Archive/File: people/i/irving.david/libel.suit/transcripts/day022.12
Last-Modified: 2000/07/24

Q.So, winding up this chapter on page 362, once again you
have allowed yourself to dip into the dictionary of
insult.  You say that I am totally discredited a few
months earlier; the document proved to be too useful to be
discard altogether; a more egregious institute,
manufactured manipulated, doctored, untenable, all the
words come out?
A.Yes.
Q.Are you prepared to withdraw any of those on the basis of
what you have been saying this morning?
A.Absolutely not, Mr Irving.  The point is you acknowledge,
as I say on pages 360 to 361, concerning the -- what it is
about is your persistent claim that Hitler told Himmler to
make the phone call to Heydrich attempting to stop the
killing of the transport of Jews from Berlin to Riga, and
you produced on your website on 17th May 1998 a document
which is now in the Himmler appointments diary edition,

.  P-104



showing that Himmler only met Hitler after he phoned
Heydrich; and therefore that what you then call your
original theory, which in fact was presented as a matter
of incontrovertible fact that Hitler had told Himmler to
tell Heydrich to get the shootings stopped, was wrong.
Yet, even though you have done that in May 1998, it is too
nice a document for you really to let go of, so you post
another document on the website on 31st August 1998 in
which you argue that on 30th November Hitler
had, "demonstrably ordered that the Berlin Jews were not
to be killed", whereas you knew that to be wrong.  That,
to my mind, is an egregious instance of a completely
unscrupulous use of a manipulated source.

Q.Are you prepared to accept that historians or scholars or
writers sometimes have differing opinions on the
interpretation of the identical sets of documents, and
that one scholar or historian will have one interpretation
because of his own particular mind set, and the other
historian will have perhaps better sources, he will be
familiar with the CSDIC reports which you yourself have
admittedly totally unfamiliar with; he will have worked
for many weeks months in the police decodes with which you
are also totally unfamiliar, and that this entitles to him
to reach conclusions on the quality of evidence which you
are not entitled to reach?
MR JUSTICE GRAY:  I think you are missing the thrust of the

.  P-105



criticism that Professor Evans is making there.  The
criticism he is making is that at one point you are
actually admitting that you got the Himmler phone log
wrong, but having admitted that you later went on to
assert again your original interpretation of the log as
showing had Hitler had demonstrably ordered that the
Berlin Jews were not to be killed.  That is the point.
MR IRVING:  My Lord, I do not want to pick up his particular
words here ----
A.I am sure you do not.
MR JUSTICE GRAY:  I am just trying to point out to you that
your rather long question missed the point of the question.
MR IRVING:  I am just about to take this point up.  I do not
particularly, I repeat, wish to fall into the trap of
using the words used by the witness here, which is that
I knew it to be wrong.  The fact that the Himmler agenda
indicates that there was a meeting between Hitler and
Himmler after the telephone call to Heydrich, does not
exclude the possibility that they met before the telephone
call. The fact that he had an appointment with Hitler at a
certain time, to say in the words, and your Lordship will
find it in the transcript, that he only met Hitler
afterwards, there is no proof of that, that he only met
Hitler afterwards.  What we do know is that they were very
close, that they repeatedly went in and out of each

.  P-106



other's rooms and offices; that the appointment was at a
certain time; that upon arriving at Hitler's headquarters
for some reason Heydrich had to make this extraordinary
phone call ordering a total reversal of this operation
going on in Riga, and any common sense historian is going
to come to the conclusion that A is in some way connected
with B.  But we are dealing here with Professor Evans who
is not able to join the dots in this particular case and
says there is no link.
A.You join too many dots, Mr Irving, that is the problem.
Q.That is where we differ.
A.To answer your ----
Q.And to say that this is perverse or obtuse or a
manipulation or a distortion is, in my view, a perverse
use of the witness box, because you are privileged to make
these remarks.  You know you can make these remarks
without fear of any kind of consequences, because this is
a court of law.
MR JUSTICE GRAY:  Would you like to leave that sort of thing to
me.  If I thought Professor Evans were doing that, then
I would not let him do it but I do not, and it is not for
you to say that.
MR IRVING:  The reason why I will say to your Lordship that
I have felt it perfectly proper to continue to rely upon
these documents in the manner I have, is that I have
perfectly properly, just as your Lordship will
remember in

.  P-107



the case of the Dresden documents, drawn it to the
attention of other historians that there may be a flaw in
this chain of argument.  However, I have the right to
remain by my original position on the basis of my entire
knowledge which has been assembled, after all, over
thirty-nine years of working in the archives.
A.I am beginning to wonder who is in the witness box, you or
me, Mr Irving.
MR JUSTICE GRAY:  Yes, but, Professor Evans.
A.I am not sure if there were any questions all involved in
those series of lengthy speeches.
MR JUSTICE GRAY:  There was not, so you do not need to answer.
Wait for the next question.
MR IRVING:  My Lord, I am going to ask if we can -- I would
normally at this point have asked for a five-minute
interruption, but in view of the fact that we are so close
to the lunch adjournment can I suggest we make the
adjournment now?  I have come to the end of this particular part.
MR JUSTICE GRAY:  Yes, I am perfectly happy with that, but if
it does not cause any inconvenience I think we will resume
in an hour's time at 10 to 2.
(Luncheon Adjournment)
(1.50 p.m.)
MR JUSTICE GRAY:  Yes, Mr Irving.
MR IRVING:  My Lord, thank you very much for allowing me an

.  P-108



earlier adjournment.  That was a useful hiatus.  We
will
now proceed to the Schlegelberger memorandum, unless
it is
not worth discussing.  I think myself we ought to.
MR JUSTICE GRAY:  I certainly would not think it was not
worth
discussing, no.
MR IRVING:  This is page 363 of the expert report.
MR JUSTICE GRAY:  Thank you.
MR IRVING:  Professor Evans, just so that we can be certain
what we are talking about by the Schlegelberger
memorandum, do you have a little bundle of documents
in
front of you?
A.Yes.
Q.Would you turn page 9 of that little bundle?
A.I have been overwhelmed with material here.
Q.We are only going to need the little bundle and your
report?
A.This is bundle D, is it in J1?
Q.Page 9 of that little bundle.  This is the only bundle
I will be referring to myself.
MR JUSTICE GRAY:  J1 we are in, are we?
MS ROGERS:  Tab 7.
MR JUSTICE GRAY:  Thank you.
MR IRVING:  These are the only documents I shall be
referring
to in my cross-examination, apart from the expert
report.
Is document No. 9 in that bundle what we are going to
call
the Schlegelberger memorandum for the sake of
simplicity?

.  P-109



A.Yes, it is in here.
Q.In the top left hand corner it has the number 01/111
crossed out?
A.Yes, I have it.
Q.Have you seen correspondence in the discovery that I
have
made in this action which indicates that I was aware
of
the existence of this memorandum in about 1970?
A.No.
Q.Have you seen correspondence indicating that in 1972
I dealt with the US National Archives in an attempt to
locate this missing memorandum?  Can I take you
straight,
please, to page 22 of the bundle?
A.Yes.
Q.Do you know who Robert Wolfe is?
A.You tell me.
Q.He is the head, or he was for about 30 years the head,
of
the Foreign Document section of the US National
Archives.
He may have retired by now.  Having read that letter,
does
it look as though I have asked the National Archives
to
provide me with photocopies of documents in a
Nuremberg
document identified at that time as PS-4025?
A.Yes.
Q.Where they found everything except one item?
A.Yes.
Q.That letter to me is dated May 5th 1972?
A.Yes.

.  P-110



Q.So can you conclude from that that I had been
searching
for some time for that document, specifically
identifying
it by content?
A.No.  Just that you are asking them for it.
Q.Yes.
A.A document, an alleged note on Hitler's intentions.
Q.He writes, "With the exception of the alleged note on
Hitler's intention to postpone the solution of the
Jewish
problem", he is supplying me with photocopies of the
six
documents.
A.Yes.
Q.My Lord, the purpose of the next few questions for
about
four or five minutes will be purely to establish where
these documents came from.
MR JUSTICE GRAY:  Which documents?
MR IRVING:  The Schlegelberger memorandum and the
surrounding
documents, the other five documents, or the other six
documents.
MR JUSTICE GRAY:  Yes.  Just for my benefit, was the one
that
they were not able to find the original of the
Schlegelberger memorandum?
MR IRVING:  Yes, absolutely.
MR JUSTICE GRAY:  That was not entirely clear.  Thank you.
MR IRVING:  Would you go to pages 18 and 19 of the little
bundle?  This is a Staff Evidence Analysis sheet
prepared
by the American prosecuting staff at Nuremberg.

.  P-111



A.Yes.
Q.Is that right?  About a year after the war was over?
A.Yes.
Q.Does that describe a list of five documents that they
have
found, and they give a brief summary of what each
document
is?
A.Yes.
Q.The title and nature is correspondence between the
Reich
Chancellery and the Reich ministry of Justice on
matters
concerning the treatment of the Jews?
A.Yes.
Q.They put the date as March to April 1942?
A.Yes.
Q.The fourth item on this list is simply stated as being
a
note stating that Hitler intended to postpone solution
of
the Jewish problem until after the war?
A.Yes.
Q.Can you understand why I was interested in seeing the
content of that note?
A.Yes.  Indeed I can.
Q.Yes.  So I will tell you, Professor, that this Staff
Evidence Analysis sheet was provided to me by the
Institute of History in 1970 by a colleague working
for
me, as I can identify by the red rubber stamp at the
bottom left hand corner "indexed", which was my rubber
stamp.

.  P-112



A.Yes.
Q.I first was tipped off that this document had existed
in
1970.  I am still looking for it in 1972 and it is
thanks
to the efforts of a German historian, Professor
Eberhard
Jaeckel, that we finally obtained the actual document.
Is
that correct?
A.Yes.
Q.In about 1978?
A.Yes.
Q.So, when you write on page 364, line 2, indeed it was
Jaeckel who first informed Irving of the document's
existence, this is not correct, is that right?  It was
the
other way round?
A.Well, I should have said perhaps whereabouts.  That is
strictly true, I suppose, in the sense that it seems
to
have been lost beforehand and nobody could actually
confirm its actual existence.
Q.Yes.
A.That is true, that statement there.
Q.I am not going make anything of it, just a little bit
of
flag waving.
A.You can wave your flag as much as you like, Mr Irving.
The point is there was no evidence before that that it
actually existed.
Q.No evidence that it actually existed?
A.No. It seemed to have been lost.  It might have been

.  P-113



destroyed but it turns out that it did and does exist, and
it was Eberhard Jaeckel who informed you of that fact.

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