THE PRESIDENT: The Tribunal will adjourn today at 4 o'clock. DR. MARX: Mr. President, with the permission of the Tribunal I shall now continue with the presentation of the final plea for the Defendant Streicher. Yesterday I had come to the point where the individual accusations against Streicher had been summarized, and I had taken liberty of explaining that these accusations are subdivided into three different paragraphs:
1. Support of seizure of power and consolidation of the power of the NSDAP after its entry into the Government.
2. Preparation of aggressive wars by propaganda aimed at the persecution of the Jews.
3. Intellectual and spiritual preparation and education of the German people and German youth to effect the destruction of Jewry and to encourage hatred of the Jews.
With respect to Count One of the Indictment, the defendant does not deny that, with regard to the Party's later seizure of power' he supported and promoted it with all his might from the very beginning. His support went to the extent of a whole movement which he had built up personally in Franconia and which he put at the disposal of Adolf Hitler's Party, which was quite small after the first World War and limited to Southern Bavaria only. Furthermore, after Hitler's release from the fortress of Landsberg he immediately joined him again and subsequently championed his ideas and aims with the greatest determination.
Until 1933 the defendant's activity was limited to propaganda for the NSDAP and its aims, particularly in the field of the Jewish question. Nothing criminal can be seen in this attitude of the defendant as such. Participation in a party within a state which allows such an opposition party can be regarded as criminal only if, first of all, the aims of such a party are objectively criminal and if, subjectively, a member of such a movement knows, approves of, and thereby supports, these criminal aims.
The foundation of the entire charges against all the defendants lies in this very fact that the NSDAP is accused of having had
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criminal aims from the very beginning. According to the assertion of the Prosecution, the members of this Party started out with the plan of subjugating the world, of annihilating foreign races, and of setting the German master race above the whole world. They are accused of having harbored the will to carry out these aims and plans from the very outset by means of aggressive wars, murder, and violence. If, therefore, the Defendant Streicher's mere participation in the NSDAP and his support of it are to be ascribed to him as a crime, it must be proved that the Party had such plans and that the defendant knew and approved of them.
The gentlemen who spoke before me have already demonstrated sufficiently that a conspiracy with such aims did not exist. Therefore I can save myself the trouble of making further statements on this subject and I can refer to what has already been set forth by the other defense counsel. I have only to deal with the point that the Defendant Streicher did not in any case participate in such a conspiracy, if the latter should be considered by the High Tribunal to have existed.
The official Party Program strove to attain power in a legitimate way. The aims advocated therein cannot be considered as criminal. Thus, if such aims did actually exist, they could only-by the very nature of a conspiracy-be known in a restricted circle.
The Party Program was not kept secret but was announced at a public meeting in Munich, so that not only the whole public of Germany but also that of the entire world could be informed about the aims of the Party. Therefore that element supplied by secret agreement towards a common aim, which is usually the characteristic sign of a conspiracy, is not present.
The evidence too, has shown nothing to the effect that already at that time there existed a plan for a war of revenge or aggression connected with the previous or simultaneous extermination of the Jews. If, nevertheless, a conspiracy should have existed, the latter would have confined itself to the restricted circle which revolved exclusively around Hitler. But the Defendant Streicher did not belong to that circle. None of the offices he occupied provides the least proof of that. As an old Party member he was just one among many thousands. As honorary Gauleiter, as honorary SA Obergruppenfuehrer, he was also only an equal among equals. Thus one cannot find in any of the offices he held any connection or complicity with the innermost circle of the Party. It is also impossible to discern after the end of 1938 any personal relations with the leading men of the Movement, either with Hitler himself or with the Defendant Goering, or with Goebbels, Himmler, or Bormann.
The Prosecution did not offer any evidence on this point, nor did the proceedings produce any proof to that effect. Of all the
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material presented during all these months of the Trial, nothing can be taken as even a shadow of proof that the Defendant Streicher was so closely connected with the supreme authority of the Party that he could have, or even must have, known its ultimate aims.
In the Jewish question too the final aims of the Party-the effects of which were manifest in the concentration camps-were not, before the seizure of power and for several years after, formulated and determined as they appeared in the end. The Party Program itself provided for Jews to be placed under aliens' law, and so the laws issued in the Third Reich followed this line. Only later on, it may be added, the program in this as in many other points became more radical and finally went haywire altogether under the influence of the war. But any proof that the Defendant Streicher knew other aims than those of the official Party Program has not been offered. Consequently it has not been proved that the defendant supported the seizure of power of the Party in cognizance of its criminal aims; and only on such a basis could a penal charge be brought against him.
The fact that the defendant, as Gauleiter, further endeavored to increase and maintain the power of the Party after the seizure of power is not disputed by him. But here, too, the defendant's conduct can only be considered punishable if he knew at that time the objectionable aims of the Party. As a matter of actual fact it must be said here that the Defendant Streicher, in contrast to almost all the other defendants, did not remain in his position until the end, not even until the war. Officially he was dismissed in 1940 from his position of Gauleiter, but actually and practically he had been without any influence and power for more than a year before that time. But as long as he could still work within the modest framework of his capacity or Gauleiter, no criminal plans of the NSDAP were recognizable. In any case not for anybody who, like the Defendant Streicher, was outside the close circle surrounding Adolf Hitler.
Count Two of the Indictment brought against the Defendant Streicher, namely, the persecution of Jews as a means of preparation for a war of aggression, can be included here. Up to 1937 the existence of a plan for a war of aggression was in no way recognizable. In any case, if Hitler had had any intentions in that direction, he did not allow them to be recognized from the outside. If, however, anybody had been taken into his confidence at that time, it would have been the leading men in politics and the Armed Forces, who belonged to the closest circle around him. To those, however, the Defendant Streicher by no means belonged. It is especially significant here that at the outbreak of the war Streicher was not even
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appointed Wehrkreiskommissar (Commissioner of Military Administrative Headquarters) of his Gaul The individual conferences from which the Prosecution derives the evidence for the planning of the war which broke out later in no case ever saw the Defendant Streicher as participant. His name does not appear anywhere, neither in any written decree, nor in any minutes. Consequently no proof has been offered that Streicher knew of such alleged plans for waging war. This does away with the accusation that he preached hatred against the Jews in order to facilitate thereby the conduct of the war planned for some later time.
In this connection I should add that one of the main points in the program of the NSDAP was the slogan, "Get rid of Versailles!" The defendant adopted this point of the program which, however, does not mean he envisaged a repeal of the treaty by means of war.
Even the former democratic German governments, in the course of their negotiations with their former opponents in the World War, stressed the fact at all times that the Versailles Treaty presented no proper basis for permanent world peace and particularly for economic adjustment. Not only in Germany but everywhere in the rest of the world clear-thinking economic circles were against the Versailles Treaty. We may point especially to the United States of America as an example of this.
Almost all political parties in Germany, irrespective of their other aims, agreed that the Treaty of Versailles should be revised. Neither was there any difference of opinion over the fact that such revision was possible only on the basis of an agreement. Even to consider any other possibility of solution would have seemed Utopian, for the German Reich lacked all military power. The NSDAP also strove, at any rate as far as could be seen from outward signs, to find a solution to the problem in this way. To support such an aim, however, cannot be looked upon as a violation of treaty obligations and, therefore, cannot be made the object of a charge against the defendant. No proof has been offered that he thought of warlike complications or that he desired them.
I now come to the matter of the defendant's attitude in the Jewish question. He is accused of having incited and instigated for decades the persecution of the Jews and of being responsible for the final extermination of Europe's Jewry. It is clear that this accusation constitutes the decisive point of the Indictment against Julius Streicher and perhaps the decisive point of the total Indictment, for in this connection the attitude of the German people to this question must be tried and judged as well. The Prosecution takes the point of view that there is just as little doubt as to the responsibility of the defendant as there is doubt about the guilt in which the German
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people are involved. As evidence of this the Prosecution put forward:
(a) The speeches by Streicher before and after the seizure of power, particularly one speech in April 1925, in which he spoke about the extermination of the Jews. Herein, in the prosecutor's opinion, is the first evidence to be seen regarding the final solution of the Jewish question planned by the Party, namely, the extermination of all Jews.
(b) Active assertion of the person and authority of the defendant, especially on "Boycott Day," 1 April 1933.
(c) Numerous articles published in the weekly paper, Der Sturmer, among them especially those dealing with ritual murder and with quotations from the Talmud. He is said to have knowingly and intentionally described therein the Jews as a criminal and inferior race and created and wished to create hatred of these people and the wish to exterminate them. The defendant's reply to these points is as follows:
He states that he worked merely as a private writer. His aim was to enlighten the German people on the Jewish question as he saw it. His description of the Jews was merely intended to show them as a different and a foreign race and to make it clear that they live according to laws which are alien to the German conception. It was far from his intention to incite or inflame his circle of listeners and readers. Moreover, he always only propagated the idea that the Jews, because of their alien character, should be removed from German national and economic life and withdrawn from the close association with the body of the German people.
Further, he always had in mind an international solution of the Jewish question; he did not favor a German or even European partial solution and rejected it. That was why he suggested, in an editorial in Der Sturmer in the year 1941, that the French island of Madagascar should be considered as a place of settlement for the Jews. Consequently, he did not see the final solution of the Jewish question in the physical extermination of the Jews but in their resettlement.
It cannot be the aim of the Defense to go into further details of the defendant's actions as a writer and speaker, particularly with regard to Der Sturmer and his reply to the accusations raised against him. His ideology and convictions shall not be explained, excused, or defended, nor his manner of writing and speaking either. Examination and judgment in this respect rest with the Tribunal alone. This much only shall be said, that between the defendant's actions and the expressions frequently employed by him there is an antithesis which cannot be bridged. It may be stated that the defendant never, when in charge of an anti-Jewish undertaking,
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had coercive measures used against the Jewish population, as might necessarily be expected of him if the accusations made by the Prosecution were true.
I consider it my duty as defense counsel to broach and examine the question as to whether the Defendant Streicher with his speeches, his actions and his publications, not only strove towards the result alleged by the Prosecution but actually attained it. The question therefore should be examined as to whether Streicher actually educated the German people to a degree of anti-Semitism which made it possible for the leadership of the German nation to commit such criminal acts as actually occurred. Furthermore, it must be examined whether the defendant filled German youth with hatred against the Jews to the extent that is charged by the Prosecution. Finally, the question must be examined whether Streicher actually was the man who spiritually and morally prepared the executive organs for their active persecution of the Jews.
At the beginning of this exposition it appears important to point out that a great many of Der Sturmer articles, from which the Prosecution endeavors to deduce an incitement to stamp out and annihilate the Jews, were not written by Streicher himself, but by his collaborators, especially by the Deputy Gauleiter, Karl Holz, who was well known for extremely radical tendencies. Even though the Defendant Streicher bears formal responsibility for these articles, which responsibility he expressly assumed before the Tribunal, this aspect nevertheless appears very important for the extent of his criminal responsibility.
Further it may be said in this connection that, according to the unrefuted statement of the defendant, the most caustic articles were written in reply to articles and writings in the foreign press, which contained very radical suggestions for the destruction of the German nation-also, no doubt, due to the existing war psychosis.
The Defendant Streicher-and this cannot be denied and shall not be defended-continually wrote articles in Der Sturmer and also made speeches in public which were strongly anti-Jewish and at least aimed at the elimination of Jewish influence in Germany. During the first years Streicher found a comparatively favorable soil for his anti-Jewish tendencies. The first World War ended with Germany's defeat, but wide circles did not wish to admit the fact of a military victory of Germany's opponents of that time. They attributed this defeat exclusively to a breakdown of national defense and resistance from within and depicted Jewry as being the main culprit for this inner undermining. In doing this they intentionally overlooked the mistakes which had been committed by the Government of that time before and during the war with respect to domestic and foreign policy, as well as the errors of strategy. A
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scapegoat was sought on which to lay the blame for the loss of the war, and it was thought to have been found in the Jews. Jealousy, envy, and also disregard of personal shortcomings accomplished the rest in influencing feelings unfavorably toward the Jewish population. In addition to that came the inflation and in the following years the economic depression with its steadily increasing misery which, as experience shows, makes any nation ripe for any form of radicalism.
On this ground and in this setting Der Sturmer developed. For these reasons it first met with a certain amount of interest and attracted a considerable number of readers. But even in the last years before the seizure of power it did not have great influence; its distribution hardly went beyond Nuremberg and its close vicinity. By means of attacks on persons known locally in Nuremberg and in other places, it managed to arouse in these localities, from time to time, a certain amount of interest and thereby to extend its circle of readers. Certain parts of the population were interested in the propagation of such scandal and for that reason subscribed to Der Sturmer.
But criminal action can only be seen here-and this is presumably the opinion of the Prosecution also-if this type of literary and oral activity led to criminal results. Now, was the German nation really filled with hatred for the Jews by Der Sturmer and by Streicher's speeches in the sense and to the extent asserted by the Prosecution?
The Prosecution submitted the evidence on this point in a very brief manner. It draws conclusions, but it has not produced actual proof. It alleges the existence of results, but cannot produce evidence for that assumption. The prosecutor has maintained that without Streicher's incitements over a number of years the German people would not have sanctioned the persecution of the Jews and that Himmler would not have found among the German people anyone to carry out the measures for the extermination of the Jews. If, however, the Defendant Streicher is to be made legally responsible for this, then not only must it be proved that the incitement as such was actually carried through and results achieved in this direction; but-and this is the decisive point-conclusive proof must be produced that the deeds which were done can be traced back to that incitement. It is not the question of the result obtained which must primarily and irrefutably be proved but the causative connection between incitement and result. Now, how is the influence of Der Sturmer upon the German people to be estimated, and what picture unfolds in the handling of the Jewish problem during the years between 1920 and 1944?
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It is easy to recognize here three stages of development. The first period comprises the time of the defendant's activity between 1922 and 1933; the second that between 1933 and 1 September 1939, or February 1940; the third, the time from 1940 to the collapse.
With regard to the first period, it would show a considerable lack of appreciation of the tendencies which had already existed in Germany for a long time and thereby a completely groundless exaggeration of Streicher's influence, if no mention were made of the fact that long before Streicher there was already a certain amount of anti-Semitism in Germany. For instance a certain Theodor Fritsch had touched on the Jewish question in his journal Der Hammer long before Streicher's time, referring especially to the alleged menace offered by the immigration of Jewish elements from the East, which might overflow the country and acquire too much control in it.
Immediately after the end of the first World War the so-called "German National Protective and Defensive League" (DeutschVolkischer Schutz- und Trutzbund) appeared on the scene, which in contrast to Der Sturmer and the Movement brought into being by Streicher, extended over the whole of Germany, setting as its aim the repression of Jewish influence. Anti-Semitic groups existed in the South, as well as in the North long before Streicher. In comparison with these large-scale efforts, Der Sturmer could only have a regional importance. This alone explains why its influence was never at any time or in any place of great importance.
It is a decisive fact, however, that the German nation in its totality did not let itself be influenced by all these groups either in its business relations or in its attitude towards Jewry and that even during the last years before the NSDAP came to power no violent actions against the Jews were committed anywhere by the people. However, when towards the end of the second decade after the first World War a considerable increase of the NSDAP became noticeable, this was not due to anti-Semitic reasons but to the fact that the prevailing. confusion in the various parties had been unable to point to a way out of the ever-increasing economic misery. The call for a strong man became ever more urgent. The conviction became more and more firmly rooted among the broad masses that only a personality who was not dependent on the change of majorities would be able to master the situation.
The NSDAP knew how to exploit this general trend for its own ends and to win over the nation, sunk in despair, by making promises in all directions. But never did the masses think, when electing the NSDAP at that time, that its program would produce developments as we have witnessed.
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With the seizure of power by the NSDAP in 1933, the second epoch was introduced. The power of the State was exclusively in the hands of the Party and nobody could have prevented the use of violence against the Jewish population. Now would have been just the right moment for the Defendant Streicher to put into effect the baiting the Prosecution has alleged. If by that time wide circles of the population, or at least the veteran members of the NSDAP, had been trained to be radical Jew haters, as stated by the Prosecution, acts of violence against the Jewish population would necessarily have taken place on a greater scale due to that feeling of hatred. Pogroms on the largest scale would have been the natural result of a truly anti-Semitic attitude of the people. But nothing like that happened. Apart from some minor incidents, evidently caused by local or personal conditions, no attacks on Jews or their property took place anywhere. It is quite clear that a feeling of hatred for the Jewish people did not prevail anywhere at least up to 1933, and the charge brought by the Prosecution against the defendant that ever since the very outset of his fight he successfully educated the German people to hate the Jews can thus be dropped.
The year of the seizure of power by the NSDAP also put Der Sturmer to a decisive test. Had Der Sturmer been considered by the broad masses of the German people as the authoritative champion against the Jews and therefore indispensable for that fight, an unusually large increase in the circulation would have followed. No such interest was, however, shown. On the contrary, even in Party circles demands were made that Der Sturmer should be discontinued entirely; or at least that its illustrations, style, and tone should be altered. It became more and more clear that the already small interest in Streicher's Jewish policy was steadily declining. It must be added that with the seizure of power by the Party the total press apparatus came under the control of the Party, which immediately undertook to co-ordinate the press, that is, to direct it from a central office in the spirit of the National Socialist policy and ideology. This was done through the Minister of Propaganda and the Reich Press Chief via the official "National Socialist Correspondence." Particularly Dr. Goebbels, the Minister of Propaganda, described by various witnesses such as Goering, Schirach, Neurath, and others as the most bitter advocate of the anti-Semitic trend in the Government, is said to have given each week to the entire German press several anti-Jewish leaders, which were printed by more than 3,000 dailies and illustrated papers. If in addition we take into account that Dr. Goebbels vitas making broadcasts of an anti-Semitic nature, we need no further explanations for the fact that the interest in a one-sided anti-Semitic journal should diminish and that is what actually happened.
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It is particularly significant that at that time it had been repeatedly suggested that Der Sturmer should be suppressed altogether. This is brought out clearly in the testimony given by Fritzsche, on 27 June 1946, who stated in addition that neither Streicher nor Der Sturmer had any influence in the Ministry of Propaganda and that he was considered so to speak as nonexistent. It may have been for the same reason that Der Sturmer was not even declared a press organ of the NSDAP and was not even entitled to show the Party symbol. It was looked upon by the Party and State administration, in contrast to all papers which were considered to be of any importance, as a private paper belonging to a private writer.
The firm which published Der Sturmer, and which belonged at that time to a certain Hardel, was not inclined, however, to accept so quietly the dwindling of its circle of readers, for it was now aided by the fact that Streicher had become the highest leader in Franconia; and it knew how to make the most of this circumstance. Already at that time pressure was exerted on many sections of the population to prove their loyal political attitude and trustworthiness by subscribing to Der Sturmer. The witness Fritzsche also has alluded to this circumstance, stating that many Germans only decided to subscribe to Der Sturmer because they thought it would be a means of paving the way for their intended membership in the Party.
So as not to give a false impression of the circulation figures of Der Sturmer during the years between 1923 and 1933, the following analysis will show the different stages of its development.
In the years 1923 to 1933 Der Sturmer was able to increase its circulation from some 3,000 to some 10,000 copies, and this in turn went up to some 20,000 shortly before the seizure of power. On the average, however, between 1923 and 1931 the circulation was only some 6,000 copies. Following the seizure of power, by the end of 1934 it had reached an average of some 28,000 copies. It was not until 1935 that Der Sturmer became the property of the Defendant Streicher who, according to his statement, bought it from the widow of the previous owner for 40,000 RM-a not very considerable sum. From 1935 on the management of the business was taken over by an expert, who succeeded by clever canvassing in increasing the circulation to well over 200,000 copies; and this figure was later increased still further until it more than doubled. The relatively low circulation figures for Der Sturmer up to the beginning of 1935 show that, despite the Party's rise to power, popular interest in Der Sturmer existed only to a small extent. The extraordinary increase in the circulation which began in 1935 is to be traced to the adroit canvassing methods already mentioned which were carried
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out by the new director Fink. The use of the Labor Front, as explained by the proclamation of Dr. Ley in Number 36 of Der Sturmer, 1935-which copy, Mr. President, I have taken the liberty of submitting as an exhibit-and the acquisition thereby of many thousands of forced subscribers must be ascribed to the personal relations of the manager Fink with Dr. Ley.
In that connection I further refer to a quotation from the Pariser Tageblatt of 29 March 1935 reproduced in Der Sturmer of May 1935. Here, too, it is stated that the increase of Der Sturmer's circulation cannot be ascribed to the desire of the German people for such kind of spiritual food. It is neither presumable nor probable in any way that the compulsory subscription to Der Sturmer, forced on the members of the Labor Front in such a manner, could have actually turned subscribers into readers of Der Sturmer and followers of its line of thought. On the contrary, it is known that bundles of Der Sturmer in their original wrappings were stored in cellars and attics and that they were brought to light again only when the paper shortage became more acute.
When, therefore, the Defendant Streicher wrote in his paper in 1935-Document Number GB-169-that the 15 years' work of enlightenment of Der Sturmer had already attracted to National Socialism an army of a million of "enlightened" members, he claimed a success for which there was no foundation whatsoever. The men and women who joined the Party after 1933 did not apply for membership as a result of the so-called enlightenment work of Der Sturmer but either because they believed the Party's promises and hoped to derive advantages from it or because by belonging to the Party they wanted, as the witness Severing expressed it, to insure for themselves immunity from political persecution. The sympathy for the Party and its leadership very soon decreased in the most marked manner. Thus the Defendant Streicher, too, lost authority and influence to an ever-increasing extent even in his own district of Franconia, at least from 1937 on. The reasons for this are sufficiently known.
Toward the end of 1938 he saw himself deprived of practically all political influence, even in his own district. The controversy between him and Goering ended with the victory of the latter. Hitler, when pressed to do so by the Defendant Goering, had dropped Streicher completely, as the Commander-in-Chief of the Luftwaffe at that time was naturally more important and far more influential than the Gauleiter, Streicher. The defendant even had to submit to Aryanization as carried out in the district of Franconia with its correctness being checked by a special commission sent by Goering. In the course of the year 1939 Streicher was completely pushed aside and was even forbidden to speak in public. At the outbreak
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of the war, in contrast to all other Gauleiter, he was not even appointed to the position of Wehrkreiskommissar of his own district.
During the last phase, in the war years, the Defendant Streicher had no political influence whatsoever. As from February 1940 he was relieved of his position as a Gauleiter and lived on his estate in Pleikershof, cut off from all connections. Even Party members were forbidden to visit him. Since the end of 1938 he had no connections whatsoever with Hitler, by whom he had been completely cast off from that time on.
In what way now did Der Sturmer exert any influence during the war period? It can be said that during the war Der Sturmer no longer attracted any attention worth mentioning. The gravity of the times, the anxiety for relatives on the battlefield, the battles at the front, and finally the heavy air attacks completely diverted the German people's interest from questions dealt with in Der Sturmer. The people were weary of the continuous repetition of the same assertions. The best proof of how little Der Sturmer was desired as reading matter can be seen in the fact that in restaurants and cafes Der Sturmer was always available for perusal, whereas other papers and magazines were permanently being read. The circulation figures decreased steadily and unceasingly in those years. Certainly the influence of Der Sturmer in the political sphere no longer amounted to anything.
During. the periods mentioned Der Sturmer was rejected by large circles of the population from the very outset. Its crude style, its often objectionable illustrations, and its one-sidedness aroused widespread displeasure. There can be no question of any influence being exercised by Der Sturmer upon the German people or even the Party. Although the German people for years had been deluged with Nazi propaganda, or rather because of that very fact, a journal such as Der Sturmer could exert no influence upon its inner attitude. Had the German people-as maintained by the Prosecution-actually been saturated with the spirit of fanatical racial hatred, other factors certainly would have been far more responsible for it than Der Sturmer and would have contributed far more essentially to a hostile attitude towards the Jews.
But nothing of such nature can be established. The general attitude of the German people was not anti-Semitic, at any rate, not in such a way or to such a degree that they would have desired, or approved of, the physical extermination of the Jews. Even official Party propaganda with regard to the Jewish problem had exerted no influence upon the broad masses of the German people, neither had it educated them in the direction desired by the State leadership.
This is shown by the fact that it was necessary to issue a number of legal decrees in order to segregate the German population from
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the Jewish. The first example of this is the so-called Law for the Protection of German Blood and German Honor of September 1935, by the provisions of which any racial intermingling of German people with the Jewish population was subject to the death penalty. The passing of such laws would not have been necessary if the German people had been predisposed to an anti-Semitic attitude, for they would then of their own accord have segregated themselves from the Jews.
The law for the elimination of the Jews from German economic life, promulgated in November 1938) was along the same lines. In a people hostile towards the Jews, any trade with Jewish circles would have necessarily ceased and their business would have automatically come to a standstill. Yet in fact the intervention of the State was needed to eliminate Jewry from economic life.
The same conclusion can be drawn from the reaction of the greater part of the German populace to the demonstrations carried out against the Jews during the night of 9-10 November 1938. It is proved that these acts of violence were not committed spontaneously by the German people but that they were organized and executed with the aid of the State and Party apparatus upon instructions of Dr. Goebbels in Berlin. The result and the effect of these State-directed demonstrations-which in a cynical way were depicted for their effect abroad as an expression of the indignation of the German people at the assassination of the Secretary of the Embassy in Paris, Vom Rath-were different from that visualized by the instigators of this demonstration.
These acts of violence and excesses based upon the lowest instincts found unanimous condemnation, even in the circles of the Party and its leadership. Instead of creating hostility towards the Jewish population they roused pity and compassion for their fate. Hardly any other measure taken by the NSDAP was ever rejected so generally. The effect upon the public was so marked that the Defendant Streicher in his capacity as Gauleiter found it necessary in an address in Nuremberg to give a warning against exaggerated sympathy for the Jews. According to his statement he did not do this because he approved of these measures but only in order to strengthen by his influence the impaired prestige of the Party.
Previously, as appears from the testimony of the witness Fritz Herrwerth examined here, he refused SA Obergruppenfuehrer Von Obernitz' request to take part personally in the demonstration planned and called it useless and prejudicial He publicly expressed this point of view later also, during a meeting of the League of Jurists at Nuremberg. In doing so he risked placing himself in open opposition to the official policy of the State.
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All these facts show that despite the anti-Jewish propaganda carried on by the Government, actual hostility against the Jewish population did not exist among the people themselves. Thus it is as good as proved that neither Streicher's publications in Der Sturmer nor his speeches incited the German people in the sense maintained by the Prosecution. Therefore the general attitude of the German nation provides no proof of incitement to hatred of the Jews having been successfully carried out by the Defendant Streicher and leading to criminal results. The Prosecution, however, has further supported its accusation by the specific assertion that only a nation educated to absolute hatred of Jews by men like the defendant could approve of such measures as the mass extermination of Jews. Thereby the charge is made against the whole of the German people that they knew about the extermination of the Jews and approved of it; the severity and consequences of such a charge on the whole future of the German nation is impossible to estimate.
But did the German nation really approve of these measures? A fact can only be approved of if it is known. Therefore should this assertion of the Prosecution be considered as proved, then logically it must also be considered as proved that the German nation actually had knowledge of these occurrences. However, evidence in this respect has shown that Reichsfuehrer SS Himmler, who was entrusted by 1 litter with the mass assassinations, and his close collaborators shrouded all these events in a veil of deepest secrecy. By threatening with the most severe punishments any violations of the rule of absolute silence which was imposed, they managed to lower before the events in the East and in the extermination camps an iron curtain which hermetically sealed off those facts from the public.
Hitler and Himmler prevented even the corps of the highest leaders of the Party and State from gaining any insight and information. Hitler did 'not hesitate to give false information to even his closest collaborators, like Reich Minister Dr. Lammers, who was heard here as a witness, and to make him believe that the removal of the European Jews to the East meant their settlement in the Eastern Territories but by no means their extermination. However much the statements of the defendants may diverge on many points, in this connection they all agree so completely with one another and with the statements of other witnesses that the veracity of their testimonies simply cannot be questioned. If it was not possible for even the Defendant Frank in his capacity as Governor General of Poland to get through to Auschwitz, because without Hitler's special consent even he was denied entrance, then this fact speaks for itself.
If even the leading personalities of the Third Reich, with the exception of a very small circle, were not informed and if even they
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had at best very vague information, then how could the general public have known about it? Under these circumstances the possibilities for finding out what was going on in the camps were extremely slight.
For the majority of the people, foreign news did not exist as a source of information. Listening to foreign radio stations was punishable with the heaviest penalties and therefore did not take place. And if it did, the news broadcast by foreign radio stations concerning events in the East, although, or rather because, it corresponded to facts, was so crass, so horrible beyond any human understanding, that it was bound to appear to any normal individual, as in fact it did, as intentional propaganda. Germany could only gain factual knowledge of the extermination measures against the Jews from people who either were working in the camps themselves or came in contact with the camps or their inmates or from former concentration camp inmates.
There is no need to explain that members of the camp personnel who were concerned with these happenings kept silent, not only because they were under stringent orders to do so, but also in their own interest. Furthermore, it is known that Himmler had threatened the death penalty for information from the camps and for spreading news about the camps and that not only the actual culprit but also his relatives were threatened with this punishment. Finally, it is known that the extermination camps themselves were so hermetically sealed off from any contact with the world that nothing concerning the events which took place in them could penetrate to the public.
The prisoners in the camps who came into contact with fellow workers in their 'work kept silent because they had to. People who came to the camps were also under the threat of this punishment insofar as they could obtain any insight into things at all, which was all but impossible in the extermination camps. From these sources, therefore, no knowledge could come for the German people.
But the order for absolute silence was compulsory to a still greater measure for every concentration camp inmate who had been released. Hardly anybody ever came back to life from the actual murder camps; but if, once in a while, a man or woman was released, in addition to the other threatened punishments the threat of being sent back to the camp hung over them if they violated the order for silence. And this renewed detention would have meant gruesome death.
It was therefore nearly impossible to learn from released concentration camp prisoners positive facts concerning the occurrences in the camps. If this was the case with regard to normal concentration camps in Germany, it applied in a still greater measure to
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the extermination camps. Every lawyer who, as I did, defended people before detention in a concentration camp and who was visited by them again after their release, will be able to confirm that it was not possible, even in such a position of trust and under the protection of professional legal secrecy, to get former concentration camp inmates to talk.
If men such as Severing, who testified here-a Social Democrat of long standing, who was highly trusted by his party comrades and who was, because of this, in touch with many former concentration camp inmates-came to know of the real facts connected with the extermination of the Jews only very late and even then to a very restricted extent, then such considerations must apply even more to any normal German.
It can be derived with absolute certainty from these facts that the leaders of the State, that Hitler and Himmler, wanted under all circumstances to keep secret the extermination of the Jews; and this forms the base for another argument-in my opinion, a cogent one-against the anti-Semitism of the German people asserted by the Prosecution. If the German people had indeed been filled with such hatred of Jewry as the Prosecution affirms, then such rigorous methods for secrecy would have been superfluous.
If Hitler had been convinced that the German nation saw in the Jews its principal enemy, that it approved of and desired the extermination of Jewry, then he would obviously have published the planned and also the effected extermination of this very enemy. As a sign of the "total war" constantly propagandized by Hitler and Goebbels, there would indeed have been no better means to strengthen the faith in victory and the will of the people to fight than the information that Germany's principal enemy, these very Jews, had already been annihilated.
So unscrupulous a propagandist as Goebbels certainly would not have failed to use such a striking argument if he could have based it on the necessary presupposition, that is, the German people's absolute determination to exterminate the Jews. However, the "final solution" of the Jewish question had by all possible means to be kept secret even from the German people who had for years been subjected to the heaviest pressure by the Gestapo. Even leading men in the State and the Party were not allowed to be told of it.
Hitler and Himmler were evidently themselves convinced that even in the midst of a total war, and after decades of education and gagging by National Socialism, the German nation-and above all its Armed Forces-would have reacted most violently on the publication of such a policy against the Jews. The policy of secrecy followed here cannot be explained by any considerations of the
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enemy nations. In the years 1942 and 1943 the whole world was already engaged in a bitter war against National Socialist Germany.
An intensification of this struggle seemed hardly possible, at any rate not by the mere publishing of facts which had long since become known abroad. Apart from this, considerations of making a still worse impression on the enemy countries could hardly influence men such as Hitler, Goebbels, and Himmler.
If they had expected to achieve even the slightest tangible results by proclaiming to the German people the extermination of the Jews, they would certainly not have omitted to proclaim it. On the contrary, they would have tried in every way to strengthen by this means the German people's faith in victory. The fact that they did not do this is the best proof that even they did not consider the German people radically anti-Semitic, and it is also the best proof that there can be no question of such anti-Semitism on the part of the German people.
I may therefore sum up by saying that all this stands in contradiction to the Prosecution's assertion that the Defendant Streicher brought up the German people to hate the Jews to an extent which made them approve of the extermination of Jewry. Therefore, even if the defendant by means of his proclamations had aimed at achieving such an end he was not successful.
In this connection, light must also be thrown upon the part attributed by the Prosecution to the Defendant Streicher, namely that he had educated German youth in the spirit of anti-Semitism and had inculcated the poison of anti-Semitism so deeply into their hearts that these pernicious effects would be felt long after his death.
The main reproach made against the defendant in this connection is based on the fact that young people, as a result of Streicher's education in hatred toward the Jews, are supposed to have been ready to commit crimes against Jews which otherwise they would not have committed, and that youth thus educated might be expected to perpetrate such crimes in the future too. Here the Prosecution relies mainly on the juvenile literature published by Der Sturmer and some announcements addressed to youth which appeared in this paper.
Far be it from me to gloss over these products or to defend them. Evaluation of them can and must be left to the Tribunal. In accordance with the basic principle of the Defense, the only question to be taken up here will be whether or not the defendant in any way influenced the education of youth in a manner to promote criminal hatred of Jews.
As for the books which have been mentioned here, it must be said that German youth scarcely knew of their existence-much
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less did they read them. No evidence has been produced in support of the Prosecution's assumption to the contrary. The healthy common sense of German youth refused such stuff. German boys and girls preferred other reading material. It may be emphasized in this connection that neither the text nor the illustrations in these books could attract youth in any way. They were, on the contrary, bound to be shunned.
Of special importance in regard to this point is the fact that Defendant Baldur von Schirach, the man responsible for educating the whole body of German youth, testified under oath that the aforementioned juvenile books published by this company were not circulated by the Hitler Youth Leadership and did not find a circle of readers among the Hitler Youth. The witness made the same assertions in regard to Der Sturmer. One of his closest co-workers, the witness Lauterbacher, stated in this connection that Der Sturmer was actually banned for the Hitler Youth by the Defendant Von Schirach. It is clear that the very style and illustrations of Der Sturmer were ill-adapted to attract the interest of young persons or to offer them ethical support. The step taken by the Reich Youth Leadership is therefore quite understandable.
Although some of Der Sturmer articles submitted by the Prosecution seem to indicate that Der Sturmer was read in youth circles and produced a certain effect there, it must be borne in mind that these were typical commissioned articles, that is, commissioned for propaganda purposes. There is no evidence whatsoever' to support the Prosecution's assertion that German youth harbored criminal hate toward Jews. Therefore, neither the German people nor its youth . . .
THE PRESIDENT: Dr. Marx, perhaps this would be a convenient time to break off.
[A recess was taken.]
DR.MARX: One might now be tempted to assume that Der Sturmer exercised a particularly strong influence upon the Party organizations, the SA and SS; but this was not the case either. The SA, the largest mass organization of the Party, rejected Der Sturmer just as did the mass of the people. Its publications were Der SAFuehrer and Die SA. The mass of the SA took these as the foundation of their ideology. These publications do not contain even one article from the pen of the Defendant Streicher. If the latter had really been the man the Prosecution believes him to be, the most authoritative and influential propagandist of anti-Semitism, he would of necessity have been called upon to collaborate in these publications, which were issued to instruct the SA on the Jewish
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question. A publication intended to provide ideological instruction could never have dispensed with the collaboration of such a man.
The fact that not one word by Julius Streicher himself ever appeared in these papers demonstrates afresh that the picture drawn of him by the Prosecution does not correspond in any way with the actual facts. The Defendant Streicher could gain no influence over the SA through his paper and the columns of Der SA-Fuehrer and Die SA were closed to him. Even the highest SA leaders refused to advocate his ideas. The SA Deputy Chief of Staff, SA Obergruppenfuehrer Juettner, testifying before the commission on 21 May 1946, made the following statement in this connection:
"At a leader conference, the former SA Chief of Staff, Lutze, stated that he did not want propaganda for Der Sturmer in the SA. In certain groups Der Sturmer was even prohibited. The contents of Der Sturmer disgusted and repelled most of the SA men. The policy of the SA with regard to the Jewish question was in no way directed at the extermination of the Jews; it aimed only at preventing a large-scale immigration of Jews from the East." The ideology of Der Sturmer was thus rejected on principle by the individual SA man as well as by the SA leaders, and there is therefore no question of Streicher's having influenced the SA.
Not only was the Defendant Streicher not asked to collaborate in SA publications, but his articles did not appear in any other newspapers and publications. He was given no chance of contributing either to the Volkischer Beobachter or to other leading organs of the German press, although the Propaganda Ministry intended enlightenment on the Jewish question to form one of the noblest tasks of the German press.
The Defendant Streicher was given no opportunity, either by the State leadership or by the Propaganda Ministry, of impressing his ideas upon a wider circle. The Defendant Fritzsche, the man who shared the decisive authority in the Propaganda Ministry, testified that Streicher never exerted any influence upon propaganda and that he was completely disregarded. In particular, he was not entrusted with radio talks, although talks given over the radio would have had much greater effect on the masses than an article in Der Sturmer, which necessarily reached only a limited circle. The fact that even the official propaganda of the Third Reich made no use of the Defendant Streicher makes it clear that no results could be expected from his activities, and that, in fact, he had no influence at all. The official leaders of the German State recognized Streicher for what he actually was, the insignificant publisher of an entirely insignificant weekly. It must be stressed once more as clearly as possible that the fundamental attitude of the German
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people was no more radically anti-Semitic than that of German youth or the Party organizations. Success in instigating and inciting to criminal anti-Semitism is, therefore, not proven.
I now come to the last and decisive part of the accusation, that is, to the examination of the question: Who were the chief persons responsible for the orders given for the mass-extermination of Jewry; how was it possible that men could be found who were ready to execute these orders; and whether without the influence of the Defendant Streicher, such orders would not have been given or executed.
The main person responsible for the final solution of the Jewish question-the extermination of Jewry in Europe-is without doubt Hitler himself. Though this greatest of all trials in world history suffers from the fact that the chief offenders are not sitting in the dock, because they are either dead or not to be found, the facts ascertained have nevertheless resulted in cogent conclusions concerning the actual responsibility.
It can be considered as proved beyond any doubt that Hitler was a man of unique and even demoniacal brutality and ruthlessness who, in addition, later lost all sense of proportion and all self-control. The fact that his chief characteristic was ruthless brutality became apparent for the first time in its force when the so-called Rohm Putsch was suppressed in June 1934. On this occasion Hitler did not hesitate to have his oldest fellow combatants shot without any kind of trial. His unrestrained radicalism was further revealed in the way in which the war with Poland was conducted. He ordered the ruthless extermination of leading Polish circles merely because he feared an antagonistic attitude toward Germany on their part. The orders which he gave at the beginning of the Russian campaign were still more drastic. At that time he already ordered partial operations for the extermination of Jewry.
These examples show beyond doubt that respect for any principle of humanity was alien to this man. Furthermore the proceedings, by the depositions of all the defendants, have clearly established the fact that in basic decisions Hitler was not open to any outside influence.
Hitler's basic attitude toward the Jewish question is well known. He had already become an anti-Semite during the time he spent in Vienna in the years before the first World War. There is, however, no actual proof that Hitler from the very beginning had in mind such a radical solution of the Jewish question as was finally effected in the annihilation of European Jewry. When the Prosecution declares that from the book Mein Kampf a direct road leads to the crematories of Mauthausen and Auschwitz, this is only an assumption; and no evidence for it has been given. The evidence rather
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suggests the fact that Hitler also wanted to see the Jewish problem in Germany solved by way of emigration. This thought, as well as the position of the Jewish part of the population under the laws governing aliens, formed the Official State policy of the Third Reich. Many of the leading anti-Semites considered the Jewish question as settled after the laws of 1935 had been promulgated. The Defendant Streicher shared this opinion. The stiffening of Hitler's attitude to the Jewish question cannot be traced back beyond the end of 1938 or the beginning of 1939. Only then did it become apparent that in case of war-which he believed was propagated by the Jews-he was planning a different solution. In his Reichstag speech on 30 January 1939 he predicted the extermination of Jewry should a second World War be let loose against Germany. He expressed the same ideas in a speech made in February 1942, on the occasion of the 20th anniversary of the day on which the Party was founded. And, finally, his testament, too, confirms his exclusive responsibility for the murdering of European Jewry as a whole.
Though Hitler had adopted an increasingly implacable attitude on the Jewish question ever since the beginning of the war, there is nothing to show that he visualized the extermination of the Jews in the early stages of the war. His final resolution to this effect was undoubtedly formed when Hitler, probably as early as 1942, saw that it was impossible to secure a victory for Germany.
It can be assumed almost with certainty that the decision to exterminate the Jews originated-as did almost all of Hitler's plans-exclusively with himself. It cannot be ascertained with certainty how far others who were closely attached to Hitler brought their influence to bear on him. If such influence did exist, it can only have come from Himmler, Bormann, and Goebbels. It can at least be stated beyond any doubt that during the decisive period from September 1939 to October 1942 Streicher did not influence him, nor, under the circumstances, could he have done so. At that time Streicher was living-deprived of all his offices and completely left in the cold-at his farm at Pleikershof. He had no connection with Hitler either personally or by correspondence. This has been proved beyond all doubt by the statements made by the witnesses Fritz Herrwerth and Adele Streicher, and by the statement under oath of the defendant himself. It cannot, however, be maintained in earnest that his reading of Der Sturmer moved Hitler to give orders for wholesale murder. This should make it clear that the Defendant Streicher had no influence whatever on either the man who made the decision to exterminate Jewry, or on the orders issued by him.
In October 1942 Bormann's decree ordering the extermination of Jewry was issued (Document 3244-PS). It has been established beyond all question that this order came from Hitler and went to
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Reichsfuehrer SS Heinrich Himmler, who was charged' with the actual extermination of the Jews. He for his part charged the Chief of the Gestapo, Muller, and his commissioner for Jewish affairs, Eichmann, with the final execution of the order. These three men are the three who are chiefly responsible, next to Hitler. It has not been proved that Streicher had any possibility of influencing them, or that he did actually influence them. He states-and there is no proof to the contrary-that he never knew either Eichmann or Muller, and that his relations with Himmler were slight and far from friendly..
Casually it might be mentioned that Himmler was one of the most radical anti-Semites of the Party. From the beginning he had advocated a merciless fight against the Jews; and in any case, judging by what we know of him, he was not the man to allow himself to be influenced by others in matters of principle. Apart from that, however, a comparison of the two personalities shows that Himmler was in every way the stronger and superior man of the two, so that for this reason alone the exertion of any influence by the Defendant Streicher on Himmler may be ruled out. I believe I may refrain from further illustration of this point.
I now come to the question of whether the activity of the Defendant Streicher had a decisive influence on the men who actually carried out the orders; that is, on members of the Einsatzgruppen on the one hand, and on the execution Kommandos in the concentration camps on the other; and whether any spiritual and intellectual preparation was necessary to make these men willing to execute such measures.
In his speeches in Nikolaev, Posen, and Kharkov-which have often been mentioned here-the Reichsfuehrer SS stated unequivocally not only that he besides Hitler was responsible for the final solution of the Jewish question, but also that the execution of the orders was only made possible by the employment of forces which he himself had selected from among the SS. We know from Ohlendorf's testimony that the so-called Einsatzgruppen consisted of members of the Gestapo and the SD, companies of the Waffen-SS, members of the police force with long service records, and indigenous units.
It must be stated' as a matter of principle that the Defendant Streicher never had the slightest influence on the ideological attitude of the SS. The extensive evidence material of this Trial contains no shadow of proof that Streicher had any connections with the SS. The alleged Enemy Number One of the Jews, the great propagandist of the persecution of the Jews-as he has been pictured by the Prosecution-the Defendant Streicher never had the opportunity of writing for the periodical Das Schwarze Korps or even for the
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SS Leithefte. These periodicals alone, however, as the official mouthpieces of the Reichsfuehrer SS, determined the ideological attitude of the SS. These SS periodicals also determined their attitude toward the Jewish question. In these circles Der Sturmer had just as small a public; it was rejected, just as it was in other circles. Himmler himself rejected Streicher ironically as an ideologist. Therefore the Defendant Streicher could not have had any influence on the ideology of the SS members of the Einsatzgruppen, much less on the old members of the Police, and least of all on the foreign units. Nor could he dictate the ideology of the execution squads in the concentration camps. Those men originated for the most part from the Death's Head Units, that is the old guard units, of whom the above statement is true to a greater degree.
Added to this is the fact that the experienced members of the Police, as well as the SS men with long service records, were trained in absolute obedience to their leaders. Absolute obedience to a Fuehrer command was a matter of course for both.
Even those experienced police force members, however, accustomed as they were to absolute obedience, even the veteran SS men, could not simply be charged by Himmler with carrying out the executions of the Jews. Rather did he have to select men whom he trusted to lead these execution squads and to make them personally responsible for their assignments, pointing out explicitly that he would take all responsibility and that he himself was only passing on a definite order from Hitler.
Even these men, whom the Prosecution alleges to have been the elite of Nazism, were so far from being enemies of the Jews in the meaning of the Indictment, that the entire authority of the head of State and Fuehrer, and of his most brutal henchman, Himmler, vitas required to force upon the men responsible for carrying out the execution orders the conviction that their order was based on the will of the authoritarian head of the State; an order which, according to their conviction, had the power of a fundamental State law and therefore was above all criticism.
The men charged to carry out the annihilation, therefore, obeyed their orders not for ideological reasons and not because they were incited to do so by Streicher, as the Prosecution contends, but solely in obedience to an order from Hitler transmitted to them through Himmler, and knowing that disobedience to a Fuehrer order meant death. In this respect, too, therefore, Streicher's influence has not been proved.
The accusations brought against the defendant by the Prosecution are herewith exhausted. But, in order to reach a conclusion and to form a judgment of the defendant which will take the actual findings fully into account, it seems advisable to give once more a
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short account of his personality and his activities under the Hitler regime.
The Prosecution considers him to be the leading anti-Semite and the leading advocate of a ruthless determination to annihilate Jewry. This conception, however, does justice neither to the part played by the defendant and the influence actually exercised by him, nor to his personality. The manner of the defendant's employment in the Third Reich and the way in which he was called upon to co-operate in the propagation and final solution of the Jewish question shows the Prosecution's conception to be false. The only occasion on which the defendant was called upon to take an active part in the fight against Jewry was in his capacity as chairman of the Action Committee for the Anti-Jewish Boycott Day on 1 April 1933. His attitude on that day is in direct opposition to his violent utterances in Der Sturmer and makes it evident that the passages in his paper which have been attacked were pure propaganda. Although on that day he could have drawn upon the whole power of State and Party against Jewry, he was content to order that Jewish places of business be marked as such and put under guard. In addition, he gave explicit instructions that any molestation of the Jews or acts of violence, or any damage to Jewish property, was forbidden and would be punished. In the later stages no further use at all was made of the defendant. He was not even consulted on the ideological basis for the settlement of the Jewish question. He was unable to voice his ideas in the press or over the air. He was not asked to write on the clarification of the Jewish question either in the Schulungsbriefe of the Party or the periodicals belonging to the organizations.
Not he but the Defendant Rosenberg was charged by Hitler with the ideological training of the German people. The latter was responsible for the Institute for Research into the Jewish Question, set up in Frankfurt, and not the Defendant Streicher; in fact, the latter was not even considered as a collaborator in this institute. The Defendant Rosenberg was commissioned with the arrangement of an Anti-Jewish World Congress in 1944. It is true that this assembly did not take place, but it is significant that the plans made for it did not include the participation of the Defendant Streicher.
The whole of the anti-Jewish laws and decrees of the Third Reich were drafted without his participation. He was not even called in to draft the racial laws proclaimed at the Party rally in Nuremberg in 1935. The Defendant Streicher did not take part in a single conference on even moderately important questions in either peace or wartime. His name does not appear on any list of participants or on any minutes. Not even in the course of the discussions themselves is one single reference made to his name.
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The fight against Jewry in the Third Reich grew more and more embittered from year to year, especially after the outbreak of war and during its course. In contrast to this, however, the influence of the Defendant Streicher yearly grew weaker. Already by 1939 he was almost entirely pushed aside and had no relations with Hitler or other leading men of State and Party. In 1940 he was relieved of his office as Gauleiter and after that he played no further part in political life.
If the Defendant Streicher had really been the man the -Prosecution believes him to be, his influence and his activity would have increased automatically with the intensification of the fight against the Jews. His career would not have ended, as it actually did, in political powerlessness and banishment from the scene of action, but with the commission to carry out the destruction of Jewry.
It cannot be denied that by writing ad nauseam on the same subject for years in a clumsy, crude, and violent manner, the Defendant Streicher has brought upon himself the hatred of the world. By so doing, he has created a strong feeling against himself which led to his importance and influence being rated far higher than they actually were, for which he now runs the risk of having the extent of his responsibility similarly misjudged.
The defense counsel, who in this case had a difficult and thankless task, had to limit himself to presenting those aspects and facts which allow the true significance of this man and the role he played in the tragedy of National Socialism to be recognized. But it cannot be the task of the Defense to deny indisputable facts and to defend acts for which absolutely no excuse exists.
The fact remains, therefore, that this defendant took part in the demolition of the main synagogue of Nuremberg, and thus allowed a place of religious worship to be destroyed. The defendant states as an excuse that his aim in so doing was not the demolition of a building meant for religious worship, but the removal of an edifice which appeared out of place in the Old Town of Nuremberg, and that his opinion had been shared by art experts. The truth of this was proved by the fact that he left the second Jewish house of worship untouched until it finally, and without his connivance, went up in flames during the night of 9 to 10 November. However that may be, the defendant shows the same lack of scruple here as he does in his other actions. He must account here for his actions in this connection alone; the Defense cannot shield him. But here, too, the fact that the population of Nuremberg disapproved of these actions clearly and unmistakably must be stressed. It was clear to any impartial observer that the people viewed such actions with icy detachment and that only brute force could compel them to tolerate such measures and to look on at such senseless proceedings.
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It is just as impossible for the Defense to express any opinion on the revival of the ritual murder myth No interest whatsoever was taken in these articles; but their tendency is obvious. The only point in the defendant's favor, apart from the good faith with which we must credit him, is the fact that the author of these articles was not himself, but Holz; he must, however, put up with the charge that he allowed it to happen.
It must appear incomprehensible that the defendant continued to play a part in the publication of Der Sturmer long after he had been politically crippled and vanished from the scene of action. This very fact reveals his one-track mind better than anything else.
When the Prosecution accuses the defendant of having aimed at the physical annihilation of the Jews and prepared the way for this later result by means of his publications, I would like to refer to the statements given by the defendant under oath at his interrogation, to which I am here referring in their entirety.
The defendant claims that in the long series of articles published by Der Sturmer since its foundation there were none demanding actual deeds of violence against the Jews. He also claims that among the issues, of which there were over one thousand, only about 15 were found to contain expressions which could form the basis for a charge against him in the meaning of the Indictment.
On the contrary, the defendant argued that his articles and speeches had always shown an unmistakable tendency to achieve a solution of the Jewish problem in its entirety throughout the world, since any kind of partial solution would serve no useful purpose and failed to reach the heart of the problem. Basing himself on this very point of view he had always expressed himself unequivocally as opposed to any kind of violence, and he would never have approved of an action such as that finally carried out by Hitler in such a gruesome manner.
This must raise serious doubts as to whether the defendant can be proved to have agreed with the mass murders practiced on Jewry, and I leave this decision to the Tribunal. In any case, he himself refers to the fact that he had no reasonably certain knowledge of these wholesale murders until 1944, a fact corroborated by the statements of the witnesses Adele Streicher and Hiemer.
He considered the articles published in the Israelitisches Wochenblatt as propaganda and consequently did not believe them. In this connection, the fact that up to the autumn of 1943 he did not in any article express satisfaction concerning the fate of Jewry in the East is in his favor. Although he did write then on the disappearance of the Jewish reservoir in the East, there is nothing to show that he had any reliable source of information at his command. He
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might, therefore, very well have believed that this process of disappearance was not identical with physical annihilation but might represent the evacuation of the Jewish population assembled there to neutral countries or the territory of the Soviet Union. As no evidence has been presented to show that the defendant had received hints from any quarter in regard to the intended extermination of Jewry, he could not have conceived of such a diabolical occurrence which appears to be utterly inconceivable to the human mind. And it certainly cannot be assumed that the mental capacity of the defendant should have enabled him to foresee a solution of the Jewish question such as could only have originated in the brain of a person who was no longer in his right senses.
The defendant describes himself as a fanatic and seeker of truth. He professes to have written nothing and to have expressed nothing in his speeches which he had not taken from some authentic source and properly confirmed.
There is no doubt that he was a fanatic. The fanatic, however, is a man who is so possessed or convinced of an idea or illusion that he is not open to any other consideration, and is convinced of the correctness of his own idea and no other. A psychiatrist might regard it as a sort of mental cramp. Fanaticism of any kind is not far removed from maniacal obsession. As a rule it goes along with considerable overestimation of oneself and overevaluation of one's own personality and its influence on the world around it.
Not one of the defendants here on trial shows such a wide discrepancy between fact and fancy as does the Defendant Streicher.
The Prosecution showed him as he appeared to the outside world. What he really was-and is-has been shown by the Trial. But only actual facts can form the basis for the judgment. Base your judgment also, Gentlemen, on the fact that the defendant in his position as Gauleiter of Franconia also showed Many humane characteristics-that he had a large number of political prisoners released from concentration camps, which even caused criminal proceedings to be started against him. It should also be borne in mind that he treated the prisoners of war and the foreign laborers working on his estate very well in every respect.
Whatever the judgment against the Defendant Streicher may be, it will concern the fate of a single individual. It seems to be established, however, that the German people and this defendant were never in agreement on this essential question. The German people always disapproved of the aims of this defendant as expressed in his publications, and retained its own opinion of and attitude toward the Jews.
The Prosecution's assumption that the tendentious articles in Der Sturmer found an echo or a ready acceptance among the
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German population, or even produced an attitude which would readily accept criminal measures, is herewith fully refuted.
The overwhelming majority of the German nation preserved their sound common sense and showed themselves disinclined toward all acts of violence. The nation may therefore claim to be declared free of all moral complicity in, and coresponsibility for, those crimes before the public tribunal of the world, so as to be able again to take its place in the ranks of the nations.
I leave the decision on the guilt or innocence of this defendant in the hands of the High Tribunal.
THE PRESIDENT: I call on Dr. Sauter for the Defendant Funk.
DR. FRITZ SAUTER (Counsel for Defendant Funk): Gentlemen of the Tribunal, I have the task of examining the case of the Defendant Dr. Walter Funk. That is to say, I am to deal with a topic which unfortunately is especially dry and prosaic. May I first make a short statement.
I shall on principle refrain from making any statements on legal, political, historical, or psychological matters which may be too general, although the temptation to make such general statements, particularly within the framework of these proceedings, may be considerable. General statements of the kind have already been made in abundance by my colleagues and will probably be still further supplemented. Therefore, I shall limit myself to examining and presenting to you from the point of view of the Defense the picture which the evidence in this Trial shows of the personality of the Defendant Funk, his actions, and their underlying motives.
Gentlemen of the Tribunal, the entire course of this Trial and the particular evidence offered in his own case have shown that the Defendant Funk did not play a decisive part in the National Socialist regime at any time and in any of the cases indicted here.
Funk's authority of decision was always limited by the superior powers of others. The defendant's statement, made during his personal examination, that he was allowed to come up to the door, but was never permitted to enter, has been shown by the evidence to be quite correct.
Funk was entrusted with tasks by the Party-as distinct from the State-only during the last year prior to the seizure of power, that is, in 1932. These, however, were of no practical significance, as they were of very short duration. Funk was never appointed to any Party office after the seizure of power. He was never a member of any Party organization-SS, SA, or Corps of Political Leaders. Funk was a member of the Reichstag for only a little more than 6 months shortly before the seizure of power. Consequently he was not a member of the Reichstag when the fundamental laws for the
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consolidation of National Socialist power were passed. The Reich Cabinet passed the laws for which Funk is held responsible, in particular the Enabling Act, at a time when. Funk had not yet been made a member of the Cabinet. At this, it win be remembered, he did not become a member until the close of 1937 by virtue of his appointment as Minister of Economics, that is, at a time when no further Cabinet sessions were held. As Press Chief of the Reich Cabinet Funk had neither a seat nor a vote in the Cabinet and could exert no influence whatsoever upon the contents of the bills drafted. I refer to Lammers' statement in this connection. The same applies to the racial laws, the so-called Nuremberg Laws.
Funk's relations with the Fuehrer only became closer for a period of 18 months during which he had to give regular press reports to Hitler in his capacity as Press Chief of the Reich Cabinet, that is, from February 1933 to August 1934, up to the death of Reich President Von Hindenburg. Later, Funk reported to Hitler only on very rare occasions. In this connection the witness Dr. Lammers makes the following statement:
"Later he (Funk) only visited Hitler in his capacity of Reich Minister of Economics on very rare occasions. He was frequently not invited to attend conferences-even those to which he should have been invited. He complained to me about this frequently. The Fuehrer often raised objections, saying that there were various reasons against Funk and that he himself viewed Funk skeptically and did not want him."
That is the testimony given by Dr. Lammers on 8 April 1946. When asked whether Funk had often complained to him about his unsatisfactory position as Reich Minister for Economics and about the anxiety caused him by conditions generally, Dr. Lammers replied:
"I know that Funk was very much worried and that he wanted an opportunity to discuss his anxieties with the Fuehrer. He was extremely anxious for an opportunity of reporting to the Fuehrer in order to obtain information, at least, about the war situation." (That was in 1943 and 1944). And Lammers continues: "With the best intentions in the world, Funk could not obtain an audience from the Fuehrer, and I was unable to get him to the Fuehrer."
Funk explains the striking fact that he was invited to attend only four or five Fuehrer conferences during the whole of his ministerial activity by saying that Hitler did not need him. Up to 1942 Hitler issued his instructions in economic affairs to Goering, who in his capacity of Delegate for the Four Year Plan was responsible for He entire economy. From the beginning of 1942 Hitler also issued instructions to Speer, who as Armament Minister had special
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authority to issue directives to all branches of production and from1943 personally directed the entire production. Funk therefore never played the principal part in the economy of the National Socialist Reich, but always only a subordinate role. This was specifically confirmed by his Codefendant Goering in his statement on 16 March:
"Naturally, in view of the special powers delegated to me
(Goering) he had to follow my directives in the field of
economy and the Reichsbank. The responsibility for the
directives and policy of the Minister for Economics and
President of the Reichsbank Funk is entirely mine."
In the session of 20 June the Defendant Speer also testified that in his capacity as Armament Minister he reserved to himself from the very beginning any authority of decision in the most important economic spheres such as coal, iron and steel, metal, aluminum, and the production of machinery. Prior to Speer's commission at the beginning of 1942, electric power and building were entirely under the jurisdiction of Armament Minister Todt.
For the greater part, the evidence submitted by the Prosecution in the case of the Defendant Funk does not relate to acts personally committed by Funk or instructions issued by him, but rather to the various and widely differing positions which he occupied. On Page 29 of the trial brief the Prosecutor himself declares that the argument offered against Funk may be described as inferential. The Prosecution starts from the assumption that judging by the positions which he had held Funk must have had knowledge of the various events which form the subject of the accusation. Generally speaking, the Prosecution refers to instructions and directives issued by Funk personally only in the case of the application instructions which he issued in November 1938 in connection with the Four Year Plan decrees for the elimination of Jews from economic life. I shall deal with this chapter separately at a later stage.
Finally, Funk was not invited to attend political and military conferences. His position was that of a technical minister with very limited power of decision.
As Reich Minister for Economics Funk was subordinated to the Four Year Plan, that is, to Goering. Later on, the Armament Minister became Funk's superior. And finally, as was shown by the testimony of Goering, Lammers, and Hayler, the Ministry of Economics became a regular trade ministry, which dealt mainly with the distribution of consumers' goods and with the technicalities of foreign trade. Similarly in the case of the Reichsbank the Four Year Plan determined the use of gold and foreign currency. The Reichsbank was deprived of its right to decide on the credits to be granted to the Reich for the internal financing of the war when
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Funk took over Office as its President. Funk is thereby exonerated of any responsibility for the financing of the war. The responsible agency so far had always been the Reich Minister of Finance: In other words, not Funk. Finally, as Plenipotentiary for Economics, Funk's sole task in August 1938 was to co-ordinate the civil economic resources for such measures as would guarantee a smooth conversion from peace to wartime economy. These consultations resulted in the proposals presented by Funk to Hitler on 25 August 1939 in the letter which has been several times quoted under Document Number 699-PS. At his examination Funk stated that this letter did not portray matters with complete accuracy, since it was a purely private letter, a letter of thanks for birthday congratulations received from Hitler. This point will have to be taken up again later, as the Prosecution particularly emphasized Funk's position as Plenipotentiary for Economics. The evidence shows that his position as Plenipotentiary General was Funk's most disputed position, but also his weakest.
With regard to the occupied territories Funk had no decisive authority whatsoever. All the witnesses interrogated on the point testified to this. But all witnesses also confirmed that Funk always opposed the spoliation of the occupied territories. He fought against German purchases in the black markets; he opposed the abolition of the foreign exchange relations with Holland, a measure intended to facilitate German purchases in Holland; and, as we have heard from the witness Neubacher, he organized exports to Greece from Germany and the eastern European states, and even sent gold there. He also repeatedly opposed the financial overburdening of the occupied territories especially in 1942 and 1944, and the raising of the occupation costs in France. He defended the currency of the occupied countries against reported attempts at devaluation. In the case of Denmark he even succeeded in raising the value of the currency, in spite of all opposition. Furthermore, Funk fought against the arbitrary stabilization of exchange when currency arrangements were made with occupied countries. Germany's clearing debt was always recognized by Funk as a true commercial debt even with regard to the occupied countries. This is shown especially by his proposal, mentioned here, to commercialize this clearing debt by a loan to be issued by Germany for subscription in all European countries. Funk was also opposed to the overworking and especially to the compulsory employment of foreign labor in Germany.
The Defendant Sauckel has already testified to this at his interrogation here. The witnesses Hayler, Landfried, Puhl, and Neubacher, and the Codefendant Seyss-Inquart, have all confirmed that these measures taken by Funk had favorable results for the
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occupied countries. According to these statements Funk always strove to keep order in the economic and social life of the occupied territories and to preserve it as far as possible from disintegration. He always disapproved and opposed radical and arbitrary measures and favored agreements and compromises. Even during the war Funk was always thinking of peace. This statement was made by the witnesses Landfried and Hayler, who added that Funk was repeatedly reproached for his attitude by the leading State and Party offices. The Defendant Speer also testified at his interrogation that during the war Funk had employed too many workers in the manufacture of consumers' goods and that it was for this reason that Funk had to hand over the management of the consumers' goods production in 1943.
That Funk revolted against the horrible "scorched earth" policy just as Speer did has been proved to the Court by Speer himself, as well as by the witness Hayler on 7 May 1946. This witness declared that he had seldom seen Funk so much upset as he was when informed of this order for destruction. Hayler testified that Funk, in his capacity of Reich Minister of Economics and President of the Reichsbank, gave orders that existing stocks should be protected from destruction as decreed, in order to ensure a supply of consumers' goods necessary for the population and to safeguard currency transactions in the German territory which had been abandoned.
The aim of Funk's economic policy-one might call it the mainspring of his life work-was the formation of a European economic community based on a just and natural balance of interest of the sovereign states. Even during the war he relentlessly pursued this goal, although the exigencies of war and the restraints imposed on development by the war naturally impeded these efforts at every turn. Funk has given a graphic description of the economic Europe which he envisaged and strove to attain in some major speeches on economic policy. Extracts from some of these speeches, many of which received a hearing even in neutral and enemy countries, are included in the document book.
In judging the acts of the Defendant Funk, his whole personality must naturally be taken into consideration to some extent in investigating the motives from which he acted. Funk was never looked upon by the German people-as far as he was known at all- as a Party man capable of participating in brutal outrages, using methods of violence and terror or amassing fortunes at the expense of others. He inclined rather toward art and literature, which preference he shared with-for instance-his friend Baldur von Schirach. Originally, as you have been told, he wanted to study music, and in later years he preferred to have poets and artists in
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his house rather than men, of the Party and the State. In professional circles he was known and respected as an economist and a man with a wide theoretical and historical knowledge, who had risen from journalism and had been a brilliant stylist. His position as chief editor of the distinguished Berliner Borsenzeitung was on a sound economic basis; by accepting the office of Press Chief in the Reich Cabinet at the beginning of 1933, after Hitler's assumption of power, he even incurred a financial loss. Therefore, he was not one of those desperados who were glad to get into a well-paid position through Hitler. On the contrary, he made a financial sacrifice when he took over the State office offered him, and it therefore seems perfectly credible that he did this out of patriotism, out of a sense of duty toward his people, and in order to put himself at the service of his country during the hard times of distress.
In judging the personality and character of the Defendant Funk, it is also significant that he never held or tried to obtain any rank in the Party. Other people who took over high State offices in the Third Reich were given the title of an SS Gruppenfuehrer, or were given, for instance, the rank of SA Obergruppenfuehrer. Funk, on the contrary, was only a plain Party member, from 1931 until the end of the Third Reich, who carried out his State functions conscientiously, but made no effort to obtain any honors within the Party.
The only incident with which the Defendant Funk was reproached in this connection was the fact that he accepted an endowment in 1940, on his fiftieth birthday. In itself, of course, that is not a punishable act; but the Tribunal evidently evaluated it as a moral charge against the defendant. Therefore, we shall briefly define our position with regard to this. We remember how this endowment came about: The President and Board of the Reich Chamber of Economics (Reichswirtschaftskammer), as the highest representatives of German economic life, presented him on his fiftieth birthday with a farmhouse in Upper Bavaria and about 110 acres of ground. This farmhouse, of course, existed for the time being only on the paper of the presentation document and had still to be built. This presentation was expressly approved by the head of the State, Adolf Hitler; therefore it was not made secretly to the Reich Minister of Economics, but quite officially, without any suppression or secrecy in the matter.
The gift subsequently turned out to be an unfortunate one for Funk, as the building proved much more expensive than had been expected and Funk was required to pay a very high donation tax. Funk, who, up to that time, had never incurred debts and whose finances had always been well regulated, now found himself plunged into debt through this "gift" of a farmhouse. Goering heard
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of it and came to Funk's assistance with a generous sum. When Hitler heard of Funk's financial difficulties through Minister Lammers, he had the cash necessary to settle Funk's financial troubles transferred to him in the form of a gift. With this Funk was able to pay his taxes and his debts. He used the remainder to create two public endowments, one for dependents of officials of the Reichsbank killed in action, the other to the same end for the staff of the Ministry of Economics. The farm was also to become an endowment at some later date. Funk's treatment of the matter shows his delicacy in this respect too. Even though such an endowment could not be legally disputed, he felt that it was better to avoid such endowments and to make them over to the public, since he could not refuse to accept a gift from the head of the State.
Mr. President, I now turn to a new subject. I would propose to have a recess now.
THE PRESIDENT: The Court will adjourn now.
[A recess was taken until 1400 hours.]
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Afternoon Session
THE PRESIDENT: The Tribunal proposes to go until 4 o'clock without a break, if that is convenient.
DR. SAUTER: Gentlemen of the Tribunal, I have so far defined the position of the Defendant Funk in general statements; I am now going to deal with the criminal responsibility of the Defendant Funk on the separate charges made against him.
The first point of the Indictment deals with the support of the seizure of power by the Party, that is, the Defendant Funk's Party activities from 1931 up to the end of 1932. The Defendant Funk is alleged to have helped the conspirators to seize power. This charge deals with the activities of the Defendant Funk from the date of his joining the Party in June 1931 up to the seizure of power on 30 January 1933. The Prosecution maintains that Funk's activities on behalf of the Party during that period furthered the seizure of power by the National Socialists. That is correct. The Defendant Funk himself, when interrogated on 4 May, gave a detailed explanation of his reasons for considering the National Socialist seizure of power the only possible way of delivering the German people from the grave intellectual, economic, and social distress of that time. The economic program of the Party was, in his opinion, vague and mainly intended for propaganda. He himself wanted to gain recognition for his own economic principles in the Party, in order to work through the Party for the benefit of the German people. Funk gave a detailed description of these principles during his examination. They are based on the idea of private property, which is inseparable from the conception of the varying capability of a human being.
Funk demanded the recognition of private initiative and of the independence of the creative businessman, added to free competition and the leveling of social extremes. He aimed at the elimination of Party and class warfare, at a strong Government with full authority and responsibility, and at the creation of a uniform political will among the people. His conversations with Adolf Hitler and other Party leaders convinced him that the Party entirely accepted his principles and ideas. In Funk's opinion he cannot be blamed for his support of the Party in its struggle for power. Funk believes that the discussions in this Trial furnish absolute proof that the Party came to power quite legally. But even the methods used by Funk to assist the Party cannot, in his opinion, be condemned. In any case the role attributed to him by the Prosecution does not fit the facts. The importance of Funk's activities is at times greatly overestimated by them; in many other instances their judgment of these activities is completely false.
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The evidence offered by the Prosecution consists mainly of references and extracts from reference books, and especially from a book by Dr. Oestreich, Walter Funk-A Life for Economy, which was submitted to the Tribunal as Document Number 3505-PS, USA-653. The core of this evidence is a "Program for Economic Reconstruction" by the Defendant Funk, which is printed on Page 81 of this book and which the Prosecution calls "the official Party declaration in the economic field" and "the economic bible for the Party organization." This so-called "Program for Economic Reconstruction" forms the basis for the incorrect accusation made by the Prosecution on Page 3 of the trial brief, to the effect that the Defendant Funk assisted "in the formulation of the program which was publicly proclaimed by the Nazi Party and by Hitler.)'
This "Program for Economic Reconstruction," which was read word for word during the hearing of the Defendant Funk, actually did not contain anything unusual, let alone revolutionary, or anything which was in any way characteristic of the National Socialist ideology. The program indicates the need for providing work, creating productive credits without inflationary consequences, balancing public finances, as well as the need for protective measures for agriculture and urban real estate, and a redirection of economic relations with foreign countries. It is a program which, as Funk said in his testimony, might be advocated by any liberal or democratic party and government. The Defendant Funk only regrets that the Party did not fully subscribe to these principles. Later on his economic viewpoint involved him in constant difficulties and disputes with various Party offices, especially with the German Labor Front and the Party Chancellery, and with Himmler and most. of the Gauleiter. This is also confirmed by the witness Landfried, who described these differences between Funk and the Party in detail in his interrogatory. Funk had the reputation in the Party of being mainly a liberal and an outsider. During that time, that is mainly in 1932, he established relations between Hitler and some of the leading personalities of German economic life. He also worked to promote understanding for National Socialist ideas and to gain support for the Party by trade and industry. By virtue of these activities he was frequently described as Hitler's economic adviser. But that was not a Party office or a Party title.
In Document EC-440, USA-874, Funk states that Keppler, who was later appointed State Secretary, was considered the Fuehrer's economic adviser for many years before himself. By this reference Funk intended to show that the designation "Economic Adviser to the Fuehrer" was given by the public to other persons also.
The period during which Funk was given Party assignments was a very short one. That these activities were never of decisive
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importance may be deduced from the fact that after the assumption of power Funk's Party activities ceased completely. In other fields, such as food and agriculture, finance, and so forth, the Party incumbents who entered the civil service as ministers or state secretaries, et cetera, retained their Party office, which usually acquired greater importance. The elimination of the sole Defendant Funk from every Party office as soon as the assumption of power was complete shows clearly that the Party leaders did not attach much value to Funk's work in the Party.
In cross-examining the Defendant Funk the Soviet Russian Prosecution showed him an article which had appeared on 18 August 1940 in the magazine Das Reich on the occasion of his fiftieth birthday (USSR-450). In this article the author, an economist by the name of Dr. Herle, emphasizes that Funk "as intermediary between the Party and economic circles had become a pioneer working toward a new spiritual attitude in German economic life."
In this connection we may say that Funk never denied that he regarded it as his task to construct an economic system with an obligation toward state and community on the one hand, yet based on private ownership and private initiative and responsibility on the other. Funk always acknowledged and adopted the political aims and ideals of National Socialism. The majority of the German people embraced these goals and ideologies, as was proved by several plebiscites. Funk himself did not suspect that all the good intentions and idealistic aims, so often emphasized by Hitler when he came into power; would later crumble in the blood and smoke of war and sink to such an inconceivable inhuman level. Funk testified explicitly that he considered the authoritative form of government-by which he meant the strong state, a responsible cabinet, the social community, and an economic system with social obligations-a prerequisite in order to overcome the grave intellectual and economic crisis through which the German people were then passing. He always expressly acknowledged that politics must have precedence over economics.
On 30 January 1933, as Press Chief of the Reich Government, Funk took up the State office of a Ministerial Director in the Reich Chancellery. Six weeks later, however, the direction of press policy passed into the hands of Dr. Goebbels, when the latter became Reich Minister for Public Enlightenment and Propaganda; and the press department of the Reich Government, which Funk was to have directed, was merged in the newly established Ministry for Propaganda. For the time being he retained only the right to make his press report personally to Reich President Von Hindenburg and Reich Chancellor Adolf Hitler-until Hindenburg's death. Then this activity also came to a complete standstill, so that the Office of
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Press Chief of the Reich Government existed only on paper. This was also expressly confirmed by the Defendant Fritzsche during his examination as a witness on 28 June.
The guilt of the defendant is inferred mainly from the fact that he was a State Secretary in the Ministry of Propaganda. The hearing of evidence has shown, however, that as State Secretary, Funk had nothing whatsoever to do with actual propaganda work. He made no radio speeches, nor did he speak at public meetings. Press policy, on the other hand, was dictated by Dr. Goebbels in person even at that time.
Even at that time, however, Funk gave particular attention to the wishes and complaints of the journalists. He protected the press against misuse by official departments and made every effort to safeguard the individuality of the press and to enable it to work in a responsible manner.
All this has been established by a number of witnesses to whom I refer on Pages 17 to 24; in particular by the witnesses Amann, Kallus, Fritzsche, Oeser, and Roesen. The two latter witnesses have indeed confirmed the fact that Funk as State Secretary in the Ministry of Propaganda also worked energetically on behalf of Jews and such persons as were oppressed and hindered in their spiritual and artistic work by the legislation and cultural policy of the National Socialists. Funk did so much on behalf of such people that he jeopardized his own official position to such an extent that the Ministry actually considered him politically unreliable.
As to defendant's activity in the Reich Ministry of Propaganda, the Prosecution charges him as follows:
"By means of such an activity in the Ministry of Propaganda the Defendant Funk participated in establishing the power of the conspirators over Germany, and is particularly responsible for the persecution of 'political dissenters' and Jews, for the psychological preparation of the people for war, and for the weakening of the strength of and win for resistance of the victims selected by the conspirators."
Also in this point of the accusation, the guilt of the Defendant Funk has been derived almost exclusively from the fact that he occupied the position of a state secretary in the Ministry of Propaganda. The hearing of evidence, however, has shown that Funk had nothing to do with actual propaganda activity in his position as State Secretary. Funk did not deliver any speeches, either through the radio or in public meetings. The press policy was directed by Dr. Goebbels in person ever since the Ministry had been established. However, Funk took care, to a large extent, of the wishes and complaints of the journalists. He protected the press against trespassing by Government offices and tried to secure for the press an individual look and an activity conscious of its responsibilities. This is expressed by the digest from the book written by Dr. Paul Oestreich: WaIter Funk- A Life for Economy, Document 3505-PS, Exhibit USA-653, Document Book Funk Number 4b.
Some of Funk's wordings from that period of his activity in the Ministry of Propaganda, as for example, the sentence "the press is no barrel organ" and the saying "the press should not be the scapegoat of the government" later have become an but household words.
As State Secretary Funk had, on the whole, orgy organizational and economic tasks, he managed the financial side of the activity of the numerous organizations
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and institutes which were controlled by the Ministry of Propaganda, such as particularly, the Reich Broadcasting Company, further the German Trade Publicity Council (Werberat der deutschen Wirtschaft), the State-owned film combines, the State-owned theaters and orchestras and the State-owned press agencies and newspapers. As to art, and according to his artistic tastes, he occupied himself with music and theater. In the direction of the Ministry of Propaganda, a complete separation between political tasks on the one hand and organizational and economic tasks on the other hand took place. This has been stated in unison by all witnesses examined on this point. Minister Dr. Goebbels in person directed the propaganda policy, exercising complete, absolute and exclusive control. His assistants herein were, not his State Secretary Funk, but his old collaborators from the propaganda organization of the Party, who, for the most part, were taken over by him in a personal union into the newly created Ministry of Propaganda. Funk, however, did not belong to the propaganda department of the Party, neither before nor after the Ministry was established. The assertion of Mr. Messersmith in his affidavit, submitted under Document 1760-PS, according to which Goebbels had incorporated Funk into the Party organization, is erroneous, and can obviously be attributed to the fact that Messersmith had, as an outsider, no insight into the division of work within the Ministry of Propaganda, and moreover, apparently identified readily the propaganda activity of the Party with the propaganda of the State Ministry. This has been confirmed by the questionnaire submitted by Messersmith, as asked for by the Defendant Funk. on May 7th, 1946, (Document Book Funk, Supplement Number s). This questionnaire shows that Messersmith cannot even state whether he had a conversation with the Defendant Funk a few times or only once; furthermore, that he does not remember any more what topic was discussed at that time, nor in what capacity Funk was present at this meeting. With such vague and unreliable statements of a witness nothing, of course, can be proven.
As a proof of the feet that Funk had nothing to do with the actual propaganda activity and-as the Defendant Goering has asserted here as a witness-did not play any important part at all in comparison to Goebbels, I refer to the affidavit of the former Reichsleiter for the press, Max Amann, of April Ah, 1946 (Document Book Funk, Exhibit 14). At first, the Prosecution has submitted an affidavit sworn by this witness, of December 19th, 1945 (Document 3501-PS); the statements contained therein have been, in the new affidavit of April 17th, 1946, supplemented and corrected in essential points. In this new statement, submitted to the Prosecution and to the Defense, the witness Amann gives evidence that also, according to his knowledge, Funk, as State Secretary in the Ministry of Propaganda, had nothing to do with the actual propaganda activity. For the rest, the witness confirms the statements of the Defendant Funk, namely, that he (Amann) did not know in person the distribution of activities arid the interior management of the Ministry, and that his statements are exclusively based on information by other persons. The witness Heinz Kallus, on the other hand, worked for some years as an official of the Ministry of Propaganda. Kallus, too, confirms under oath in the answers, in the questionary addressed to him (Exhibit Number Funk-18), that on the whole Funk was engaged in administration and financial questions, and the same was testified by the Defendant Hans Fritzsche during his examination as a witness before this Tribunal on June 27th and 28th.
In the trial brief of the Defendant Funk, Page 9-Document 3566-PS-the Prosecution submitted the notes of an SS-Scharfuehrer Sigismund as evidence for the importance of the position which Funk is supposed to have held in the Ministry of Propaganda. An official of this Ministry, by the name of Weinbrenner, is supposed to have declared to that SS-Scharfuehrer that it was impossible to know whom Minister Goebbels would entrust with the office of radio superintendent, as Goebbels took most of the important decisions only in agreement with Under Secretary Funk. Now, Dr. Goebbels did not as a matter of course undertake the appointment to the leading post in broadcasting without getting in touch with Funk, the chairman of the administrative board of the Reich Broadcasting Corporation (Reichsrundfunkgesellschaft), this, however, does not prove anything concerning the nature and the significance of the activity of the Defendant Funk nor of the aims he pursued thereby. After all, the Prosecution has been able to submit but one single document bearing the signature of Funk as Under Secretary, namely, the fixing of a date for the coming into force of a decree for the execution of a law concerning the Reichskulturkammer, of November 9th, 1933 (Document 3505-PS); hereof the Prosecution deduces a responsibility or, at any rate, a
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co-responsibility of the Defendant Funk for the entire legislation for the control and co-ordination of the cultural professions (Kulturberule).
This conclusion appears to be wrong; quite apart from the fact that the point in question is the fixing of a date for a decree concerning execution, therefore a purely formal act, it must be emphasized that this law was decided by the Reich Cabinet of which the Defendant Funk at that time was not a member.
Funk stated in his examination that, during the entire duration of his activity in the Ministry of Propaganda, he hardly gave his signature more than three times representing Dr. Goebbels. For the rest, the Defendant Fritzsche testified here as a witness, on June 28th, 1846, that the position of Dr. Goebbels collaborator and personal advisor Hanke, who later on became Under Secretary and Gauleiter, corresponded far more to the usual position of an under secretary in the Ministry, than the one of the Defendant Funk. It was Hanke, too, who maintained the liaison of Minister Goebbels with the section heads and advisers of the Ministry, a task adhering otherwise to the under secretary in a ministry, but which was never entrusted to the Defendant Funk, although he was an under secretary.
It is proven by the affidavit of the former editor-in-chief of the Frankfurter Zeitung, Albert Oeser (Exhibit Number Funk-1), and )f the attorney-at-law Dr. Karl Roesen (Exhibit Number Fumk-2), as well as by the affidavits of the witness Heinz Kallus (Document Funk-18), that the Defendant Funk, in his position as an under secretary of the Ministry of Propaganda, energetically undertook to help Jews and other persons who were oppressed and thwarted in their intellectual or artistic activities by the National Socialist legislation and cultural policy, and that he did this under heavy risks to his own position.
Among the persons for whom Funk interceded were not only Jewish editors, but also many prominent German artists, and the witness Kallus (cf. his questionnaire in the Document Funk-18) mentions in this connection the Jewish proprietors of a big Berlin directory publishing firm, whom Funk had given permission to carry on with their business, against considerable resistance of the competent section of the Ministry and of the German trade publicity council (Werberat der deutschen Wirtschaft). The witness Kallus stated further, that, owing to this attitude toward the Jewish cultural workers, Funk was "suspect" to Dr. Goebbels and to the chief of the press section, Berndt, who was known to be particularly radical. Editor-in-chief Oeser explicitly states, as a witness, in his affidavit (Document Book Funk Number 1) that he has made his statements voluntarily to prove the "human attitude,' of the Defendant Funk, and gives the names of eight Jewish editors of the Frankfurter Zeitung, whom Funk had given permission to carry on with their profession. In this connection, Oeser further remarks: "He (Funk) herewith proved his human understanding. Indeed, I have never heard from him (Funk), in the course of our conversations, any inhuman utterances. Owing to his (Funk's) concessions, the endangered people obtained, in part repeatedly, the possibility to hope and to work anew with us and to prepare, without loss of income, their change of profession and their emigration." Oeser, a well-known economic journalist, who always kept completely aloof from the Party, explicitly states that Funk, without any doubt, exposed himself by his attitude toward the Jews.
In the cross-examination of the Defendant Funk the Prosecution referred to an affidavit, produced by the Prosecution, of an editor called Franz Wolf; this witness expressed-Document 3954-PS, Exhibit USA-377-the opinion that Funk may well have given those exceptional permissions not out of human sentiments, but rather in order to maintain the high standard of the Frankfurter Zeitung. By the way, the author of the affidavit was actually one of the Jewish editors who were given permission to further exercise their profession by Funk. The assumption of the witness Wolf is in direct contradiction to the positive statements of the witness Oeser. The Defendant Funk, too, opposed this interpretation and has pointed out that at that time such considerations were of no importance to him. In later years, when the Frankfurter Zeitung was to disappear, he had, so he said, used his influence in order to insure the further publishing, out of material considerations too, as this newspaper was, as an economic paper, highly esteemed abroad and was the best commercial newspaper of the country. However, this does not alter the fact that Funk had, at that time, used his influence repeatedly and with success in favor of Oeser and his collaborators, for purely humanitarian reasons.
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The witness Kallus finally declared in his questionnaire (Page 3 of Document Funk-l8) that he remembers several occasions where Funk made possible the emigration of Jewish people under tolerable conditions. Callus confirms hereby the statements of the witness Guise Funk (Document Book Funk, Exhibit Number 3), according to which the Defendant Funk often received, in the years when he was Under Secretary of State in the Ministry of Propaganda, letters of thanks from Jews who had emigrated at that tone from Germany and who thanked Funk for having given them facilities for liquidating their businesses and for having procured them permission to take along abroad considerable parts of their fortunes.
Evidence concerning this second part of the Indictment has accordingly shown that Funk is guilty in the sense of thus part of the Indictment neither in his official capacity nor by his actions. He has helped, as far as it was within his power, many Jews and many individuals who were endangered and hindered m their cultural work, out of their material and spiritual distress, although by doing so he jeopardized hits own position.
Now, Gentlemen of the Tribunal, I turn to another subject-the charge appearing under Point 4 of my brief, Page 24 onward, namely, that he participated in the preparation of wars of aggression; a point which is dealt with by Figure 4 of the Indictment. The accusation against the Defendant Funk is: "that with full knowledge of the aggressive plans of the conspirators he participated in the planning and preparation for such wars."
As evidence of this, the Indictment first of all points out that Goering's Ministry of Economics was brought under the Four Year Plan as the "high command of the German war economy," and was placed under Funk's command. The Indictment also states that according to the Law for the Defense of the Reich of 4 September 1938 Funk, in his capacity as Plenipotentiary for Economics, was explicitly charged with the mobilization of German economy in case of war.
The Prosecution's assertion that the Reich Ministry of Economics was brought under the Four Year Plan before it was handed over by Goering to Funk is quite correct, but the so-called "high command of the German economy" was not in the hands of the Reich Minister of Economics, Funk, but entirely in those of the Delegate for the Four Year Plan-that is, the Codefendant Goering. Goering has confirmed the fact that Funk was obliged to follow his instructions. In addition, the most important branches of production were managed-as we have already shown-by special plenipotentiaries of the Four Year Plan, who were under the control of Goering and received their instructions from Goering-not from Funk. The Reich Ministry of Economics itself was merely the office which carried out the directives of the Four Year Plan. The Defendant Funk has testified that some of floes were only formally under his supervision and functioned in reality as autonomous institutions of the Four Year Plan.
Funk's position as Plenipotentiary for Economics was vigorously disputed from the beginning. When the Defendant Funk was crossexamined, Document EC-255 was submitted, a letter from the Reich
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War Minister, Von Blomberg, to the Delegate for the Four Year Plan, Goering, dated 29 November 1937, wherein Blomberg proposes that the Defendant Funk, who had just then, on 27 November 1937, been appointed Reich Minister of Economics, should also be appointed Plenipotentiary for War Economy. This was not, however, done.
Goering himself took over the Reich Ministry of Economics to begin with, and only handed it over to the Defendant Funk in February 1938, 3 months afterward. Then the High Command of the Armed Forces-more especially the Army Economic Staff under General Thomas, whose name has been mentioned repeatedly- requested that the Plenipotentiary for War Economy should be bound in the future to follow the directives of the High Command in all questions concerning supplies for the Armed Forces. In this Document, EC-270, USA-840, the Economic Staff of the High Command of the Armed Forces claims a right to direct the Plenipotentiary for War Economy in nearly all his fields of activity.
The Defendant Funk tried by means of a conversation with Reich Marshal Goering and a letter to Reich Minister Dr. Lammers to clarify his position as Plenipotentiary for War Economy, and as such claimed to be placed under the direct command of Hitler and not bound to abide by the directives of the High Command of the Armed Forces. Goering and Lammers concurred with Funk's opinion. It must, however, be emphasized most strongly that this did not affect Funk's subordination to Goering, for all the other supreme Reich offices and ministers directly subordinate to Hitler's command were also bound by the directives of the Delegate for the Four Year Plan, that is, by Goering's directives.
It is a remarkable fact that according to the Reich Defense Law of 4 September 1938-the Second Reich Defense Law-the Defendant Funk did not become Plenipotentiary for War Economy, but Plenipotentiary for Economics, without the word "War," and that this act explicitly stated that Funk was bound to comply with the demands of the OKW. The OKW, therefore, won its battle against Funk in the end.
But the individual economic departments, which according to the Reich Defense Law were under the direction of the Plenipotentiary for Economics for his special assignments, were equally unwilling to recognize him. In an interrogatory by the former State Secretary Dr. Hans Posse, Funk's deputy as Plenipotentiary for Economics (Document 3819-PS, USA-843) which was produced during the crossexamination of the Defendant Funk, Posse states that the Plenipotentiary for Economics "never really exercised any function." The ministers and state secretaries of the individual economic departments of finance, agriculture, transport, et cetera, did not,
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according to Posse, wish to be placed under Funk's control, and even protested against it. Posse also mentions the disputes which Funk had with the Four Year Plan. He calls these conflicts "the struggle for power," which in this connection simply means the authority to make decisions concerning the other economic departments. This was not a dispute between Goering and Funk; that is untrue because obviously Funk as Plenipotentiary for the Economics was still subordinate to Goering. Actually, this was a quarrel among state secretaries. The individual economic departments declared that they were subordinate to the Delegate for the Four Year Plan and refused to recognize the right of the Plenipotentiary for Economics to give them directives, since Funk himself was under the direction of the Four Year Plan. The state secretaries of the Four Year Plan supported the departments in their interpretation, and this lack of clarity and the overlapping of competencies caused the authority to issue directives to pass formally from the hands of the Delegate of the Four Year Plan a few months after the outbreak of the war.
Questioned by the Prosecution as to whether he had been in the habit of discussing important matters with Funk, the above-mentioned State Secretary Posse replied: "Yes; but these discussions did not produce results." Posse confirms that the authority given to Goering was much more extensive and that Goering finally dissolved the office of the Plenipotentiary for Economics. According to Funk this happened as early as December 1939, a few months after the outbreak of the war. Funk retained only the formal right to issue decrees. This has also been confirmed by Lammers. Therefore, the Codefendant Goering's statement that he was also of the opinion that Funk's position as Plenipotentiary for Economics could be described as having existed only on paper is quite correct.
Naturally the office of the Plenipotentiary for Economics worked in continuous business relations with the other economic departments, with the Four Year Plan, with the staff of the department for defense economics of the German Supreme Command, and with the Plenipotentiary for Administration, that is to say, the Belch Minister of the Interior. As proof the Prosecution presented various documents showing that at the meetings of the Deputy Plenipotentiary for Economics and his staff, questions of finance, war production, labor, and others were discussed. In this connection the office of the Plenipotentiary once also treated the question of employing prisoners of war Lit the Industry, but this was an entirely theoretical discussion (Document Number EC~88, USA Exhibit Number 842).
Who this General Staff economy work, which had to be done In times of peace for the eventuality of war, should be incriminating for the Defendant Funk is not clear. Besides, until August 1939 he personally did not take any Interest in the details of these questions. AU this work of the Plenipotentiary for Economics consisted of general preparations in case of war and did not apply to any special war. However, when Funk's proposition for changing over from peacetime to wartime economy was worked out in co-operation with the other economic departments in August 1939, the danger of war with Poland was already pressing.
Nowhere in the material presented by the Prosecution is there a single indication of the fact that the Defendant Funk knew anything about military and political conversations and preparations
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which had as their object the planning of war-in particular, a war of aggression to be waged by Germany. Funk was never invited to take part in any conversations of this kind. He was, in particular, not present at the well-known discussion with Goering on 14 October 1938, which was treated exhaustively by the Prosecution on Page 24 of the trial brief. According to the Prosecution, Goering during that meeting referred to an order issued by Hitler for an unusual increase in armaments, especially weapons of attack. The Prosecutor declared during the session of 11 January 1946 that at that meeting Goering addressed words to Funk which were described as "the words of a man already at war." Several documents included in the Funk document book and submitted to the Tribunal prove, however, beyond doubt that the Defendant Funk did not attend that meeting at all, as he was in Sofia at the time in order to conduct economic negotiations with Bulgaria. This exhibit, which the Prosecution obviously intended to use as a main exhibit, is thereby invalidated. On 25 August 1939, the date of Funk's letter to Hitler to which I referred this morning, the German and Polish armies were already completely mobilized and stood face to face with each other. He was, therefore, compelled to act in that particular manner, and by that time he was no longer able to cancel any of the preparations. All this is corroborated by the diary kept by the witness Kallus and submitted in the Funk document book under Number 18. me Defendant Funk stated here on the witness stand:
"It was naturally my duty as Plenipotentiary for Economics to do all I could to prevent the civilian section of the economy from being shattered in the event of war, and it was also my duty as president of the Reichsbank to increase as much as possible the Reichsbank's reserves of gold and foreign currency."
He goes on to say: .
"That was necessary on account of the general political tension at the time, and it was also necessary in case no war would come about but only economic sanctions which, in view of the political situation at the time, one could and must expect."
Funk likewise says:
"It was also my duty as Reich Minister of Economics to increase production."
That is an exact quotation from the Defendant Funk's testimony. On this subject the witness Puhl, who was vice president of the Reichsbank, states in his interrogatory of 1 May, which is in the hands of the Tribunal, that the position of the Reichsbank in the last 7 months of Funk's presidency before the outbreak of the war
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had not been materially strengthened, and that very little business had been done in the exchange of foreign assets for gold since January 1939. The Reichsbank's cautious policy in regard to gold and foreign currency, according to this witness, was in line with its customary practice.
Puhl's statement is important for the correct understanding of the reference made by Funk, in his letter to Hitler of 25 August 1939, to the conversion of foreign assets into gold. During the period of Funk's presidency of the Reichsbank the transactions to which he alludes were no longer of any importance. The exaggerated phrases used by Funk in his letter to Hitler make the contents appear much more important than they actually were.
Funk explained this fact during his examination by saying that this letter was a private letter of thanks, that in those days every German was under a very great strain owing to the tense political events throughout Europe, and that he wanted to inform his Chancellor at this moment when the country was in danger of war, that he, Funk, had also done his duty. This was the first and only occasion on which Funk actively exercised his functions as Plenipotentiary for Economics.
Here I must insert something which is based upon some minutes which the Prosecution did not submit until the hearing of evidence had been concluded; Document 3787-PS. These are the minutes of the second meeting of the Reich Defense Council held on 23 June 1939. Funk, as Plenipotentiary for Economics, attended that meeting of the Reich Defense Council, which took place about 2 months before the beginning of the war. The text of the minutes, however, leaves no doubt whatever that they concern general, and therefore mainly theoretical, preparations for any war. Furthermore, to appreciate this document it must be remembered that during the war which broke out 3 months later the whole of the Defendant Funk's assignments in connection with the distribution of labor was transferred to the Four Year Plan, since the main functions of the Plenipotentiary for Economics were formally and completely abolished, as I have previously shown, shortly after the outbreak of war.
To continue with my brief-the Defendant Funk has explained in detail during his examination that up to the very end he did not believe that war would come, but that on the contrary he thought that the Polish conflict would be settled by diplomatic means. The accuracy of this statement is also confirmed by the witnesses Landfried, Posse, and Puhl, the defendant's three closest co-workers, in interrogatories submitted to the Court (Exhibit Numbers Funk-16 and 17 and Document 3849-PS). The danger of war with Russia came to Funk's knowledge for the first time when he
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heard of Rosenberg's appointment as plenipotentiary for the unified treatment of eastern European problems in April 1941. We remember that at that time Lammers and Rosenberg gave the Defendant Funk the same explanations, generally speaking, as those stated to the Tribunal here by all the witnesses heard on this question. He was told that the reason for the preparations for war against Soviet Russia was that the Soviet Russians were massing considerable forces along the entire border, that they had invaded Bessarabia, and that Molotov, in his discussions on the subject of the Baltic Sea and the Balkans, had made demands which Germany could not fulfill. As Rosenberg stated that the assignment given him by Hitler also included economic measures, Funk placed a ministerial director, Dr. Schlotterer, at Rosenberg's disposal as liaison official. Schlotterer later took over the direction of the economic section of the Rosenberg Ministry and joined the Economic Operations Staff East of the Four Year Plan. The Ministry for Economics itself and Funk had practically nothing to do with economic questions in the occupied East and concerned themselves merely with questions bearing on German internal economy. The Ministry for Economics had no authority whatever to make decisions in the Occupied Eastern Territories. During his cross-examination the Defendant Funk was shown an extract from an interrogation of 19 October 1945, dealing with the subject "Preparations for War against Russia" (Document Number 3952-PS, USA-875). In this interrogation Funk stated that the Defendant Hess asked him at the end of April 1941 whether he, Funk, had heard anything about an impending war against Russia. Funk replied: "I have not heard anything definite, but there seems to be some discussion along that line."
The explanation of this conversation at the end of April 1941 between two men who were not informed of the facts may well be that at that time Funk did not yet definitely know the reason for Rosenberg's assignment, but knew only of suspicions and rumors.
On 28 May 1941 Rosenberg had a meeting with Funk (Document 1031-PS). In this meeting, as you may recall, they discussed the question of how the monetary problem in the East might be regulated in the event of war against Russia and the occupation of those territories by German forces. Gentlemen, in my opinion it is quite natural that in view of an impending war, even a war of defense, the authorities responsible for money matters should discuss the question of the handling of these matters in case enemy territory should be occupied. Funk was opposed to any solution likely to give rise to speculation; and he described the suggested rate of exchange for marks and rubles as entirely arbitrary. He agreed with Rosenberg that the Russian territory should have its own national currency as soon as conditions permitted. For the rest
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he demanded further investigation of these problems, especially since the matter could not be decided in advance.
Here too, therefore, Funk approached matters with his characteristic caution and endeavored to find a solution which would create stable conditions from the very start. If the necessity for printing ruble bills to meet, the most urgent demands for currency was mentioned in the discussion with Rosenberg-though not by Funk- Funk did not see anything either unusual or criminal therein. If the currency of a country has been depleted, it is absolutely necessary for fresh money to be provided by the power responsible for maintaining a stable monetary system. Who made the banknotes was of no importance to Funk; the essential point for him was by whom the banknotes were issued and in what quantity. Moreover, the production of a new banknote requires months of preparation, so that the execution of such a plan-which, as I said, was in any case not Funk's-could not have taken place until much later.
A few weeks after this discussion the war actually broke out. Funk knew that there was danger of war with Russia. That Germany had long been preparing for such a war was however as little known to him as the fact that Germany would attack and thus wage a preventive war. Funk was informed neither of the march into Austria nor of the negotiations in regard to the Sudetenland-in September and October 1938 he was not even in Germany-nor was he informed of the seizure of the remainder of Czechoslovakia. In the case of Poland, he knew that the conflict was acute, but nothing more; of Russia the same thing was true. But in both cases he was informed even of this only a short time before the actual outbreak of war. As far as wars with other countries were concerned, Funk received no information whatsoever before the opening of hostilities; he was only informed afterward.
All the facts I have mentioned form a clear indication that Funk knew nothing of Hitler's intentions with regard to foreign policy, and that he had no knowledge whatsoever of the fact that Hitler was planning wars of aggression. In the summer of 1939 Funk certainly devoted particular attention to the conversion of German economy from a peacetime to a wartime basis. But as an official of the Reich, Funk considered it to be not only his right but also his duty to prepare the German people for a defensive war and to take the necessary economic measures.
However, the Prosecution believes that it can eliminate all these doubts by describing the Reichsregierung or the National Socialist Party as a criminal organization which conspired against other nations, and whose sole task was to plan and wage wars of aggression, to subjugate and enslave foreign nations, and to plunder and Germanize other countries. This deduction is erroneous, since those
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plans were devised and executed only by Hitler himself and a few of the men closest to him, of the type of Goebbels, Himmler, and Bormann. According to the evidence we have heard, there can be no doubt that even the highest officials of the State and the Armed Forces-and in particular Funk-were not informed of these plans, but that these plans were concealed from them by a cunning system of secrecy.
Any comparison with the secret societies mentioned by the Prosecution, which in other countries banded together in criminal organizations, as for example the Ku Klux Klan in America, is impossible for a further reason. The Ku Klux Klan was organized from the start as a secret society for the purpose of terrorizing and committing crimes. In 1871, after scarcely 6 years of existence, it was expressly forbidden by the North American Government through a special law, known as the Ku Klux Klan Act. At that time the Government even imposed martial law on it and fought it with every possible means. It was an organization with which the Government and Congress of the United States never had any dealings. A man like Funk would, of course, never have joined a secret society, a criminal organization against which the Government was fighting. However, the National Socialist Party in Germany was never a secret organization, but was a party recognized by the Government and considered lawful. The unity between this Party and the State was even declared in a special Reich law. Since 1934 the leader of this Party was at the same time the elected head of the Reich, and this head of the State and his Government have been constantly and officially recognized as a government by the entire world from 1933 on. It was due precisely to this international recognition of Hitler by every foreign country-a recognition which continued to be extended in part even during the second World War-that Funk and millions of other Germans never doubted the legality of the Government and that such doubts, if they ever entered their minds, were immediately dispelled. Millions of German officials and German soldiers assumed, just as Funk did, that they were only doing their duty in not withholding from the head of the State the recognition accorded to him by every country in the world. ~
The foreign countries, their statesmen as well as their general staffs, the press as well as the intelligence service of other countries, were certainly better informed about the German Situation and also about the true aims of German politics than the German citizen who had no access to foreign newspapers, who was not permitted to listen to foreign radio stations if he did not want to land in jail or on the scaffold, who for years lived as isolated as in jail and could not even trust his neighbors and friends-not even his relatives-and dared not talk things over with anybody. Even ministers knew no more about Hitler's true plans than any other fellow citizen and even of major State affairs they mostly learned only afterward through the newspapers or the radio. Who could have ever conceived the thought that foreign states would maintain diplomatic relations with
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a criminal organization and that official persons of foreign countries should recognize and call upon a man in whom they saw the head of a band of conspirators?
As already mentioned, Funk has never denied that in his plans and directives he naturally took into account the possibility of wars which might some day have to be waged by Germany, just as it is part of the duty of every general staff in the world to take such possibilities into consideration. At that time Funk had every reason to do so in his capacity as Minister of Economics and Reichsbank president; for the world situation since the first World War had been so tense, and the conflicting interests of individual nations had frequently appeared insurmountable to such a degree that, unless he wanted to be accused of neglecting or betraying the interests of his own people, every statesman had to make the preparations necessary for waging war. A preliminary activity of this kind is, therefore, not in itself of criminal significance; and. Funk has no doubt that during those years the ministers of economics and bank presidents of other countries also made-and had to make-similar preparations for the event of war. In the case of Funk it is of no importance whether or not he for his part ordered such preparations, but only whether or not he knew that Hitler was planning aggressive wars and intended to wage such aggressive wars in violation of existing treaties and in disregard of international law.
But Funk, as he declared under oath, did not know this, nor did he act on this premise. Hitler's constant affirmations of peace prevented such a possibility from entering his mind. Today, of course, we know on the basis of the actual events that followed and on the basis of the facts established by these proceedings, that those peace assertions of Hitler's, which were still on his lips when he committed suicide, were in reality only lies and deception. But at that time Funk regarded Hitler's protestations in favor of peace as perfectly genuine. It never occurred to him at that time that he himself and the whole German nation could be deceived by Hitler; he believed Hitler's words just as did the entire world, and thus he was the victim of that deception just as was the entire world. If no blame attaches to foreign statesmen and generals who believed Hitler's protestations, although they certainly were better informed on Germany's rearmament than was Funk, the faith which he himself had in the head of the State cannot be called a crime.
Gentlemen of the Tribunal, I have now examined the Prosecution's accusation that Funk had planned wars of aggression; and I turn to another point of the Indictment, which concerns Funk's activities in the occupied territories and the charge of forced labor.
The Prosecution offered very little evidence against Funk on the subject of forced labor or the slave-labor program. In the main he is held responsible for the compulsory employment of foreign
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workers on the grounds that he was a member of the Central Planning Board from autumn 1943 on. The first session of the Central Planning Board at which he was present took place on 22 November 1943, that is to say, at an advanced stage of the war, and after that he very rarely attended meetings. The Defendant Speer testified to this, and it is also evident from the minutes of the Board, which were very carefully kept. And I should like to emphasize the fact that Funk never had anything to do with the employment of labor either in his capacity as Minister of Economics or as president of the Reichsbank. He was on principle opposed to taking in too many workers from the occupied territories, especially by force, because this interfered with the economic and the social life of these territories. The Codefendant Sauckel and the witnesses Landfried and Hayler have confirmed this, and it is also shown by the remarks made by Funk himself at the meeting held in Lammers' office on 11 July 1944 (Document 3819-PS), which was frequently quoted in Court. Here, for instance, Funk expressed disapproval of ruthless raids to recruit foreign workers.
If Funk sent representatives to the Central Planning Board, he did so only to insure that the necessary raw materials were allocated to the industries engaged in manufacturing consumer's goods and goods for export, but never to deal with questions of foreign labor, in which he was not at all interested. Although the Prosecution, in cross-examining the witness Hayler, on 7 May 1946, confronted him with a statement by Funk during the preliminary interrogation of 22 October 1945, Document Number 3544-PS, to the effect that he had "not racked his brain" over these labor problems, it must also be stated on the part of the Defense that in the next sentence of these minutes-in the same breath, so to speak-Funk declared that he had always done his utmost to prevent workers being taken away from their homeland, in this case France. This second sentence, although not quoted by the Prosecution, seems to be of special importance because it clearly reveals Funk's disapproval of the compulsory measures used in connection with the utilization of foreign labor. The Defendant Speer, however, testified before the Tribunal on 20 June that the Central Planning Board made no plans at all for the utilization of labor. Only occasional discussions on questions concerning the utilization of labor took place here. The records containing the actual results of the negotiations and decisions of the Central Planning Board have not been introduced by the Prosecution. It has been shown that Funk, who attended only a few of the meetings of the Central Planning Board, never received the full notes but only the minutes, which revealed nothing. Before Speer was
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responsible for decisions on war production, and before Sauckel became Plenipotentiary General for the Allocation of Labor-that is, before 1942-the question of recruiting labor for production was dealt with by the Four Year Plan, that is, by Goering and not by Funk. Later on applications for workers required, as Speer has testified, were usually made by the industries directly to the offices controlling the allocation of labor. While Funk was still in charge of production in the Reich Ministry for Economics and working in accordance with the directives of the Four Year Plan, questions concerning the allocation of labor were not dealt with by the Reich Ministry for Economics at all, but by the Plenipotentiary General appointed under the Four Year Plan for the various branches of industry-that is, by Goering-by means of direct negotiation with the Plenipotentiary General for the Allocation of Labor. Speer clarified this in connection with Document Sauckel Number 12. He also clarified the fact that several branches of industry, such as overground and underground construction not falling within the competency of the Reich Minister of Economics, were cited in this document as belonging to it.
Some other items had been rectified previously already by Sauckel's defense counsel. The various economic offices (Wirtschaftsfimter) likewise did not request manpower from the Reich Ministry of Economies. They were, however, not offices of the Reich Ministry of Economics, but were incorporated in the so-called intermediate instance, that is, in the provincial authorities, or in the Gauleitungen.
An important point in this connection is the establishment of the fact that up to 1943, that is, up to the time in which Funk was at all competent in questions of production, foreign workers came to Germany through recruitment solely upon the basis of a voluntary decision. With respect to this, I refer to the decree of the Reich Minister for Labor promulgated on 30 July 1940, presented in Funk's book of documents under Number 12, in which the conformity with obligations internationally agreed upon is specifically pointed out.
Finally it must be stated that Funk, at the time when he joined the Central Planning Board, no longer had any production assignments and could therefore no longer claim workers, so that in consequence he had no further interest in this aspect of the Central Planning Board's activities.
Regarding Funk's attitude toward the economy of occupied territory, and measures taken by him to insure the maintenance of orderly economic conditions and especially of stable conditions of currency, I refer to the questionnaires Landfried (Exhibit Number Funk-16) and Puhl (Exhibit Number Funk-17), as wed as to testimony of the witnesses Hayler, Neubacher, and Seyss-Inquart. I will refer only to Document 2263-PS, introduced by the Prosecution during cross-examination of the Defendant Funk, a letter from the Under Secretary of the Ministry of Economics to the Armed Forces High Command of 6 June 1942, in which the transfer of 100 million Reichsmark from occupation money is requested for purchases by Loges Raw Material Incorporated (Robstoffhandelsgesellschaft) on the black market in France.
Here we deal with the purchases in occupied territories mentioned before, resulting from instructions by the Four Year Plan. These, however, represent exactly those purchases against which Funk protested. His protests finally culminated in the decision of the Delegate for the Four Year Plan (Goering) to prohibit any such further purchases. As is known, Funk personally had no authority to issue instructions for the occupied territories. Moreover such controlled purchases by authorities must be looked upon in a different light from the
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Uncontrolled purchases of the various State, Party, and Armed Forces agencies, against which Funk fought time and again (Questionnaire Landfried, Document Book Number Funk-16).
Summarily it must be said that the evidence submitted has proved beyond doubt that the Defendant Funk took a great many measures to prevent the exploitation of occupied territories and that the fact that he succeeded in preventing the devaluation of currency in occupied countries was in itself enough to protect them from suffering damage to an extent which cannot be evaluated in detail.
With that, Gentlemen of the Tribunal, I leave this point of the Indictment against Funk and turn to a further charge against him, namely, his participation in the elimination of Jews from economic life in November and December 1938, which forms Point 3 of the Indictment against him.
Gentlemen, the charges which the Prosecution has made against Funk contain many details with which, in view of the time at my disposal, I am unable to deal fully. With regard to such details I shall refer to statements made by Funk himself in this connection. First of all, however, I must deal more fully with what seems to me the most important of all the charges made against Funk, namely, that of playing a part in the persecution of the Jews. The Defendant Funk considers this to be the most important factor in his trial.
Gentlemen, no one in Germany has ever asserted that Funk was one of ~ those fanatical anti-Semites who took part in the pogroms against the Jews or who approved of these proceedings and profited by them; Funk always condemned such actions. This can be explained not only by his natural disposition and the environment in which he grew up, but also by his years of work as a journalist, mainly in connection with that section of the press which dealt with economic policy and consequently kept him in continuous touch with the Jewish circles of importance to economic life. Experts in that field know, and still have respect for, Funk who even at that time showed an attitude that was free of all anti-Semitism, and friendly toward the Jews rather than hostile.
It is tragic to a certain extent that in spite of this the name Funk, of all names, has been repeatedly connected in this Trial with the decree of November 1933, as a result of which the Jews were eliminated from economic life. Whether he liked it or not, all questions concerning the treatment of Jews in the economic life of Germany were under the jurisdiction of his department as Minister for Economics. As an official it was his duty to issue the necessary executive instructions.
This was certainly particularly difficult for Funk, in view of his tolerant attitude. At that time he had already been a civil
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servant of the Reich Propaganda Ministry and the Ministry for Economics for 8 years, and yet, during all that time, the Prosecution could not cite a single instance of any display of anti-Semitism on Funk's part or any evidence of his having urged or approved of the use of force, terrorism, or injustice against the Jews. On the contrary, we know from the statements of various witnesses that Funk repeatedly interceded for his Jewish fellow citizens in the course of these years; that he looked after them and tried in their interests to alleviate hardships, to prevent encroachments on their rights, and to spare the lives and careers of human beings, even if they were Jews or political opponents of his own.
It is, therefore, not surprising that this man, with his wide experience in the economic field, this man of far-reaching knowledge, with his frankly tolerant views, was most painfully affected when on 10 November 1938 he had to witness the destruction of Jewish homes and shops in Berlin, and when he received one report after another confirming the fact that Goebbels and his clique, exploiting the indignation of the populace over the assassination of a German by a Jew, were organizing such pogroms throughout Germany, and that these outrages were leading not only to the destruction of Jewish property, but also to the murder of many Jews and to the persecution of many thousands of innocent citizens.
The affidavit of this assistant, Ministerialrat Kallus (Document Book Number Funk-15) of 9 December 1945, and that of Frau Luise Funk of 5 November 1945 (Funk Document Book Number 3), prove clearly that Funk condemned such excesses most severely, that he was incensed to the extent of calling them filthy outrages even when addressing Dr. Goebbels himself, and that he threatened to resign in the event of a repetition. Even at that time he told the mighty Goebbels to his face that one should be ashamed of being a German.
All this, Gentlemen, expressed the justified indignation of a man who for years had made every effort to insure moderation toward Jews and political opponents and had received many a letter of gratitude for so doing-a man who had fought for years to prevent terrorism, to secure for all his fellow citizens the rights to which they were entitled, and to raise the standard of German economic life-and who now saw all his efforts frustrated in a single night by the brutal fanaticism of a Dr. Goebbels.
Funk himself, during his interrogation, gave us a vivid description of how, ever since he entered office as Minister of Economics in February 1938, he had been subjected to continuous pressure by Goebbels and Dr. Ley to eliminate the Jews from the
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economic life of the country in the same way as they had been eliminated in 1933 from its cultural life.
The witness Dr. Hayler stated here that Himmler also found fault with Funk for this. Funk himself testified to the difficulties which again and again occurred during those years with workers stirred up by propaganda, who were sometimes no longer willing to work under Jewish managers, or did not dare to do so; and how, in these oppressive conditions, numerous Jewish owners sold their businesses-frequently at cut prices-to people who seemed to Funk as the Minister of Economics entirely unfit to acquire or manage such businesses. Funk tried again and again to stem this overwhelming development. He made continual efforts to put a brake on this process of Aryanization; to provide for a reasonable and just settlement for Jewish owners of businesses; and to allow them to emigrate from Germany with their property. But Funk realized more and more clearly every day that he was too weak to stop this movement and that the radical elements around Dr. Goebbels and Dr. Ley were gaining the upper hand, in which they were unfortunately able to rely on Hitler's authority. Hitler had allowed himself in the course of time to be won over more and more to the policy of radical treatment of the Jewish question by a few irresponsible advisers who are not sitting in the dock today.
The events of 9 November 1938 burst like a bombshell into this fight between Funk and other considerate people on the one side, and Goebbels and Ley on the other. As Dr. Goebbels himself admitted later to Fritzsche, they were aimed directly at the person of the Defendant Funk, who was thus to be confronted with a fait accompli. As the witness Landfried testified, Dr. Goebbels did in fact attain his ends through this operation of November 1938. Goebbels was able to refer later to Hitler's own order for the Jews to be completely excluded from the economic life of Germany, although Funk, as the minister concerned, repeatedly made allusion to the relations with foreign countries upon which the German Reich and its economy depended.
The orders necessary to carry out this program were given by Goering in his capacity of Delegate for the Four Year Plan, on the direct orders of Hitler. Funk never had any doubt that in this particular affair Goering also was to a certain degree only a puppet, because he had always known Goering to be a man who condemned extreme radicalism in this particular question of the Jews. Funk's views on this point were shared by wide circles of the German people, and the fateful Goering meeting of 12 November 1938 (Document 1816-PS) proved this to be correct. This document has been mentioned here repeatedly. At a meeting which preceded that of 12 November 1938, Goering sharply condemned the acts of terrorism
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which had occurred and declared to the Gauleiter present that he would make every Gauleiter personally responsible for acts of violence committed in his district. But what was the good of that?
In the course of the second meeting, the minutes of which were submitted to the Tribunal under Number 1816-PS, Goebbels ultimately succeeded in imposing his radical demands; and the course taken by this meeting forced Funk to admit that the complete elimination of the Jews from German economic life could no longer be delayed for the simple reason that the circles in power had become far too fanatical. It became evident to Funk that legislative measures were necessary if the Jews were to be protected from further acts of terrorism, looting, and violence and if they were to get any reasonable compensation. During the Goering meeting of 12 November 1938, Funk repeatedly expressed his views again, as is shown by the records. It was due to the efforts made by the Defendant Funk, with the support of Goering, that Jewish businesses were reopened for the time being, that the whole procedure was taken out of the hands of the arbitrary local agencies and put on a legal basis throughout Germany, and finally that in order to gain time in which to carry out this action a definite date was set for its completion. Anyone who reads carefully the minutes of the Goering meeting of 12 November 1938 will, in spite of their incorrect and incomplete formulation, be able to find definite and repeated indications of Funk's moderating influence; namely, his insistence-repeatedly mentioned in the minutes-on the reopening of Jewish stores, his proposal that the Jews be allowed to retain at least their securities, and finally his attitude to Heydrich's demand that the Jews be placed in ghettos. The minutes of 12 November 1938 prove beyond doubt that it was Funk who opposed Heydrich's proposal by saying: "We don't need ghettos. Surely the Jews could move closer together among themselves. The existence of 3 million Jewish people among no less than 70 million Germans can be regulated without ghettos." This is a literal quotation.
Funk therefore wanted to save the Jews at least from being interned in ghettos. It must be admitted that at that time Funk did not entirely succeed in securing recognition for his point of view, so that the proposal that the Jews should be allowed to retain their securities, for instance, was turned down, although Funk pointed out, as the minutes show, that to realize the Jewish securities would suddenly flood the German stock market with securities to the value of 500 million Reichsmark and would, therefore, have serious consequences for the German stock market. The decisive question in judging the Defendant Funk is not so much his success as the fact that he made an obvious effort to save for the Jews all that could be saved in the circumstances; and we must not lose sight of the
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fact that in all those measures Funk acted only in his capacity as Minister of Economics, that is, as an official who merely gave the order to execute a command which Goering as Delegate of the Four Year Plan had issued on the orders of Hitler. Funk found himself in exactly the same position of constraint, as, for example, the Reich Minister of Finance, Graf Schwerin van Krosigk, who at that time had to order the punitive levy of 1,000 million Reichsmark to be paid by the Jews, or the Reich Minister of Justice and the Reich Minister of the Interior, both of whom issued similar executive instructions in their respective spheres The Tribunal must decide the difficult legal question of whether a state official whose government has been legally recognized by all the governments of the world is liable to legal punishment for putting into effect a law-and I emphasize the word "law"-passed in accordance with the legislative system of this state. This legal problem is entirely different from the other question, dealt with in the Charter and by the Prosecution, as to whether or not the fact that an official order was given by a superior can serve as an excuse. I might add here that I shall not discuss this legal question because I shall leave it to the other members of the Defense. I shall discuss only whether an official who puts into effect a law passed by the internationally recognized government of his country thereby becomes liable to punishment. That is an entirely different problem from the one dealt with by the Charter.
Gentlemen, since this has not been dealt with before, I have to state the following; I read at the bottom of Page 50: Our natural sense of justice fully approves that a citizen, an official, or even a soldier, cannot defend himself by reference to the official order given him by his superior if this order obviously implies an illegal act, and especially a crime; and if in the existing circumstances and in due consideration of all the accompanying facts, the subordinate realizes, or should realize, that the official order is contrary to the law.
If the latter condition exists, in other words, if the official order obviously constitutes a breach of the law, it may in general be fully approved that the subordinate is not accorded the right to refer to his superior's official order as an excuse and to maintain that he was only carrying out that order. In that respect this stipulation of the Charter contains nothing essentially new, but only the confirmation and further development of legal principles which are recognized to a varying extent in the penal codes of most civilized nations today. A certain amount of precaution, however, seems to be indicated in this matter, for it should not be forgotten, on the other hand, that obedience to the orders of a superior-not obedience to the law, but to a superior-is, and must in future remain
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the foundation of every government in all nations if the orderly functioning of the state administrative apparatus is to be secured; and that it would be dangerous for the civil servant to decide for himself whether to keep his oath of allegiance.
But, Gentlemen, in our case something different is involved: We are dealing here with the obedience of the citizen and especially of the civil servant, such as Funk was at that time, to a national law, which was legally promulgated in accordance with the constitutional rules of this State. If we wish to find a just and correct answer to this complicated juridical question, which so far has not been treated in literature, it will be pertinent to disregard entirely conditions in Germany and the present Trial, and to ask ourselves what decision would be given in a case where a civil servant of a different country-not Germany-carried out a law. Let us assume for instance, that some foreign country embracing a minority promulgated, in accordance with its constitution, a law exiling from its territory all members of this minority, or confiscating for the benefit of the state the property of such inhabitants, or turning over to the state or partitioning among other citizens the large agricultural estates of such inhabitants. Let us assume that such a case exists and let us ask ourselves: Does the civil servant in this nation really commit a crime if he carries out this lawful order? Is it really the duty of the official charged with the execution of this law to refuse to obey the law and to declare that in his personal opinion the law concerned is a crime against humanity, or has he even the right to do so? In such a case, Gentlemen, would any state today grant its civil servants permission to examine whether the law proclaimed is contrary to the principles of humanity or to the fluctuating norms of international law? What state would tolerate the refusal of its civil servants for such a reason to execute a law already proclaimed?
Or another example: Let us assume that the laws of a nation decree that certain new weapons are to be introduced into the armed forces, or that more warships are to be built, or that some preparations have to be made for war. Should an individual civil servant really have the right to refuse the execution of the law, even perhaps to sabotage its execution, and then to say, by way of explanation, that in his personal opinion concerning international law it involved the preparation of an aggressive war, consequently an international crime?
The Tribunal will have to decide these legal problems. But Funk may point out in his own defense the fact that by reason of his entire ideology and background it was especially painful to him to issue these executive instructions, although he believed he was only doing his duty as a civil servant.
In this connection I wish to remind you of Funk's circular of 6 February 1939 (Document 3498-PS, Trial Brief Funk, Page 19), where he emphasizes to his officials that it was their duty to "insure that it was carried out in a correct manner in every respect" and
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where he already feels impelled to disclaim personal responsibility for these measures by expressly emphasizing: "How far and how rapidly the powers conferred by the Four Year Plan are to be exercised will depend on the instructions to be given by me in accordance with the directives of the Delegate for the Four Year Plan." This special reference made by the Defendant Funk to the legal decrees of the Four Year Plan, which was authorized to promulgate laws, originated in the defendant's desire to express formally and solemnly, and to establish for the future, the fact that in issuing the executive instructions in 1938 he was a victim of his obedience to the State, a victim of his loyalty to the laws of the State to which he had sworn allegiance.
Funk's circular of 6 February 1939, already mentioned on Page 19 of the trial brief, clearly expresses the qualms of conscience which had gripped Funk in those days, although he had not incriminated himself-qualms which, during his interrogation by an American officer on 22 October 1945, led to his complete nervous collapse, so that Funk was unable to restrain his tears and told the interrogating officer: "Yes, I am guilty; I should have resigned at that time."
These same qualms of conscience gripped the defendant throughout the entire Trial and are still haunting him; and we remember that in the session of 6 May 1946, when this point was discussed, Funk was so deeply shaken that he could hardly continue talking and finally declared here before you, Gentlemen, that at that moment he fully realized that this, meaning the atrocities of November 1938, was the starting point of the chain of events leading to those horrible and frightful things of which we have learned here, some of which he too had already heard of during his imprisonment, and which culminated in Auschwitz. He felt, as he said during his interrogation on 22 October 1945, "deep shame and heavy guilt," and he still feels it today; but he had put the will of the State and the laws of the State above his own feelings and above the voice of conscience since he, as a civil servant, was tied by duty to the State. He felt these ties all the more strongly as these legal measures were particularly necessary for the protection of the Jews in order to save them from losing their rights completely, and from suffering further despotism and violence. These are the very words of the Defendant Funk; and they represent his actual feelings. Today Funk still feels that it was a terrible tragedy that he of all people was charged with these things-he who never during his entire life said a spiteful word against a Jew, but had wherever he could always worked for tolerance and equality for the Jews.
If during his interrogation on 22 October 1945 Funk said: "I am guilty," it need not be investigated here whether the defendant intended these words to apply to his criminal guilt, or only to a
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moral guilt which he saw in the fact that he had remained in an office which compelled him to carry out laws incompatible with his own philosophy of life. Funk was not in a position to decide for himself the complicated legal question of whether an official of an internationally acknowledged state can be punished at all if he only carries out laws passed in accordance with the legal constitution of this state. For the Defendant Funk his "guilt" did not lie in the fact that he had signed the executive instructions in November 1938, since this had been his duty as an official, rather did he consider himself guilty because he had remained a member of the Government although he found the acts of terror which had occurred intolerable, and abhorred them; he was not involved in the "conflict of conscience," of which he spoke when he was interrogated, because he acted according to the laws which he considered necessary under the conditions prevailing at the time. This conflict was a result of the fact that he had not, in this difficult situation, listened to the voice of his conscience and had not resigned his ministerial office. But the decisive reasons for his attitude and his final decision to remain in office in spite of his feelings about the matter were certainly not material considerations. His reputation as a journalist and his abilities as such would easily have enabled him to find another suitable position. Much is to be said for the opinion that the Defendant was held in office above an by the thought that his resignation would in no way improve matters, but that on the contrary the administration would become still more radical under an unsuitable and fanatical successor, while by staying in office he might hope to alleviate much distress.
These considerations, which may have guided the Defendant Funk in the first place, were certainly correct up to a point. His State Secretary, Dr. Landiried, at least has testified that later on too Funk often expressed serious misgivings concerning the action taken against the Jews in November 1938 and showed very strong disapproval of all excesses and infringements of the law committed by various Government agencies in carrying out the action. Funk could talk openly to his confidant Landfried, and he often complained to him that he had no power to prevent such excesses. But, as he said to Landiried: "We of the Ministry of Economics should take particular care to see that no one makes illicit profits out of the Aryanization-that is, the transfer to non-Jewish ownership- of business firms." And Ministerialrat Kallus described in his deposition of 19 April 1946 the various measures taken at that time by Funk to protect the interests of Jewish owners. Kallus also told us that Funk even made personal efforts to insure that his orders were carried out by his subordinates in a proper manner.
Gentlemen, thus a sense of duty on the one hand, and humane feeling on the other, were the motives which kept the defendant in
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office and thus brought him into a situation where he is today charged with criminal action.
Mr. President, I am now coming to a new subject and I have altogether about 15 more pages. Does the Court wish to adjourn now? It is 6 minutes to 4.
THE PRESIDENT: Can you finish it by that time, Dr. Sauter?
DR. SAUTER: There are 15 more pages; I should say about 8 or 9 minutes. On further thought, Mr. President, it will take about half an hour.
THE PRESIDENT: We will adjourn at this time.
[The Tribunal adjourned until 15 July 1946 at 1000 hours.]
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