Although I am aware of the fact that such purely external disproportion between the importance of the matter on the one hand and the deployment of means on the other hand, as seen from a higher point of view, may cause a shifting of the focus in the eyes of a superficial observer, I am however certain that the desire for a true and just sentence will prevent the overlooking of the limitations and degrees of responsibility.
Yet the direction of the main thrust of the prosecution has become rather clearly discernible by the few submitted documents, out of thousands of files. We face it with a clear conscience, calm and courageously, for documents do not lie.
What distresses us is the evidence submitted in order to impress and otherwise help the main thrust, evidence which has been available in accessible localities and without difficulties, with incriminating tendencies, sometimes even willfully incriminating, and which has offered in hundreds of variations and superlatives an almost unfathomable jungle of assertions, estimates, and opinions.
The mobilization of this evidence compels us to handle the most enervating and tedious detail for truth’s sake.
I expect to relieve us of much of this wearisome detail by first treating and solving problems, touched upon by coarsening efforts, misrepresentations, distortions, and half-truths in their entirety and from the broadest viewpoints possible.
At this point in the proceedings, I do not wish to put to the fore legal questions within the framework of the defense, such as the concept of conspiracy or the subjective fact and the confines of the crimes against humanity.
On the other hand, it will be unavoidable within the frame of the producing of evidence to convince the court that the entirely individual biased power position between the state on the one hand and the individual judge or prosecutor on the other hand in accordance with the regulations governing German civil servants allows no scope in the field of the application of the law for a simultaneously existing intellectual alliance in the sense of a conspiracy, but that a connection of this power position, in full knowledge of its legal nature, with a simultaneous assumption of a conspiracy would mean a contradiction in itself. Here it becomes necessary to prove that the activity of a judge at the Special Court or a Reich public prosecutor is limited to the application of the law which is based on the official Reich legislation in the field of criminal law. I shall demonstrate that this Reich legislation in all its harshness has, in its purpose, neither lost nor limited its character of purely criminal law and that, on this point, it has not been misinterpreted as clearly proved by the literature on the subject and the jurisdiction by the supreme judicial authorities and others.
Here must be proved a fact evident in itself, namely that judges and prosecutors in the same position as Rothaug were never and in no context expected to have objects alien to the field of criminal law in carrying out their official duties.
Records of sentences already submitted and others still to be submitted will prove that this had in no way been intended.
This touches on the legal question, whether official functions resting on the official Reich legislation which, up to this very moment, is covered in international law by the principle of nationality and sovereignty, functions which were carried out in public, may be conceived as actions of persecution on racial, religious, or political grounds and may be treated as being on the same level as actions which were carried out secretly and without control, and which could be recognized as wrong already by their cruelty and severity by every person concerned as offending against justice and law.