The Nizkor Project: Remembering the Holocaust (Shoah)

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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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