To give only a few examples: We were confronted here with the conflicts between Himmler and Frank, between Himmler and Keitel, between Sauckel and Seldte, between Schellenberg and Canaris, between Bormann and Lammers, between SA and SS, between Wehrmacht and SS, between SD and Justice, between Ribbentrop and Neurath, and so on and so forth. The list could be continued ad libitum.
Even ideologically the Party in itself was divided into pronounced oppositional groups, which was shown already at the very beginning of the presentation of evidence by Göring’s testimony. These oppositions were fundamental, and they were not bridged by Hitler but rather deepened. They were the instrument from which he elicited his power. The ministers were not responsible governing persons, as in any other state where law is the foundation; they were nothing but employees with specialized training who had to obey orders. And if a departmental minister, as in the case of Schacht, did not wish to submit to this, it resulted in conflict and resignation from his post.
For this very reason no minister could in the long run take full responsibility for his department, because he was not exclusively competent for it. A minister, in accordance with constitutional law, must first of all have access to the head of State; and he must have the right to report to him in person. He must be in a position to reject interference and influences coming from irresponsible sources. None of the characteristics applicable to a minister apply to the so-called ministers of Adolf Hitler. The Four Year Plan came as a surprise to Schacht. Similarly, the Minister of Justice was surprised by so extremely important a law as the Nuremberg Decrees. Ministers were not in a position to appoint their staffs independently. The appointment of every civil service employee required the consent of the Party Chancellery. The intervention and influence of all possible agencies and persons of the various Chancelleries—Chancellery of the Führer, Party Chancellery, et cetera—asserted themselves. They, however, were agencies placed above the ministries and they could not be controlled. Special delegates governed over the heads of the departmental chiefs. Ministers, even the Chief of the Reich Chancellery, as we have heard from Lammers, might wait for months for an audience, while Herr Bormann and Herr Himmler had free access to Hitler.
The anticamera and camarilla, indispensable accessories of all absolutism, have at all times been difficult to fathom as to the personal responsibility of the individual circles of which they are composed. The irresponsible influences exerted over and affecting Hitler were absolutely intangible.
Generaloberst Jodl described to us here how Hitler’s sudden actions, caused by some urge and attended by the most serious consequences, could be traced back to influences of an entirely obscure and unknown sort, such as pure chance, conversations at a tea party, or the like. For the objective facts this bears out what I already mentioned in the beginning. And so this state of affairs precludes even the possibility of the planning of a crime such as a war of aggression within a clearly defined circle of persons, much less within the so-called Reich Government. But where no planning is possible, there can be no plot, no conspiracy either, the most striking characteristic of which is this very common planning, even though the participants have different and varied roles. Let us assume the broadest conceivable interpretation of the ostensible exterior characteristics of the conspiracy. I am following Justice Jackson’s line of reasoning. He who takes part in a counterfeiters’ plot is guilty of conspiracy, even through he may have written only a letter or acted as bearer of the letter. He who participates in a plot for robbing a bank is guilty of murder if, in the course of the execution, not he but a third party in the group of planners commits murder. At all times, however, the prerequisite is a body of persons capable of evolving a common plan. Such a thing was not possible for Adolf Hitler’s ministers; it was not possible at all under Hitler. From this it follows that no conspirator could participate in Hitler’s crime of having forced upon his own people and the world a war of aggression, except those who served Hitler as assistants.
The forces at work in the Third Reich as depicted thus permit in thesis only the assumption that there existed a punishable complicity or punishable assistance, not, however, a punishable group offense such as a conspiracy. Whether such complicity or such punishable aid in the crime of a war of aggression committed by Hitler exists for individual defendants personally can only be investigated and decided in each individual case. It is my task to investigate this only in the case of Schacht.
A collective crime such as conspiracy is, however, excluded as inconceivable and impossible in the light of the actual conditions as already established. But even if this were not the case, the subjective aspect of the deed is completely lacking in the case of Schacht. Even if the objective facts of a conspiracy were to exist for a certain circle of the accused and even with the most liberal interpretation of the concept of conspiracy, it is still essential that the conspirator should include the plan of conspiracy and the aims of the conspiracy within his will, at least in the form of dolus eventualis.
The strict facts constituting a conspiracy can best be illustrated by comparison with a pirate ship. In reality every crew member of the pirate ship, even a subordinate, is guilty and an outlaw. But a person who did not even know that he was on a pirate ship but believed himself to be on a peaceful merchant vessel, is not guilty of piracy. He is equally innocent if, after realizing the pirate character of the ship, he has done everything he could to prevent any piracy, as well as to leave the pirate ship. Schacht did both.
As far as that is concerned, research on conspiracy also recognizes that a person is not guilty who has withdrawn from the conspiracy by a positive act before attainment of the goal of the conspiracy, even if he did co-operate previously in the preparation of the plan for conspiracy, which was not the case with Schacht. In this connection, I also consider as being in my favor Mr. Justice Jackson’s answer when I put up for discussion, during Schacht’s interrogation, the question whether the persecution of the Jews is also charged to Schacht. Mr. Justice Jackson said, yes, if Schacht had helped prepare the war of aggression before he withdrew from this plan for aggression and its group of conspirators and went over unreservedly to the opposition group, that is, to the conspiracy against Hitler. This desertion would then be the positive act which I have mentioned whereby a person at first participating in a conspiracy would separate himself from it.
This legal problem does not even enter into consideration as far as Schacht is concerned, because the evidence has shown that he never desired to participate in the preparation for a war of aggression.