Archive/File: imt/tgmwc/tgmwc-19/tgmwc-19-183.08 Last-Modified: 2000/10/12 By DR. KUBUSCHOK, Continued: 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 words "coup d'etat" lend a meaning to this measure which goes far beyond what actually happened. Also in considering the effects of this measure an assumption that here the way was paved for National Socialism is not justified by any facts. The appointed Reich Commissioner Bracht belonged to the Centre 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 Socialist Democratic Party, to an extent which from the point of view of parity could no longer be justified. That [Page 212] 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 shows that on the one hand he did not let go the wheel in carrying, out necessary measures, especially economic ones, but that on the other hand he tried to get a numerically almost overwhelming opposition party to collaborate. Papen's attitude towards 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. Realising 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 probably represented the only possibility of avoiding the solution which then became necessary on 30th 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 the political unrest with its consequences on the entire economic life would have become a latent state - a condition of affairs which, through repercussions, was only suited to strengthen the National Socialist movement to such an extent that in the end the result would have been the fulfilment of its entire totalitarian claim for assuming unlimited power. The part played by Papen in the formation of the Cabinet of 30th January, 1933, might in itself be disregarded. It is sufficient to be aware of the fact that all endeavours to bring about a parliamentary government without Hitler were already impossible 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 observing 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 parliament 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 parliament. The reproach levelled against Papen thus includes also an accusation against Hindenburg and the entire consenting parliament. For this consideration alone, the probable first attempt of including 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 here, too, 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 employ every means to prevent the danger of an uncontrollable development of this new formation. The prosecution considers the Hitler-Papen meeting at the home of Schroeder on 4th January as being the beginning of the efforts made for the formation of the Government of 30th January. As a matter of fact the meeting at Schroeder'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 expressed, would in no case agree to Hitler taking the position of Reich Chancellor. Hitler would have to accept the position [Page 213] of Vice-Chancellor since Hindenburg took the standpoint that the possibility for a further development would only follow after he had proven himself over a long period of time. This meeting in Cologne took place upon Hitler's request. I refer in this instance to Schroeder's communique published by the Press, which I submitted as Document 9 of the defence, and which I erroneously indicated during the cross- examination as being a joint communique issued by Papen and Schroeder. Schroeder established in it that he himself took the first step toward this meeting. That this meeting was in no way the basis for the formation of the Government of 30th January is obvious from the fact that the discussion was immediately reported by Papen to Schleicher and Hindenburg and that during all the following time until 22nd January Papen had nothing to do with the solution of the problem of a new government. Schleicher as well as Hindenburg endeavoured to obtain parliamentary support for the Schleicher Cabinet through negotiations with the leaders of the parties, efforts which failed, however, due to the weight 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 15th January, 1933, was generally considered as a barometer of public opinion with respect to the political situation. All parties had mobilised their entire organization and propaganda apparatus, and therefore one could draw a conclusion from the result of this election concerning the general public opinion. The result showed that the losses suffered during the November elections were almost completely made up. 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 20th January, 1933, the Council of Seniors of the Reichstag - through its convention of the Reichstag for 31st January - granted to Schleicher's Cabinet practically only a period of grace up to that date, for a vote of no confidence by the Left and the NSDAP meant its immediate overthrow. The meeting in Ribbentrop's house on 22nd 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 in it 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, being a member of the immediate circle around Hindenburg who finally took the decisive step, he was by no means disinterested 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 reliable witness for the judgement of the events of that time. His testimony bears certainly in one point the stamp of unlikelihood. 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 30th June, 1934, obviously collaborated in isolating Hindenburg from all those who could give him a true representation 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 contents of the affidavit which was read shall not constitute a basis for the verdict, during the cross-examination questions were nevertheless asked in reference to the affidavit which might cause misunderstanding. Moreover, the decision of the Tribunal relieves me of the obligation [Page 214] 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 the 28th of January Papen made no attempt whatsoever as regards the formation of a government. On that day, in view of the imminent summoning of the Reichstag, Schleicher had to bring about a decision. On 1st December, 1932, he had advised Hindenburg against an open fight against the parliament and had stated that the employment of the armed forces 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 had previously considered as being insufficient. But as no change in the situation had occurred since that time which could offer reasons for Schleicher's change of opinion, as 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 2nd December. Thus, the resignation of the whole Schleicher Cabinet was inevitable. Now the events had to take the course which necessarily and logically they had to follow if the possible 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 would maintain his inflexible demands, namely to take over himself the office of Reich Chancellor. The task, clearly recognized by Papen, was now to set limits to the political activities of the new party which had not proved itself yet 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 of filling these two key positions. In order not to entrust the new Chancellor with appointing the remaining ministers, as had been customary heretofore, Papen as homo regius was charged with this task. 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 steady 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 never known before. 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 the 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 about the requests presented by the Reich Chancellor. In view of Hindenburg's personality, of which, according to human foresight, one could expect quite a considerable influence upon Hitler, this control over the information Hindenburg received promised that a shift towards a radical course would be avoided. This was the part the defendant had in the formation of the Hitler Government. The prosecution sees herein a decisive conscious step towards the transfer of full power to National Socialism. By considering the case objectively, even in retrospect, one can indeed arrive only at the conclusion that in view of the inevitable necessity of ceding the leadership of the Cabinet to the National Socialist Party, all possibilities for limiting the importance of this measure were exhausted. The position of Reich Chancellor and the appointment of only two National Socialist ministers represented the limit, reached only after long efforts by Hitler, of his extensive demands. For the consideration of the present proceedings it would not matter if the solution adopted on 30th 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 only [Page 215] 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 a 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 especially 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 no connection 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 of Hitler and his future policy. The leader of the opposition party takes for the first time the responsibility of a party, the structure and development of which could certainly occasion many objections and apprehensions, a party which had developed on the basis of an absolutely negative attitude towards the hitherto existing Government leadership, a party which noisy and boisterous as it was had certainly made many concessions with regard to the constitution of its membership, a party which had laid down a new programme including points which seemed a long way from reality and impossible to carry out and which caused many objections, 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 taught by 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 30th January had consisted exclusively of National Socialists, even if there had been no moderating element in Hindenburg's personality, 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 of the ascension to power. A small example had already shown the difference between a party in opposition and in responsible government work: the same National Socialists with their same programme and their same propaganda, who now, on 30th January, took possession of 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, act ass responsible minister in Thuringia. His field of action included even the police, and we saw the National Socialists zealously tackling the economic problems in these States: But we did not see them commit excesses or not even pursue an unreasonable policy which would have been at least in approximate agreement with their propaganda. Could it not be expected then that in the Reich, with the greater tasks, the natural sense of responsibility would also 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 off 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 would have been a matter of course, and which should really be taken for granted in the leader of such a big party. However, all signs indicated that Hitler had the party under control to such an extent that he would be able to put through even unpopular measures which had [Page 216] to be taken under the pressure of reality. In the questions concerning the participation in the Government he had pursued a policy wise in its tactics, but 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 big 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 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's 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 particularly impressive, as being the manifestations of his whole personality, assuming that his character had not altered. It is not possible, within the scope of this trial, on the basis of the 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 towards nearly everybody in his immediate surroundings make it particularly difficult to judge his personality.
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