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High objects of State (letters patent from Queen Victoria, each w/ Great Seal):
Author of Balfour Declaration - 1898 diplomatic credentials, for talks with Germany
|
Chancellor of the Exchequer letters patent of Gladstone, 1873 

The (Swedish General) Viktor Balck Olympic Games- Founding Archive
Swedish gold and bronze medals honoring Viktor Balck | Viktor Balck 1912 Stockholm Olympics book Tower and Sword collar of Viktor Balck

Civil War Gillmore Medal to Jewish officer who helped 1863 "Glory" charge toward Ft. Wagner 1863                                                                        
Statesmen |Koerber - 1920s friend, then foe of Hitler |The Viktor von Koerber WWI Aviation Archive|
Presentation keys, gold medal to major U.K. statesman  Award Documents to important 19th century European diplomats

The JFK and staffers convention badges etc. ArchiveI.D. Badges to JFK and Secretary Ev Lincoln Mass. Labor Federation badge (major speech)  1960 Democratic Nomination campaign: aide Bob Troutman

Heroines | "Girl who defied Hitler" at 1936 Olympics: biography  Inge Sorensen Archive: items                 First ever (gold NYC) Women's Club Medal of Honor
  Award Diplomas to great Jewess opera singer
The Poignant Mayer family Jewish Heroism for (in WWI) and Flight from (pre-WWII) Germany Archive 
Presentation trowel etc. to president of "philanthropic" society for troubled girls

Concepts | News |
Historical commentary

Home  Products - site map  About Us
Outstanding Awards |




 

High objects of State (letters patent from Queen Victoria, each w/ Great Seal):
Author of Balfour Declaration - 1898 diplomatic credentials, for talks with Germany
|
Chancellor of the Exchequer letters patent of Gladstone, 1873 

The (Swedish General) Viktor Balck Olympic Games- Founding Archive
Swedish gold and bronze medals honoring Viktor Balck | Viktor Balck 1912 Stockholm Olympics book Tower and Sword collar of Viktor Balck

Civil War Gillmore Medal to Jewish officer who helped 1863 "Glory" charge toward Ft. Wagner 1863                                                                        
Statesmen |Koerber - 1920s friend, then foe of Hitler |The Viktor von Koerber WWI Aviation Archive|
Presentation keys, gold medal to major U.K. statesman  Award Documents to important 19th century European diplomats

The JFK and staffers convention badges etc. ArchiveI.D. Badges to JFK and Secretary Ev Lincoln Mass. Labor Federation badge (major speech)  1960 Democratic Nomination campaign: aide Bob Troutman

Heroines | "Girl who defied Hitler" at 1936 Olympics: biography  Inge Sorensen Archive: items                 First ever (gold NYC) Women's Club Medal of Honor
  Award Diplomas to great Jewess opera singer
The Poignant Mayer family Jewish Heroism for (in WWI) and Flight from (pre-WWII) Germany Archive 
Presentation trowel etc. to president of "philanthropic" society for troubled girls

Concepts | News |
Historical commentary

"With the intense anticommunism of the early years of the Cold War.... The exposure of the omnipresence of those who had been Nazis in the West German state apparatus required a response.... A more promising alternative was to exculpate the Nazis—who after all had been staunch anticommunists—and in particular the Nazi legal system....

At the time, Rudolf Augstein's weekly Der Spiegel -- modeled on Time Magazine -- largely filled the function of the primary anticommunist right-wing press (parallel to today's Murdoch media) in West Germany. In 1960 a series of articles by an unknown Fritz Tobias appeared in Der Spiegel....  The greatest part of his effort was directed at showing that the materials before the London commission had been prepared by Communists (and were in some cases forged), and that the commission itself was a giant piece of Communist propaganda....

Despite its harsh ideological bias and many failings, under Cold War circumstances the Tobias version became authoritative, at least in West German and U.S. establishment accounts. Certainly no graduate student aspiring to a career in the West German or U.S. academy would have dared challenge the Tobias account for an entire generation.

With the demolition of the German Democratic Republic and the annexation of East Germany into the Bundesrepublik, some of the Cold War ideological effort expended on the exculpation of the Nazi legal system lost its raison deªtre, and it became possible for a new generation of lawyers and historians to look back more calmly upon its history. No doubt it also helped that the last of the Nazi jurists would by then have retired from the bench and from chairs at the universities...."
                   --
Tigar and Mage, 2009

Awards of Outstanding International Importance to Statesmen and Heroines

Pritt's Reichstag Fire Findings, and their inspiration of subsequent contentious debate

US WWII WASP service certificate to 1st winner of Amelia Earhart Scholarship

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The D.N. Pritt, Q.C., Fighter vs. Fascism Archive

The 1933 Reichstag Fire was one of the great Whodunits of the century, exceeded in magnitude only by the JFK assassination.
On 27 Feb. 1933, four weeks after Hitler had become German Chancellor, and six days before a crucial national election, the Reichstag (parliament) building in Berlin burnt to the ground.  Hitler immediately issued an emergency decree suspending most civil liberties, justified by the fear that the Fire was a prelude to a Communist coup.  Within days mass arrests began to rope in Communists, four of whom would stand trial along with the Dutchman caught at the crime scene.  It was the Trial of the Century. 

During the summer of 1933, a counter-trial was organized in London by a group of lawyers, democrats and other anti-Nazi groups under the aegis of German Communist émigrés. The chairman of the counter-trial was Labour barrister D. N. Pritt, K.C. and the chief organiser was KPD's propaganda chief Willi Münzenberg.

The counter-trial began on September 21, 1933. It lasted one week and ended with the conclusion that the defendants were innocent and the true initiators of the fire were to be found amid the leading Nazi Party elite. The counter-trial received much media attention, and "became an enormously successful publicity stunt for the German Communists" (according to Wikipedia).

Pritt's 1933 Findings on the Reichstag Fire electrified the Western World, and thus did much to galvanize anti-Nazi sentiment;  it was thereafter the standard view of the Arson of the Century until Fritz Tobias' work, excerpted below.  From then on, to the Right, Pritt was a sucker for manipulation by Commies amply funded by Moscow. To the Left, he was a hero whose work has been smeared by the (progenitors of today's) Right Wing Noise Machine.

Ever since Pritt's 1933 Findings, controversy has raged among scholars about his conclusion about a Nazi plot to use the Fire for an excuse to destroy civil liberties in Germany.  The politicization of this controversy is becoming a vivid microcosm of the increased polarization in the US and elsewhere;  the Left generally sees him as a maligned hero, the Right sees him as at best a dupe of the Reds. 

We at Awards of Outstanding International Importance do not purport to be qualified to adjudicate this emotionally-charged historical/political dispute; below we present key passages from the most respected writings of each side of this debate.
The Leftist excerpts are longer, because they include such a succinct summary of the events at issue;  the Rightist excerpts are from a whole book, which was more detailed but less succinct.

Timeline of the events relating to the debate about the Reichstag Fire and the related trials
27 February 1933:  Reichstag Fire, arrest of Marinus van der Lubbe at the scene.

28 February:  Hitler, having been  Reich Chancellor for only four weeks,  issues an emergency decree suspending most civil liberties.  Mass arrests of Communists.  National election the following week gives Nazis a clear Reichstag majority.only via adding the seats of their coalition partners.

9 March:  Dimitrov, 3 other Communists arrested in Berlin
for alleged complicity in setting
the Fire;  within a month, they
would be shackled in brutally
painful chains, until late August. 

1968 - present:  Contentiousness increases in Western politics. Leftists clash with Chicago police, 1968 (left);  Rightist skinhead movement, complete with Nazi salute, starts in Britain, spreads to other Western countries, late 1970's - 1980's (above).

20 Septermber:  D.N. Pritt announces the Findings of a Commission of Inquiry into the Burning of the Reichstag, the "Counter-trial" in London. Press coverage of these Findings (that Nazis started the Fire) electrifies anti-Nazi sentiment in the West.

1945:  Using Pritt's Findings as their premise, Allied prosecutors at the Nuremberg Trials  grilled top Nazis like Göring (above)  about the Reichstag Fire.

21 Sept. - 23 December:  German court, put on the defensive by Pritt's Findings, acquits the Communists, sentences van der Lubbe to death.

1963:  publication of Fritz Tobias' The Reichstag Fire (excerpts below), in which Pritt etc. are described as dupes who fell for Red deceit, about a Nazi plot to burn the Reichstag, ginned up by German Communist propaganda chief Willi Münzenberg (left); Tobias' view was popularized by such means as John Pritchard's paperback, pub. 1972 (right).

1989- present:  Soviets relinquish their "Evil Empire";  "Cold War orthodoxy" in academia fades; previously unavailable files inspire new studies on Reichstag Fire, the most recent being that by Tigar and Mage (2009).  These two  charge that, though  the scholarship of Tobias' critique of Pritt's Findings  was decisively flawed, Tobias' allies in the "Right Wing Noise machine" were determined to push anything that would help exonerate the 20th century German judiciary, which was never really de-Nazified (excerpts below, right).

From http://www.jrbooksonline.com/PDF_Books/Reichstag_Fire.pdf
Tobias, Fritz, The Reichstag Fire, translated from German by Arnold J. Pomerans, with an introduction by A.J.P. Taylor (New York, Putnam 1964), pp. 43-44, 47-8:

The World Committee for the Victims of German Fascism was quickly turned into a Commission  of  Inquiry  into  the  Burning  of  the  Reichstag,  presided over by an 'International Committee of Jurists and Technical Experts'....

None  of  the  Committee  members  was  a  Communist;  all were respectable citizens. To this day, some of these honourable men have still not understood with what devilish skill Münzenberg* and his pupils diverted their willingness to serve humanity into purely Communist channels.  This  is  particularly true  of  the Chairman, the then forty-six-year-old K.C., Denis Nowell Pritt. In 1957, at the age of seventy, Pritt was given the freedom of the city  of  Leipzig,  as  a  'prominent  member  of  the  World  Peace Movement'.

.... the final session of the International Legal Commission* (Caxton Hall, 18-20 December 1933), at the conclusion of which the Chairman, D. N. Pritt, K.C., read the verdict - three days before the Leipzig judgement. Once again the date had been chosen skillfully - if all the accused were sentenced there would be an international outcry, and if they were acquitted, the whole world would know that it was thanks to the efforts of Münzenberg's Commission.

In short, Münzenberg had made certain that the German Supreme Court always lagged one step behind the Brown Book, which Otto Katz correctly described as the sixth defendant - the German Court sat for three months, most of which time it spent on desperate attempts to refute the Brown Book and the findings of the Counter-Trial.

As Koestler put it:

It was a unique event in criminal history that a Court - and a Supreme Court to boot - should concentrate its efforts on refuting accusations by a third, extraneous, party. Hence the parade of Cabinet Ministers on the witness-stand, hence the fantastic request of the court to the Head of the Potsdam police, to furnish an alibi for his movements at the time when the crime was committed.

A German observer summed up the Court's 'fight against the sixth defendant' as follows: 'Their propaganda... was so widely believed that any failure to discuss their lies, however stupid, would have been considered an evasion'.

A.J.P. Taylor was one of the most famous historians of the period.  Some of his most famous writings about the Nazi era clearly amount to a defense of Stalin's foreign policy, a fact which had to help  give weight (in Leftist eyes) to his endorsement of Tobias' work.

Willi Münzenberg. the Commiission's chief organiser, was the propaganda chief of the Communist Party of Germany, There is no serious dispute over the fact that he had the backing of the Communist International, which in turn had at its disposal the substantial resources of the Soviet state.

Arthur Koestler was an acclaimed novelist, and German Communist Party member who worked with Münzenberg.

From http://monthlyreview.org/090309tigar-mage.php

The Reichstag Fire Trial, 1933–2008
The Production of Law and History
Michael E. Tigar and John Mage

.... The Reichstag building broke into flames on the night of February 27, 1933. Immediately mass arrests were carried out using carefully prepared lists of Communist leaders and Reichstag deputies, as well as various Social Democrats, leading left-wing intellectuals, and trade union leaders. In the first night some four thousand were seized, brought to SA barracks, beaten, and tortured. Goering announced that the Reichstag Fire was to have been the signal for an insurrection and terrorist acts throughout Germany. On February 28 the Decree for the Protection of People and State Against Communist Acts of Violence Endangering the State was promulgated over the signature of von Hindenburg. The first article removed all fundamental rights specified in the Weimar constitution, specifically listing personal liberty, freedom of expression, association, and assembly, and the need for warrants for house searches. The second article gave the national government the right to remove all the state governments. Another article provided the death penalty for violation of the offenses set out in the decree, and for arson. Nonetheless the Nazis failed to gain a majority in the Reichstag in the March 5 elections; indeed, in their last vote the German people elected eighty-one Communist deputies. But at the first meeting of the newly elected Reichstag the Nazis achieved a majority when the eighty-one Communist deputies, many in detention since the Reichstag Fire, were expelled. On March 23 this Reichstag passed an Enabling Act, entitled Act for the Removal of Distress from People and Reich, that gave Hitler absolute power to rule.

The Reichstag Fire led to a dramatic trial, and to an equally consequential counter-trial. Media attention to the trial and the political currents around it—and its leading personalities—occupied world attention. This was the political trial of its time. In this article, we discuss the political setting of the fire, the
trial and surrounding events, and the lessons that may be drawn from the changing historical accounts of the trial. We examine critically the different versions of key events.

Three Reichstag Fire Proceedings

There were three Reichstag “proceedings” of consequence. Under German law, the first judicial phase was a preliminary examination of evidence, with the object of compiling a dossier and bringing formal charges. This phase was under the control of Judge Paul Vogt, a loyal Nazi who ordered the potential defendants held in prison, most of the time in chains—contrary to German law as it then existed. This proceeding began in March 1933 and ended on August 31, 1933, when Vogt filed thirty-two volumes of transcripts and documents. Those charged were the Dutch anarchist Marinus van der Lubbe, who had been arrested at the fire scene, Ernst Torgler, leader of the Communist Party group in the Reichstag, and three Bulgarian Communists who were sojourning in Berlin—Georgi Dimitrov, Simon Popov, and Vassili Tanev.

The second proceeding was a series of hearings held in London by a Legal Commission of Inquiry into the Burning of the Reichstag. Their work was designed to focus attention on the events in Germany and to assemble evidence, including evidence likely to be excluded from the German proceeding such as that tending to exculpate the defendants or implicate the Nazis. The commission reported on September 20, 1933, concluding that there was no evidence linking Torgler, Dimitrov, Popov, and Tanev to the fire, that van der Lubbe could not have acted alone, and that there was significant evidence that the Nazis had themselves set the Reichstag on fire. The commission’s work was part of an international protest movement, focused not solely upon the pending and impending judicial proceedings in Germany, but also upon the National Socialist seizure of power using the fire as a pretext. The commission had the benefit of an extensive investigation conducted by the World Committee for the Relief of the Victims of German Fascism, which assembled physical evidence and found witnesses.

The third proceeding: on September 21, 1933, the criminal trial opened in Leipzig. On October 10 the proceedings moved to Berlin to observe the Reichstag premises and later returned to Leipzig. Presiding Judge Buenger pronounced the verdict on December 23.

In the pretrial, commission, and trial proceedings, the Nazis and the defendants sought to tell very different stories. Hitler, Goering, and Goebbels had announced the Nazis’ theory on the night of the fire: Communists were guilty; van der Lubbe, who was arrested at the scene, was one of their agents. A decree promulgated on February 28, the day after the fire, enlarged the definition of treason to include many forms of dissent—including any claim that the Nazis had set the fire. Nazi officials declared that such measures were proved necessary by a thorough investigation that showed the guilt of unnamed “Communists.” After the Second World War, Goering admitted that no such investigation had taken place, but that Hitler had insisted on the decree being issued.

The night of February 27, Ernst Torgler was arrested when he went voluntarily to the police station when he heard his name on the radio. The three Bulgarians were rounded up on March 9.

The Nazi officials now faced the problem of proving their claims. They decided to hold a public trial that would have some surface appearance, but only that, of fairness. On March 3, 1933, Goering told the Cabinet that the preliminary examination would soon begin. The examining magistrate was Dr. Braune, “who used to investigate charges against the National Socialist Party, and who has always been most ruthless with us. Even if he did his work objectively, he is hardly the right man to handle so important a case. Thus he might restrict his investigations to the criminal alone....He might even set Deputy Torgler free.” Hitler concurred. Thus, Judge Vogt was chosen to replace Braune. To prevent any future uncertainties about the political persuasion of judges and lawyers, the Nazi-controlled Reichstag set up “Special Courts” on March 21, 1933, to try offenses listed in the February 28 Reichstag Fire decree. On April 24, 1934, the Reichstag authorized “People’s Courts” to replace the former trial courts in political cases. In the new judicial system, all of the judges would be loyal Nazis and defense counsel would show their loyalty to the regime by making speeches against their clients. Only one of these measures was applied retroactively to the Reichstag Fire defendants: a March 29 law authorized a death sentence for certain crimes committed between January 1 and February 28.

Vogt set to work with enthusiasm. He sent word to police officials all over Germany, asking for information on suspected Communist acts of sabotage and terrorism. He focused his attention on witnesses recruited by the police. He did not explore the contradictions and lacunae in the various forensic reports about the fire.

While Vogt did his work, antifascist activists in several countries began a counter-offensive. The World Committee for the Relief of the Victims of German Fascism was established with branches in the United States and several European countries. Communist Party activists had a great deal to do with organizing the committees, but the membership represented a cross-section of influential figures. On August 1, a book, the Brown Book of the Hitler Terror and the Burning of the Reichstag appeared under the committee’s name. The Brown Book was translated into many languages and millions of copies were sold, including in major department stores in the United States. It contained, according to Arthur Koestler, “the first comprehensive report on the concentration camps...the persecution of Jews [and others], the repression of literature, and other aspects of the terror.” The Brown Book contained an impressive array of evidence that Torgler, Dimitrov, Popov, and Tanev were innocent, and that the Nazis had set the fire.

The committee recruited a staff of investigators and forensic experts, who collected evidence in Germany and in Holland, where van der Lubbe had lived. After this preparatory work, the Commission of Inquiry held its proceedings in London in September 1933. The commission was chaired by
 renowned British barrister D. N. Pritt, K.C, a prominent member of the Labour Party, and included American lawyer and ACLU founder Arthur Garfield Hays, celebrated French advocate Vincent de Moro-Giaferri, former Italian prime minister Francesco Nitti, and Swedish senator Georg Branting. The commission proceedings were formal and fairly rigorous. It heard lengthy and detailed evidence about the fire and the Nazi reaction to it. The commission, as a result of the reputation of its members and the care taken in its proceedings, achieved favorable attention in the global press. Its report even made its way—illegally—into Germany, and at times became the text against which the Nazis focused their efforts at trial. Torgler’s lawyer, Dr. Sack, spent more than half of his closing speech criticizing in detail the commission’s report before he began to deal with the case against his client.

Who Set the Reichstag on Fire?

We begin by examining the evidence. Then, we can examine the trial proceedings.

The night of the fire, German police arrested van der Lubbe, half clothed. He had removed his shirt to use it as kindling while setting one of the fires inside the Reichstag.

Many characterizations of van der Lubbe’s role in the Reichstag Fire have begun by characterizing his political and social outlook and even in some cases his alleged sexual orientation. From these premises, often based on scant evidence, writers leap to a conclusion that van der Lubbe acted alone, or acted with Communists or Nazis depending on one’s perspective. In 1933, writers of the left and right sprinkled their prose with this sort of conclusion-jumping.

The preferable, and more reliable, way to see van der Lubbe’s role is to reason from the undisputed forensic evidence, introduced in evidence in London or at the German trial, and the contemporaneous reports of journalists and police officers at the scene. Then, one can evaluate the divergent views presented in the dozens of books and articles about the fire.

By the time police arrived and arrested van der Lubbe, about 9:30 p.m., on the 27th, the Reichstag was ablaze. Many separate fires were merging into one. Indeed, the fire was not put out until nearly midnight. A British newspaper journalist arrived about 9:45, even before Hitler, Goebbels, and Goering, and reported that a police officer said, “They’ve got one of them who did it, a man with nothing but his trousers on. He seems to have used his coat and shirt to start the fire. But there must be others still inside. They’re looking for them there.”

When Hitler, Goering, and Goebbels arrived, they quickly began to assert—without a particle of evidence—that the Communists must have set the fire, and to announce that they would immediately begin a meeting to decide on repressive measures.

According to the prosecution’s trial evidence, van der Lubbe entered the Reichstag by breaking a window on the lower level. A witness named Floeter was passing on his bicycle and heard the sound of breaking glass. He stopped to look and saw someone on the first floor balcony with a burning object in his hand. He told a police officer, Buwert, what he had seen, and continued on his way. Another witness, Thaler, stopped because he also heard the sound of breaking glass. Thaler originally reported seeing two men inside the building.

Thus, the timeline of the fire begins at 9:03 or a little after, when the witnesses seem to agree that there was the sound of glass breaking and one or more people were inside the building setting fires. Another important person in this recital is House-Inspector Scranowitz, who rushed from his nearby apartment to the Reichstag, and actually confronted and arrested van der Lubbe about 9:25 or a little before. By that time, the Reichstag’s main chambers were in flames.

Scranowitz later prepared a diagram that identified at least two dozen separate places of origin for the fires that were set and later merged into one or two large-scale blazes. The indictment alleged twenty-three separate fires, in different parts of the building, and on different floors. In order to reconcile the known time of the first blaze being set, at 9:03, and the later progress of the fires, the prosecution accepted that all these fires must have been set within about eleven to fourteen minutes.

Moreover, the prosecution forensic experts also agreed that an accelerant or accelerants were used to set the fires, although they disagreed on whether the material was liquid or solid. That night, when the alarm was given and officials began to arrive at the Reichstag, they found all exterior doors were locked, as they should have been.

There was never any plausible evidence against Dimitrov, Tanev, and Popov. Torgler, who was a Reichstag deputy, did come and go from the building on a regular basis, but he had a solid alibi for the time when the fire was set. No forensic evidence or credible witness statement linked him to the fire.

Van der Lubbe was caught at the scene. He had doubtless been involved. As we have noted, the Brown Book marshaled the evidence that the Nazis set the fire. Their research showed that there was an underground passage leading into the Reichstag. This passage had three entrances: the one in the Reichstag, one in the Reichstag president’s—Goering’s—residence, and one in what the contemporary record describes as an “engine house” or machinery room.

At the trial, Dimitrov attempted to inquire whether the underground passage had been investigated, using information that the commission had collected. He was initially ruled out of order. However, a prosecution witness named Adermann testified that he had heard noises from the passage during nights before the fire. The issue was then open for discussion. The court visited the site and heard evidence about the passage.

It turned out that at least one set of keys to the passage doors was kept by Inspector Scranowitz, the man who had arrested van der Lubbe at about 9:25. When the fire was discovered, someone on duty called Scranowitz, who did not answer his telephone. Scranowitz turned up at the fire scene about 9:18 and told an SS officer that he had heard people in the cellars of the Reichstag. The Commission of Inquiry concluded that the underground passage was the probable entry point for those who set the fire. Not surprisingly, the prosecution and the German court rejected this idea.

Late in the evening of February 27, Martin Sommerfeldt, who was Goering’s press chief, appeared at the Reichstag and interviewed police and firefighters in order to prepare a press communiqué. He drafted a press communiqué reporting that the police had collected “about a hundredweight” of firelighters—about fifty kilograms—at the scene. Sommerfeldt met with Goering, who drafted a press release saying that the recovered incendiary material was so heavy that at least seven persons would have been necessary to carry it, and that the fires had to have been set by persons familiar with the Reichstag building. Goering’s memo, which was issued to the press, said that at least ten persons must have been involved in setting the fire.

The most reliable studies of the fire focus on this forensic evidence, which tends powerfully to show that van der Lubbe could not have acted alone and that the probable method of entry into the Reichstag was the underground passage—the exterior doors having been found locked. 

Elements of the left sprang to van der Lubbe’s defense—at least against the charge of having been complicit with the Nazis. In 1933 and early 1934, an anarchist group called Comité mondiale contre la guerre et le fascisme (the World Committee Against War and Fascism) published a number of tracts defending van der Lubbe from charges made against him in the Brown Book. This group had adherents in France, the Netherlands, and Spain. Its main theme was that van der Lubbe was a faithful adherent of the working-class movement, and that his act was “perfectly legitimate...individual and consequential.” It labeled the Brown Book accusation that van der Lubbe was a tool of the Nazis “petty bourgeois and Stalinist.” This view of van der Lubbe has been carried forward into recent times.

Three Trials, Five Defendants

At trial, the court and prosecution divided the evidence into three parts. First, the court heard evidence about the five defendants’ backgrounds and activities before the fire. Second, the court—having moved the proceedings to Berlin—heard testimony about the fire itself and the events immediately surrounding it. The third phase was avowedly political, focusing on the defendants’ alleged propensities and on the Nazi officials’ denial that the Nazis had set the fire.

Arthur Garfield Hays attended most of the trial, and noted the differences between the U.S. trial procedure to which he was accustomed and what he saw in Germany. In the trial chamber, six judges sat in red robes with skullcaps, with Judge Buenger presiding. On the other side of this dais sat the prosecutors, also on a raised platform. On the right sat the defendants, inside a railed enclosure. Their counsel sat near them. Guards sat near the defendants.

German trial procedure at that time followed the continental, civil law, model. The preliminary examination, and the thirty-two volumes of reports it generated, were to be the principal basis of the trial. Lawyers did not make opening statements. Witness statements might be received based on the written preliminary examination record. Or, a witness might be called to testify on one point, then excused and recalled later when a different subject was being considered. The judges might halt a witness’s testimony to call a contradictory witness then and there. If more than one person claimed to have observed a relevant event, several witnesses might all be called at once, and questioned by the judges in a group until the judges felt some resolution had been reached. Judge Buenger dominated the witness questioning, based upon the preliminary examination report. From time to time, the prosecutor and the judges might confer as to where some item might be found in the record.

Continental procedure permits hearsay testimony: A witness may recount what somebody else told him or her, or what he or she overheard being said. The hearsay may be discounted, in preference to the witness’s personal knowledge, but it nonetheless comes in.

This procedure makes it difficult for a defense lawyer to seize the initiative and try to turn the proceedings to his or her advantage. As Hays wrote,

Compared to our system, the lawyers play a minor part in a criminal trial. The defendants play a much greater part. In Germany, after the judge makes his inquiry, lawyers for the defendant are asked if they want to put questions. Then the defendants themselves are given the opportunity. In this trial Dimitrov never failed to avail himself of this right. He told the court that he wanted neither “the honey nor the poison” of Teichert’s [his appointed counsel] defense. He intended to defend not only himself, but the Communist Party. “That’s what I’m here for.”

As a matter of evidence, Dimitrov, Popov, and Tanev had solid alibis, and the witnesses whose testimony put them in a position to have committed the crime were shown either to have been coached into making misleading statements or were criminals terrified of Nazi retribution, and incredible Torgler, as a Reichstag deputy, had access to the building but was demonstrably nowhere near it when the fire was set.

Van der Lubbe’s counsel, Dr. Seuffert, could not play much of a role. His client had confessed under interrogation. Throughout the trial van der Lubbe sat slumped in his chair, Hays describing him as having “the look of an ox,” who “would seem to shrink into a green lump.” Dr. Seuffert would from time to time wipe the drool from his client’s face. The state’s efforts to tie van der Lubbe to the Communist movement were weak. He was said to have possessed a red membership card, but the membership cards of the German Communist Party were black, and of the Dutch party blue-black. National Socialist cards were red.

Van der Lubbe’s answers, when the court called him as a witness, were mostly monosyllabic and often incoherent; he agreed hesitantly to the leading questions put to him about his actions and his confession to the police, though at times he became noncommittal as though he could not remember what he had done and said.

There was one point, however, at which van der Lubbe came awake. Count Wolf von Helldorf, a Storm Trooper leader and Berlin police official, appeared as a witness on October 20, 1933. He had investigated the fire. The Brown Book had accused him of complicity in setting it. He was asked to look at the defendants to see if he recognized any of them, or they him. Van der Lubbe would not raise his head, even after Judge Buenger prompted him. Von Helldorf barked a command: “You, put your head up. Quick!” Van der Lubbe quickly obeyed. As the left press noted, it appeared that he had heard his master’s voice.

The Nazi leaders and the Bulgarian defendants agreed on one point: This was a political trial. Any effective defense had to acknowledge this fact and confront the reality of Nazi power and influence. Dimitrov’s tactics, from the first witness until the last words of argument at the end, were based on knowing this truth. In all the histories of the trial, his performance stands out. Why do we say the trial was political? First, four of the defendants were chosen based on their membership in the Communist Party, and not on the basis of credible evidence. The Nazi theme, that “the Communists did it,” was a trial theme. Indeed, in acquitting Torgler, Dimitrov, Popov, and Tanev, Judge Buerger nonetheless “found” that the fire was part of a Communist plot. Second, in the trial proceedings the Nazis took up the Brown Book challenge. The prosecution aimed to discredit the Brown Book theory, to such an extent that the book was said to be the sixth defendant. The Nazis had decided to make their case not only to the court but to the German population and the foreign press. Leading Nazi figures came to the trial to express their views. Dimitrov did not “politicize” the trial. He showed up and dealt with what he found.

From the first trial day, Dimitrov set out to dominate the proceedings. He cross-examined almost every witness who mentioned his name or those of his compatriots. He usually began with “I ask the witness to which party he belongs.” The answer, more often than not, was “to the parties of the right.” Judge Buenger would ask the purpose of the question. Dimitrov would say some variation of “I want to know who paid for this witness.” Judge Buenger would often admonish, “This is an insult to the witness.” After a further exchange, the judge would cut off Dimitrov’s questioning.

When Dimitrov testified, he insisted on making a statement of his innocence, rather than beginning by responding to questions. He set out his defense: He had not been in Berlin, did not know Torgler and van der Lubbe, and was in Germany on behalf of the Bulgarian Communist Party. Under questioning, Dimitrov responded emphatically and always with a challenge to the unfairness of the proceedings. From time to time, Judge Buenger would reprimand him or exclude him from the court for a day or so. When Dimitrov claimed that a map of Berlin, allegedly found in his rooms, had been forged, the judge  said, “I won’t permit you to insult the police.” When Dimitrov suggested that the Nazis had set the fire, the judge said: “Dimitrov...behave modestly and quietly. If you can’t do that, you won’t get very far here.” Dimitrov replied, “I feel compelled to speak. I don’t deny my Communist convictions. But because of that I am opposed to individual terror. During the investigation, the judge [Vogt] tried to make a terroristic adventurer out of me.” Judge Buenger told Dimitrov to raise that issue with his counsel, to which the latter replied, “I have already said I do not recognize this counsel. I am my own counsel.”

And indeed he was. The most celebrated events of the trial were appearances by Storm Troop leaders and police officials Heines and von Helldorf, as well as Goering and Goebbels. The chief prosecutor, Dr. Werner, explained that the Brown Book had claimed that Goering and Goebbels were instigators of the fire, and they should be “given the opportunity of clearing their names.”

Goering was summoned to appear on November 4. Security around the courthouse was enhanced. Government officials were in attendance. At 10:30, after keeping the court waiting for an hour, Goering entered in his Storm Trooper uniform. All the Germans gave the Hitler salute. Dr. Buenger echoed Dr. Werner’s sentiment that Goering and Goebbels should be permitted to rebut the Brown Book allegations.

Goering then spoke for three hours, with noisy support from the audience.

After Goering’s statement, Dimitrov cross-examined. He peppered Goering with questions. He put questions designed to show that Goering’s accusations of Communist complicity were made after a cursory and flawed investigation. Goering’s anger mounted. He said he was “only concerned with the Communist Party of Germany and with the foreign Communist crooks who come here to set the Reichstag on fire.” The audience cheered. Dimitrov replied, “Yes, of course, bravo, bravo, bravo! They have the right to fight against the Communist Party, but the Communist Party of Germany has the right to go underground and to fight against your government; and how we fight back is a matter of our respective forces and not a matter of law.” Judge Buenger interjected: “Dimitrov, I will not have you making Communist propaganda here.” To which Dimitrov replied that Goering was making National Socialist propaganda. The exchange continued:

Goering: Look here, I will tell you what the German people know. They know you are behaving in a disgraceful fashion....I did not come here to be accused by you.
Dimitrov: You are a witness.
Goering: In my eyes you are nothing but a scoundrel, a crook who belongs on the gallows.
Dimitrov: Very well, I am most satisfied.

At this point, Judge Buenger cut Dimitrov off, again accusing him of making propaganda, while not rebuking Goering at all. Dimitrov tried to put more questions, but the judge ordered him to sit down. Dimitrov had one last shot: “You are greatly afraid of my questions, are you not, Herr Minister?” Goering’s anger rose. He replied, “You will be afraid when I catch you. You wait until I get you out of the power of this Court, you crook!” The judge, ever dutiful, said, “Dimitrov is expelled for three days. Out with him!”

The moment is without parallel, the witness credibly threatening to murder the accused. And the effect of Dimitrov’s cross-examination of Goering, in the court and around the world, was electrifying. The next day the Swiss conservative paper Neue Zürcher Zeitung described Goering’s “mad foolhardy rage” and concluded that “the whole trial has been rendered worthless at one blow.”

Goebbels’s appearance, four days later, was less dramatic but again saw Dimitrov in great form. Dimitrov focused on the inconsistency between the prosecution’s claim that the Communists had set the fire and Goebbels’s earlier accusation that the Social Democrats had also been involved. Judge Buenger had apparently learned something from Goering’s appearance, for he suggested at several points that Goebbels need not answer Dimitrov’s questions that were asked “for propaganda purposes.” Goebbels declined the judge’s suggestions. Torgler also questioned Goebbels, establishing that the German Communists had embraced strikes and political discourse rather than violence. In a final statement, Goebbels explained that he had come to court because “the foreign press has done nothing to remedy” the “lying accusations” of the Brown Book.

At the end of the trial, the judges gave a lengthy opinion analyzing the evidence. Van der Lubbe was convicted and sentenced to death, the others acquitted. The court concluded:

Even though...the defendants Torgler and the Bulgarians [Dimitrov, Tanev and Popov] could not be convicted as accessories, nonetheless no doubt exists as to the camp in which these accessories were to be found....The burning of the Reichstag was undoubtedly a political act. The enormity of the crime—that is to say, of the means—points to the importance and violence of the goal. This can only have been the seizure of power....The crime can only be the work of radical left-wing elements, who hoped to exploit it for the purpose of overthrowing the government and the constitution, and seizing power....The Communist party has proclaimed such treasonable goals as its program. It was the party of treason.
...
 

 

The Variable History of the Reichstag Fire Trial

The “denazification” of German administration began with the occupation of Germany in 1945, but came to an end in West Germany with the start of the Cold War in 1947–48. At first the process was turned over to the West German judiciary, but as the judiciary itself was almost completely composed of those who had served the Third Reich, “denazification” came swiftly to a halt. With the intense anticommunism of the early years of the Cold War, the time of the “Berlin blockade,” and the Korean War, little attention was paid by the mainstream western press to the composition of the new West German government. Accusations that the new West German administration and armed forces were composed almost entirely of Nazi functionaries were dismissed as “communist propaganda.”

.... The exposure of the omnipresence of those who had been Nazis in the West German state apparatus required a response. The facts of personal biography could not be denied; at most it was possible to obscure them. A major effort was made to exaggerate the minimal conservative opposition to the Nazis, and especially the belated July 1944 conspiracy among a handful of officers that led to an unsuccessful attempt on Hitler’s life. But even with the utmost exaggeration, very few could be claimed to have had any connection, however remote, with these isolated affairs.

....
The great bulk of German opposition to the Nazis had been from leftists, and it was in the government of the communist East German state—the German Democratic Republic—that it was easy to find those who had fought the fascists arms in hand, and those who truly had been opponents of the Nazis. A more promising alternative was to exculpate the Nazis—who after all had been staunch anticommunists—and in particular the Nazi legal system. A further, and more material, concern was the presence of substantial claims from Jewish victims of the Nazis, demanding restitution of property they had lost (of course always in accordance with legal process of some sort) in the first years after Hitler came to power.

A solution was to assert that the German legal system had continued to function—of course unfortunately deprived of the services of its Jewish judges—with unimpaired validity, at least (as regards the Jewish claimants) until Chancellor Adenauer’s chief of staff Globke’s Nuremberg Laws came into effect, several years after the Nazis came to power;
 after all most of the defendants were acquitted, and the court had exculpated the Nazis from having set fire to the Reichstag.

At the time, Rudolf Augstein’s weekly Der Spiegel—modeled on Time Magazine—largely filled the function of the primary anticommunist right-wing press (parallel to today’s Murdoch media) in West Germany. In 1960 a series of articles by an unknown Fritz Tobias appeared in Der Spiegel, and in 1963 were collected in a book swiftly translated into English entitled The Reichstag Fire, and much publicized in the United States. Tobias attempted to disprove the conclusions of the London commission by alleging that van der Lubbe acted alone, that the Nazis were innocent, and that the defendants had received a fair trial. The greatest part of his effort was directed at showing that the materials before the London commission had been prepared by Communists (and were in some cases forged), and that the commission itself was a giant piece of Communist propaganda. Quoting extensively from “recantations of ex-Communists,” Tobias derided those who organized the commission and saw to the publication of its work, particularly the Brown Book. Tobias focused on Willi Muenzenberg, who was a principal organizer of the commission, and portrays him as scheming and unreliable. In his list of ex-Communists, Tobias prominently included Arthur Koestler, although he failed to note that Koestler’s later memoir—written when he was very much an “ex”—credits the Brown Book with exposing Nazi terror and regards it as a “certainty” that Nazi circles, probably a group of Storm Troopers, were the authors of the fire....

Despite its harsh ideological bias and many failings, under Cold War circumstances the Tobias version became authoritative, at least in West German and U.S. establishment accounts. Certainly no graduate student aspiring to a career in the West German or U.S. academy would have dared challenge the Tobias account for an entire generation.

With the demolition of the German Democratic Republic and the annexation of East Germany into the Bundesrepublik, some of the Cold War ideological effort expended on the exculpation of the Nazi legal system lost its raison d’être, and it became possible for a new generation of lawyers and historians to look back more calmly upon its history. No doubt it also helped that the last of the Nazi jurists would by then have retired from the bench and from chairs at the universities....

As for the history of the Reichstag Fire itself, the decisive event was the 2001 publication of Der Reichstagbrand—Wie Geschichte gemacht wird (The Reichstag Fire—How History is Created) by historian Alexander Bahar and physicist and psychologist Wilfried Kugel. They reviewed official files that had previously been unavailable as well as those that had been the subject of earlier inquiry, and analyzed the forensic evidence. Their extensive discussion of the forensic evidence ends the matter; in the eleven to fourteen minutes that van der Lubbe had available according to the testimony at trial, it was impossible for him to have been to all—or even many of—the places where fires were set. Nor could van der Lubbe have carried from place to place the amount of accelerant used to set the fires. Henceforward anyone defending the Tobias thesis needs either reject the entire forensic testimony at trial or the laws of nature, or both.

As for the mysterious revisionist “historian” Tobias himself, he was neither lawyer nor historian and it seems he had never completed secondary education. He asserted his ideological neutrality with a questionable claim to prior membership in the Social Democratic Party, but it seems that he had served in the Nazi occupation forces in the Netherlands, in Italy, and in White Russia as a member of the Geheime Feldpolizei, the Gestapo of the Wehrmacht. And, as previously mentioned, his “factual” disproof of the Gisevius account of how the Nazis set the fire was based on a series of untruths.

The full documentation now available includes the fact that Gisevius was, as he claimed, Gestapo observer at the trial. Bahar and Kugel uncovered records that conclusively confirm the Gisevius charge that Rall had sought in the days before his murder to set out the facts of the use of the tunnels from Goering’s residence to the Reichstag, the prior visit of the team to the building to run through the arson, the identity of the leader of the detachment (Gewehr, a name that never appears in the Tobias account), and the personal supervision of the Berlin SA commander Karl Ernst. Most of the ten members of the SA detachment that set the fire were murdered by the SS in the “night of the long knives”—the so-called Roehm putsch—in June 1934. Diels, the head of the Gestapo in 1933 to whom Gisevius reported, said in 1946 that Gewehr was the only member of the unit that fired the Reichstag to have survived. The newly available evidence establishes the record of Gewehr’s SA service in the unit alleged to be responsible for the fire (SA-Sturm 17), and his use of flammable agents for arson from 1931. The Bahar and Kugel book appears to be the definitive word on the Reichstag Fire.

Conclusion

For us, the exemplary role played by the two lawyers of the Anglo-American legal tradition in the London commission has stood the test of time. Despite the accusation against the London commission of “Communist propaganda” from the Nazis in the ’30s and Tobias in the ’60s, D. N. Pritt, K.C., and Arthur Garfield Hays would be acknowledged today in the legal community as among the leading U.S. and U.K. lawyers of the first half of the twentieth century. Nor today should there be any dispute as to the complicity of the entire community of German jurists (law teachers and judges)—excepting always their disappeared Jewish colleagues—in the horrors of the Nazi debacle. Today, facing a new regime of preventive detention and emergency “Patriot Act” abolition of fundamental rights, it is important not to think that “the Law” as such offers protection. We must offer such support as we can to those lawyers and jurists whose politics and decency have made them take a stand against our own emerging police state regimes. In January 2008, the Federal Court of Justice of Germany finally overturned the death penalty verdict on Marinus van der Lubbe, clearly incapable in his damaged state of defending himself at trial, as politically motivated and unjust. However welcome this recognition of fundamental fact, we must end by noting that the tenth of January 2009 marked the seventy-fifth anniversary of Marinus van der Lubbe’s execution by beheading in a Leipzig prison yard, three days before his twenty-fifth birthday.

"The commission was chaired by renowned British barrister D. N. Pritt, K.C, a prominent member of the Labour Party.... The commission proceedings were formal and fairly rigorous. It heard lengthy and detailed evidence about the fire and the Nazi reaction to it. The commission, as a result of the reputation of its members and the care taken in its proceedings, achieved favorable attention in the global press. Its report even made its way—illegally—into Germany, and at times became the text against which the Nazis focused their efforts at trial."

"For us, the exemplary role played by the two lawyers of the Anglo-American legal tradition in the London commission has stood the test of time. Despite the accusation against the London commission of “Communist propaganda” from the Nazis in the ’30s and Tobias in the ’60s, D. N. Pritt, K.C., and Arthur Garfield Hays would be acknowledged today in the legal community as among the leading U.S. and U.K. lawyers of the first half of the twentieth century. Nor today should there be any dispute as to the complicity of the entire community of German jurists (law teachers and judges)—excepting always their disappeared Jewish colleagues—in the horrors of the Nazi debacle."

J.A. Schramek
& Associates

1933-39:  Pritt's Findings help inspire anti-Nazi sentiment across the Western World, as
shown by this Spanish 
pro-Labor poster

The contentious debate about the Reichstag Fire and the related trials

23 March:  The Reichstag passes the Enabling Act, giving Hitler dictatorial powers

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