Q. What did the taking over of the post of Minister by Thierack mean to you?
A. I believe I should continue at the point where the speech made by the prosecution left off. The prosecution said, “Schlegelberger had seen the storm brewing.” That is quite correct. I anticipated a storm, and I tried to prevent it. The attitude of Thierack up to that time and his close relations with Bormann did not leave any doubt as to his program, and just as I interpreted that, it came about. As soon as Thierack assumed office, a complete change-over occurred. It was not a gradual deterioration, but it was that famous construction of a strong National Socialist administration of justice as it had been ordered by Hitler. I merely point to the changes in the administration of justice and in legislation which are contained in material submitted by the prosecution. If one sees what had been demanded for a long time and which by all means was tried to achieve, if one sees how that all of a sudden now came into effect, I believe then only one can find the right measure for that which I, in a continuous struggle, had prevented or had delayed. I do not want to omit but to describe briefly the complete change in personnel policy. With the exception of the man in charge of the budget department, all ministerial directors were released by Thierack and many Referenten transferred. The entire top level of the Ministry had changed overnight. Furthermore, twenty-two presidents of district courts of appeal, eleven of them the best ones on the basis of their qualifications, and four general prosecutors were retired.
If in the dire situation of war such a unique measure is taken, one demonstrates most clearly that my dismissal and the appointment of Thierack, in the feeling of Hitler and Thierack, represent the point at which an entire new development starts. The purge measures by Thierack were extended also to the many non-Aryan judges or judges with Jewish relatives who at that time were still in service and to many officials who did not just belong to the Party.
I believe that my decision to fight until the very limit, and to stay that long in the Ministry, has found its justification. Clearly anticipating that with that new man [Thierack] chaos would start for the administration of justice, there was only one thing left to me; although the burden physically and psychologically was at times almost impossible to bear, to try and bear it, and to fight as resiliently as possible. Of course, it was clear to me, and I had to experience the fact too, that I would be beaten at times, and had to decide to make detours wherever I could take that upon my conscience.
Q. In your opinion, what was that extreme limit which could still be justified—of those which you have just mentioned?
A. If the Tribunal was good enough to follow me in the description of my life, then it will easily recognize what my work at that time meant to a man whose life was devoted to the law. At times, today, it is hard even for me to transfer myself back again into those days and to bring those days back. In a system which was worked out to the very last detail of expediency and power, there was a lonely island amidst the continuous storm in those days—that was the administration of justice. I had to experience how the storm hit again and again, and how certain sacrifices had to be made to this storm of power in order to prevent it from triumphing completely. For me, in that situation, there was only one consideration—can a measure be made compatible with the uncompromising principles of law such as I had considered them so far as a matter of course? Was not everything now only a question of power? How could I avoid that lust for power and prevent the accomplishment of these designs? What will go through regardless of my cooperation and what can I prevent without cooperation? And that deliberation led me to find that extreme limit which I have mentioned before. It was for me the final abolition of the independence of the courts. I had to try to maintain this independence at all costs. In spite of and in the face of the devilish propaganda on the part of Goebbels, I was of the firm conviction that the German courts and German judges were still in good shape. Although, now, from the large number of the many sentences, particularly of the more recent period, the prosecution may select a few in order to prove that legal principles were abandoned in the sentences. To deal with individual cases is not my task in these proceedings. A full examination of the entire field of the administration of justice would show that this conviction of mine was very well founded, and that the maintenance of the integrity of the German courts was a goal which was well worth my work and my trouble; because I was, and still am, of the opinion that the work of the courts is the most secure guaranty for the law. Therefore, I tried again and again to draw various fields within the scope of work of the courts. For instance, in the economic field, the problem of getting agriculture [farms] out of debt [Landwirtschaftliche Entschuldung], the question of hereditary and marriage health, but the basic prerequisite was that the courts had to remain independent. When, in 1937, in the German Civil Service Law, Hitler was given the right to retire any civil servant if this civil servant could not be expected at any time to fight for the National Socialist State, in my capacity as chief of the Department for Public Law at the Ministry, I had a security clause inserted for the judges; this clause provided that measures regarding the judicial civil servant could not be based on the objective contents of a judge’s decision. Once the independence of the courts was lost, the protection of the courts was lost, too. The activity of the courts could even become a danger. Therefore, I drew for myself this extreme limit for my stay in office. With the resolution of the Reichstag of 26 April 1942,[177] my struggle reached its final stage. It was not quite clear, as it appeared frequently with Hitler’s speeches whether or not his speech had attacked the administration of justice merely for tactical reasons, and whether the true objects were general ones.[178] Dr. Lammers, the Chief of the Reich Chancellery, to whom I spoke immediately after the speech about all these matters, confirmed that background to me as being the true objective of Hitler’s polemics. I had to create clarity. I wrote to Hitler a report [Fuehrerinformation] to the effect that the judges were extremely disturbed by that speech. I had explained to the judges that with all the weight of my office, I would protect every judge who acted according to his conscience and to the law. That clarified the situation as far as I was concerned. If Hitler’s speech really meant the beginning of the end of the independence of the courts, then he had to consider my statement as an open declaration of war. That was what I wanted, and I wanted to bring about a breach, in that case, on purpose.
Q. How did your dismissal come about?
A. Hitler at first did not answer that letter which I just mentioned. There was a lot of talk behind the scenes about a new appointment for the post of Minister. A few weeks later, Lammers, Chief of the Reich Chancellery, called me to him and told me that Hitler had made up his mind to appoint a new Minister of Justice, and he asked me what my attitude would be if the choice fell on Thierack. I replied that to work with Thierack was quite out of the question. Literally, I added, “I would not sit at the same table with Thierack.” Lammers replied, that was what he had thought, and for that eventuality he was instructed by Hitler to offer me another office comparable to the position I was holding. He had thought it over and was now prepared to offer me the position of President of the Reich Supreme Administrative Court. I rejected that offer and asked Lammers to inform Hitler that I would accept a new office under no circumstances, but wanted to be retired. Soon after, Lammers wrote me that I should come to his quarters at Zhitomir and receive the document concerning my retirement from office and thereafter, to report to Hitler at his headquarters at Vinnitsa in order to take my leave. That order I carried out. On that occasion, Lammers, on order from Hitler, gave me a check for 100,000 marks, which should make it easier for me to bridge the transition into retirement.
I was not happy about that donation; on the contrary, I was greatly disturbed. I got in touch with the Chief of the Presidential Chancellery, Dr. Meissner, and asked how I could avoid accepting that amount. Meissner replied that refusal was impossible, because it would mean an unfriendly act toward Hitler, and all the bad consequences would have to be accepted. Thereupon, I did not return the check and when the Russians came, that amount was still untouched in the bank. At Vinnitsa, Hitler received me. The conversation lasted about 20 minutes. Hitler told me approximately the following: He required his officials to carry out his instructions without criticism of any kind. He added, “Since you have already criticized my measures, I believe it is better if we separate.” He was referring to the report which I have already mentioned. I took advantage of that opportunity to tell Hitler with all the frankness at my disposal that an intact and independent administration of justice was a vital question for Germany; that his method to form his judgment on the basis of information received from Gauleiters, and his intention to retire judges who had done their duty, was an impossibility. The very concept of a judge required independence. People would never respect the judgment of a dependent judge as an expression of law. I added that if I had remained in office, I would have continued to protect anybody who was prosecuted unjustly.
Hitler took these statements on the whole quite calmly. Time and time again he even nodded approval; but when I touched upon the question of the independence of judges in connection with his Reichstag speech he suddenly harangued against the generals and got into a hot fury which slowly ebbed like a dying flame.