Before starting to discuss the basis for the above charges in the indictment, it seems fitting to treat briefly the question of conspiracy. From a legal standpoint, attention must be called to the fact that according to the statute of the London Treaty, as well as the Control Council Law No. 10, the conspiracy, or plan, can only be considered as a crime in itself if it concerns a crime against peace but not if it concerns a war crime or crime against humanity. This viewpoint was maintained also by the IMT in trial No. I.
IV. The general circumstances of the case which form the basis for the charges of the indictment
1. Memorandum of Dr. Rothenberger—In its opening statement against Dr. Rothenberger the prosecution called particular attention to his memorandum to Hitler for the year 1942 and entered it as Document NG-075, Prosecution Exhibit 27. The prosecution characterized this as a “peculiar document” and commented upon it from its own point of view. The defense will also have to analyze the memorandum minutely and discuss in detail its previous history and what has happened to it. It appears that the chief problem here is the basically important question of the dominating position of the judge in the life of a nation. The appointment of Dr. Rothenberger as Under Secretary can be traced back to this memorandum, the character of which is clearly open to a psychological judgment. Naturally the reasons for his appointment will have to be discussed in greater detail. The memorandum presents therefore the very first of those important developments which put Dr. Rothenberger in the defendant’s dock in Nuernberg.
2. Dr. Rothenberger’s reaction to the Hitler speech of 26 April 1942—The prosecution has further produced against Dr. Rothenberger his report on conditions to the Reich Ministry of Justice, dated 11 May 1942, as Document NG-389, Prosecution Exhibit 76, which describes the reaction to Hitler’s speech of notorious fame, dated 26 April 1942. The prosecution blames him for the measures taken after the Hitler speech, just as for the corresponding measures of autumn 1942. It will therefore be the task of the defense to show how the measures taken by Dr. Rothenberger in 1942 following the Hitler speech were meant, and what was their effect.
The documents specified under this as well as the previous number, in fact in the opinion of the defense, touch upon crucial questions of the whole trial; namely, the place of the judiciary in the National Socialist state. They require therefore a full description in the presentation of evidence by this side.
3. Dr. Rothenberger’s ideas on reform—Dr. Rothenberger failed with the plans for reform contained in his memorandum. It may also be conceded that they were bound to fail, by virtue of a historical necessity. However, that is not the point, but rather to demonstrate that Dr. Rothenberger exerted himself again and again to the utmost for the preservation of the foundations of justice, in particular for an independent judiciary, and used all his strength to that end. The defense will clearly show that in the case of his discharge after he had served only 15 months as Under Secretary, not personal but decisively factual differences were at stake, on account of which Dr. Rothenberger was no longer acceptable to the rulers in the Third Reich.
4. Dr. Rothenberger’s personality and career from the prewar period and into the Second World War—The above events falling directly within the war period, become fully understandable only by showing the development of Dr. Rothenberger’s personal and professional circumstances before the war. It will be demonstrated that even before 1933 he was a professionally able lawyer, interested solely in civil law, energetic and conscious of his responsibility. It will further be shown that after 1933 he succeeded in having his proposals for a constitutional state adopted in Hamburg. He did become involved, in constantly growing opposition to radical Party circles and to the SS, especially after the outbreak of the war.
All the facts of the case expounded above under IV are legally relevant from the viewpoint of war crimes and crimes against humanity, as well as from that of conspiracy; they are therefore presented with reference to all charges against my client.
V. The various facts of the case in the order of the indictment and the position taken with regard to them
All the charges made against Dr. Rothenberger have to do with the field of criminal law and administration of punishment. It will be shown by the prosecution’s own documents and by further evidence, that Minister of Justice Thierack reserved for himself all matters of criminal law and criminal law procedure as well as of administration of punishment, and accordingly by the exclusion of Dr. Rothenberger, placed Departments III, IV, V, and XV of the Ministry under his own direction. Dr. Rothenberger, therefore, neither had influence on the whole field of criminal law nor was he responsible for it. Neither Special Courts nor the People’s Court, neither general public prosecutors nor any sort of criminal courts nor prisons were under his direction. The description of Dr. Rothenberger as successor of Freisler in the opening statement on page 64 of the German translation is therefore incorrect and an error. Without question, the entire criminal law was under the direction of the latter as Under Secretary, which from the beginning was not the case with Dr. Rothenberger.