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CROSS-EXAMINATION
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Mr. King: Dr. Rothenberger, I would like to come back to Prosecution Exhibit 27, which is Document NG-075. This is your memorandum to Hitler, or rather your memorandum which eventually reached Hitler, and to which you attribute your appointment to the position of State Secretary. The purpose of examining certain phrases from this memorandum is to enable me better to understand what your new program for the independence of the judiciary was. I am sure you know that memorandum much better than I do. I want to read to you several paragraphs from it. You say in one place: “Law must serve the political leadership.” Then you say in another place on page 8 of the document, “He who is striving toward a new world order cannot move in the limitation of an orderly Ministry of Justice. To accomplish such a far-reaching revolution in domestic and foreign policy it is only possible if on one hand all outmoded institutions, concepts, and habits have been done away with, if need be in a brutal manner.” Then you say still further on, “The Fuehrer is the supreme judge, theoretically the authority to pass judgment is only his.” Then you say still further on: “A judge who is in a direct relation of fealty to the Fuehrer must judge like the Fuehrer.” All of these phrases which I read appear in that memorandum and based on them, I want to ask you this and perhaps several other questions. You have repeatedly said that the purpose of your program was to establish an independence of the judiciary. However, the essence of your program, as it seems clear to me from reading your memorandum, is that the Fuehrer is the supreme judge. As you say here, theoretically the authority to pass judgment is only his. A judge in a position of direct relation of fealty to the Fuehrer must judge like the Fuehrer. Now my question to you, Dr. Rothenberger, is simply this: When you speak of the independence of the German judiciary, how do you reconcile that with these statements that the Fuehrer is the supreme judge, and that only he can actually judge, and that all judges must reflect his thinking?
Defendant Rothenberger: During my direct examination I have already tried to explain the thoughts which made me write this memorandum. It is extraordinarily difficult to do so briefly, especially to state one’s attitude only in regard to two or three sentences which are taken out of their context. Therefore, I am of the opinion that the memorandum as such should speak for itself, and that I leave it up to the Tribunal to form its judgment about the actual thoughts contained in the memorandum. And if in spite of that I may answer that question only very briefly in a concrete manner, I have to say the following: In 1942 the authoritarian state as such was a fact in Germany. That is to say, Hitler was also the highest judicial authority, and if any chance or possibility still existed to remove all the damage which had occurred during the course of years and all the burdens with which the administration of justice was loaded by the Party and by the SS—or, as we used to say at the time, on the part of the thousand little Hitlers who every day jeopardized the independence of the individual judge—under those conditions the only possibility to bring about any amelioration at all was Hitler himself. That it was impossible to convince Hitler I, and later on, everybody realized. But at the time I believed that it was possible to convince him, and I had to seize that possibility as a last chance. And if it would have been possible to convince him, then in effect the independence of the courts would have been reestablished again. For in that case this direct relationship between Hitler and the judiciary which I asked for would have been established and all other influences which burdened every judge every day would have been eliminated.
Q. Dr. Rothenberger, may I interrupt you at this point? I think that you are entirely too modest about the success of your program. If you meant what you said in your memorandum, and I assume that you did mean what you said, then isn’t it true that your program was a complete success, since the final result was that the Fuehrer became the supreme judge? Isn’t that true?
A. The fact that after only 15 months I again left my office is probably the best proof of the fact that my program was a complete failure.
Q. Dr. Rothenberger, do you distinguish between the success of your program and your own failure to get along with people in the ministry? Isn’t it possible that those two factors are separable?
A. No. A second reason also speaks for the assumption that it was a complete failure—and that is the intervention of outside offices with the activity of the judges which I wanted to prevent; this did not stop at all after this memorandum was submitted, but rather became worse. The independence of the court and the lifting of the judiciary from the civil service, which I was striving for, did not become effective at all. I request the Tribunal to tell me whether I should go into more detail in regard to this problem, which of course is a fundamental problem, or whether I should not say any more about it now.
Presiding Judge Brand: We will not interfere at this time.