Afternoon Session

DR. BERGOLD: It is true that a man in a position such as I described to you this morning can have great influence, if there is a man at the top who can be easily influenced; but it is equally correct to say that a man in such an office can play a purely formal role as the head of a liaison agency, if at the top there is a dictatorial autocrat who cannot be influenced and if the chief of the office has no special ambition nor any special abilities.

The proceedings which have been held for many months here have shown which of the two alternatives is more likely. It is obvious that, seen from lower levels, the head of the Chancellery would appear influential even in the case of the second alternative, because everything goes through his hands and because any blame arising from subordinates passes through his agency and because all mistakes which arise in the vicinity, committed by other officials, are reported there. These officials and subordinates, however high a rank they may have held, and even though in part they may have feared the chief of the Party Chancellery—perhaps indeed only for reasons originating in their personality or their errors—these are not the right people to enlighten us as to which of the two alternatives described is the proper one. As long as Bormann does not appear and is not heard, personally, the true part he played remains obscure. Nobody, not even the High Tribunal, could ever pass just sentence. All the facts remain dubious. They remain dubious even in the individual points. I would like to demonstrate this by just a few examples.

My esteemed colleague of the Defense, Dr. Thoma, has stated that Bormann prevented the Defendant Rosenberg from following his policy. To make his point he referred to the memorandum of Dr. Markull, submitted as R-36. But this document is nothing more than a comment on an unknown and unproduced Bormann document. Markull declares expressis verbis that he put Bormann’s formulations into the language of a simple member of the German civil service and presented them more pointedly. Only Bormann could enlighten us in this case and tell us whether he wished his writing to be understood in this way at all or whether Markull twisted the meaning and sense of Bormann’s words, so that only Bormann could disclose whether this writing, like almost all the Bormann documents submitted, did not simply transmit the utterance of another Reichsleiter or of Hitler. So this very case, too, seems altogether doubtful. An explanation can hardly be expected. Furthermore, it must be pointed out that almost all the documents which the Prosecution have gathered in their document book are, in general, mere reproductions and publications of a Hitler decree or a Hitler instruction. Bormann transmitted these instructions to the subordinate agencies with an accompanying letter in order to inform the agencies concerned. This is an activity which, as office work, has to be done even under the most reprehensible and tyrannical despotism; how much more so in a modern state like the National Socialist Reich. Someone has to forward all the instructions and orders to the subordinate agencies; that is a purely formal activity. It is immaterial whether it is done by a plain office assistant or by a brilliant Reichsleiter.

The official transmission of such instructions—I mention for example the Documents Number 069-PS, 1950-PS, 656-PS, 058-PS, 205-PS, and even the famous Document Number 057-PS—can only be considered a transmission of directives and opinions of Hitler; from such a method of transmission nobody can draw the conclusion that the forwarding party had any influence on the decrees, orders, and decisions. It is possible, but it has not been proved with certainty.

But before a sentence is passed, this question of influence should be entirely clarified. Because even if one could see any offense in the transmission of an order, according to Chancellery routine—whereby one would even have to sentence the women who wrote such orders on the typewriter—the just verdict would have to distinguish between the extent and severity of the punishment for such clerical work; and that should fall upon a man whose collaboration was a decisive factor in causing such orders and decisions and who by his influence and advice led the chief of the state to issue them. All this is not clear in Bormann’s case and continues to be uncertain. The empty statements of the codefendants, whose motives can never be entirely unveiled, to the effect that Bormann exercised great, even diabolic, influence are no proof.

The other documents of the Prosecution only prove that Bormann, in keeping with the decree of 29 May 1941, Document Number 2099-PS, and the decree of 24 January 1942, Document Number 2100-PS, arranged for an exchange of correspondence between the individual Reichsleiter and forwarded their desires and suggestions. As an example I mention Documents Number 056-PS, 061-PS, 072-PS, 205-PS, and 656-PS. Nobody can derive with certainty from these activities as a go-between, which were necessary from the administrative standpoint, the extent and true nature of Bormann’s influence.

Further documents show that Bormann very often served as a mere stenographer, taking the necessary notes during Hitler’s discussions with some of the defendants. This is proved by Document Number L-221, concerning the annexation of the Eastern Territories, and the Russian Document Number USSR-172. But in any case such documents do not make clear whether and in what way Bormann influenced the policies and the measures of the Third Reich during such meetings. According to all rules, a stenographer has no influence at all. He only fulfills an automatic function.

I would not like to be misunderstood here. Far be it from me to dispute the fact that Bormann occupied quite an important position within the leadership of the Third Reich. But no clear view has emerged during this Trial as to Bormann’s actual importance or to what extent it was exaggerated and vilified by the bad conscience of third parties and, finally, of what his influence actually consisted. Statements of the other defendants, which were made for their own defense, do not constitute relevant evidence. At any rate the document book of the Prosecution contains, almost exclusively, documents like those I have just examined more closely. Bormann scrupulously did only what was legal in Germany; this was revealed in the documents I submitted—for instance Documents Number Bormann-2, 3, 5, 7—in which he repeatedly pointed out to Party offices that no illegal action against Jews was permitted.

It is characteristic of Bormann’s case that measures against Jews could not be proved against him personally. He never did more than forward such instructions, divulge, or publish them, as this was prescribed by law and as it followed from his position as Party secretary. Even the big conference of 12 November 1938, which was held under the chairmanship of Herr Göring and from which emanated a series of laws against the Jews, can only be brought into relationship to Bormann insofar as Bormann forwarded to Göring Hitler’s instruction ordering that such a conference be held. In any case it has not been made clear at all what influence Bormann himself had on these questions. But how can a just and fair Tribunal determine the extent of appropriate punishment, if the part played, if the participation of an individual defendant in an offense, is not clearly established? Nobody can say then that there is no doubt about the circumstances of the case.

At first glance it seems to be most certainly proved by the document book of the Prosecution that Bormann was one of the most zealous in the fight against the Christian churches. Most of the documents quoted in the trial brief referred to this point. It is certainly correct to say that Bormann, because of his philosophy, was a violent opponent of the Christian doctrine. But such attitude of mind, in itself, is neither an offense nor a crime before mankind, which embraces so many different conceptions of the world and which will perhaps give birth to many more.

In modern times there are countless convinced atheists. In other countries of the world, too, there are officially recognized organizations which oppose the Christian doctrine; and at the turn of our century there were big associations in many countries which raised pure materialism to a philosophical system and openly proclaimed the negation of spiritual facts and truths. No one can be punished for wishing to teach others the precepts of his ideology or for wanting to convert them to his point of view. The modern world still recalls the horrors of the Inquisition.

Therefore Bormann could only be punished if it were proved that he participated in a real religious persecution and not merely in an ideological struggle.

In my opinion the two most important pieces of documentary evidence which the Prosecution have produced against Bormann—namely, Documents Number D-75 and 098-PS—do not show that the Defendant Martin Bormann on his own authority undertook anything against the churches as religious institutions. The gist of Document Number D-75 is contained in the sentence which says that from the incompatibility between National Socialist and Christian ideology it must be deduced that any strengthening of existing Christian denominations and any promotion of new ones is to be avoided by the Party. It is of no importance for what pressing reasons Bormann came to such a conclusion at the end of his letter. It goes without saying that failure to support a religious concept which one opposes on philosophical grounds does not constitute religious persecution. Nobody is obliged to support a religious view. It is not fair to consider his antireligious attitude and to disregard the fact that nothing came of it.

Furthermore, it is important in this connection to note that we received only one copy of this document, a copy which a Protestant minister by the name of Eichholz made out for himself. Whether the reproduction of the contents of Bormann’s statement in this document is correct in every detail has not at all been proved. In any case the document in this form does not constitute authentic evidence.

In Document Number 098-PS, which may be recognized as being authentic, Bormann takes a very definite stand indeed against the Church. It ends, however—and this is the only fact which should be considered for the verdict—by saying that no National Socialist teacher should be reproached for teaching Christian religion and even that in such a case the original text of the Bible should be used; any new interpretation of, comment on, or analysis of the text of the Bible is to be avoided. Therefore Bormann, despite his previous philosophical attack upon the Church, takes here the legal standpoint that Christian dogma may be freely propagated. Could a more loyal action ever be expected of such a strong opponent of a doctrine?

The remaining documentary evidence does not reveal any real persecution either. The fact that Bormann, on Hitler’s orders, prohibited the admission of priests or of members of certain religious associations to the Party and that, on Hitler’s order, he forbade priests to be appointed to leading positions in the Party, in order to prevent dissension, is not religious persecution. The fact that during the war he demanded that the Church make the same financial sacrifices as other state institutions does not represent a criminal act undertaken for religious reasons. That, while closing many lay institutions in order to make use of the human reserves of the nation, he tried to close down religious institutions too; that, considering the limitation on the number of copies and number of pages of lay publications, he wished Church publications to be limited also, does not come under the provisions of Article 6 of the Charter. It is true that in this respect he followed, among other things, his anticlerical attitude. But when, aside from this, the same measures were taken in Germany against other institutions and other publications—measures which were supposed to be only temporary war measures—one cannot speak of actual religious persecution. That Bormann might have been coresponsible for the persecution of priests has not even been submitted or proved at all. All documents indicate that Bormann always adhered to the legal stipulations in effect; and since he desired to comply in every way with Hitler’s orders, it is to be assumed that he observed Hitler’s decree at the beginning of the war which directed that all measures against the Church be discontinued.

Therefore it may be said in conclusion that this matter, too, cannot be really cleared up despite the numerous documents presented. Documents alone do not suffice to dissipate all doubts on the case. Especially with respect to the importance and weight of Bormann’s share in measures aimed at persecution of the Church, it seems necessary to determine Bormann’s personal responsibility. This fact therefore also remains somewhat obscure. A basis for a just determination of the punishment to be inflicted cannot be established.

I shall not take up the time of the High Tribunal by bringing up further details. I think that the indications I have just given are sufficient to show that even the documents presented by the Prosecution prove, in any case, only one thing with certainty—namely, that Bormann in his capacity as chief of the Party Chancellery held “as ordered by the law” an intermediary position in official and secretarial communication between the head of the Reich and the subordinate agencies and among those subordinate agencies themselves. Anything else is only an assumption which has not been definitely proved—in any case not with the certainty necessary to render a just verdict in absentia and without hearing the defendant and to determine the severity of the punishment. Unfortunately, a legend has already been woven around Bormann’s personality, his activity, and his survival. But for the sober judgment of jurists legends are not a valid basis for a verdict free from any doubt.

In view of the innovation created by the Charter—completely novel in the history of law of all times and all nations—in passing a final, irreversible sentence upon an absent defendant, I beg the High Tribunal to make use of their right to adopt such a procedure only after having considered the hitherto existing legal concepts and, especially when examining the case, to consider the prerequisites set down in a precise manner by Russian law. I therefore expressly propose that the Tribunal decide either to suspend the proceedings against the Defendant Bormann because of his proved death, or to postpone his trial until he is personally heard and can personally state his case and that the Tribunal make no use of its right according to Article 12.

THE PRESIDENT: I call on Dr. Kubuschok on behalf of the Defendant Von Papen.

DR. EGON KUBUSCHOK (Counsel for Defendant Von Papen): Before beginning my final plea I should like to submit to the Tribunal a few completed interrogatories which have since been received and of which some have also been translated. Since I refer to them in my final plea, I should like to submit them now.

THE PRESIDENT: Yes, Dr. Kubuschok.

DR. KUBUSCHOK: First of all I submit the completed interrogatory which has been received from the witness Tschirschky as Document Number Papen-103. I now submit a copy in English and in French.

On this occasion may I draw the attention of the Tribunal to the fact that Tschirschky was the secretary of the Defendant Von Papen who, at the time when he was in Vienna, was called to Berlin by the Gestapo and then emigrated to Great Britain, where he has presumably obtained British citizenship by now. The correspondence with reference to this Tschirschky case was the subject of the cross-examination. With reference to the numerous questions dealing with Papen’s vice-chancellorship and his activities in Vienna, the witness has expressed himself in great detail and in all cases answered in the affirmative.

Presumably the Tribunal do not want me to discuss these questions in detail now. The copies submitted to the Tribunal will be sufficient. But perhaps I could quote the last paragraph from Question 1:

“Regarding his relation to the NSDAP, I can say that during the time when I was working with Von Papen, Von Papen’s attitude was a negative and, in fact, a hostile one in every respect.”

It appears important to me to refer to the answer to Question 2, which deals with the safety measures during the formation of the Government on 30 January ...

THE PRESIDENT: Dr. Kubuschok, the Tribunal does not wish you to comment twice on the interrogatory. If you want to comment upon it to the Court in your speech, well and good. You comment now as you put it in, and then presumably you may make some observation later on in your speech.

DR. KUBUSCHOK: Mr. President, during the plea I will refer only very briefly to the special questions answered in this interrogatory. On the whole I do not refer to them in my plea. In my plea I merely give a summary of the answers, but I do not deal with the questions themselves again.

THE PRESIDENT: Dr. Kubuschok, the Tribunal thinks the appropriate course for you to take is to put in these interrogatories now, and when you deal with them in your speech, you can refer to any particular passage that you want.

DR. KUBUSCHOK: Yes. In its present written form the reference is very brief and does not even consist of a sentence. Besides ...

THE PRESIDENT: When you get to it ...

DR. KUBUSCHOK: Shall I read it then?

THE PRESIDENT: Yes.

DR. KUBUSCHOK: Very well. I have submitted the completed interrogatory of Tschirschky as Document Number Papen-103 and then the completed interrogatory of Archbishop Gröber as Document Number Papen-104. Gröber has to do with the conclusion of the Concordat. I am also submitting the interrogatory of Archbishop Roncalli as Document Number Papen-105, and finally, the interrogatory from the Polish Ambassador Jan Gavronski, which is Document Number Papen-106. These are documents which I received already translated. In addition I would like to ask the Tribunal to allow me another document, which in spite of all my efforts I have not yet been able to have translated. It is an affidavit from a foreign correspondent, Rademacher von Unna. He had transmitted in a letter to my colleague Dr. Dix, on 29 May 1946, an affidavit for Papen which arrived here about 3 weeks ago. Of chief interest in this affidavit is one paragraph. I should be most grateful to the Tribunal if I could read the paragraph so that the Tribunal would be in a position to see if this affidavit is relevant, and if so, to permit me to submit this document. Then I would submit the original, and the translation could be supplied as soon as completed.

THE PRESIDENT: You have not shown it to the Prosecution yet, have you?

DR. KUBUSCHOK: I had submitted the German text at the time, but now it has been in the Translation Division for 2 weeks, and I have not been able to get it yet. I have already mentioned the document during the last session when we discussed evidence, and the Tribunal informed me that I should submit it on another occasion, when the matter came up for discussion.

THE PRESIDENT: Is it long?

DR. KUBUSCHOK: It is not long. The document is a page and a half, and I will read a paragraph which is shorter than half a page. Only that paragraph is of real importance to me.

THE PRESIDENT: Does the Prosecution object to this?

MAJOR JONES: My Lord, I have not seen a copy of this document, but we have no objection in principle; I have not seen the document myself, and it is a little difficult to give any opinion as to whether we would object, if we had the opportunity of examining it.

THE PRESIDENT: Dr. Kubuschok, perhaps the best would be for you to read the document and the Prosecution can move to strike it out of the record if they object to it.

MAJOR JONES: Yes, My Lord. That would be quite a convenient course for the Prosecution, My Lord.

DR. KUBUSCHOK: I shall read from that affidavit from Rademacher von Unna, dated 29 May 1946, which was executed in Milan, half of the penultimate paragraph. The executor of the affidavit in this communication is referring to a statement made by Von Papen which is worded as follows:

“He, Papen, would, however, not allow himself to be deterred by anybody from carrying out his mission in the way he himself understood it: to be an intermediary and peacemaker; and therefore he would show anyone the door who might wish to misuse him in Austria for obscure purposes.

“In this connection it is worth mentioning that a member of the Austrian Government, a state secretary whose name I have forgotten, was making efforts to establish personal, but secret, contact with the German Ambassador in order to offer him his services for the German cause. Herr Von Papen turned down this offer, giving as his reason the fact that he refused to participate in conspiracies which were directed against the official policies of the Ballhausplatz. Up to now he had attempted to co-operate openly and loyally with the Federal Government; and he, on his part, would not use any other means.”

As an explanation I should like to add that the member of the Austrian Government who is mentioned here is Neustädter-Stürmer.

Your Lordship, may it please the Tribunal, Papen is accused of taking part in a conspiracy to commit a crime against peace. With respect to time the Prosecution limit the discussions of the facts of the case to the termination of his activity in Vienna. They admit that as far as the subsequent period is concerned, especially during his activity as Ambassador in Ankara, no indications were found to support the accusation. In other words, according to this viewpoint Papen is said to have taken part in the preparatory actions for unleashing a war of aggression—which actions the Prosecution have placed very far back chronologically—but he is not said to have actively participated in the immediate preparations and in the crime against peace itself.

The Prosecution deal with Papen’s activity as Reich Chancellor in the last pre-Nazi Cabinet, with the part he played as Vice Chancellor in Hitler’s Cabinet until 30 June 1934, and with his activity as Minister in Vienna. They were faced with the task of proving that during this period preparatory actions for a crime against peace actually took place, and that Papen, in full recognition of these aims, collaborated in the preparations. Since the counts of the Indictment deal with a field of activity which is in itself a legal one, and since the criminal element cannot be introduced into the individual acts except in the direction of their aims, judgment of the Papen case lies essentially in the subjective sphere. The Prosecution are faced with the fact that Papen’s own views, which often came to light, and the policy which he actually pursued cannot be made to agree with the interpretation given by them. Therefore, they seize upon the premise that he is a double-faced opportunist who has sacrificed his real sentiments, or those displayed, to the existing conditions of the day and to Hitler’s will.

In consequence, it must be the task of the defense to elucidate his personality in order to prove that Papen’s actions and statements follow a uniform, consistent line and that his entire attitude de facto was such as to preclude connecting him with the offenses of the Charter and that those of his actions which are under discussion must have been undertaken in pursuit of other aims than those which the Prosecution think they can recognize. Furthermore, the defense will outline Papen’s entire political activity with regard to its legality; and within the framework of this activity it will deal with the actions considered punishable by the Prosecution and will finally submit counterevidence showing that he actively worked against a political development as represented by the facts brought forward in this Indictment.

We shall arrive here at a just evaluation only if the question of political expediency and correctness is left out of discussion and if we accept the politician as he reveals himself to us with the opinions and attitudes derived from heritage and tradition. Moreover, an essential element in judging fairly will be the necessity of eliminating what we have learned during the Trial concerning later years and this later period. We shall have to direct our consideration only to the time of the actions themselves, and only then shall we obtain a clear picture of what Papen could see and expect at that time.

The Prosecution gives the date of Papen’s initial participation in the conspiracy as 1 June 1932, the date of his appointment as Reich Chancellor. However, it does not answer the question as to what circumstances are to indicate to us Papen’s entry into the clique of conspirators alleged to have been already in existence. Indeed, it is impossible to give an answer to this. Papen’s activity as Reich Chancellor cannot be regarded in any way as activity having to do with a Hitler conspiracy. The idea behind the formation of the Cabinet, the entire leadership of the Government during his chancellorship, and finally his departure from office are too clear to allow us to read into them a promotion of National Socialist ideas, a paving of the way for National Socialism, or even participation in a conspiracy allegedly already in existence. The Papen Cabinet was formed at the time of an unusual economic, political, and parliamentary depression. Unusual means had already become necessary under the preceding Cabinet. They were to be continued now, in part on entirely new lines. In times of unusual crises a parliamentary legislative body probably always offers certain difficulties. Therefore, even in the days of Brüning’s Cabinet, the Reichstag was practically completely excluded from legislation which the Emergency Powers Law gave to the Reich President. It was now thought necessary to work along completely new lines. A cabinet of men who were experts in their own field but who were not bound to any party was to do away with these difficulties. Therefore the new Cabinet was intentionally created without the collaboration of parties. The task with which the new Government was faced and the program necessarily resulting from the conditions of the time brought with them, of necessity, an attitude hostile to National Socialism. To strike at the roots of the depression, government policy would have had to attack the causes for the growth of the National Socialist movement. These consisted of discontent with economic conditions and the political situation abroad.

But on the other hand one could think of doing peaceful reconstructive work of any lasting benefit only if some modus vivendi could be found with the National Socialist Party. The Party had not only constitutional power practically to paralyze every government activity; but with nothing more than influence on the masses by its propaganda it promised amelioration of domestic political conditions, the first prerequisite for far-reaching economic measures. Papen was faced with this situation in the last days of May 1932, when to his complete surprise he was commissioned by Hindenburg to form a presidential cabinet.

With regard to his governmental activity, I wish to limit myself in my defense against the Indictment to the following details: The formation of the Cabinet of 1 June 1932 took place contrary to previous parliamentary custom without any previous consultation with the National Socialist Party. Epoch-making new economic laws subsidized by unprecedented financial appropriations were decreed in order to combat unemployment and at the same time to stifle at its source the seemingly invincible growth of the National Socialist Party. The aim of the new economic measures and the limited financial possibilities demanded application of these measures over a long period of time. The labor market was to be stimulated by the use of funds to consist of the future savings in public taxes if the measures were successful. The economic laws were based only on this exploitation of financial possibilities. No use was made of unproductive public work projects intentionally, nor was the labor market artificially stimulated by armament orders. These long-range economic measures, which could be successful only during an uninterrupted government policy, made their acceptance by the Reichstag appear especially urgent.

In the field of foreign politics Papen continued the course which the Brüning Cabinet had pursued; and in so doing he placed particular emphasis on these points of honor, the recognition of which would have brought no damage to the other parties of the treaty but which would have taken from the National Socialist Party a powerful propaganda weapon to influence the masses.

At the conference of Lausanne Papen openly explained the domestic political situation in Germany. He pointed out that ideological points mainly were involved, the nonrealization of which would give the National Socialists the impetus they desired. He explicitly emphasized that his efforts were the last attempt of a nonradical Cabinet and that in the event his policy failed only National Socialism would profit from it.

Papen strove to make the National Socialist Party take a share of the responsibility without wishing to entrust to it the key position of Reich Chancellor—a share in the responsibility which would have forced this party of negative politics to recognize actual conditions and which would thus have eliminated its attractive demagogic propaganda.

These first attempts by Papen to bring about the participation of the National Socialist movement in the work of government are regarded by the Prosecution as paving the way for National Socialism. However, this is actually nothing but an attempt to find a basis of some kind for practical governmental work, an attempt which had to take into account the experience of the Brüning Cabinet and the development of the National Socialist Party.

The fact could not be disregarded that already the Reich presidential election in March 1932 had brought Hitler 36.8 percent of all the votes. If one takes into consideration that Hindenburg was the opposing candidate and that Hindenburg’s personality certainly caused many followers of the NSDAP to vote in this special case not in accordance with Party directives, the fact follows that a heretofore hardly known opposition party had arisen which outnumbered by far all the other parties and the antagonism of which was able to paralyze a priori any governmental activity. Hence followed, what was a foregone conclusion for Papen, the endeavor to get this party out of its status as an opposition party. This decision would be all the easier if the firm conviction were there that a share in the responsibility of government would turn the opposition party from its radical course and above all curb it considerably in its further development.

The best evaluation of Papen’s governmental activity, seen from the standpoint of the National Socialists, comes from the fact that it was the National Socialist Party which opposed Papen’s decisive economic legislation and with its vote of no confidence—pronounced jointly with the Communist Party—brought about the end of the Papen Cabinet. The subsequent negotiations of the still acting Reich Chancellor, especially the events of 1 and 2 December 1932, show again his unequivocal attitude toward the NSDAP.

Papen proposed a violation of the Constitution to Hindenburg. He wished to exhaust this last means in order to avoid a Hitler chancellorship. Schleicher opposed this solution on the grounds that in the event of a civil war, which might then break out, the Government would not remain master of the situation with the police and military forces at its disposal. In the light of these clear historical events, the attempt of the Prosecution to give a different interpretation to the facts and to these clearly recognizable unequivocal motives is of little avail.

What then are the points which the Prosecution believe that they can marshal in the face of this?

For one thing, Papen in his first negotiation with Hitler, and a short time after forming his Government, consented to rescind the order prohibiting the wearing of uniforms, a measure which, even if it had merely been taken as a political deal to have the Cabinet accepted, is quite natural according to parliamentary rules. Not only was the NSDAP the strongest party in the Reichstag, but due in particular to its general political influence in public life it constituted an instrument of power of the first order. Therefore, it could not a priori be driven into a state of opposition if it was intended at all to pursue a realistic policy of long duration and seriously to try to overcome the emergency through a revolutionary economic program.

The repeal of the prohibition of uniforms was based also on more basic reasons, since it was a one-sided prohibition against a single party; the opposing organizations were not limited in this respect and the acknowledgment of the law of parity here could only eliminate dangerous propaganda material. The repeal of the prohibition of uniforms was furthermore by no means the announcement of a license for political acts of violence. It was reasonably to be expected that the warning of the Reich President, announced with the proclamation of the decree, that acts of violence resulting from the decree would bring about an immediate prohibition of the organizations as such, would prevent just such pernicious results.

The claim of the Prosecution that the repeal of the prohibition concerning uniforms was the main cause of the increase in the number of National Socialist seats at the July election is completely at variance with the facts. I refer to the already-mentioned result of the Reich presidential election of March 1932, at which the real situation did not even become completely manifest because of the fact that Hindenburg was the opposing candidate. The election of 21 July 1932 brought 13,700,000 National Socialist votes, whereas in the Reich presidential election of 10 March 1932 Hitler had already received 13,400,000 votes. There are no grounds whatsoever for assuming that the appearance of uniforms, which, incidentally, had been replaced earlier by camouflage standardized clothing even during the period of prohibition, might have had any determining influence on the outcome of the elections.

Much more important and in a negative sense more decisive for the outcome of the elections was certainly the general prohibition of political parades and demonstrations proclaimed by the Papen Cabinet at the beginning of the election campaign. Public meetings and political parades are the most important expedient for a demagogically led party. To lose this possibility just before the election was undoubtedly a much greater loss for the NSDAP than the previous advantages it had received in the form of permission to wear uniforms.

In the letter of 13 November 1932 in which Papen again tries to induce Hitler to participate in the Government, the Prosecution see an effort, undignified in its form, and blameworthy in its essence, to smooth the path of National Socialism to power. They forget that Papen conducted the November elections in sharp opposition to the NSDAP, because he tried to remove the Party from the key position in which it could not, without Hitler, numerically form a majority with the parties from the Social Democrats to the parties of the extreme right. They forget that this result had not been achieved, that the key position even with 196 seats remained with Hitler and that, therefore, it was necessary to make another attempt to win Hitler over for a presidential cabinet under some conservative chancellor. They overlook in this respect that Papen’s proposals here again had the definite aim of excluding the NSDAP from the Reich chancellorship. For National Socialism a cabinet under a conservative politician, who would have had to determine the principles of the policy in line with the Constitution, would only have permitted the Party’s influence to be felt in this or that department; but in return for this influence it would have been obliged to share the responsibility through its participation in the government. Seen in retrospect from the standpoint of the opposition to National Socialism one could indeed have welcomed nothing more enthusiastically than just such a participation by the Party in the government, limited in influence and sharing the responsibility. The end of an opposition policy which was so tremendously favorable for propaganda purposes would undoubtedly have stopped the growth of the National Socialist movement and the conversion of its radical elements.

To write the letter in a polite form was the official duty of the Reich Chancellor toward the leader of the strongest party in the Reichstag. It is a foregone conclusion that, in using this form and because of the purpose of the letter, the writer does not refer to negative points only but also to those positive elements which could lead to co-operation in the Government.

In order to be able to find the least indication during the period of Papen’s Reich chancellorship of his sympathy with the ideas of National Socialism, the Prosecution have seen in the temporary elimination of the Prussian Government by the decree of 20 July 1932 intentions which in no way could pass the test of an objective examination.

The so-called coup d’état of 20 July, as the Prosecution term the execution of the decree of 20 July 1932, had not the slightest thing to do with promoting the National Socialists. In the opinion of the Reich Cabinet and according to the decisive judgment of Reich President Von Hindenburg, domestic political needs required that the open toleration of Communist acts of terror by the Prussian Cabinet in office be brought to an end. Hindenburg drew the logical conclusion and issued the Emergency Decree of 20 July 1932. By a decision of the then still independent Reich Supreme Court, it was determined that this decree with regard to constitutional law was permissible within the framework of state political necessities.

If in carrying out this decree the request was indeed actually conveyed by police authorities to the Minister of the Interior, who had been suspended, that he leave his offices, the word coup d’état lends a meaning to this measure which goes far beyond what actually happened. Also in considering the effects of this measure any assumption that here the way was paved for National Socialism is not justified by any facts. The appointed Reich Commissioner Bracht belonged to the Center Party. The key position of police president in Berlin was entrusted to a man on whom the hitherto existing Braun Cabinet had previously conferred the office of police president in Essen. Briefly, the result of the change was only that, on the one hand, an effective co-operation was now assured with the Reich authorities and, on the other hand, new people filled some political positions which up to now had been the almost exclusive monopoly of the Social Democrat Party to an extent which, from the point of view of parity, could no longer be justified. That in filling these positions the National Socialists were passed over was a charge which was made against Papen time and again by the National Socialists.

Consequently, Papen’s entire term of office in the Government constitutes a clear line of realistic politics which show that, on the one hand, he did not relinquish the pilot wheel in carrying out necessary measures, especially economic ones, while, on the other hand, he tried to get a numerically large opposition party to collaborate. Papen’s attitude toward the NSDAP became even more manifest after he had been asked by the Reich President, late in November 1932, to collaborate in the efforts to form a new cabinet.

In this he showed he had the courage to go to the extreme. Realizing that it was impossible to go on with a non-National-Socialist Government, according to parliamentary principles, he submitted to the Reich President the proposal to rule with the aid of armed force, even if he thus caused a violation of the Constitution and risked causing a civil war.

It is just as difficult to reconcile oneself with such a proposal, when one adheres to thinking along lines of constitutional law, as it is impossible to overlook in retrospect that the proposed temporary violation of the Constitution was probably the only way to avoid the solution which then became necessary on 30 January 1933.

Any other temporary solution could not have had a satisfactory result. Sooner or later the opposition party would have forced the resignation of any non-National-Socialist cabinet. With that political unrest with its consequences on the entire economic life would have become a latent state—a state of affairs, which, through its repercussions, would only strengthen the National Socialist movement to such an extent that in the end the result would have been the fulfillment of its entire totalitarian claim for assuming unlimited power.

The part played by Papen in the formation of the Cabinet of 30 January 1933 might in itself be disregarded. It is sufficient to be aware of the fact that all endeavors to bring about a parliamentary government without Hitler could not succeed from a purely numerical standpoint, and that such a parliamentary solution with Hitler was wrecked by his opposition. A measure born out of political and constitutional necessity cannot, according to the Indictment, be considered as evidence of intentional planning of a crime in the sense of the Charter. The purpose of this count of the Indictment must be considered. By maintaining all parliamentary rules Hindenburg, in his capacity as chief of State, appoints a Government the head of which is the leader of the strongest party. This Government, when presented before the Reichstag, finds an overwhelming majority. That which Papen is accused of, the knowledge of the activities of the National Socialist Party in the past, holds true to the same extent also for the other participants, for Hindenburg and all consenting members of the Reichstag. The reproach leveled against Papen thus includes also an accusation against Hindenburg and the entire consenting Reichstag. For this reason alone probably the first attempt to include in an Indictment a self-evident, constitutional procedure of a sovereign state must fail.

If despite this fact I go into the events which occurred before the formation of the Government, it is only in order to show clearly the unequivocal standpoint of Papen, who on the one hand did not wish to close his eyes to the real facts, but on the other hand desired to undertake everything in order to prevent the danger of an uncontrollable development of this reorganization. The Prosecution consider the Hitler-Papen meeting at the home of Schröder on 4 January as being the beginning of the efforts to form the Government of 30 January 1933. As a matter of fact the meeting at Schröder’s was nothing else than an exchange of ideas on the existing situation during which Papen and Hitler maintained their previous opinions and Papen pointed out that Hindenburg, owing to the apprehensions which he had expressed, would in no case agree to Hitler’s taking over the position of Reich Chancellor. Hitler would have to accept the position of Vice Chancellor, since Hindenburg took the standpoint that further development would take place after he had stood the test of time.

This meeting in Cologne took place upon Hitler’s request. I refer in this instance to Schröder’s communiqué published by the press, which I submitted as Defense Document Number Papen-9, and which I erroneously indicated during the cross-examination as being a joint communiqué issued by Papen and Schröder. Schröder established in it that he alone took the first step toward having this meeting.

That this meeting was in no way the basis for the formation of the Government of 30 January is obvious from the fact that the discussion was immediately reported by Papen to Schleicher and Hindenburg and that subsequently until 22 January Papen had nothing to do with the solution of the problem of a new government. Schleicher as well as Hindenburg endeavored to obtain parliamentary support for the Schleicher Cabinet through negotiations with the leaders of the parties, efforts which failed, however, due to the pressure of the political facts. The main effort was to split up the National Socialist Party by inviting the collaboration of the Strasser wing in the Government. These efforts failed when Hitler’s position became so strong after the result of the elections in Lippe that he regained absolute control over the Party against all attempts to split it up. The outcome of the elections in Lippe of 15 January 1933 was generally considered as a barometer of public opinion with respect to the political situation. All parties had mobilized their entire organization and propaganda machinery, and therefore one could gauge public opinion from the result of this election. The result showed that the losses suffered during the November elections were almost completely regained. Thus everybody could recognize that the decline of the National Socialist movement was stopped and that with the continuance of the momentary political and economic situation a further gain was to be feared.

The necessity for a decision became more and more urgent when, on 20 January 1933, the Ältestenrat (Council of Seniors) of the Reichstag—by convening the Reichstag for 31 January—granted to Schleicher’s Cabinet a period of grace up to that date, since a vote of no confidence by the left and the NSDAP meant its immediate fall. The meeting in the house of Ribbentrop on 22 January, when Hindenburg wanted to learn through his son and the State Secretary of the Presidential Chancellery, Dr. Meissner, Hitler’s opinions about the political situation, has to be considered from this point of view.

The part Meissner played and also his general part in the formation of the Hitler Government cannot be established with certainty by means of the data at hand. In any case, as a member of the immediate circle around Hindenburg who finally took the ultimate decision, he was by no means uninterested in the matter. He has been judged at least very differently. Because of his own interest in the case he can in no event be considered as a classical witness for the judgment of the events of that time. His testimony seems certainly in one point highly improbable. He maintains that he opposed Hindenburg’s decision, after the latter decided to appoint Hitler to the office of Reich Chancellor. This is said by the same man who during the session of the Cabinet concerning the Enabling Act did not consider it necessary to maintain the right of the Reich President to proclaim laws, the same man who after the events of 30 June 1934 obviously collaborated in isolating Hindenburg from all those who could give him a true presentation of the events. I make these remarks because a part of a Meissner Affidavit was read during the hearing of evidence against Papen. Although according to the decision of the Tribunal the part which was read will not constitute a basis for the verdict, during the cross-examination questions were nevertheless asked in reference to the affidavit which might raise doubts. The decision of the Tribunal relieves me of the obligation further to discuss in detail the contents of the affidavit and to indicate a number of inaccuracies which could be easily refuted.

The hearing of evidence has shown that until 28 January 1933, Papen made no attempts whatsoever as regards the formation of a government. On that day, in view of the imminent meeting of the Reichstag, Schleicher had to bring about a decision. On 1 December 1932 he advised Hindenburg against an open fight with the Reichstag and declared that the use of armed force in a possible civil war would be hopeless. Now he thought that he himself could find no other solution than to beg to be permitted the use of those forces which he previously considered as being insufficient. But since no change in the situation had occurred since that time which could offer reasons for Schleicher’s change of opinion, since moreover the position of the NSDAP was strengthened by the elections in Lippe and the general political situation had become still more tense through the attitude of the parties, Hindenburg upheld his decision of 2 December. Thus the resignation of the whole Schleicher Cabinet was inevitable. Now the events took the course which necessarily and logically they had to take if the use of arms was to be avoided. There was only one solution now: negotiations with Hitler. Hindenburg commissioned Papen to conduct the negotiations for the formation of the government. On Hitler’s part it was clear that he could maintain his unwavering demands—namely, to take over the office of Reich Chancellor himself. The task, clearly recognized by Papen, was now to set limits to the political activities of the new party which had not yet been tested on such a large scale.

First of all, a change of course had to be avoided in those ministries in which any radicalism would have been particularly detrimental—namely, the Foreign Office and the War Ministry. Hindenburg reserved for himself the right to fill these two key positions. In order not to entrust the new chancellor with appointing the remaining ministers, as had been customary heretofore, Papen was charged with this task as homo regius. He succeeded in limiting the number of National Socialist ministers to a minimum. Three National Socialist members of the Government faced eight non-National-Socialists, who for the main part were taken over from the former Cabinet and who guaranteed a conservative policy in their ministries. That was not all; within the framework of the Constitution the authority of the Reich Chancellor was to be limited in a manner hitherto unknown. Papen was appointed to the position of Vice Chancellor. His function was not connected with a special department but mainly intended to constitute a counterpoise to the position of the Reich Chancellor. It was decided that Hitler in his capacity of Reich Chancellor should report to Reich President Von Hindenburg only in the presence of the Vice Chancellor. Thus, a certain control was established when the Reich President formed his opinion on the requests presented by the Reich Chancellor. In view of Hindenburg’s personality, which one might reasonably expect to have exerted quite considerable influence upon Hitler, this control over the information Hindenburg received promised that a shift toward a radical course would be avoided. This was the part the defendant had in the formation of the Hitler Government. The Prosecution see herein a decisive, conscious step toward the transfer of full power to National Socialism.

By considering the Case objectively, even in retrospect, one can only arrive at the conclusion that in view of the inevitable necessity of ceding the leadership of the Cabinet to the National Socialist Party, every possibility for limiting the importance of this measure was exhausted. The position of Reich Chancellor and the appointment of only two National Socialist ministers represented the concession made to Hitler’s demands.

For the consideration of the present proceedings it would not matter if the solution adopted on 30 January was the only possible one or not. Even if one were of a different opinion, the only thing that matters in looking at the case from a criminal angle is whether Papen could consider this solution as a necessity or in general only as a mere political expediency. Even if, contrary to all the facts, one regarded his opinion as utopian, it should be taken into consideration from the point of view of penal law that one could only speak of guilt if he had known the future consequences and the future plans of aggression and if in spite of this he had collaborated in the formation of the Government. The facts just mentioned have proved that there is not even the slightest supposition for this.

In considering the case, it is of decisive importance also that the two ministries, which in connection with the accusation of breaking the peace are the most important or which are the only ones to play a part at all—namely, the Foreign Office and the War Ministry—were placed in the hands of men who enjoyed Hindenburg’s confidence and had had no connection at all with Hitler, and from whom an unbiased direction of the ministries could be expected. It is not unimportant to consider in this instance what expectations one might have from Hitler and his future policy.

The leader of the opposition party now took for the first time the responsibility of a party, the structure and development of which could certainly occasion many misgivings and apprehensions, a party which had developed on the basis of an absolutely negative attitude toward the hitherto existing government leadership, a party which, noisy and boisterous as it was, had certainly made many concessions with regard to the composition of its membership, a party which had laid down a new program including points which seemed far from reality and impossible to carry out but which—and this is the only essential fact within the scope of our consideration of the case—apparently did not have any criminal character.

On the other hand one cannot disregard the experience of life and history that propaganda and responsible work are two very different things, that a party which develops from nothing needs, according to experience, more negative and noisy propaganda than an old existing party. Even if the Cabinet of 30 January had consisted exclusively of National Socialists, even if there had been no moderating element in the person of Hindenburg, one could have assumed according to the rules of reason and experience that Hitler, who acceded to power by means of propaganda, would take into account the existing conditions in this practical, responsible work and would show himself in his activities essentially different from what he appeared during the propagandistic preparation before his accession to power.

One instance had already shown the difference between a party in opposition and in responsible government work: The same National Socialists with their same program and their same propaganda who now on 30 January took over the position of Reich Chancellor had already held the leadership or participated in the governments of some German states. We see Frick, the leader of the Reichstag faction, acting as responsible minister in Thuringia. His field of action included even the police and we saw the National Socialists zealously tackling various economic problems in these states. But we did not see them commit excesses or even pursue an unreasonable policy, which would have been at least in approximate agreement with their propaganda. Could it not be expected then that now in the Reich too, with the greater tasks, the natural sense of responsibility would increase? And that, especially in view of the safety measures taken, matters would not take a dangerous course?

It is not superfluous to discuss Hitler’s personality in this connection. Hitler, especially after the failure of the attempt to split the Strasser group, was the absolute autocrat of his party. Undoubtedly he did not show in the leadership of his party, in his speeches, and in his appearance that reserve which should have been a matter of course for the leader of such a big party.

However, all signs indicated that Hitler had his party under control to such an extent that he would be able to put through even unpopular measures which had to be taken under the pressure of reality. In the questions concerning the participation in the government he had pursued a policy in keeping with his intentions, wise in its tactics but often unpopular with the impatient masses, because he took the facts into account. Could it not be expected then that this man who now had reached his aim—namely, to take over the leadership of the Cabinet—would abandon the unrealistic ideas he advocated when he was in the ranks of the opposition and would submit to the real exigencies of national and international life?

It is also a general fact known from experience that a man confronted with particularly great aims and with a particularly grave responsibility grows as a ruler and as a man in proportion with these aims and this responsibility. In view of this general historic experience one could not assume that a man entrusted with responsibility, after certain attempts which could be interpreted as being promising, would soon revert to the theses of his former opposition ideas, that after a couple of years this man would throw overboard every positive idea he had emphasized—I remember for instance Hitler’s professing his adherence to the Christian foundations of the state—and that he would even surpass the negative ideas he formerly advocated and increase to an immeasurable extent his aims and his methods. We see now Hitler in his full development before us; and we are perhaps tempted to interpret his actions during the last years—because they represent something which is so monstrous and therefore so impressive—as being the manifestations of his whole personality, assuming that during the preceding time he had already been such.

It is not possible, within the scope of this Trial, on the basis of events, his speeches, and especially his actions, to interpret and to understand Hitler psychologically from the beginning of his political activity until its end. His well-known fear of disclosing himself and the mistrust he showed more and more toward nearly everybody in his immediate surroundings makes it particularly difficult to judge his personality. The individual facts which occurred lead, however, to the certain conclusion that Papen, too, despite the fact that he was close to Hitler, could not suspect him in 1933 of being the man he showed himself during later years.

Papen as homo regius was fully aware of his responsibility in agreement with Hindenburg’s wishes and did what he could to prevent radicalism from getting the upper hand. After the formation of the Cabinet he did not sit back and take the easy way favorable for him from an opportunist point of view. He undertook to form a counterpart to the National Socialists at the elections of 5 March 1933 through a union of the conservative parties of the right. For one who had adopted the National Socialist ideas or even agreed to offer blind obedience to their leader, the next thing to do would have been to put an end to the opposition of this large newly constituted conservative group and to let it effect a union with the party which had recently come to power, a way which at that time appeared to many absolutely natural. Papen entered the election contest as leader and organizer of the oppositional group “Black-White-Red.” His speeches of that time, excerpts of which I submitted in the document book, give a clear picture of his aims and intentions. They were the affirmation of a national idea, free from the unrestrained propaganda of National Socialism and its doctrines. In any case his program was in irreconcilable contrast to what later turned out to be the unpredictable extension and unlimited transgression of the confirmed aims of the NSDAP. The formation of the political action bloc Black-White-Red was to guarantee what Papen had tried to achieve by the composition of the Cabinet of 30 January: a coalition cabinet which, as an inevitable result of parliamentary rules and the entire political situation, left the post of Reich Chancellor to the leader of the strongest party, who, however, was forced to rule within the framework of a coalition cabinet with all the limitations which derived from it.

THE PRESIDENT: Would this be a convenient time to recess?

[A recess was taken.]

DR. KUBUSCHOK: I believe that I have made it sufficiently clear by these statements that Papen’s collaboration in the formation of the Cabinet of 30 January does not constitute an attempt to place National Socialism in a position of exclusive power. The opposite has been proven by facts. With regard to the Defense, I have gone far beyond what would be necessary to obtain a verdict of not guilty. If, even at this stage, somebody had co-operated in really giving the National Socialist Party an exclusive influence, there still would not be proof in this of a preparatory action for the punishable crimes in the sense of the Indictment.

The program laid down by the National Socialist Party and the statements of the Party leaders of that time—which in view of their propaganda value must be construed much more narrowly from an objective angle—can be misinterpreted as much as one likes, and one may read into them in retrospect any number of facts which became recognizable later; but one cannot see in all this the road to the crimes set out in the Charter.

In Papen’s activities as Vice Chancellor during the period from 30 January 1933 to 30 June 1934, the Prosecution think they can see a continuation of his efforts toward a conspiracy for the purpose of consolidating the powerful position to which he had helped to bring National Socialism. The Prosecution have charged him in this connection with collaboration in the various laws passed during this period by the Government, which, according to their opinion, merely served the afore-mentioned aims. I will demonstrate, however, how the work of the defendant developed in detail—that also in this respect he did not deviate from his original policy. The Prosecution deal with a number of laws passed by the Cabinet at the beginning of its activity which must be considered as a compromise between the demands of the National Socialists and the conservative ideas of the other members of the Cabinet. Problems are here touched upon which National Socialism made the subject of discussion and propaganda for years. The conservative members of the Cabinet were then facing the following situation: The strongest party and the Reich Chancellor could not entirely ignore these questions; they had to be solved in some form.

The principle of every coalition cabinet entails a compromise for both parties. In compromising, the other party need not change its opinions. If, for example, in a coalition cabinet which is led by a labor party the program of the labor government, which perhaps contemplates a general socialization, is to be carried out in practice, the collaboration of the other members of the cabinet will consist in preventing a general extension of this measure and in limiting its effect to those cases which, in their opinion, deviate least from the course followed before. One cannot expect from the strongest party and from its leader, who occupies the constitutional position of Reich Chancellor, to continue the policy of his predecessors. The other members of the coalition must make sacrifices if any governmental activity is ever to be possible.

Since in the framework of this Trial we do not have to judge considerations of political expediency and not even moral conceptions but only whether what happened was done with a criminal purpose in the sense of the Charter, the task set for the Defense is comparatively simple.

In the legislation we see the ideological problems raised by National Socialism partly solved. We must concede that the non-National-Socialist cabinet members involved in considering these laws had in mind a final solution and not a temporary one. Their experience, based on the past, on the political life of all countries, taught them that a problem settled by law is normally concluded. It was unthinkable—for it was incompatible with a normal governmental activity and the maintenance of the authority of a legislative body—that after the issuance of a law, a problem already dealt with should continually be considered anew in the following years and each time given a more radical solution. Papen has proved that he carefully tried to keep the concessions made to the opponent within a more or less tolerable limit. The fact that in the laws of that time National Socialist doctrines appear only rarely and in moderate terms shows sufficiently that the composition of the Cabinet of that time had a retarding influence on the penetration of National Socialist ideas. Without this influence it would not be understandable why Hitler agreed to a relatively unpopular limitation of previously advocated aims of the Party.

The restraining hand of the defendant which helped shape the individual laws is clearly discernible. The classic example for this is his endeavors in bringing about the Enabling Act. It was a necessary piece of legislation for that critical time. The preceding years had shown that, owing to time-consuming deliberations in the Reichstag, urgently needed legislation was not passed. Therefore, already in Brüning’s time, almost all the legislative power was put in the hands of the Reich President in that important laws were issued in the form of emergency decrees by unilateral legislative acts of the Reich President. For these compelling reasons, the legislative power which could not in practice be left in the hands of the Reichstag, was transferred to the Cabinet and this constituted a compromise. As shown by the result of the Reichstag vote on the Enabling Act, none of the parties, including the Center Party, failed to recognize this.

Then there was the question as to whether the rights of the Cabinet, in which according to the Constitution the Reich Chancellor had to establish the fundamental lines of policy, would be limited by the fact that the right of making laws was reserved for the Reich President. The personal State Secretary of the Reich President declared in a cabinet session that he did not think it necessary that Hindenburg be given the responsibility of making all laws because of the latter’s right to proclaim them. Von Papen’s direct intervention with Hindenburg immediately afterward remained without success, as stated by the witness Tschirschky.

Mr. President, would this be an appropriate time for me to present the essential points of the questionnaire which was answered by Tschirschky?

THE PRESIDENT: Well, you can comment on it, but you aren’t going to read the whole document, are you?

DR. KUBUSCHOK: With your approval, I will give a summary of it.

THE PRESIDENT: Yes.

DR. KUBUSCHOK: This is Document Number Papen-103, which I submitted a while ago.

I have already read Question 1. Question 3 concerns the controls just discussed. The witness says that they were surely intended to prevent Hitler and the NSDAP from carrying out their policy. In the next question the witness affirms the alleged aim of the conservative bloc Black-White-Red. In Question 5 the witness confirms the development, which I still have to present, toward an authoritative government by Hitler. The answer to Question 7 shows that Papen in the Cabinet strongly resisted the suggested legislation in many points. Question 10 concerns the attitude of Papen toward the Church. The last sentence is particularly important:

“Von Papen believed that, by concluding the Concordat, Hitler and the NSDAP would be placed under such strong contractual obligations that the anti-Church attitude would be arrested.”

The next answer, 11:

“I do not consider it possible that Von Papen himself participated in a later violation of the Concordat or that he even used his religious conviction for political trickery.”

Question 12 confirms what I shall say about the Marburg speech.

The answer to Question 14 is significant:

“It is not known to me that Von Papen expressed opinions to the effect that the Hitler Government would have to solve Germany’s foreign political aims through war and aggression. In the years 1933 and 1934 such ideas would have been absurd.”

The answer to Question 15 is to the same effect. The answer to Question 18 confirms Papen’s efforts after the events of 30 June to reach Hindenburg in order to effect a change.

THE PRESIDENT: In the answer to Question 14, does the answer begin “It is not known” or “It is known”?

DR. KUBUSCHOK: “It is not known to me.”

THE PRESIDENT: In the translation it says “It is known.”

DR. KUBUSCHOK: The answer to Question 16 confirms Papen’s statement that he wanted to prevent Germany’s withdrawal from the League of Nations at all costs. I have already spoken of Question 18. From the answer to 18 it is also shown that Papen’s firm attitude after 30 June was his insistence on resigning.

Questions 19 to 23; here the second sentence of the answer is especially important:

“... It is correct that Von Papen accepted the post of Ambassador Extraordinary to Vienna for the sole reason that he hoped to prevent the insane policy of Hitler and the NSDAP in Austria. It is correct that Von Papen made his acceptance of the mission at Vienna depend on Hitler’s pledge to forbid any Party interference in Austrian matters, to call back Gauleiter Habicht at once, and to refrain from any aggressive action. It is true that these and still other stipulations were accepted by Hitler after lengthy protest and that they were then put down in writing.”

In the answer to 25, Tschirschky confirms the fact that during the witness’ period of observation Papen steadfastly adhered to this policy. The answer to Question 26 refutes the contents of Messersmith’s affidavit. Papen was not concerned with an aggressive policy in the southeastern area. The answer to Question 27 sums up the attitude of the witness to the effect that Papen did not strive for an Anschluss to be obtained by force.

Continuing on Page 22 we see Papen again in the foreground when the problem of anti-Semitism had its first legal effect. At that time, the situation was the following:

There were the broad masses who for years had been influenced in this direction, and there was a predominantly National Socialist group for whom anti-Semitism was an important plank in the Party platform. We saw the effects of propaganda on the masses which manifested themselves in the afore-mentioned individual actions during the first weeks after the formation of the Hitler Government.

The conclusions to be drawn from this situation were clear. A problem which had been stirred up and which had already shown pernicious results had to be legally settled. It was clear that in this question National Socialism, through its exaggerated propaganda, had contracted a certain obligation toward its followers. It was difficult to determine the extent of the legal limitation, which for the incited people always had to be disappointing. The way out could only be a compromise. The settlement was directed to a field where a change in the hitherto existing situation seemed to be the least severe.

Whereas in accordance with the contents of the Civil Service Law (Berufsbeamtengesetz) only those were dismissed from their position who occupied their position not on account of their professional qualification but due to their membership in a political party; all Jewish government employees who were appointed after 1918 were also dismissed. As a rule, a right of pension was maintained. Papen’s successful endeavor aimed to limit numerically the effect on the Jewish government employees concerned. He remonstrated with Hindenburg, who favored the idea of protecting war veterans. Through Hindenburg’s personal influence on Hitler, Jewish war veterans and dependents of fallen soldiers were then exempted from this law.

Since an overwhelming part of the young government employees who had been employed since 1914 were war veterans, the number of those thus exempted was quite considerable. This is made especially clear by the official figures published concerning the conditions in the legal profession, which were presented in Defense Document Number Papen-33. Furthermore, the defendant is charged with the measures taken against the labor unions. First consideration must be given to the fact that the measures were not carried out by a regulation based on a Reich law. It is, moreover, important that under the changed circumstances the continuation of labor unions of a Social Democrat character might have appeared as an anachronism. Papen’s attitude with respect to the problem of labor unions is shown by his speech of 4 March 1933, Defense Document Number Papen-10.

Here, too, it must be considered that at the time the measures were taken one could not have foreseen the extent of their further development. Considering its many rather sound ideas for the settlement of social questions, the German Labor Front at the time of its foundation did not merit the judgment it now deserves for the countless coercive measures taken at the end.

The amnesty decree, as was shown during the hearing of evidence, is no novelty. Already in 1922, in order to put an end to a period of political unrest, an amnesty decree was issued, which also pardoned crimes punishable by the death sentence. The establishment of special courts was a measure of expediency to speed up the sentencing of political offenders, because longer normal proceedings did not have the desired element of intimidation. It is significant that the order concerning crimes of violence in the case of the Potempa murderers (Document Number Papen-1, Pages 6 and 7) was applied for the first time during Papen’s Reich chancellorship, against National Socialists. Thus it is erroneous to see in the nature of those laws approbation of misdeeds or a promotion of the Nazi idea.

The Prosecution, in criticizing Papen’s legislative activity during this time, emphasize the Political Co-ordination Act for the States of 31 March 1933, thus touching first of all a question of domestic policy, which is really far outside of a field of discussion in the sense of the Indictment.

If in this the Prosecution have the sole purpose of showing that Papen has in this respect changed the point of view he advocated previously, it must be said that political opinions are in general subject to alterations and often must be altered, and that from a change of conception with respect to political expediency measures one can by no means draw a conclusion as to a general change of opinion. As a matter of fact, the first Statthalter Act was designed to eliminate a dualism between the Reich and the states, which Papen had always considered as disadvantageous. Papen has always advocated, especially with respect to Prussia, a solution as in Bismarck’s time, when the office of President of the Prussian Council of Ministers and that of Reich Chancellor were united in one person. Thus, this question, which ought to be touched only in passing, hardly involves even a change of opinion, much less a proof of a change of sentiment.

The following must be considered with respect to the legislative work of the Defendant Von Papen in the Cabinet: His position of Vice Chancellor was without an administrative province. The influence, even in general political questions, which the head of the regular ministry had in cabinet sessions, did therefore not exist in the case of Papen. He could only express misgivings or objections from a general point of view, without being able to base them on departmental grounds.

Considering the small number of cabinet session protocols available—despite all my efforts I did not succeed in procuring the remaining ones—the extent of Papen’s opposition and that of other ministers cannot be proved by documents. The fact that he voiced this opposition was revealed by the hearing of evidence. But, as admitted, his success was small. Thus it is the duty of the defense to investigate more deeply the reasons why Hitler’s power gradually increased and why the influence of the non-National-Socialist ministers decreased; in short, why the guarantees which had been provided when the Government was formed on 30 January failed.

At the beginning the course of the cabinet sessions did not deviate from the normal procedure. The questions which arose were made the subject of discussions. Hitler refrained from carrying through the bills which were rejected for good reasons. A clear description to that effect is given by the affidavit of the former Minister Hugenberg—Defense Document Number Papen-88.

The elections of 5 March, with the overwhelming success of the National Socialist Party, brought along a substantial change. Beyond their purely parliamentary repercussions, they strengthened Hitler in his conviction that he was the deputy of the German people. He thought that now the time had come for him to make use of his right, granted to him by Article 56 of the Constitution of the Reich, to determine in his capacity as Reich Chancellor the fundamental lines of policy, even when the ministers opposed such a course.

With respect to the constitutional situation I refer to Document Number Papen-22, which shows that in questions of fundamental policy even a majority decision of the ministers was ineffectual against the decision of the Reich Chancellor. Now Hitler became inaccessible to any suggestions. Hitler took opposition to mean resistance and soon it became evident that objections made in the Cabinet were useless in changing Hitler’s attitude. At the best one could hope, as the Defendant Von Neurath declared as a witness, to influence Hitler outside the Cabinet in a direct discussion.

The most essential factors in Hitler’s development into an autocrat were his increasingly strengthened position with regard to Hindenburg and his ever-increasing influence on the Reich Defense Minister, Von Blomberg.

Hitler’s first measures which, in Hindenburg’s eyes, indicated a desire to restore order, had constantly improved Hitler’s personal relations with Hindenburg. He skillfully adjusted himself to Hindenburg’s mentality. Therefore he succeeded very soon in abolishing the original stipulation concerning the obligation of making joint reports. Thus, Papen was practically deprived of the chief means of influencing Hindenburg. The attitude of the War Minister, Von Blomberg, was the second decisive point in Hitler’s further course.

The Wehrmacht was a powerful factor. Hitler knew that its men and officers were probably essentially unpolitical but that by no means—especially as far as its leadership was concerned—were they inclined to National Socialist ideas. A radical turn in the government might therefore always give rise to resistance on the part of the Armed Forces. It must be added that owing to his personality, Hindenburg listened willingly to reports coming from military circles. As long as the War Minister was not a disciple of Hitler, the latter was prevented from carrying out any radical ideas.

It is not possible even today to gain a historically clear picture which would enable one to explain the reason for Hitler’s influence on Blomberg. We must only state the fact that Blomberg very soon became an ardent admirer of Hitler and that on his part no sort of resistance could be expected against any extensive radical development whatsoever of Hitler’s policy. The 30th of June 1943 was to prove this very clearly.

In retrospect, the logical consequence of this development becomes clear. Hitler could only be impressed by actual power. The Wehrmacht at the beginning, especially with regard to the position of the Reich President Von Hindenburg, was a powerful factor with which even Hitler and his Party would not have been able to cope in a showdown. That is the reason for Hitler’s endeavor to win Hindenburg’s confidence, the reason for his comparatively cautious maneuvering during the time prior to Hindenburg’s death, which by no means could envisage the intensified procedure later on. From the time of Hindenburg’s death, Hitler appeared as a ruthless dictator especially in the domestic scene.

In addition to the legislative activity of the Cabinet, the Prosecution dealt with the question as to what extent Papen was responsible for the oppression of political opponents and for certain acts of violence which occurred during the period which the terminology of that time called “national revolution.”

During the cross-examination Papen was asked whether he knew about the arrest and mistreatment of individual Communist and Social Democrat personages named to him. Papen gave a generally negative answer. However, he knew that on the basis of the Decree for the Protection of People and State issued by the Reich President measures had been taken which suppressed the personal liberty of a great number of leftists. The decree was issued by the Reich President, outside Papen’s responsibility, and by suppression of the relevant constitutional stipulations. It was established under the impression created by the Reichstag fire, an event which up to the present day has not been fully elucidated, but for which the official statement that Communist circles had been the instigators seemed to be entirely credible, especially since a search of the Liebknecht House, the Communist headquarters, had produced, according to Göring’s declaration, very serious evidence concerning actions planned against the Reich Cabinet. The investigation proceedings were held by a judge of the Reichsgericht (Reich Supreme Court), a personality whose impartiality was beyond any doubt. Therefore Papen could understand the legal security measures which the Ministry of the Interior thought necessary. But knowledge of the arrest of these politicians is by no means connected eo ipso with the knowledge of the details and of the extent of the measures taken at that time.

During the years of the National Socialist regime he learned again and again that the knowledge of acts of violence remained restricted to the narrow circle of the direct participants. The measures taken to silence an internee before his release were evidently successful. Thus we see again and again that there was always only a small initiated circle from the immediate environment of returned internees. This explains the fact which sometimes amazes one afterward, namely, that wide circles were not informed of the kind and extent of the excesses committed. It is evident that close relatives and close friends of the politicians arrested at that time knew of what had happened to their people. The extent of the secrecy is shown best by the fact that the witness Gisevius assumes that the conditions in concentration camps did not become generally known to Gestapo officials until 1935.

Thus it seems to me quite clear that Papen knew very little about the measures which, during the first months, were almost exclusively taken against political opponents of National Socialism coming from leftist circles. At any rate his knowledge did not go beyond the fact that in this respect arrests were made within the scope of the Decree for the Protection of People and State.

It was a different matter, however, with the later encroachment on the rights of Church offices and organizations, which were closer to him and which he energetically tried to help. The same holds true for the measures in connection with 30 June 1934, which will be discussed later on.

In any case it is a decisive fact that the measures, as far as they were outside the law, were subject to the jurisdiction of the Police and the Ministry of the Interior. The law itself is an emergency decree of Hindenburg’s. It came about legally. The now broadened conception of protective custody does not in itself constitute a crime.

With regard to anti-Jewish excesses the Prosecution accused Papen of having sent a telegram to the New York Times on 25 March 1933, describing the situation in Germany as quiet on the whole, and of having pointed out that individual actions had occurred but were now prohibited by an order from Hitler.

From the sources which were accessible to him, Papen had of course heard of the excesses of which individual SA men had become guilty in this unsettled period. If on 12 March 1933 Hitler categorically forbade such actions by individuals and ordered the strictest punishment for any culprits in the future, Papen could assume with a clear conscience that this order which emanated from the highest authority would henceforth be obeyed.

In passing it is interesting in this connection to refer to a public announcement of the League of Jewish Front Soldiers of 25 March 1933. This proclamation also stated the fact that the situation with respect to the Jewish population was in general quiet and that excesses were confined to actions by individuals, which had now been forbidden by Hitler. I shall submit this publication of the League in my document book for the Reich Government. The same standpoint was taken in a publication of the American Chamber of Commerce in Cologne on 25 March 1933, which publication I shall also present during the hearing of evidence for the Reich Government.

The anti-Jewish boycott, which was announced some days later and which was carried out on 1 April 1933, was, contrary to the opinion of the Prosecution, no government measure but exclusively a Party measure which Papen, too, as well as others in the Cabinet, sharply opposed. The publication of the Times submitted with Defense Document Number Neurath-9 proves that over and beyond this Papen made representations to Hindenburg and had the latter intervene with Hitler. For the rest, one must take into consideration the fact that the anti-Jewish boycott had been announced as a defensive countermeasure which was to be limited in time and to be extended only to business life. It had been expressly forbidden to use force and excesses were to be prevented by corresponding measures.

The Prosecution have presented the domestic policy in such a light that it would seem that through the measures taken the position of the National Socialist Party was to be strengthened, so that it should then be possible to turn to the aims dictated by a foreign policy of force which had been decided upon beforehand. Still more important than the discussion of domestic conditions is, therefore, an examination of the foreign policy of the Reich during the time Papen was Vice Chancellor.

Hindenburg’s reservation that he would appoint the Foreign Minister and the appointment of Von Neurath, who had been Foreign Minister until then and was not a National Socialist, to this post necessarily led one to expect a foreign policy along the course hitherto taken.

Hitler’s first measures seemed not only to justify this expectation but even to go beyond it. The first speech on matters of foreign policy, made on 17 May 1933, dealt with Germany’s relations with Poland which in the past had never been entirely satisfactory. The subject of the annexation by Poland, recently revived, of large territories formerly belonging to the German Reich had brought with it a latent tension between these states. Hitler was the first to take up this problem and to resolve, according to his declaration in the Reichstag, to bring about a policy of friendship with Poland by recognizing the Polish State and its needs. If one considers the fact that the thought of renouncing all claims to a revision in regard to Poland was not only generally unpopular but also stood in sharp opposition to previous propaganda, it was impossible to foresee the development of later years. One was necessarily convinced that here was an internally strong government supporting its domestic reconstruction with a policy of peace abroad.

Germany’s joining the Four Power Pact and her renewed profession of adherence to Locarno served to underline this conviction. The struggle in foreign politics for ideological values lay in a different direction. The question of eliminating the clause in the Versailles Treaty which stipulates Germany’s exclusive guilt and the question of equal rights for this large country, which had pursued a persistent policy of peace since 1918, were demands which, on one hand, did not seem to burden the other side with unbearable sacrifices but which were suited to remove from the German people an ideological burden which was considered oppressive.

Germany’s withdrawal from the Disarmament Conference must be considered from these viewpoints. It took place after lengthy negotiations had produced no positive results and because it was in no way evident that the powers were inclined to bring about a fulfillment of the German demands. The declaration of the Reich Government and of Hindenburg that this step was to be looked upon as a tactical step and that the same objectives were to be retained, namely, the preservation of peace under recognition of equal rights—all this therefore had to appear credible and reasonable.

From the same points of view Papen also approved of this step. With regard to the simultaneous withdrawal from the League of Nations opinions could have differed. Here, too, one might hold the view that the withdrawal was necessary as a movement of protest and that one could prove through factual efforts in the matter itself that it was intended to adhere to a policy of peace.

Papen figured among those who felt obliged to advise against withdrawal from the League of Nations, even though he himself had experienced as Reich Chancellor that the negotiations in the assembly of the League of Nations caused certain difficulties in some questions. On the other hand, however, he was so convinced of the institution of the League of Nations being an instrument of understanding and an instrument to facilitate the technical possibilities for agreement that he wished to avoid withdrawal from the League of Nations. He advocated this opinion very strongly. Since he could not persuade Hitler in Berlin, he followed him to Munich shortly before the decision in order to lay his well-founded opinion before him there. We see Papen here working actively in a field for which in his position as Vice Chancellor he actually had no responsibility, aiming at a solution which, if one takes as a basis the views of the Prosecution concerning the withdrawal from the League of Nations, can only be considered as a step toward peace.

Because of the fundamental importance of the withdrawal from the League of Nations the measure was submitted to the German people in the form of a plebiscite enabling it to state its opinion. On the occasion of this plebiscite, Hitler, the Government, and Hindenburg issued proclamations which emphasized expressly that this step was not intended to constitute a change of policy but merely a change of method. Preparations for the plebiscite were carried out in line with this statement.

The Prosecution accuse Papen of having glorified in his Essen speech the successes of Hitler’s Government and of having unconditionally advocated an affirmative attitude toward the questions to be decided by the plebiscite. If Papen did the latter, it was because he felt obliged to do so, the decision having been cast once and for all—a decision which had to be justified before the world. If the responsible leaders actually did not strive for anything but a change of methods, no objections could be made. The position of German foreign policy would have been shaken if the people had shown in the plebiscite that they opposed the measure already taken. It was therefore quite natural to approve of this policy in public within the framework of the solemn assurances which had been given. Moreover, it could not be overlooked that in a plebiscite on government measures the vote of confidence could not fail to affect internal politics altogether.

We have to take the date of the speech into consideration. In November 1933 Hitler had made progress in urgent matters which were in the foreground—namely, the amelioration of economic distress and the elimination of unemployment. His measures were taken on a large scale and at first showed apparent success. Here, too, one cannot measure things by the same standard that one applies to them today in full knowledge of their development. At that time the course taken seemed justified by its success. In his electoral speech which demanded demonstration of confidence for the Government for the purpose of acknowledging a matter of foreign policy, Papen felt obliged to refer appreciatively to this positive development in domestic politics.

In his introductory speech Mr. Justice Jackson himself acknowledged in the following words the conditions of 1933 which have been described:

“After the reverses of the last war we saw the German people in 1933 regain their position in commerce, industry, and art. We observed its progress without distrust and without malice.”

Of all problems of foreign policy it was perhaps the question of German-French relations which interested Papen most. In his own testimony he has stated his views on this subject and has related how, as early as in the twenties, he collaborated in various political and Catholic bodies with the idea of promoting mutual understanding between France and Germany. I refer in this connection to Document Number Papen-92 and to the meeting between Papen and the French Colonel Picot described therein, which is characteristic of Papen’s attitude.

In the new Government, Papen, as Commissioner for the Saar territory, paid special attention to this question. We see how he tried to avoid in the Saar question as well everything that could in any way impair, even temporarily, the relations between the countries. Therefore he suggested that there should be no recourse to a plebiscite which might give renewed impetus to political chauvinism in both countries. Hitler, himself, not only before he took over power but as responsible chief of the Cabinet, had stated time and again that Germany had no intention of bringing up the question of Alsace-Lorraine, but that the Saar question was the only problem still to be settled between the two countries. And in so doing he followed entirely the suggestions of Papen, which aimed at a peaceful settlement.

Papen is also accused of having deceived the contracting party, namely, the Vatican, by concluding the Concordat in July 1933. By concluding the Concordat Papen allegedly intended to strengthen Hitler’s position and to enhance his reputation abroad.

The hearing of evidence has shown that the Concordat in its effects, too, was a bilateral pact, and that the legal obligations of the Concordat during the treaty violations on the part of Germany which followed soon afterward, also offered certain legal protection for the violated party. The questionnaire of Archbishop Gröber concerns the conclusion of the Concordat. I refer to Document Number Papen-104 which I submitted today, and I summarize it as follows:

Archbishop Gröber is of the conviction that the Concordat was concluded because of the initiative of Papen. Furthermore, he confirms that Papen succeeded in persuading Hitler to the conditions of the Concordat. In the answer to Question 4, in particular, he confirms that Papen’s activities while the Concordat was concluded were dictated by his positive position toward religion. Finally he confirms, in the answer to Question 6, that the Concordat was a legal “bulwark” and a support in face of the later persecution of the Church. Answer 7 confirms in fact that the Work Association of Catholic Germans, which I shall mention later, was not an organization protected by the Concordat.

In any case, it is entirely wrong to suppose that Papen had any knowledge of intended future violations of the treaty and that for that reason he had brought about its conclusion. If he had wished to enhance Hitler’s reputation abroad, this means would have been the least suitable that could be imagined. A struggle against the Church without the Concordat would have met, it is true, with an unfavorable reception abroad, but it would nevertheless have been an internal German affair. The existence of the interstate treaty made these Church persecutions at the same time a violation of an international treaty and lowered our prestige. One cannot conclude a treaty for the purpose of gaining prestige if immediately after its conclusion one proceeds to violate the same treaty. This consideration alone refutes the assumption of the Prosecution. Beyond this the accusation of the Prosecution shows a characteristic tendency.

Every action of Papen’s which has in any way come to light must be interpreted, they feel, in the sense of the conspiracy theory to Papen’s disadvantage; and the simplest procedure for doing so is to place the later development into the foreground, claiming Papen’s co-operation in and knowledge of this development and to denote his previous contrary statements of opinion as ambiguous and double-faced. This procedure is simple, if one considers the knowledge of later developments in retrospect as self-evident and if one does not picture the true factual situation at the time—above all, if one makes no effort to go into the logic in the proclaimed original intention and the further developments. Only in this manner can one, as in this instance, come to a conclusion which on closer consideration presupposes the folly of the person acting at the time.