks, as for instance, the feigned attack on the Gleiwitz radio station, or similar undertakings which were the subject of the IMT Trial?

A. Matters of that kind were not discussed among us. The examples you have cited became known to me only here in Nuernberg in the course of this trial.

Q. What was the basic line of your conversations with Elkar, or the basic topic?

A. As I have already stated, the conversations were mainly on problems which were raised by opinions which were gathered from the population. That then led to problems of a general nature, for example, the general development of wartime criminality in one field or another.

In general, that was the direction in which our conversations developed and that was also the aim of such conversations.

Q. Could everything be said in such conversations without restrictions?

A. I believe that that was the only possibility at that time in Germany where a person could say exactly what he was thinking; and the reason for that is because, in this connection in particular, only the truth was at stake for they were interested in finding out what the population was actually thinking in regard to certain events, measures, laws, speeches, judgments, etc.

Q. Do you know in what form these reports were forwarded?

A. That is not known to me; I never read such a report.

Q. According to Elkar’s testimony you directed your attention to the development of criminal and penal proceedings. (_Tr. p. 2890._) What ideas did you represent?

A. I believe I have already stated my position on that question. I do not remember a great deal in detail regarding what was discussed at that time. One question, for example, which interested us and which demonstrates how we came to speak about these matters and what opinion we represented is the question which was frequently discussed in this trial, and that is the contact of the prosecution during the trial with the court because of the application for penalty. Opinions from circles of lawyers and judges and from the prosecution were gathered for this purpose at that time. I myself represented the opinion that this problem grew into a problem only because it was treated in a wrong manner on the part of the administration of justice. The entire question could be solved by a small remark in the “Deutsche Justiz,” namely, by pointing out that the law does not provide that a formal application has to be made, and therefore it would have been sufficient to instruct the prosecutors to refrain from a formal application for penalty and to be satisfied with adducing the evidence and then stating the reasons which spoke for and against the defendant. With that, the entire excitement and fuss which was caused by the formal application for penalty could have been avoided.

Q. What reason did you give for this suggestion?

A. The reason which I have just explained.

* * * * * * *

Q. Elkar alleges that you had also talked about pending trials and had discussed also the facts as well as the legal situation and future judgment. (_Tr. p. 2891._) Was the name of a defendant ever mentioned as long as trial was still pending?

A. The names of defendants never played any importance in these conversations. The manner of expression was general. The individual cases, as such, were of no importance at all and their outcome even less so. It is possible that in the most infrequent cases--as an example of a definite criminal deed, in order to demonstrate, for example, the method of the consequences of this crime and to use it in the discussions of general questions, that an individual case was mentioned, but not in a single case was it like this that Elkar ever was interested in a certain pending trial or even wanted to get information about the final outcome in advance; such an evaluation was not possible in practice at all for the decision could be given only on the basis of the trial after it was concluded. Thus, Elkar’s activity was not aimed at such a goal.

Q. By mentioning an individual case, did you ask for the opinion of the RSHA in order to find a basis for the political evaluation of the offense?

A. Never. I had no connections whatsoever to the RSHA. Moreover, such a method even in the Third Reich would have been an absolute impossibility, and it was never alleged that this occurred.

Q. Did you, in any individual case, receive an instruction from the RSHA or a recommendation to direct the trial in a certain direction under a certain point of view, or to pronounce a certain definite penalty?

A. This, too, was never alleged so far. Such a procedure, too, would have been an absolute impossibility. No office would have dared to suggest anything of that nature even.

* * * * * * *

Q. We started with your relationships to the SD. On what formal basis were your relationships with the SD? Were you a member of the SD?

A. I was never a member of the SD; I don’t know either whether there was such a thing as a membership in the SD; or, whether the people were assigned to the SD from the SS. Only during this trial did I hear that there was such a thing as an actual membership in the SD. At that time I assumed that it was an institution of the nature of an official agency, the personnel for which was appointed by the SS. I never made any application for any membership in this institution; I never signed anything.

Q. Elkar says that in 1940 you had taken an oath as collaborator of the SD; that is in the English transcript at page 2896. Did you take an oath?

A. I can say this with absolute certainty, that I never took an oath in that connection. The possibility exists that it was called to my attention that matters which I found out in connection with such conversations were supposed to be kept secret. However, I do not have the slightest recollection of this either, so I cannot imagine that I was approached on this matter in a solemn ceremony. It is a fact, in any case--and this is why the people who worked for me also knew about these occurrences--that the matters which were discussed there, without exception, I believe, I had also discussed with them and among them. Thus, I had no thought of violating any secrets or any pledges of secrecy.