[Page 216]

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]

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]

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 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.

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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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