If during his interrogation on 22 October 1945 Funk said: “I am guilty,” it need not be investigated here whether the defendant intended these words to apply to his criminal guilt, or only to a moral guilt which he saw in the fact that he had remained in an office which compelled him to carry out laws incompatible with his own philosophy of life. Funk was not in a position to decide for himself the complicated legal question of whether an official of an internationally acknowledged state can be punished at all if he only carries out laws passed in accordance with the legal constitution of this state. For the Defendant Funk his “guilt” did not lie in the fact that he had signed the executive instructions in November 1938, since this had been his duty as an official, rather did he consider himself guilty because he had remained a member of the Government although he found the acts of terror which had occurred intolerable, and abhorred them; he was not involved in the “conflict of conscience,” of which he spoke when he was interrogated, because he acted according to the laws which he considered necessary under the conditions prevailing at the time. This conflict was a result of the fact that he had not, in this difficult situation, listened to the voice of his conscience and had not resigned his ministerial office. But the decisive reasons for his attitude and his final decision to remain in office in spite of his feelings about the matter were certainly not material considerations. His reputation as a journalist and his abilities as such would easily have enabled him to find another suitable position. Much is to be said for the opinion that the Defendant was held in office above all by the thought that his resignation would in no way improve matters, but that on the contrary the administration would become still more radical under an unsuitable and fanatical successor, while by staying in office he might hope to alleviate much distress.
These considerations, which may have guided the Defendant Funk in the first place, were certainly correct up to a point. His State Secretary, Dr. Landfried, at least has testified that later on too Funk often expressed serious misgivings concerning the action taken against the Jews in November 1938 and showed very strong disapproval of all excesses and infringements of the law committed by various Government agencies in carrying out the action. Funk could talk openly to his confidant Landfried, and he often complained to him that he had no power to prevent such excesses. But, as he said to Landfried: “We of the Ministry of Economics should take particular care to see that no one makes illicit profits out of the Aryanization—that is, the transfer to non-Jewish ownership—of business firms.” And Ministerialrat Kallus described in his deposition of 19 April 1946 the various measures taken at that time by Funk to protect the interests of Jewish owners. Kallus also told us that Funk even made personal efforts to insure that his orders were carried out by his subordinates in a proper manner.
Gentlemen, thus a sense of duty on the one hand, and humane feeling on the other, were the motives which kept the defendant in office and thus brought him into a situation where he is today charged with criminal action.
Mr. President, I am now coming to a new subject and I have altogether about 15 more pages. Does the Court wish to adjourn now? It is 6 minutes to 4.
THE PRESIDENT: Can you finish it by that time, Dr. Sauter?
DR. SAUTER: There are 15 more pages; I should say about 8 or 9 minutes. On further thought, Mr. President, it will take about half an hour.
THE PRESIDENT: We will adjourn at this time.