I intended to put in the place of the revolutionary changes of law, advocated by Freisler, an evolutionary development of law. I based myself on the principle of the interior change of the legal system, a principle which, for the first time, I propounded already in 1929 in one of my works where I also elucidated that principle. That was at a time when one could really not say that I might have based my arguments on the National Socialist thought. The compromise laws, which had already been promulgated, I mentioned intentionally without evaluating them. That was how I had argued against that thesis, and I believe had refuted it. I also used the opportunity to give my views concerning other important topical questions as well. I turned against the interference with the carrying out of sentences which I considered inadmissible. Due to previous incidents, I warned the judges against currying favor with high Party officers. I appealed to the pride of the judges and the consciousness of their independence. I also found reason to turn against it that some jurists in an absolutely inconsiderate manner, placed their own egotistic endeavors in the foreground, and did not show any understanding whatsoever for the sound idea of a true people’s community.
Generally, I used a tactic which I had employed repeatedly: I committed the high Party leaders to adhere to many of their good words which they had probably spoken without reflection. I reminded them that Hitler during his first speech before the Reichstag had declared the independence of the judges as necessary. I pointed out that Frank[161] had mentioned the internal value of justice; and, that Goering, in public, had spoken against interference with the administration of justice.
Q. What was your relationship with Hitler?
A. I believe that one must distinguish between the personal and the material evaluation, and at the same time one must connect the two. I believe that Hitler, concerning my own person, had a certain measure of respect. I believe he saw in me the experienced civil servant, who was without ambitions, and who devoted himself to work and research. Concerning my sphere of work, civil law, he had not the slightest interest in it. The fact that I was unpolitical, aroused a certain amount of distrust in him; that, I suppose, explains the fact that in contrast to civil servants of the same rank, I was never offered an honorary position either in the SS or the SA. That I, in contrast to other high civil servants of the same rank, was not awarded the Golden Party Badge; and that he restricted my connection with the Party to the absolute minimum, again explains in particular, I believe, the positively brutal attack on me in the well-known Reichstag speech of 26 April 1942. The fact that I was placed in charge of affairs after the death of Guertner certainly was not a demonstration of confidence. This is how I would like to put it: It was just a makeshift solution. At that time Hitler could not yet make up his mind to appoint a new Minister of Justice. What played a certain part, perhaps, was that the chief candidate for the office, Frank, was at that time Governor General of the Government General and was not available. Thus, there was no way out, but to let the Ministry put the Under Secretary, who had seniority in the office, in charge of the Ministry. Hitler’s distrust, as far as I was concerned, was altogether justified from an objective point of view. I may say, and I wish to place special emphasis on this, that I was never fooled or influenced by Hitler’s demoniacal qualities, and I saved my own conscience, as far as he was concerned. For myself, Hitler was the declared opponent, in fact, the person who held the administration of justice in contempt. That conviction naturally placed me in a clear position. As far as it did not jeopardize my goal, I upheld my different opinion quite openly toward Hitler. That was already the state of affairs at the time of Guertner. I may say that all my life, as long as I held office, I was out to fight for justice and against arbitrariness. In the avowal of justice there was no difference between Guertner and myself. Guertner was the recognized protector of justice, but he was not a fighter. If in the development, which was slow to begin with and later became faster, he gave up his opposition in some respects, that certainly is not due to a lack of the honest will to uphold justice. Frequently he came to me for advice and assistance. But that time was overshadowed by a continuous struggle with the Reich Jurists’ Leader [Reichsjustizfuehrer] Frank. In continuous attacks, Frank tried from his position as Reich legal office leader to achieve his final goal which was to get the office of Minister of Justice and then to change the Ministry and make it into a National Socialist Ministry. That struggle can only be understood if one knew who Frank was. Frank was the legal adviser and in difficult times the defense counsel of Hitler, and, therefore, he was particularly close to him. Before 1933 even, he had been the leader and propagandist of National Socialist legal ideas. If one bears that in mind, then one sees already on the one hand, the Ministry with its expert officials, the official activities; on the other hand, the combination of National Socialist ideas on law with the aim of overrunning the Ministry. Frank recognized Guertner’s qualities; therefore, he tried by the tactics of continuously wearing him down, to achieve his aim. If one knows National Socialist methods, one knows how stubborn and tenacious such a battle was in the methods with which it was waged, and that struggle had reached its climax when Guertner died, and I took over the conduct of affairs.
Q. What was the situation at that time?
A. One gets a true idea of that situation if one forms a picture in one’s mind of those three groups or parties which were fighting against the administration of justice with the aim of conquering the administration of justice in order to destroy it. I call these fighting groups by the names of their leaders, Himmler, Bormann, Goebbels; and, in so doing I would like to emphasize that during the whole time I only talked once to each of those three men.
Himmler proceeded by different roads; the undermining of confidence in the legal administration of justice and the conquering of its competence. Attacks were being made continuously on the administration of justice in the periodical of the SS which had already been mentioned in this trial, Das Schwarze Korps [The Black Corps]. They were not content with criticizing sentences, but proceeded to defame in public the judges who had passed the sentences. Himmler collected material by sending secret observers to the court sessions. The officials of the Ministry were watched and spied upon. Anonymous secret reports, in which the Ministry was attacked, were sent out. Persons who had been acquitted by court sentences were taken into police custody. Others, who had been sentenced to a term in prison, were seized by the police, and as the administration of justice heard later, many of those persons were killed by shooting. All these things were intended and designed to undermine the confidence in the administration of justice. The administration of justice was to be discredited in public again and again as a backward and outmoded institution both as regards personnel and the subject matter. Himmler proceeded, I should like to say, with cynical frankness, on the basis of this propaganda. He deprived the Ministry of Justice of many fields of competence, and claimed for himself even many more fields of competence from the Ministry of Justice. He invoked the power of his position under Hitler and demanded that the competence for penal cases concerning Poles and Jews should be transferred to the police. His attempts to conquer the public prosecutor’s offices for the police continued until the end. It is obvious that that aim, which was placed higher and higher, by necessity would lead to the thought of whether one would not have to show that by new and more stringent measures one was in a position to overcome the criticism which Himmler used as a pretense, and thereby take the wind out of his sails.
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Q. What part did Bormann play in that struggle against the administration of justice?
A. Bormann’s work extended, above all, to personnel policy. Under the existing provisions, no ministry could appoint an official or promote him against the opposition of the Party Chancellery. The Reich Ministry of Justice always made its selection entirely on the basis of professional qualifications. Bormann, on the other hand, attached importance exclusively to the political opinion and the merits for the Party. If he objected to a suggestion made by the Ministry of Justice, and it was not possible to overcome the opposition, there was nothing else to be done at first, but to wait for a better situation perhaps, and leave the position unfilled. I experienced it myself that the position of a president of a district court of appeal remained vacant for that reason for more than a year. But it is obvious that the possibilities of such action had a certain limit. It was inadvisable to leave an unlimited number of positions vacant. And sometimes one was forced to appoint to the administration of justice personnel of only moderate qualifications, whereas persons who were better qualified were left out. Bormann knew very well how to promote Hitler’s antipathy for the administration of justice on the one hand, and on the other hand how to exploit the naturally weak and unpolitical position of the Ministry under Hitler. Hitler continuously received newspaper clippings about court proceedings and sentences. Usually, the facts were distorted, or the reports, in any case, were always inadequate. Hitler was always approached on these subjects only at a moment when for some other reason he was disgruntled and his attention had to be distracted. Those reasons very often resulted from the war situation. For Bormann, the administration of justice was the lightning conductor. The Gauleiters cooperated with him. They collected the material with great glee by getting newspaper clippings from provincial newspapers. The Gauleiter of Munich [Gau Munich-Upper Bavaria], Wagner, excelled. Every opportunity was used to discredit the administration of justice before Hitler with entirely inadequate documentation. The key to that situation lies in a statement which Goering made to me at the time the administration of justice became centralized.[162] I will revert to that later. Therefore, our main endeavor had to be to inform Hitler at the earliest possible moment, and, of course, completely and honestly. I shall have an opportunity to explain how those attempts were constantly sabotaged by Bormann.