D. Opening Statement for Defendant Klemm[75]
Dr. Schilf: May it please the Tribunal. By way of introduction, I should like to call attention to the fact that the indictment also clearly implies with regard to my client Herbert Klemm that, permeated as he was with National Socialist convictions, his one endeavor was to realize, by judicial methods and throughout the judicial field, the aims of National Socialist despotism. The indictment also, indeed, implies that he was acquainted himself from the start in detail with the great extent of these aims. The prosecution has tried, in connection with each action and with each event that came to light anywhere in the files, to refer everything with which my client was concerned back to that fundamental conception. Yet in my opinion the prosecution does not make any effort to embark upon proof that the defendants had come to a mutual agreement in their own minds, such as must constitute the prerequisite for the conspiracy of justice, for the furtherance of the Hitler regime as alleged by the indictment. Instead, the prosecution is content to trace in every statement and every action simply a sign of malicious intent and bad faith without stopping to consider how such actions are to be estimated in the light of historical development and within the limits of the phenomenon as a whole and the practical possibilities. Just as the indictment desires to see in the legislative power [Rechtsschoepfung] conferred upon the judge by the alteration of paragraph 2 of the German Criminal Code an example of the judicial intention to try cases unrestrictedly and arbitrarily, without attention to legal guaranties, so also my client Klemm is credited with completely false motives in detail. Just as it will be proved by the defense that such legislative power for the judge had already been planned, long before 1933, in draft proposals for reform, with the object of creating the necessary synthesis between merely codified law and the actual development of law through the giving of legal judgments, so also shall I show, in my defense of the defendant Klemm, in general, that he, too, was concerned, in his measures, with the preservation of real justice. Reference will therefore inevitably be made to the background of historical development behind the measures with which he is charged, to the related points in the German legal system, and to the actual distribution of power existing during the Hitler regime. In this connection a great deal will depend on the view that is taken of his position, his potential influence and the limits of his authority.
In particular, I shall divide the subject matter of my proof into sections.
In the first place, it will be necessary to begin with the fact that, outwardly, the defendant Klemm has to bear a certain amount of odium: he had joined the NSDAP before it took over power, and he remained in it until the capitulation; he was at first Oberstaatsanwalt and Ministerial Councilor in the Reich Ministry of Justice, he was chief of liaison with the SA and reached high rank in that organization, he was a group leader in the Party Chancellery, and he was finally to become Under Secretary in the Reich Ministry of Justice, the last position he held, and a personal friend of and very close collaborator with Thierack, the Minister. The indictment evidently intends, by giving this outward impression, to exhibit Klemm as a man who considered justice to be a means, and treated it as a means, to exclusively political ends. I shall prove that this was not the case. In order to demonstrate the seeming contradiction between outward appearance and actual private character, I consider it my duty to give the Tribunal a comprehensive picture of the personality of my client as a jurist and as a man. It will become evident that he was and remained a simple and straightforward person, even after he rose higher in his career, that he was a man of sensitive disposition and refined feeling and always endeavored to act objectively and above all justly. I shall therefore have to ask my client to explain in the witness box the ideas he had conceived as to the aims of the NSDAP, the hopes he had before him in the legal and political field, and the way in which he believed it possible that the political intentions of the leadership of the state could be combined with the idea that law has to prevail. He will have to explain to the Tribunal how many things he actually did not know in order to enable us to gain an accurate picture of the situation at that time and of the developments.
So far as the separate phases of the activity of the defendant Klemm are concerned, it must be said—
The indictment takes as the first phase his activity as Oberstaatsanwalt and Ministerial Councilor in the Reich Ministry of Justice. The two charges specially raised against him in this field are concerned with the so-called “more severe interrogations” through organs of the Gestapo and with the fact that he was the Ministry’s chief of liaison with the SA. I shall prove that it was not the duty of the defendant to suggest in certain cases “more severe interrogations,” in other words, maltreatment of prisoners by the Gestapo. It was, on the contrary, his duty to prosecute such cases through criminal proceedings, since also the Gestapo and its organs were prohibited from ill-treating prisoners. In this connection I shall be able to take the opportunity to describe the attitude of my client by reference to the documents which were submitted in the IMT trial. It was the defendant Klemm who as an official in the Ministry of Justice of Saxony suggested the strict prosecution which was made so much of both in indictment and in the judgment given in the IMT trial of those SA men who had rendered themselves guilty of ill-treatment of prisoners in the concentration camp at Hohenstein in Saxony. There is no ground for the assumption that Klemm’s attitude changed at a later date, when he worked in the Reich Ministry of Justice.
The position of a chief of liaison between the Ministry and the SA leaders will be described by me through reference to the documents. The judiciary as a public authority, had the duty to inform the SA leaders of any prosecution or condemnation of a member of the SA. It was the purpose of such information to give the SA leaders the possibility of removing criminal elements from their ranks. This purpose was known to the Reich Ministry of Justice. The chief offices of both organizations had to exchange information and experience and were obliged to ascertain in which special cases they had to be interested. It was necessary to appoint a special Referent for this purpose, merely in order to simplify the handling of these matters. This post was filled by my client Klemm, since he was simultaneously both a member of the SA and of the Ministry of Justice. I hope, indeed, to prove with special effect that it was absolutely opposed to Klemm’s conception of his office as such a liaison chief to suppress criminal proceedings against SA members or protect them against prosecution, but that on the contrary he thought it necessary to support vigorously the interests of justice against the SA leaders. An individual case will give me the opportunity to demonstrate how also in this field Klemm was guided by legal consideration alone, and this individual case will be symptomatic of the attitude of my client.
In order to be able to judge correctly the activity of my client in the Party Chancellery, I consider it my duty to describe first of all the sphere of work and problems with which the Chancellery itself had to deal. This seems to me all the more necessary, as evidently completely false ideas of this organization are prevalent. I shall therefore have to show that by reason of legal regulations the latter had to take part in all the legislative and administrative work done by the Ministry of Justice and that it was not simply an office that carried out tasks concerned purely with Party politics. In the constitutional structure of the Third Reich, the Party Chancellery had to perform public functions. I may already at this point draw the attention of the Tribunal to the fact that my client is not affected by count four of the indictment, in spite of the fact that he was employed in the Chancellery of the Party. It is indeed a significant indication that the prosecution has formed an incorrect view of the Party Chancellery, if an official could be employed there who did not belong to the corps of leaders of the Party.
An explanation of the bureaucratic structure of the Party cannot be avoided; its division into separate departments and groups will have to be described. The defendant Klemm was at the head of only a subordinate group in the Party Chancellery. Its number was IIIc. I would ask the Tribunal to be so good as to take due note of this number IIIc in my speech for the defense, so far as the latter is concerned with the Party Chancellery, and also when I come to explain the documents relative to the Party Chancellery. My client was employed exclusively in this legal group. This outward sign alone is an important circumstance to be considered in arriving at a correct estimate of the work of my client. The special task of this Group IIIc was to deal with all matters which affected law, codification, and the administrative work of the Ministry of Justice. The officials in this legal group remained, as did Klemm also, officials of the Ministry of Justice; they were merely delegated by that ministry. They also therefore represented in the Party Chancellery the idea of justice and the concerns of their own ministry. Whenever different questions were raised in Group IIIc, for example, questions as to the legal disposition of the affairs of foreign peoples, a different department or group of the Party Chancellery dealt officially with and decided upon the matter. Owing to this restriction of the field of their work the legal group could only raise objections against the treatment of any matter in another department if formal questions were handled. The legal group had no right of appeal if a matter had been decided on principle by other groups. Thus, it will be shown that the decree about penal law with regard to Poles was not dealt with or decided upon in Klemm’s legal group but in Group IIIa of the Party Chancellery, which was concerned with questions on ethnic origin [Volkstumsfragen]. The defendant Klemm, therefore, could not exercise any influence whatever, during the period of his employment in the Party Chancellery, on the provisions of this law.
Through further evidence it will be made clear that Klemm’s position in the Party Chancellery, as a consequence of the latter’s special method of working, could only have slight influence on decisive matters. Really important affairs concerned with politics or both politics and law, so far as they may interest the Tribunal and the prosecution, were not handled by the legal group headed by Klemm.