“A few cues to matters which will come up will be given, file numbers quoted, and comments made in a few key words.”
He especially required of the judges that they report to him concerning penal cases against Poles, Jews, and other foreigners, and “penal and civil cases in which persons are involved who are State or Party officials, or NSDAP functionaries, or who hold some other eminent position in public life.”
One will seek in vain for any simple, frank, or direct statement by Rothenberger relative to any of the abuses of the Nazi system. His real attitude can only be extracted from the ambiguities of his evasive language. We quote from the record of the report made by Rothenberger to the judges on 27 January 1942 (NG-1106, Pros. Ex. 462):
“With regard to the matter it had to be considered whether or not any material claims made by the Jews could still be answered in the affirmative. Concerning this question, it might, however, be practical to maintain a certain reserve.”
In an early report to the Hamburg judges, Rothenberger discussed the opinion of the Ministry concerning the legal treatment of Jews. He stated that the fact that a debtor in a civil case is a Jew should as a rule be a reason for arresting him; that Jews may be heard as witnesses but extreme caution is to be exercised in weighing their testimony. He requested that no verdict should be passed in Hamburg when a condemnation was exclusively based on the testimony of a Jew, and that the judges be advised accordingly.
On 21 April 1943, as the result of a long period of inter-departmental discussions, a conference of the state secretaries was held. Rothenberger was at the time State Secretary in the Ministry of Justice and participated in the conference concerning the limitation of legal rights of Jews. Kaltenbrunner also participated. At this meeting consideration was given to drafts of a decree which had long been under discussion. Modifications were agreed upon and the result was the promulgation of the infamous 13th regulation under the Reich Citizenship Law which provided that criminal actions committed by Jews shall be punished by the police and that after the death of a Jew his property shall be confiscated.
We next consider Rothenberger’s activity concerning the deprivation of the rights of Jews in civil litigation. In the report of 5 January 1942 the defendant wrote:
“The lower courts do not grant to Jews the right to participate in court proceedings in forma pauperis. The district court suspended such a decision in one case. The refusal to grant this right of participation in court proceedings in forma pauperis is in accordance with today’s legal thinking. But since a direct legal basis is missing, the refusal is unsuitable. We therefore think it urgently necessary that a legal regulation or order is given on the basis of which the rights of a pauper can be denied to a Jew.” (Pros. Ex. 373, NG-392, document book 5-D, p. 331.)
Notwithstanding his statement of 5 January to the effect that it would be unsuitable to deprive Jews of this right without a legal regulation, we find that on 27 January 1942 the report of a conference shows the following (NG-1106, Pros. Ex. 462):
“The senator reported that the question of the poor law concerning Jews has gained significance again. With the district court there were two cases pending. He requested that contacts with the district court and with the local court judges be made at once so that a uniform line is followed to the effect that the Jews be denied the benefits of the poor law. It would be entirely out of the question that Jews be granted the benefits of the poor law subsequent to the present development. This would apply especially to Jews who had been evacuated, but in his opinion also to those who had not been evacuated.”