Archive/File: imt/tgmwc/tgmwc-19/tgmwc-19-183.09
Last-Modified: 2000/10/12

By DR. KUBUSCHOK, Continued:

The individual facts which occurred lead, however, to the
certain conclusion that Papen too, despite the fact that he
was close to Hitler, could not suspect him in 1933 of being
the man he showed himself during later years.

If Papen, fully aware of his responsibility, in agreement
with Hindenburg's wishes, and while executing his orders in
his capacity of homo regius, did everything in order to
prevent the possibility of a radical development, he also
strove with all his energy toward the same goal beyond the
obligations of this task.

After the formation of the Cabinet he did not cross his arms
and take the easy way, which would have been favourable for
him from an opportunist point of view. He undertook to form
a counterpoise to the National Socialists at the elections
of 5th March, 1933, through a union of the conservative
parties of the right. For someone who would have adopted the
National Socialist ideas or even agreed to offer blind
obedience to their leader, the next thing to do would have
been to put an end to the opposition of this large, newly
constituted conservative group and to let it make its way
towards a union with the party which had recently come to
power, a way which at that time appeared to many absolutely
natural. Papen entered the election contest as leader and
organiser of the oppositional group "Black-White-Red". His
speeches of that time, excerpts from which I submitted in
the document book, show a clear picture of his aims and
intentions. They were the affirmation of a nationalistic
idea, free from the propagandistic licentiousness of
National Socialism and its doctrines. In any case, his
programme was in irreconcilable contrast to what later
turned out to be the unpredictable extension and unlimited
transgression of the confirmed aims of the NSDAP. The
formation of the political action block "Black-White-Red"
was to guarantee what Papen had tried to achieve by the
composition of the Cabinet of 30th January: a coalition
Cabinet which, as an inevitable result of parliamentary
rules and the entire political situation, left the post of
Reich Chancellor to the leader of the strongest party, who,

                                                  [Page 217]

however, was forced to rule in the framework of a Coalition
Cabinet with all the limitations which derived from it.

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

(A recess was taken.)

DR. KUBUSCHOK: I believe that I have made it sufficiently
clear by these statements that Papen's collaboration in the
formation of the Cabinet of 30th January does not constitute
an attempt to place National Socialism in a position of
exclusive power. The opposite has been proven by facts.

With regard to the defence, I have gone far beyond what
would be necessary in any way for the denial of a verdict of
guilty. If, even at this stage, somebody had co-operated in
really giving the National Socialist Party an exclusive
influence, there still would not be any proof in this of a
preparatory action for the punishable crimes in the sense of
the Indictment.

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

In Papen's activities as Vice-Chancellor during the period
from 30th January, 1933, to 30th June, 1934, the prosecution
thinks it can see a continuation of his efforts towards a
conspiracy for the purpose of consolidating the powerful
position of the ruling National Socialists. The prosecution
has charged him in this connection with collaboration in the
various laws passed during this period by the Government,
which, according to their opinion, merely served the
aforementioned aims. I will demonstrate, however, how the
work of the defendant developed in detail, in particular
that he did not deviate from his original policy. The
prosecution deals with a number of laws passed by the
Cabinet at the beginning of its activity which must be
considered as a compromise between the demands of the
National Socialists and the conservative ideas of the other
members of the Cabinet. We see problems being touched upon
which National Socialism made the subject of discussion and
propaganda for years. The conservative members of the
Cabinet were then facing the following situation:

The strongest party and the Reich Chancellor could not
entirely ignore these questions; they had to be solved in
some form.

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

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

In the legislation we see the ideological problems raised by
National Socialism partly solved. We must concede to the non-
National Socialist Cabinet members involved that, in
considering these laws, they thought about a final solution
and not a temporary one. Their experience, based on the
past, on the political life of all

                                                  [Page 218]

countries, taught them that a problem settled by law is
normally concluded. It was unthinkable - for it was
incompatible with a normal governmental activity and the
presentation of the authority of a legislative body - that
after the issuance of a law, a problem which had already
been dealt with should continually be considered anew in the
following years and each time given a more radical solution.
Papen has proved that he carefully tried to maintain the
concessions made to the opponent within a more or less
endurable limit. The fact that in the laws of that time
National Socialist doctrines appear only rarely and in
moderate terms shows sufficiently that the composition of
the Cabinet of that time had a retarding influence on the
implementation of National Socialist ideas.

Without this influence it would not be understandable why
Hitler undertook a relatively unpopular limitation of the
previously advocated aims of the Party.

The hand of the defendant which checked and corrected the
shaping of the individual laws is clearly discernible. The
classic example for this is his endeavours in connection
with the Enabling Act. It was a technical necessity for the
legislation during the crisis of that time. The preceding
years had shown that owing to the protracted deliberations
in the Reichstag, urgently needed legislation was not acted
upon satisfactorily. Therefore, even in Bruening's time,
almost all the legislative power was practically put in the
hands of the Reich President, so that the important laws
were issued in the form of emergency decrees by unilateral
legislative acts of the Reich President. If, due to these
compelling reasons, the legislative power could not in
practice be left in the hands of the Reichstag, the
legislative power thus transferred to the Cabinet
constituted a compromise. As shown by the result of the
Reichstag vote concerning the Enabling Act, none of the
parties, including the Zentrum party, failed to recognize
this.

The question now arises as to whether the right of the
Cabinet, since according to the constitution the Reich
Chancellor had to establish the fundamental lines of policy,
would be limited by the fact that the right of promulgating
laws was reserved for the Reich President. The State
Secretary of the Reich President  himself declared, in a
Cabinet session, that he did not think it necessary to
burden Hindenburg with the responsibility of the entire
legislation because of the latter 's right to promulgate
laws. Von Papen's direct intervention with Hindenburg
immediately afterwards remained without success, as stated
by the witness Tschirschky.

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

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

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

THE PRESIDENT: Yes.

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

Question 1 I have already read.

Question 3 concerns the controls just discussed. The witness
says that they were surely intended to prevent Hitler and
the NSDAP from carrying out their policy.

In the next question the witness affirms the alleged aim of
the conservative block: Black-White-Red.

In question 5 the witness confirms the development, which I
still have to present, y toward an authoritative government
by Hitler.

The answer to question 7 shows that Papen, in the Cabinet,
strongly resisted the w suggested legislation in many
points.

Question 10 concerns the attitude of Papen toward the
Church. The last sentence is particularly important: "Von
Papen believed, by the conclusion of

                                                  [Page 219]

the Concordat, that Hitler and the NSDAP would be placed
under such strong contractual obligations that the anti-
clerical attitude would be arrested."

The answer to No. 11: "I do not consider it possible that
von Papen himself participated in a later violation of the
Concordat, or that he used his political conviction to
exercise political pressure."

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

The answer to question 14 is significant: "It is not known
to me that von Papen expressed thoughts to the effect that
the Hitler Government would have to solve Germany's foreign
political aims through war and aggression. In the years 1933
and 1934 such ideas would have been absurd."

The answer to question 15 is to the same effect.

The answer to question 18 confirms Papen's efforts, after
the events of 30th June, to reach Hindenburg in order to
achieve a change.

THE PRESIDENT: In the answer to question 14, does the answer
begin "It is not known" or "It is known"?

DR. KUBUSCHOK: "It is not known to me."

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

DR. KUBUSCHOK: The answer to question 16 confirms Papen's
statement that at all costs he wanted to prevent Germany's
withdrawal from the League of Nations.

I have already spoken of question 18. From the answer to No.
18 it is also shown that Papen's firm attitude after the
30th of June was insistence on his resignation.

Questions 19 to 23; here the second sentence of the answer
is especially important: "It is correct that von Papen
accepted the post of Ambassador Extraordinary to Vienna for
the sole reason that he hoped to prevent a policy of
insanity being carried on in Austria by Hitler and the
NSDAP. It is correct that von Papen made his acceptance of
the mission depend on Hitler's pledge to forbid Party
interference in matters pertaining to Austria, to call back
Gauleiter Habicht at once, and to refrain from any
aggressive action. It is true that these pledges were
accepted by Hitler after lengthy protest, and that they were
then put down in writing."

In the answer to No. 25, Tschirschky confirms that during
the witness's period of observation Papen steadfastly
adhered to this policy.

The answer to question 26 refutes the contents of
Messersmith's affidavit. Papen was not concerned with an
aggressive policy in the South-eastern area.

The answer to question 27 sums up the attitude of the
witness to the effect that Papen did not strive for an
Anschluss to be obtained by force.

Then I shall continue on Page 22.

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

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

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

                                                  [Page 220]


Whereas in accordance with the contents of the "Professional
Civil Service law" (Berufsbeamtengesetz) only those were
dismissed from their positions who occupied their positions
not on account of their professional, qualification, but due
to their membership in a political party, all Jewish
government civil servants who had been appointed after 1918
were also dismissed. As a rule, a right of pension was
maintained. Papen's successful endeavour aimed to limit
numerically the effect on the Jewish civil servants,
concerned. He had an audience with Hindenburg, who was
especially approachable on the idea of protecting war
veterans. Through Hindenburg's personal influence on Hitler,
Jewish war veterans and dependants of fallen soldiers were
then exempted from this law. Since an overwhelming majority
of the Jewish civil servants who had been employed since
1914 were war veterans, the number of those thus excepted
was quite considerable. This is made especially clear by the
official figures published concerning the conditions in the
legal profession, which were presented in Defence Exhibit
33. Furthermore, the defendant is charged for the measures
taken against the labour unions. First consideration must be
given to the fact that the measures were not carried out by
regulation based on a Reich law. It is moreover important
that under the changed circumstances the continuation of
labour unions with a Social Democratic character and a
similar influence might have appeared as an anachronism.

Papen's attitude with respect to the labour problem is shown
by his speech of 4th March, 1933, Defence Document 10.

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

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

If the prosecution, in criticising Papen's legislative
activity during that time, still engages in considering the
Political Co-ordination Act for the States of 31st March,
1933, it touches first of all on a question of domestic
policy, which is really far outside a field which' could
justify a discussion in the sense of the Indictment.

If the submission of the prosecution should have the sole
purpose of showing that Papen has in this respect changed
the point of view he advocated previously, it must be said
here that political opinions are in general subject to
alterations and often must be altered, and that from a
change of conception with respect to political expediency
measures one can by no means draw a conclusion as to a
general change of opinion. As a matter of fact, the first
Statthalter Act was designed to eliminate a dualism between
the Reich and the States, which Papen had always considered
as disadvantageous. Papen had always advocated, especially
with respect to Prussia, a solution in the sense of
Bismarck's time, when the office of President of the
Prussian Council of Ministers and that of Reich Chancellor
were united in one person.

Thus, this question which ought to be touched on only in
passing involves not even a change of opinion, much less a
change of sentiment.

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