Courtroom to revolutionary stage: performance and ideology in Weimar political trials 9780199609048

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COURTROOM TO REVOLUTIONARY STAGE

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Courtroom to Revolutionary Stage Performance and Ideology in Weimar Political Trials

HENNING GRUNWALD

OXFORD

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To the generation who saw it happen, in loving memory: Annemarie & Hilde & Karl Kriemhild & Wilhelm

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Preface This is a book about party lawyers, the trials they appeared in, and the impact both had on political culture in Weimar Germany. It makes the case for rethinking this much disputed field by focusing on lawyers rather than judges, and on the entirety of proceedings rather than solely on verdicts. Doing so yields a narrative in which the extremist parties appear interested not in the legal outcome of proceedings so much as in the forceful representation of their ideology in court. The point, as one of my anonymous reviewers put it, was not legal victory so much as ‘losing with a

splash’. Turning trials into rousing displays of implacable enmity towards the Republican order trumped the desire to reduce individual sentences. On the contrary, the sacrifice of the defendants underpinned the performance of ideology in court, and amplified its impact. On trial, Weimar extremists could perform the revolutionary commitment and uncompromising, total rejection of the democratic order that was at most times absolutely unrealistic outside. In this way, Weimar extremist parties turned judicial persecution from a legal liability into a propagandistic asset, and the courtroom, as a prominent Communist barrister claimed, into a ‘revolutionary stage’. Beyond the usual qualms and misgivings that come with writing a work of historical scholarship, two anxieties have accompanied me virtually throughout the work on this book. One is methodological: the use of the concepts of ‘perform-

ance and ‘performativity. The other is historiographical: the decision to treat nationalists and National Socialists side by side with Communists and radical socialists. These choices will, for some, place my work under grave suspicion of faddishness and/or ideological bias, but I hope that readers of what follows will come to see why I have made them. At the very least they will hopefully agree that ‘performance’ as | use it is a far cry from ‘play-acting’, and that treating National Socialists and Communists ‘side by side’ is not to equate uncritically or polemically one with the other. First, the concept of performance is intended to unlock a particularly salient context—the judicial—in which practices, language, images, and symbols could create a community of ideologues. While I cannot here summarize the longer discussion of the topic in chapter five, it should be made clear from the outset that to speak of performance does not imply that trials were ‘just’ theatre. Nor were the values and commitments put on display there ‘merely pretended’. Much less should the concept distract from the fate of the many thousands of victims of judicial bias, overwhelmingly of the left, or render harmless the suffering of prisoners, regardless of culpability and political stripe. Rather, considering trials as performances of ideology highlights how they allowed nationalists and Communists to strike poses of fundamental ideological opposition. Trials offered extremist parties a means of creating meaning and identity that was intuitive, emotive, interactive, and pow-

erful. At the same time, studying trials in this way makes visible the manifold

viii Preface resonances between the creative use of judicial procedure by party lawyers and Weimar theatrical innovations. A friend and colleague once told me, tongue-in-cheek, that he didn’t object to the use of theory in historical scholarship, he just wasn’t smart enough to do it himself. The point is well taken. Use of jargon and overly-sophisticated terminology frequently mask a lack of substantive argument (and sometimes common sense). And yet the benefit of deploying the concepts of performance and performativity in the context of Weimar justice seem to me overwhelmingly to outweigh the costs—particularly if those who are initially and, on grounds of principle, sceptical can persuade themselves to take a closer look. Secondly, studying anti-Republican jurists of left and right jointly can appear perplexing or even provocative. This is especially true given the widely disparate fate their respective clients suffered in Weimar courts. While nationalists often received lenient sentences, socialists as a rule felt the full force of the law. However, party lawyers of left and right had more in common than separated them, and more than most of them cared to acknowledge. A confrontational and media-conscious conduct of trials and a conception of judicial procedure that de-emphasized or denied altogether the separation of the spheres of law and politics set them apart from their

non-political peers—and they knew it. Party lawyers of all political stripes took pride in refusing to ‘clean the toilet for Uncle Scrooge’ [fur Herrn Raffke Toilette putzen], and exalted themselves as warriors for justice writ large. Most importantly of all, however, radical nationalists, National Socialists, and Communists were distinguished by their ideological identification with their respective parties’ anti-democratic projects. As a consequence, they perceived no conflict of interest between

the parties who paid them and the men and women whose defense they were charged with. Or, to put it more bluntly, they felt no compunction about putting their parties’ interest over that of their clients. The reason for considering extremist socialist and nationalists jointly is therefore not just that frequent political amnesties tempered the impact of lopsided sentenc-

ing. Nor is it that the ideological extremes at times—the 1932 Berlin transport workers strike, or the passage of the amnesty that year—collaborated outright. Rather, this choice reflects the fact that radicals of left and right chipped away jointly at the discursive, symbolic, and practical foundations of democratic politics. Their collusion is epitomized, not invalidated, by the dramatic confrontations between Nazis and Communists in the Republic’s courtrooms. The undoubted nationalist bias of the courts notwithstanding, the first victim of the politicization of justice was Weimar political culture. Even whilst fighting one another, the extremes colluded in de-legitimizing the Republic. They did so, I argue, not exclusively, but certainly prominently in the courtroom and through their lawyers. In denying the very possibility of a neutral arbiter between conflicting interests, in ignoring or denigrating as liberal wishful thinking the rules of judicial engagement, left-wing and right-wing lawyers together helped create a discursive framework sidelining and ultimately destroying democratic politics. Which is why, while allowing for important differences between the groups, this study considers them side by side.

Preface ix While working on this book, I have incurred debts of gratitude too numerous to acknowledge individually. Many friends and colleagues who have given generously of their time, knowledge, and affection will therefore find themselves shortchanged, much to my regret. At Oxford University Press, Chris Wheeler, Stephanie

Ireland, and Emma Barber have been epitomes of editorial virtue and patience. Ana Keilson, Jeremy DeWaal, Wesley Lim, Noah Rosenblum, and Robert Kelz have proofread and commented most helpfully on the manuscript, quashing many a mistake in the bud. I am also indebted to the two anonymous commentators who read my work on behalf of OUP, both for their frank and generous criticism and for recommending that my book be published. Both reports were models of erudition and wit, and I am humbled by the academic integrity of one reader in particular who endorsed my book despite disagreeing heartily with almost all its central theses. Much of the archival research was done in Berlin, in the Landesarchiv, the Geheimes Staatsarchiv, and the Bundesarchiv. | would like to thank the staff at all three, along with their colleagues at the Archiv der Sozialen Demokratie in Bonn and the Bundesarchiv in Koblenz. Research for this book was made possible by the generous support of the Studienstiftung des deutschen Volkes, the German Academic Exchange Service, the Arts and Humanities Research Board, the German Research

Foundation, and the William Senior Committee of Clare College, Cambridge. Man doth not live by bread only, but without material support, research is impossible, I am therefore deeply in these organizations’ debt. In Berlin, that marvel of a city, I also had the privilege of working with graduate students and colleagues from a variety of disciplines in the graduate school ‘Staging the Body’ at the Institute for Theatre Studies of Freie Universitat. My thanks goes to them collectively, singling out merely Manfred Pfister, Paula Diehl, Sepp Gumbrecht, and Markus Rautzenberg, whose comments and suggestions greatly im-

proved a late rewrite of chapter five. Most of all, I would like to thank Erika Fischer-Lichte, for taking a chance with a historian (of all disciplines!) in the first place. At Humboldt-Universitat, Heinrich August Winkler and Wolfgang Hardtwig welcomed me into their graduate seminars, and Iam much obliged to them both. At the same university, but a few years later, Christoph Markschies supported my research by agreeing to let me go to Vanderbilt when much of the work I had set out to do as presidential assistant was left undone, to my regret. I am deeply grateful to my colleagues in the History Department, the Center for European Studies, and the German Department at Vanderbilt University. I left

Berlin to do a job, but Nashville (that other marvel of a city) turned out to be much more than that. It became home—defying all my expectations, and largely thanks to y’all. Such qualities as this book has are due in no small part to the encouragement and advice of my Vanderbilt colleagues. I will name only a handful: Jim Epstein, John McCarthy, Meike Werner, Bill Caferro, Florence Faucher-King, Leor Halevi, Joel Harrington, Peter Hudson, Matt Ramsey, Michael Bess, and especially Helmut Walser Smith, who not only tirelessly championed my research, but also never failed to heed the call of Lonnie’s Western Room—thank you all. Columbia University generously hosted me during the academic year 2010/11

x Preface while writing up, and I would like to thank Volker Berghahn and Mark Mazower especially.

At Cambridge, Richard Evans was a source of much good advice, and I am grateful to him and Anthony Nicholls for many helpful suggestions. Adam Tooze

read a very early version of chapter one, and provided timely encouragement. Surely no student can wish for a better mentor than Chris Clark, scholar and renaissance man, without whom this book might have been written, but surely would not have been half as much fun to write. Philipp Steinberg has been tireless in admonishing me to publish my work, and generous in his friendship. So have Martin Zwilling, with whom I have been doing history longer than with anyone else, the indomitable Emma Winter, and Alex

White. Susan Lynch was unstintingly generous in her support. Julia Bonstein shared my joy and my travails while researching for this book. It is hard to believe she is not here to see it come to fruition, and I will keep missing her. To my family

goes my deepest gratitude: to my grandparents (and Ami, the greatest of great aunts), to whose memory this book is dedicated, to my parents, Petra and Reinhard, who taught me to be interested in the world, to my brother Kai, to Milan, and most of all to my wife and much, much better half, Dora-thank you for everything.

Henning Grunwald New York, September 2012

Contents

Introduction 1 Historiography 4

Rethinking Weimar political justice 12

Definitions and sources 13 Chapter structure 15

1. The Rosa Luxemburg Trials of 1914 and the Emergence

of the Ideal Type of the Weimar Party Lawyer 17

Wilhelmine legal culture and its discontents 19

Conclusion 44 Ten Political Lawyers 45 Biographies 51 non-political peers89 79 Conclusion “The best outcome is that where the party profits the most’:

The militarism trial and the revolution in Social Democrat defending 33

2. ‘Nursing Revolutionary Fighters’ and “Legal SA-Duty’:

Patterns of professional development 61 ‘Cleaning the toilet for Uncle Scrooge’: party lawyers vs. their

3. “To Fight the Class Struggle with the Bourgeois Courts with

All Acridity’: the Communist Party Legal Organization 92 Communist legal aid: evolution and organizational structure 98

Communist legal aid in practice 106

Conclusion 131

Lawyers as agents of party control 123

Legal Organizations 133

4. The Compliment of Imitation: The Rise of National-Socialist (Mis-) Managing the Rathenau trial: The Reich League

of German Nationalist Trial Lawyers 135 Symbols without substance? The Patriotic Prisoners

Aid/National Emergency Aid 141 The Association of National Socialist German Lawyers 151

5. Performing Ideology: Rethinking Weimar Political Justice 171

The performativity of justice and German legal culture 173 ‘Better propaganda of the deed than the offence itself’:

political trials in the public sphere 180

Xii Contents

Conclusion 211 Conclusion 214 ‘Losing with a splash’ 215

Political trials and the aestheticization of politics 194

The end of the story: party lawyers after 1933 220

Weimar as a stick to beat Bonn: a plea to retire some

historiographical clichés 224 Party lawyers on the Sonderweg? 227 Orestes vs. the Furies or how to perform judicial legitimacy 229

Appendix A: Party Allegiance of 36 Prominent Political Lawyers

in the Weimar Republic 232

Bibliography 237 Index 249 Appendix B: Occupation of 100 Lay Magistrates in Political Trials 233

Appendix C: The Hierarchy of the German Court System 235

Introduction As revolutionary trial lawyers we must strive not only to reduce sentences but also [...] at all times to turn the courtroom into a revolutionary stage.

—Ernst Hegewisch to the central legal office of the German Communist Party, 1922

In July 1925, the State Court for the Protection of the Republic in Leipzig heard the case against Josef Gartner, an unsuccessful playwright and minor Communist functionary accused of high treason. How had Josef Gartner threatened the republican order? On the evening of 7 November 1924, as the ‘artistic co-ordinator’ of a ‘revolutionary memorial celebration’ in a Stuttgart beer cellar, Gartner had conducted the performance of his play “Ihe 7000’. In song and declamatory recitals, the piece dramatizes the liberation of Communist political prisoners as a German storm on the Bastille.’ Basically, Gartner stood accused of having prepared an assault on the constitutional Staatsordnung by means of writing and directing a play. Found guilty, he was sentenced to fifteen months in prison for preparing high treason.

It is often said that the pen is mightier than the sword, but seldom are the strokes of the former deemed to be dangerous to the political order in the ‘concrete and immediate’ sense stipulated by the high treason norms of the German penal code. Nonetheless, this was the exact reasoning of the Staatsgerichtshof, the Leipzig high court for political offences, in cases against the writers and editors of Communist ‘revolutionary literature’ and even against the workers at the typesetting machines. At this point, one might look at the questionable nature of the legal reasoning

underlying these verdicts (which targeted a small number of National Socialist pamphleteers and printers, too), or at the outlook of the judges passing the sentences. To do so would locate my work in the long tradition of criticising Weimar judges and judicial practice, a tradition that originated in the Republic itself with Emil Julius Gumbel’s statistics illustrating the lopsidedness of verdicts against left-

and right-wing offenders. After a brief hiatus in the immediate aftermath of National Socialism, the criticism of Weimar justice as ‘blind on the right eye’ was vigorously taken up again in the 1960s. With arguments based on the judiciary’s ' Gartner also read poems by Ernst Mithsam and Georg Herwegh, while Johannes R. Becher’s poem ‘At Lenin’s Grave’ had served as the prologue. Becher was initially also accused, but the charges were later dropped.

2 Courtroom to Revolutionary Stage privileged social provenance, on the well-documented anti-democratic stance of certain high-ranking judges (‘All majesty has fallen, even the majesty of the law [...] the new law is the law of lies, party law, class law, bastard law’, as the president of the German Judges Association Johannes Leeb memorably put it), and on the case

statistics originally compiled by Gumbel and others, an orthodox interpretation was established.” Long lines of continuity were drawn linking Weimar to National Socialist to West German legal practice in the Federal Republic, an argument neatly summed up in Ingo Miiller’s phrase of the ‘terrible jurists’ (furchtbare Juristen). As Karl Dietrich Bracher put it: along with a reactionary civil service and a revisionist army, Weimar political justice was a ‘wellspring of the Third Reich’.°

The orthodoxy has aged well. In 1991 and 1998, serious contributions to the debate still cited Heinrich Hannover and Elisabeth Hannover-Driick as the most influential scholars in the field—their Politische Justiz 1918-1933 dates from 1966.* Even the most recent scholarship in German, Nikolaus Brauns’ Schafft Rote Hilfe! (2003), while admirable in its empirical vigour, sees no reason at all to ques-

tion the interpretative framework of the Hannovers. On the contrary, it is an emphatic reaffirmation. Brauns opens his concluding remarks with the ‘wellspring of the Third Reich’ quote from Bracher’s preface to the Hannovers’ book, cited just above.’

One might also opt, however, to look at Gartner's trial, and at Weimar political justice generally, from a different perspective. This perspective shifts the focus from

the judges to the lawyers, and broadens the scope of our vision to take in the entirety of proceedings and not just the verdict. It is my argument that an important group of ideologically committed lawyers on both sides of the political spectrum undertook a radical redefinition of the lawyers’ role. This redefinition helped bring into existence a new paradigm for the conduct of political trials, one in which the legal outcome was subordinated to the propagandistic impact, and the

interests of the individual defendants had to yield to those of the party they represented. To illustrate what we may gain from this shift in perspective, consider this report

on Gartner's trial, submitted by Ferdinand Timpe to Wilhelm Pieck. Timpe was one of the leading lawyers on the staff of the Communist Party’s central legal office, or Juristische Zentralstelle (JZ). Pieck was the head of the Rote Hilfe (Red Aid), a cross between a humanitarian relief and a legal aid organisation with a mass mem-

* Leeb, J., “Dreierlei’, Deutsche Richterzeitung Vol. 13 (1921) No. 5, Sp.129ff., here Sp.130f. > Bracher, K.D., “Einleitung’ in Hannover, H./Hannover-Driick, E., Politische Justiz 1918-1933,

Frankfurt a.M. 1966, p.12., Jasper, G., ‘Justiz und Politik in der Weimarer Republik’, pp.9-58 in ‘Niedersachsische Landeszentrale ftir politische Bildung’ (ed.), Justiz und Nationalsozialismus, Hannover 1985, (first published in V/Z 30 (1982), pp.167—92), Reifner, U., ‘Juristen im Nationalsozialismus’, Zeitschrift fiir Rechtspolitik 1983, pp.13-19. * Nagel, I., Fememorde und Fememordprozesse in der Weimarer Republik, Kéln 1991, p.15, Bottger, M., Der Hochverrat in der hochstrichterlichen Rechtsprechung der Weimarer Republik. Ein Fall politischer Instrumentalisierung von Strafgesetzen?, Frankfurt a.M 1998, p.235. > Brauns, N., Schafft Rote Hilfe! Geschichte und Aktivitaten der proletarischen Hilfsorganisation fir politische Gefangene in Deutschland (1919-1938), Bonn 2003, p.309.

Introduction 3 bership. Far from being downcast at the harsh punishment meted out to his comrade, Timpe had this to say on the trial and its outcome: The press box in Leipzig was packed, just like the courtroom itself, thanks to advance reporting in the papers. We can now say without a shadow of a doubt that we have been on the right path all along, because the Staatsgerichtshof swallowed our bait hook, line and sinker and has sentenced Gartner to one year and three months.°

It was not to be bemoaned, but on the contrary to be celebrated that Gartner had been convicted. Moreover, as the phrase ‘swallowed our bait’ (auf den Leim gegangen) implies, the verdict was, at least to Timpe’s mind, the outcome of careful stage-management of the trial by the Communist Party. In fact, there had been scripted interventions by the party lawyers, both in court and at protest meetings, and elaborate measures to “fill up the ranks with party comrades, distribute the necessary prompters for the applause among the audience etc’.’ There were undercover payments to witnesses such as the head of the stage-actors’ union, Rickelt, and bribes to at least one newspaper reporter. Echoing the predictable outrage in the party press, all liberal dailies of national importance had covered the trial with ‘extraordinary dismay (as Timpe was pleased to note). Even allowing for an element of self-congratulation, Timpe gave an accurate assessment of the trial’s impact when he reported that the strategy to ‘utilize this case for the broadest propaganda had been vindicated and that the party had ‘achieved this great corrosive success [Zersetzungserfolg| with comparatively small means’.’

In the trial of Josef Gartner the KPD went to considerable lengths to generate publicity, dramatically emphasizing both the party’s irreconcilable enmity to the existing political order and the injustice of its persecution. It did not go to any lengths at all, by contrast, to defending and safeguarding the interests of Josef Gartner. On the contrary, Timpe was delighted precisely at the severity of his comrade’s sentence, which would make subsequent agitation all the more persuasive. Gartner was a (perfectly willing, in his case) sacrifice, his personal fate subordinated to the interest of the party in generating a performance of its ideology in court. This ‘utilization of judicial procedure for political ends’, to paraphrase Otto Kirchheimer’s famous definition of political justice, is emblematic for the conduct of political trials by extremist party lawyers. Gartner’s case opens my study precisely because the ‘literary high treason’ trials of the stability period best conform © Bundeasarchiv (Berlin) (BA[B]) RY1/12/711 Juristische Zentralstelle (JZ) der KPD Band 3, [5]f. Timpe to Pieck, Berlin 8.8.25). In a letter to KPD barrister Ernst Hegewisch (BA(B) RY1/12/711 JZ Band 3, [101]—[103] Timpe to Hegewisch, Berlin 11.9.25), Timpe reiterated this same evaluation almost verbatim: ‘In Leipzig, the Staatsgerichtshof really swallowed our bait, arrogantly dismissed Rick-

elt’s expert opinion out of hand, ordered him back into the audience and sentenced Gartner to 15 months’. Rickelt was the head of the union of stage actors and had been presented by the defence to testify to the artistic merit of “The 7000’. The court ruled against hearing him. ” BA(B) RY1/12/711 JZ Band 3, [101]-[103] Timpe to Hegewisch, Berlin 11.9.25, [102]. * BA(B) RY1/1I2/711 JZ Band 3, [5]f. Timpe to Pieck, Berlin 8.8.25. See also BA(B) RY1/12/711 JZ Band 3, [101]-[103] Timpe to Hegewisch, Berlin 11.9.25, here [101]: ‘A great agitation in the entire bourgeois press, which regarded this verdict as a violation of the freedom of art and literature. From behind the scenes, we vigorously promoted this agitation’.

4 Courtroom to Revolutionary Stage to the orthodoxy’s ‘blind on the right eye’ paradigm. Even here, the Communist Party was hardly concerned with judges, and not at all with the negative impact of their verdicts on its day-to-day operations or party morale—on the contrary. This insight is an invitation to rethink Weimar political justice, and to reframe the debate about its impact on political culture. To focus exclusively or even just primarily on judges and verdicts misses the aspect of political trials that mattered most to extremist parties—their dramatic ideological appeal. Party lawyers transformed dry legal proceedings into spectacular clashes of fundamentally opposed world-views. Supported by powerful party legal offices (which have hitherto escaped scholarly notice almost entirely), they developed a sophisticated repertoire of techniques at the intersection of criminal law and public relations. Defendants turned into martyrs, trials into performances of ideological self-sacrifice, and the courtroom ‘into a revolutionary stage’, as one of the lawyers portrayed in this study put it. It is this political justice as ‘revolutionary stage’ that

most powerfully impacted Weimar political culture. Without taking it into account, our understanding of the role of political trials in the demise of the first German democracy must remain partial. The courtroom was a privileged site of ideological combat. Carefully stage-managed by party lawyers, political trials allowed Weimar parties to present riveting spectacles of idealism, implacable conviction and heroic sacrifice—always playing off the staid and legalistic state authority embodied by the judges. Trials were compelling not just because they offered instruction about the revolutionary struggle, but because in a sense they were the revolutionary struggle, admittedly for the time being played out in the grit-your-teeth, clench-your-fist mode of the theatrical ‘as if’. Overall, the message political justice transported was that the ideological struggle left no room for fairness, that there was no possibility of a ‘neutral platform’, in short, that justice was unattainable until the Republic was destroyed. This is how political justice contributed to the breakdown of political culture that ultimately paved the way for National Socialism. For the corrosive effect of political trials on political culture, the biased verdicts of a conservative judiciary may well have been a necessary condition, but they certainly were not a sufficient one.

HISTORIOGRAPHY In 1985, Detlev Peukert’s magisterial history of the Weimar Republic was a plea to free our gaze on Weimar from the double shadow of birth in failed revolution and demise in National Socialist catastrophe. Both the Republic’s promise and its pitfalls deserved, he argued, to be considered on their own merits. In his 1996 survey of Weimar historiography, Peter Fritzsche echoed Peukert: Weimar was still viewed primarily as the prelude to catastrophe.’ Nowhere is the over-determination of the Weimar past from the vantage point of 1933 more firmly entrenched than in the

, Fritasche, P, ‘Did Weimar Fail?’, Zhe Journal of Modern History 68 (September 1996), pp.629-56, p.632f.

Introduction 5 historiography of its administration of justice. Since the sixties, we have looked at Weimar political trials primarily as harbingers of the disastrous shortsightedness of German conservative élites vis-a-vis the Nazi threat. This was undoubtedly a step forward from the apologias of the postwar period, when former judges like Hubert Schorn and Hermann Weinkauff cast the courts as principled opponents of the ‘anti-legalistic’ Nazi dictatorship.'® Three ground-breaking studies overturned the apologists’ interpretation. Friedrich Karl Kibler’s 1962 study of “German judges and democratic laws’ suggested that the judges’ ‘apolitical’ stance masked an inability to accept parliamentary legislation. Scepticism towards the content of laws vanished if those laws were passed by an authoritarian régime.'' Bernd Riithers’ 1968 study of the subversion and redefinition of legal terms to legitimise and bolster Nazi legal practice also shed a disadvantageous light on the judiciary.'* Judges were all too willing, Riithers concluded, to accept National Socialist terminology such as ‘healthy popular feeling’ and incorporate them into their judgements.

Most influential, however, was Politische Justiz 1918-1933 by Heinrich Hannover and Elisabeth Hannover-Driick, first published in 1966.'° Heinrich Hannover, himself a trial lawyer active in political cases, and his wife drew on articles published in the left-liberal Weimar journal Die Justiz to issue a practically

unqualified condemnation of the justice system. By being soft on the right and hard on the left, the judiciary had not only actively prepared the ground for the right-wing triumph over the Republic. It had moreover put into place, in at least embryonic form, everything necessary for the National Socialist abuse of the law: ‘This judicial practice—we are reluctant to call it administration of justice— prepared the ground for the concentration camps of the National Socialists’. Hannover later elaborated his view that ‘between the political justice of the Weimar Republic and that of the fascist terror state’, there was ‘a quantitative, but no essential difference.’ The Weimar administration of justice was an early incarnation of National Socialist injustice, just as the courts of the Federal Republic were its reincarnation.”

'© Schorn was a judge at the Bonn court of appeal. His study (Schorn, H., Der Richter im Dritten Reich, Geschichte und Dokumentation, Frankfurt a.M. 1959) was originally intended to carry the subtitle “The struggle of Judges and State Prosecutors against the Criminal Nazi Regime’. Wagner, A./ Weinkauff, H., Die deutsche Justiz und der Nationalsozialismus. Ein Uberblick, Stuttgart 1968. See also the discussion of the earlier scholarship in Angermund, R., Deutsche Richterschaft 1919-1945, Frankfurt a.M. 1991, pp.8—-15. "' Kubler, EK., ‘Der deutsche Richter und das demokratische Gesetz’, Archiv fir civilistische Praxis 162 (1963), pp.104—28, here p.106. Other parts of his argument are less compelling. It appears questionable, for example, whether it is really helpful for an understanding of the Weimar administration of justice to think of ‘the judge’ as turning into a ‘petty bourgeois’, exhibiting the ‘inimical position

confronting the proletariat characteristic for him [i.e. the petty bourgeois] especially during the Weimar years’ (ibid., p.113). * Riithers, B., Die unbegrenzte Auslegung. Zum Wandel der Privatrechtsordnung im Nationalsozialismus, liibingen 1968. 'S Hannover, H./Hannover-Driick, E., Politische Justiz 1918—1933, Frankfurt a.M. 1966. '4 Hannover, H./Hannover-Driick, E., Politische Justiz, p.237. '9 Hannover, H. “Max Hirschberg (1883-1964) Der Kritiker des Fehlurteils’, pp.165—79 in Redaktion Kritische Justiz (eds.), Streitbare Juristen. Eine andere Tradition, Baden-Baden 1988, p.174.

6 Courtroom to Revolutionary Stage Like the Hannovers’ work, Ralf Dahrendort’s Lawyers of the Monopoly trained the spotlight on judges and state prosecutors and set the tone for further inquiries into the supposed long-term continuities incriminating Weimar judicial practice

as well as that of the Federal Republic.’° Ingo Miiller found his subjects quite simply ‘terrible jurists’, while Theo Rasehorn, in compiling the biographies of persecuted Jewish jurists, lamented the utter demise of German ‘left-liberal culture’.'” It did not help the cause of a balanced and dispassionate inquiry that scholars who protested the Hannovers’ school’s blinkers—like Hans Hattenhauer, who demonstrated that judges, far from eager to gallop onto politically fraught turf, vacillated when forced to adjudicate political matters—were apt to fall back into apologia.’®

The orthodoxy attributed the corrosive effect of political trials on Weimar’s political mores to the courts, and in any case exclusively to the right. Perhaps the most succinct statement of this position is Udo Reifner’s, who argued in 1983 that ‘judges and public prosecutors, lawyers in the administration, professors of law and (to a lesser extent) the Anwaltschaft, too, took part in building the “Third Reich’, out of their own conviction and fully in line with their professional self-image, and

for this purpose [...] abused the institutions of the legal system’. Since the late 1980s scholars have begun to move beyond the stark dichotomy of whitewashing or demonizing Weimar justice.” Christoph Gusy found in 1991 that legal norms for the protection of the Republic were not as ineffective or one-sided as routinely asserted. In Gusy’s view, the administration of justice was deeply affected by the crisis of the political system, and contributed to, but also inhibited it.*’ Weimar parliamentary amnesties, examined in Jiirgen Christoph’s 1988 study, eroded the importance of the courts’ sentencing.” Every two and a half years on average, there was a major political amnesty, while permanent parliamentary subcommittees annulled thousands of verdicts by way of clemency. Although the courts’ politically biased sentencing promoted the perception of their necessity in the first place, political amnesties and the routine extension of clemency in turn frustrated the judiciary, '© Dahrendorf, R., Society and Democracy in Germany, London 1979, pp.221-35. '7 Miller, I, Furchtbare Juristen. Die unbewdltigte Vergangenheit unserer Justiz, Miinchen 1987, Rasehorn, T., Der Untergang der deutschen linksbiirgerlichen Kultur beschrieben nach den Lebensliufen jtidischer Juristen, Baden-Baden 1988. 'S Hattenhauer, H. “Zur Lage der Justiz in der Weimarer Republik’, pp.170—206 in Erdmann, K.D./ Schulze, H. (eds.), Weimar—Selbstpreisgabe einer Demokratie, Disseldorf 1980, for flirt with apologia see reading of Leeb quote above in idem.,Wandlungen des Richterleitbildes im 19. und 20. Jahrhundert’, pp.9—33 in Dreier, R./Sellert, W. (eds.), Recht und Justiz im ,Dritten Reich, Frankfurt a.M. 1989, esp. p.13ff. For an attack on Hattenhauer, see Jasper, G., ‘Justiz und Politik in der Weimarer Republik’, pp.9-58 in Niedersachsische Landeszentrale ftir politische Bildung (ed.), Justiz und Nationalsozialismus, Hannover 1985, (first published in VfZ 30 (1982), pp.167—92), here especially p.14f. Reifner, U., ‘Juristen im Nationalsozialismus’, Zeitschrift fur Rechtspolitik 1983, pp.13—-19. °° Aside from the work discussed in the text, see e.g. Schulz, B., Der Republikanische Richterbund

1921-1933, Frankfurt a.M. 1982 and Kuhn, R., Die ‘“Vertrauenskrise der Justiz’ (1926-1928). Der Kampf um die Republikanisierung der Rechtspflege in der Weimarer Zeit, Koln 1983. *! Gusy, C., Weimar—die wehrlose Republik? Verfassungsschutzrecht und Verfassungsschutz in der

Weimarer Republik, Vibingen 1991. See Béttger, M., Hochverrat, p.24 for a summary of arguments about Art.76 WRYV and further references. ** Christoph, J., Die Politischen Reichsamnestien 1918-1933, Frankfurt a.M. 1988.

Introduction 7 and certainly helped undermine the courts’ credibility. Marcus Béttger concludes from his 1998 study of Reichsgericht sentencing for high treason that ‘only limited areas of the criticism [of the Weimar judiciary] turned out to be correct, a large part of it [. . .] is obviously wrong’.*? While acknowledging that the ‘preparation of high treason’ norms were ‘over-stretched’ to serve as a basis for the condemnation of leftwing artists, authors and publicists like Josef Gartner, Bottger demonstrates that ‘subsuming right-wing offenders under the high treason norms was incomparably more difficult than [subsuming] Communist offenders’. Thus, more recent scholarship has yielded a more complex picture. While rejecting simple continuities between the Weimar and National Socialist legal practice, it acknowledges at times excessive leniency towards right-wing political offenders. Moreover, the centrality of judges and verdicts has come under scrutiny. Gusy’s and Martin Klemmer’s studies show judges tried to avoid adjudicating essentially political questions.” Marcus Bottger has pointed to substantial legal factors, and not only judicial bias, in explaining the differential sentencing of left- and rightwing political crime. Jiirgen Christoph’s study of political amnesties, finally, has put into perspective the practical impact of the verdicts whose one-sidedness has preoccupied scholars since the Hannovers. However, historians of Weimar political justice are still concerned primarily with National Socialism and focused almost exclusively on judges. Insofar as Weimar features at all, it does so as a prelude to Nazi rule—Ralph Angermund’s 1991 study of the judiciary 1919-1945, for example, devotes just 25 of its 300 pages to the Weimar period.”° Moreover, to this day the Hannovers’ is still the most influential position. Irmela Nagel’s 1991 study of the Feme killings and Béttger’s 1998 study of high treason verdicts both state the Hannovers’ dominance over the field outright. Nikolaus Brauns’ portrait of the Red Aid, the mass membership Proletarian Aid organization dominated by the Communist Party, reaffirms their positions, sometimes verbatim.”” Detlev Peukert argued that ‘not primarily the blockade of processes of modernisation through the old élite’s excessive attachment to tradi-

tion unsettled the Republic, but rather the especially crisis-prone dynamic of modernisation .*? Nonetheless, even Peukert’s own discussion of the administra-

*> Bottger, M., Hochverrat, p.276. ** Bottger, M., Hochverrat, pp.21-3, pp.154-224, p.275. > Gusy pointed out, for example, that the judges consciously avoided evaluating the 1918 revolution under the high treason norms, because they rightly recognised that this was a political question (Gusy, C., Weimar—wehrlose Republik’, pp.109-13). Gusy concluded that the relationship between politics and the administration of justice was ‘more complex’ than suggested by the twin slogans of ‘political justice’ and ‘enmity towards the Republic’ (ibid., p.366). Martin Klemmer showed that the

judges did not avail themselves of the theoretical positions of the contemporary Freirecht debate in order to legitimise encroaching upon the politicians’ turf (Klemmer, M., Gesetzesbindung und Richterfreiheit. Die Entscheidungen des Reichsgerichts in Zivilsachen wihrend der Weimarer Republik und im spaten Kaiserreich, Baden-Baden 1996).

*° Angermund, R., Deutsche Richterschaft 1919-1945, Frankfurt a.M. 1991. *’ Nagel, I., Fememorde und Fememordprozesse, K6ln 1991, p.15, Bottger, M., Der Hochverrat, Frankfurt a.M. 1998, p.235. °° Peukert, D.J.K., Die Weimarer Republik. Krisenjahre der Klassischen Moderne, Edition Suhrkamp

Neue Folge 242, Frankfurt a.M. 1987, p.241.

8 Courtroom to Revolutionary Stage tion of justice focuses almost exclusively on the judiciary.” A striking expression of the historiographical dominance of the traditional approach, as the judges manifestly stand for the ‘old élite’. Studying party lawyers, on the other hand, promises to illustrate the ‘especially crisis-prone dynamic of modernisation’. By focusing on the reactionary elements in the judiciary, a generation of scholars actively sought to influence contemporary (West) German debates, from the first stirrings of Vergangenheitsbewdltigung to the Historikerstreit in the mid-80s right up to the present day. Comparisons between the Weimar judiciary and the courts of the Federal Republic were readily drawn, frequently to the detriment of the latter.” This agenda lends the writing of the Hannovers’ school its polemical edge. In ret-

rospect, that commitment can make this body of work look steeped in moralintellectual righteousness, or, put more bluntly, both partisan and dated. Moreover, the orthodoxy draws heavily on Weimar polemics as source material. ‘Our task’, write the Hannovers in the introduction to Politische Justiz, is not ‘to present

hitherto unknown matters from the archives or from old files’. Rather, they aimed to reconstruct the image of politicised legal procedure ‘as it must have appeared to the interested contemporary’, i.e. the reader of ‘the documentation and reports about political justice printed in small editions, especially Die Justiz.°’ Hannover/HannoverDriick’s uncritical acceptance of Rudolf Olden’s and Erich Kuttner’s articles on the social origin of lay magistrates (Schéffen) illustrates the problems of this approach.”

Marcus Bottger recently urged that “Weimar justice now be taken out of the shadow of National Socialism and the darkest phase of the German administration of justice associated with it and subjected to an unbiased analysis’.*? Already in 1988 Wolfgang Schild, certainly no slouch when it comes to highlighting the nationalist sympathies of interwar judges, decried the poor empirical base on which sweeping judgements about the Weimar administration of justice were passed. He identified ‘a need for many more studies [...] which take the individual case seriously and do not just regard it as an instance of a previously known pattern of general validity’. Observing that both left and right subjected the judiciary to relentless criticism, Schild concluded that ‘it should be asked whether the judiciary did not pose an obstacle for all radical movements of the Weimar Republic, which had to be kept under fire incessantly’ .** This my study sets out to do. * OK OK

” Peukert relies primarily on Gotthard Jasper (Peukert, D.J.K., Die Weimarer Republik, pp.218—21).

°° Rasehorn, [., Der Untergang, p.40, Hannover H.,/Hannover-Driick, E., Politische Justiz, p.236. °' Hannover, H./Hannover-Driick, E., Politische Justiz, p.13. °° ‘The issue of lay magistrates was problematical for left-wing critics of the administration of justice, because their function was to provide an element of popular control of the judiciary. The judges favoured the right because of the attitudes imbibed from their social peers, but what about the judgements passed by courts with a lay element? For Olden and Kuttner, and following them Hannover and Hannover-Driick, the explanation was to be sought in the judicial administration manipulating (or through bias skewing) the selection of lay magistrates. A random sample of court protocols consulted in the course of my own research, in contrast, yielded a much less dramatic underrepresentation of workers (29/100 lay magistrates) than asserted in the literature (see Appendix B). °° Bottger, M., Hochverrat, p.2. * Schild, W., “Berithmte Berliner Kriminalprozesse der Zwanziger Jahre’, pp.121—92 in Ebel, F/Randelzhofer, A. (eds.), Rechtsentwicklungen in Berlin, Berlin 1988, p.124, p.127. Unless otherwise

Introduction 9 It is symptomatic both of the priorities of the orthodoxy and its hold over the field that trial lawyers have only recently begun to attract attention, broadly speaking from three directions. First, the fate of Jewish lawyers—for whom the judicial bench was de facto closed—has been studied, e.g. by Tilmann Krach and Simone Ladwig-Winters.* This development formed part of the historical profession’s increasing focus on the Shoah over the past thirty years—Saul Friedlander’s Nazi Germany and the Jews, for example, discusses lawyers in some detail. However, as Krach himself acknowledges, the lawyers in question would scarcely have defined themselves by their Jewish origins. Many of them were atheists, non-practising, or converts. To treat them separately from their non-Jewish colleagues is thus in a sense to project the Nazi definitions backwards. Secondly, historians of the professions such as Konrad Jarausch, Hannes Siegrist and Kenneth Ledford have over the past two decades looked at lawyers as instances of broader trends in social and economic history. They have found that the struggle for recognition, increasing specialization, and interest politics that accompany professionalization weakened the lawyers’ commitment to liberalism, and made them susceptible to the lure of National Socialism.*° While these studies contain a wealth of information and insights about the social composition, changing income patterns, religious affiliation, and even marriage preferences of Weimar lawyers, the kinds of questions professional histories ask do not speak to this study's objectives. As Siegrist himself points out, the role of ‘politicising trial lawyers has been underestimated’.*’ Knowing how much lawyers earned on average and at what age they married does little to explain why a vocal and visible minority threw the iron prin-

ciples of the bar—unconditional commitment to the client and independence from outside influence—overboard. Most recently, individual lawyers have attracted scholarly attention, and it is under this viewpoint that political lawyers, too, have come under a modicum of scrutiny. Some have been singled out for criticism as particularly dark specimens (Ortner’s biography of Roland Freisler, or Schenk’s of Hans Frank), others held up as the exceptions that prove the rule. Douglas Morris’ meticulously researched, exhaustively detailed book on Max Hirschberg is a recent (and fine) contribution in this mould.** Mostly, however, these individual biographies are interested in

stated, the addage ‘Berlin’ in works cited and published between 1947 and 1989 refers to the western part of the city. °° Krach, T., Jiidische Rechtsanwalte in Preufsen, Miinchen 1991, Ladwig-Winters, S., Anwalt ohne Recht. Das Schicksal jiidischer Rechtsanwalte in Berlin nach 1933, Berlin 1998. °° Jarausch, K., The Unfree Professions. German Lawyers, Teachers and Engineers 1900-1950, Oxford 1990, Siegrist, H., Advokat, Birger, Staat. Sozialgeschichte der Rechtsanwalte in Deutschland, Italien und der Schweiz (18.-20. Jhd.), Studien zur Europaischen Rechtsgeschichte 80, Frankfurt a.M. 1996, Ost-

ler, E, Die deutschen Rechtsanwiilte, 2.ed., Essen 1982, Ledford, K., From General Estate to Special Interest. German lawyers 1878-1933, Cambridge 1996. For a survey of professionalisation scholarship see Abel, L., American Lawyers, New York 1989, pp.14—39. °” Siegrist, H., Advokat..., vol.2, p.578f., cf. Ledford, K., General Estate, p.284, {n.34.

°§ Ortner, H., Der Hinrichter, Gottingen 1993, Schenk, D., Hans Frank. Hitlers Kronjurist und General gouverneur, Frankfurt a.M. 2006, Morris, D., Justice Imperiled. The Anti-Nazi Lawyer Max Hirschberg in Weimar, Ann Arbor 2005.

10 Courtroom to Revolutionary Stage their subjects not so much for what they did in the courtroom (and how) as for their subsequent misdeeds as Nazi perpetrators or, alternatively, their credentials as democrats-despite-everything. The exception to this rule is Benjamin Carter Hett’s work, which in many

ways prepares the ground for my argument. Hett’s Death in the Tiergarten highlights changes in the legal culture of the late empire that mark one of the starting points to my argument about the politicization and dramatization of justice in the Weimar Republic. Crossing Hitler, meanwhile, focuses on a particularly high-profile set of trials and a fascinating lawyer, Hans Litten. While it avoids the pitfalls of other biographies, it still tends to portray Litten in isolation. This has to do both with the chosen form—a biography is a biography—and the chosen subject, like many of his Weimar peers a highly idiosyncratic lawyer. Characterizing Litten, Hett hints at the difference between political and ‘normal’ lawyers: ‘Litten [...] would be a new kind of lawyer. German trial lawyers in the early twentieth century were no different from lawyers in any other time and place in believing that their job mostly demanded the gentle art of persuasion’. Citing the prominent left-liberal journalist Rudolf Olden’s reminiscences, the author continues: ‘Hans Litten was never this kind of lawyer. His radicalism,

according to Olden, was not a matter of form; it was a matter of substance: “Questions and requests for evidence [...] sometimes seemed to encompass remote subjects, even the whole structure of the state, when the case seemed to be only about a street brawl.”’ Hett’s work, however, stays focused on Litten rather than following up on this new type of lawyer.*’ The handful of political barristers besides Litten whose prominence attracted individual biographical treatment have been discussed in similar isolation, mostly without attaining Hett’s level of contextualization.”° Only the lawyers working on behalf of the Red Aid have attracted scholarly notice as a cohesive group. Petra Gangel’s 1985 dissertation at the Hochschule fiir Politik,

Potsdam, a German Democratic Republic cadre school, argued that Red Aid

»° Hett, B.C., Crossing Hitler. The Man who put the Nazis on the Witness Stand, New York 2008, pp.52-53. “© Beradt, C., Paul Levi. Ein demokratischer Sozialist in der Weimarer Republik, Frankfurt a.M. 1969, Knobloch, M./Reifner, U., ‘Der “kommunistische” Anwalt und die freie Advokatur—Zur Biographie von Ernst Hegewisch (1881—1952)’, pp.23—35 in Fabricius-Brand, M.., (ed.), Rechtspolitik

mit aufrechtem Gang: Werner Holtfort zum 70. Geburtstag, Baden-Baden 1990, Trotnow, H., Karl Liebknecht. Eine politische Biographie, K6ln 1980, esp. pp.56—-72, Heid, L., ““Er ist ein Ratsel geblie-

ben” Oscar Cohn—Politiker, Parlamentarier, Poale-Zionist’, pp.25-48 in Benz, W. et al. (eds.), Jtidisches Leben in der Weimarer Republik, Schriftenreihe wissenschaftlicher Abhandlungen des LeoBaeck-Instituts 57, Tubingen 1998. Bendix, R., Von Berlin nach Berkeley, Frankfurt a.M. 1985, contains valuable biographical information on his father, SPD lawyer Ludwig Bendix. Redaktion Kritische Justiz (eds.), Streitbare Juristen contains individual portraits of political lawyers Max Hirschberg, Hans

Litten, Felix Halle, Rudolf Olden and Karl Liebknecht as well as other interesting biographical sketches such as Gerhard Jungfer’s portrait of Max Alsberg.

Some NS lawyers have also attracted scholarly attention. They too, are portrayed in isolation from their peer group of party lawyers. (Schudnagies, C., Hans Frank. Aufstieg und Fall des NS-

Introduction 11 barristers propped up democratic culture in the Weimar Republic against the excesses of ‘reaction’. Communist Party barristers in particular formed the vanguard of democracy’s defenders in Gangel’s narrative, unsurprisingly given that her thesis was supervised by Hilde Benjamin. Nicknamed the ‘Red Guillotine’ because of her enthusiastic embrace of the death penalty, Benjamin was the first female Minister of

Justice in the GDR and had been a Weimar party lawyer herself. Gangel’s study omits key documents that throw light not just on the antidemocratic practice of the Communist party legal organization but also on bickering amidst its lawyers and their abuse of their (Communist) clients’ trust. In addition, the author downplays the role of Social Democrat lawyers in the Red Aid, and totally discounts similarities between Communist barristers and their National Socialist colleagues.

While such ideological blinkers are no surprise in a product of official GDR history, similar constraints of vision also limit more recent work on Red Aid lawyer collectives. Erika and Josef Schwarz and Heinz Jiirgen Schneider's collection of lawyer biographies and Nikolaus Brauns’ study of the Red Aid, from 2002 and 2003, respectively, on the whole recount Gangel’s narrative. Though more nuanced—Brauns, for example, discusses the Stalinist purge the Red Aid suffered in 1929, as well as a violent anti-Semitic attack on a party lawyer by a Communist functionary—in general they offer a celebration of left-wing barristers bordering on the hagiographic. While many Red Aid barristers really were courageous and far-sighted stewards of procedural guarantees and stalwarts in the struggle for democracy, many others, as we will see, were not. In particular, Communist barristers organized by the party legal office combated Weimar democracy just as fervently as their enemies on the nationalist right. The failure to appreciate this stems from a continued interest in operating the history of Weimar justice as a vehicle for lambasting Federal Republican political culture. In his foreword to the Schwarz’s and Schneider’s book, Heinrich Hannover writes that the Red Aid lawyers ‘were the representatives of the other Germany, which the collectively guilty majority ought to have remembered during the time when its own history shamed it, or ought to have shamed it.’

An opportunity wasted, and wasted for all the wrong reasons: in West Germany ‘historical achievements of Communists could not possibly be admitted to be true, and continued to fall victim to the censorship of silence [ Verschweigen]. To remember them would have been an obstacle to the renewed persecution of Communists, which continues to this day.’ A victory of wilful neglect orchestrated by the ‘historians of the powerful’, in other words.*! Juristen und Generalgouverneurs, Rechtshistorische Reihe 67, Frankfurt a.M. 1989, KlefSmann, C., ‘Hans Frank—Parteijurist und Generalgouverneur in Polen’, pp.42—51 in Smelser, R./Zitelmann, R. (eds.), Die Braune Elite I. 22 Biographische Skizzen, 2.ed., Darmstadt 1990, Fest, J., “Hans Frank. Kopie eines Gewaltmenschen’ in Das Gesicht des Dritten Reiches. Profile einer totalitiren Herrschaft,

4.ed, Miinchen 1975, Prank, N., Der Vater. Eine Abrechnung, Minchen 1987, Ortner, H., Der Hinrichter, Gottingen 1993 (a biography of Roland Freisler), Heydeloff, R., “Staranwalt der Rechtsextremisten. Walter Luetgebrune in der Weimarer Republik’, V/Z 32 (1984), pp.373-421). “| Hannover, H., ‘Vorwort’,, p.7—8 in Schwarz, E./Schwarz, J./ Schneider, H.-J., Die Rechtsanwéilte der Roten Hilfe Deutschlands. Politische Strafverteidiger in der Weimarer Republik. Geschichte und Biog-

raphien, Bonn 2002.

12 Courtroom to Revolutionary Stage RETHINKING WEIMAR POLITICAL JUSTICE This book offers a rethink of the highly entrenched orthodox interpretation of Weimar political justice. I deliberately use the word ‘rethink’ rather than ‘revision’ because—methodological misgivings and question marks over partisan commitment notwithstanding—there is nothing wrong with the orthodoxy’s basic empiri-

cal contention. Judges and state prosecutors indeed tended, for a whole host of reasons, to sympathize with the far right while victimizing left-wingers. My work does question, however, whether that sympathy explains as much as we are commonly asked to think, both about the course of trials and about these trials’ collective impact on Weimar political culture. More glaring an omission than the failure to honor Communist defendants from the Weimar years Heinrich Hannover bemoans is the absence of scholarship that con-

siders Communist and Nationalist lawyers side by side. Quite apart from making accessible for the first time in English virtually all the scholarship referenced above, it is here that my study innovates most clearly. For the aggressive recasting of the trial lawyer's role and the propagandistic opportunities it offered Weimar extremist parties was a project the lawyers in this study pursued collectively (if not always collaboratively). Collectively, party lawyers fashioned a new ideal type and created a novel style of judicial polemics. This new style tended to undermine democracy both overtly and structurally, that is to say through the polemical content of the trials just as much as through eroding any notion of a neutral platform for arbitrating ideological disputes.

The impact of political justice on Weimar politics owed more to the barristers’ presentation of trials as ideological clashes than to the direct incidence of verdicts. The lawyers’ willingness to subordinate the interests of their clients to a dramatic representation of ideological implacability gave this new legal style extraordinary purchase on public opinion. By comparison, judges played a static and predictable role, while frequent political amnesties reduced or even annulled the consequences of their sentencing. We ought therefore to look not only at judges and verdicts, but at other participants in the legal process (and by no means only lawyers—court reporters, state prosecutors, expert witnesses are surely all worthy of consideration) and generally at the dynamics by which trials affected political culture.” In Peukert’s wake, and with Wirsching, Fritzsche and Thomas Mergel, my study is predicated on a reading of Weimar as essentially open-ended. In his recent study of Weimar parliamentary culture, Mergel privileges a close, ‘anthropological’ reading of the rhetoric, symbols, habitus and performative elements that structured and qualified interactions in the Reichstag. My study does the same with the courtroom, and like Mergel I have selected an empirical basis that holds out the possibility of bridging the historiographical gap between the study of society and culture and the study of politics. In ‘contrast to social history or the history of mentalities, a certain teleological bend [Finalismus] seems to adhere to political history [...] *” Siemens, D., A Popular Expression of Individuality, Kriminalitat. Justiz und Gesellschaft in der Gerichtsberichterstattung von Tageszeitungen in Berlin, Paris und Chicago, 1919-1933 (Ph.D. Diss, Humboldt-Universitat zu Berlin) 2005, Fulda, B., Press and Politics in the Weimar Republic, Oxford 2009.

Introduction 13 Weimar history, in so far as it is written from the vantage point of 1933, is informed by a set of assumptions about politics which in principle repeat many of the charges already laid against Weimar politics by contemporaries’, Mergel argues.*° In the study of political justice, an exclusive focus on reactionary judges and a preoccupation with number-crunching verdicts has obscured precisely that aspect

which most affected contemporary observers: its drama. At the same time, the partisanship that continues to spill over from Weimar’s ideological battles into contemporary historiography masks the extent to which the anti-Republicanism of left and right were interconnected, and often interdependent. In stressing the extremes mutual imitation of legal techniques and the similarity of their personnel and strategies, my study applies recent insights from scholars such as Emilio Gentile and Andreas Wirsching to Weimar legal history. Wirsching stresses both the dynamism and the emotional appeal of Fascist and Communist community building. Being a member of either movement was not so much about a set of convictions and policies as it was about a sense of belonging, a collective way of life and participation in a political aesthetic.** My reading of Weimar political justice suggests that trials reinforced all three, and infused them with the emotional appeal of sacrifice during the ‘vanguard’ stage of battling the established order. In a similar vein, Hans Maier has suggested that Emilo Gentile’s rethinking of Eric Voegelin’s concept of political religion is so influential because it helps explain the ‘tremendum and fascinosum’ of totalitarian regimes.” As the exaltation of icons of antijudicial propaganda of left and right like Josef Gartner, Max Holz and Paul Schulz will illustrate, building this fascination preceded victory and helps explain it.

DEFINITIONS AND SOURCES At first sight, the strong distinction my argument makes between political and non-political’ justice may appear exaggerated, even naive. Is not the modus operandi of all judicial systems deeply political? Otto Kirchheimer’s definition of ‘polit-

ical justice—'the use of judicial procedure for political ends’-—is the most frequently quoted.” It is usually ignored, however, that in defining political justice, ‘S Mereel, T., Parlamentarische Kultur in der Weimarer Republik. Politische Kommunikation, symbol-

ische Politik und Offentlichkeit im Reichstag, Beitrage zur Geschichte des Parlamentarismus und der politischen Parteien 135, Dusseldorf 2002, p.14. “ Wirsching, A., Vom Weltkrieg zum Biirgerkrieg? Politischer Extremismus in Deutschland und Frankreich 1918—-1933/39. Berlin und Paris im Vergleich, Minchen 1999.

* Gentile, E., The Sacralization of Politics in Fascist Italy, Cambridge, MA 2006, idem., Politics as Religion, Princeton 2006, Schénpflug, D., “Histoires croisées: Francois Furet, Ernst Nolte and a Comparative History of Totalitarian Movements’, European History Quarterly, 37 (2007), No.2, pp.265—90, p.267.

“6 Heinrich Hannover and Elisabeth Hannover-Driick and Gotthard Jasper open their accounts with Kirchheimer (Hannover, H./Hannover-Driick, E., Politische Justiz 1918-1933, Frankfurt a.M. 1966, p.13; ‘Justiz und Politik in der WR’, pp.11—58 in Jasper, Gotthard et al., /ustiz und Nationalsozialismus, p.11). Axel Gérlitz regarded Kirchheimer’s ideas as the starting point for the reworking of the definition which he proposed (GGrlitz, A. (ed.), Politische Justiz, Schriften zur Rechtspolitologie 3, Baden-Baden 1996) and contributors to his collection of essays such as Manfred Walther engage with Kirchheimer’s position as the dominant voice in the field.

14 Courtroom to Revolutionary Stage Kirchheimer moved from a more rigid take focusing on types of offence to a more

contextualized one. By the time he published his seminal Political Justice, the offence was only one feature that could make a trial political, next to the ‘stature’

of the persons or groups involved, the degree of public interest and the consequences of a trial.*” Since Kirchheimer, theoreticians of political justice have sought to establish a ‘scientifically grounded’ dividing line between ‘normal’ and ‘political’ justice—largely in vain.*

My study proposes a pragmatic handling of the definition. During the Weimar Republic, contemporaries agreed that regardless of any ‘normal’ politicization of justice, the courts had become an ideological battleground. This perception of the ‘hyper-politicization’ of certain trials was tied to the involvement of political parties, to certain types of offences such as conspiracy to high treason, and, last but not least, also to certain barristers. ‘Political justice’ is what (a reasonable number of) contemporary commentators and a broader public saw as such. Analogous pragmatic definitions are used for ‘political trial’ and ‘political’ or ‘party lawyer’. Focusing on party barristers brings into view a number of archival sources hitherto either untapped or very unevenly mined, and almost entirely inaccessible to English readers. ‘The files of the KPD legal organisation in the Bundesarchiv Berlin have only become freely available since re-unification. They highlight the degree of party control over lawyers and the political priorities governing their pleading. The files of the party legal organisations are complemented by the disciplinary files and personal papers of individual lawyers. For nationalist legal aid, Hans Frank’s Munich practice is of special significance, as it was practically contiguous with the nascent National Socialist legal organisation between 1928 and 1931. Though incomplete, the record complements the files of the organisation itself, and the state prosecutors files of the Berlin court of appeal in the Berlin Landesarchiv and Geheimes Staatsarchiv PreufSischer Kulturbesitz. Memoirs and newspaper coverage of political trials provide additional information on party legal aid and on the barristers’ self-consciously political re-interpretation of the trial lawyer role. Moreover,

party lawyers wrote in the daily press, in professional journals, in pamphlets and monographs themselves, reflecting on their view of judicial procedure as part of

“’ Cf. Kirchheimer, O., ‘Politische Justiz’, Sociologica 1 1955, reprinted in idem., Politik und Verfas-

sung, 2.ed., Frankfurt a.m. 1981, pp.96-122, here especially pp.102—14 and Kirchheimer, O., Politische Justiz: Verwendung juristischer Verfahrensmoglichkeiten zu politischen Zwecken, Neuwied 1965, pp.80—90, especially pp.82-3. “8 Hannover/Hannover-Driick ‘understood the term “political justice” in the widest sense’ and ‘felt legitimised to take in everything which could throw light on the connection between politics and the administration of justice’ (Hannover, H./Hannover-Driick, E., Politische Justiz, p.13). Later on, Heinrich Hannover defined the ‘political dimension of the law’ as the ‘instrumentalisation of penal law as a political weapon of the ruling class’ (Hannover, H. ‘Max Hirschberg (1883-1964) Der Kritiker des Fehlurteils’, pp.165—79 in Redaktion Kritische Justiz (eds.), Streitbare Juristen. Eine andere Tradition,

Baden-Baden 1988, here p.178). Gotthard Jasper (‘Justiz und Politik in der Weimarer Republik’, pp.11—58 in Jasper, et al., /ustiz und Nationalsozialismus, here pp.11—2) uses both Kirchheimer’s and a wider Marxist definition. Axel G6rlitz and Manfred Walther postulate the need for a ‘scientifically

grounded definition’ but ultimately find none (Gérlitz, A., ‘Modelle politischer Justiz’, pp.9-24 in Gorlitz, A. (ed.), Politische Justiz, Schriften zur Rechtspolitologie 3, Baden-Baden 1996, pp.9-10., and Walther, M., ‘Arenen politischer Justiz: Sondergerichtsbarkeit’, ibid, pp.31—-90).

Introduction 15 the political struggle. Transcripts of parliamentary debates, the published reminiscences of non-political lawyers and the files of the Reich Commmissariat for the Protection of Public Order have also been consulted. Finally, the digests of verdicts passed by the disciplinary bodies of the bar throw light onto the (often fraught) relations of political barristers with their non-political peers.

CHAPTER STRUCTURE This study is structured in five chapters, briefly outlined here. The nonchalance with which Ferdinand Timpe, himself a barrister, treated the sentencing of Josef Gartner indicates a fundamental shift in the self-image of lawyers. Only where extremist party lawyers like Timpe no longer defined themselves as the uncompromising champions of their individual clients’ interest was a ‘defense’ like Gartner’s

possible. As well as providing an introduction to the German legal system via a short history of the legal profession after 1870, chapter one traces this shift to Rosa Luxemburg’s ‘militarism trial’ on the eve of World War One. The trial, dramatic in itself, formed the backdrop to a heated dispute over legal strategy within the Social Democratic Party. A tightly knit group of ideologically committed and rhetorically savvy young lawyers around Paul Levi rejected the notion of the ‘apolitical’ sanctity of the courtroom outright. Procedural even-handedness to them was a myth, the court a political battlefield where class solidarity and sacrifice must override any ‘legalistic’ concern with an individual client's fate. The template for Weimar party lawyers of all stripes was fashioned in this controversy.

Chapter two introduces the protagonists of Weimar political defence work, based on ten political lawyers from across the ideological spectrum. As well as sketching their biographies, the chapter considers the lawyers’ career patterns, their distinctive self-view, and highly politicized conception of judicial procedure. Rela-

tions with non-political peers were often tense, as were interactions within the group of party lawyers, inside and between political camps. And yet, I argue, carving out the niche of political specialists in the bar was their collective accomplishment. Their professional ethos, while contrasting starkly with received norms of lawyerly conduct, was in important ways shared across ideological boundaries. It rationalized their abrasive and at times flamboyant style of pleading as well as their

subordination to party discipline. While highly individualistic, the barristers formed a distinctive group without whose contribution the politicization of Weimar justice is hard to account for. Chapter three discusses the legal organization the Communist Party built up to administer and publicize political trials. Despite their professions of ideological discipline, harnessing the often volatile, headstrong and individualistic party lawyers to acoherent political strategy proved tricky. The Communist Party pioneered the standardization of legal aid and the propagandistic exploitation of trials by ingeniously combining both in one in-house law office. ‘The highly innovative KPD party legal organization grew rapidly—eventually employing a full-time staff of fourteen handling tens of thousands of cases—and enjoyed a high visibility both

16 Courtroom to Revolutionary Stage within the party and outside it. Its genesis and mode of operation are laid out using

the celebrated trial and rehabilitation campaign of Max Hélz, the ‘Communist Robin Hood’, as a case study. Even though the Communist Party legal organization attracted the wrath of its

political opponents, these same opponents also grudgingly admired its success. Nationalist attempts at imitating it are discussed in chapter four. From 1922 onwards, right-wing organizations from the German Nationalist People’s Party to the Patriotic Prisoners Aid (Vaterlandische Gefangenenhilfe) tried to adapt the KPD’s formula of combining legal aid and trial-based propaganda in cases like the so-called Feme murders. By and large, however, such attempts at imitation were

unsuccessful until Hans Frank founded the Association of National Socialist German Lawyers in 1928. By 1930, more than 200 lawyers had joined Frank’s organization, a success that prompted rival NS legal organizations to challenge Frank’s exclusive claim to legally represent Hitler and the NSDAP, as the case of the ‘Potempa Five’ illustrates.

Chapter five argues for a re-conceptualization of Weimar political trials as the performance of ideology. Stressing the ritualistic nature of mass pageants, Erika Fischer-Lichte has recently argued that interwar theatrical innovations modernized and dramatized the notion of sacrifice as a catalyst for the construction of community.” The same is true of political trials, where a community of fundamental opposition to the Weimar political order was played out. In political trials, Weimar extremists styled themselves fiercely committed idealists who, in their sacrifice, foreshadowed the victorious ideological community of the future—with the inertia and legalism of the judges as foil. Courtroom performances of ideology moreover resonated with trends in contemporary theatre, where innovators like Brecht, Piscator, and the protagonists of agitprop were seeking to break down the boundaries between politics and art. * OK © Fischer-Lichte, E., Theater, Sacrifice, Ritual. Exploring Forms of Political Theatre, New York 2005,

pp.17-45.

The Rosa Luxemburg Trials of 1914 and the Emergence of the Ideal Type of the Weimar Party Lawyer On 13 May 1914, Rosa Luxemburg learned that she was to stand trial for slandering the German Army. ‘Anti-militarism’ was a popular vehicle for the fundamental political opposition of the Social Democratic Party’s left-wing, and Rosa Luxemburg was its most prominent exponent.' In February 1914, she had already been sentenced to 12 months for sedition. Denouncing that verdict at a Freiburg rally in March, Luxemburg did not mince her words: drill and initiation rites were ‘torture’, ‘inhumanity’ was endemic in the armed forces. Once again, the Berlin state prosecutor's office indicted her, this time for insulting the honour of the German officer corps. Ominously for Luxemburg, Prussian Minister for War von Falkenhayn personally joined proceedings as associate plaintiff (Nebenkliger).* Going to trial on the back of a prior conviction dating from only a few months earlier, the defendant certainly had reason to be worried. Far from downcast, however, Rosa Luxemburg greeted the news of her prosecution with glee. Here is what she wrote to her lawyer (and lover at the time), Paul Levi, on learning the news: “What do you think, darling, how fantastic! It’s a prosecution from War Minister von Falkenhayn’.* For Rosa Luxemburg and her legal team, the prosecution was not so much a judicial threat as a political opportunity, a chance to continue the anti-militarism rallies in a different forum. The issue of officer brutality, an important pillar of the Social Democrats’ attack on militarism, imperialism, and Wilhelmine monarchy would be rehearsed under public scrutiny in Open court. Underpinning this strategy was the ‘proof of allegation’ defence for which German defamation law provided. Under the ‘Wahrheitsbeweis, Luxemburg could contest the charges by conceding that yes, she had insulted the armed forces but ' Stargardt, N., Zhe German Idea of Militarism. Radical and Socialist Critics, 1866-1914, Cambridge

1994, pp.112-17, 131-7. * Archiv der sozialen Demokratie (AsD) Nachlass (NL) Levi Mappe 255 [non-foliated], Anklageschrift, Staatsanwaltschaft Berlin, 20.5.14. Por Luxemburg’s earlier conviction see Harmer, H., Rosa Luxemburg, London 2008, pp.91-6 and Kreiler, K., Traditionen deutscher Justiz: Grofse politische Prozesse der Weimarer Republik, Berlin (Ost) 1978, p.12. > Luxemburg, R., Gesammelte Briefe, vol. 5, Berlin 1984, p.435; 13.5.1914, quoted following Fernbach, D., ‘Rosa Luxemburg’s political heir: an appreciation of Paul Levi’, New Left Review No.238 (1999), pp.3-26, here p.6. Levi is one of the ten party lawyers portrayed in chapter two.

18 Courtroom to Revolutionary Stage that substantially, her allegations were true.‘ The real objective of this aggressive legal strategy would be ‘putting the Minister of War on the spot’, as Paul Levi put it, by parading hundreds of abused recruits through the witness stand. The rewards came at a price, though. Levi's strategy was only effective if the defendant was prepared to privilege the trial’s propagandistic exploitation over arguments for an acquittal. Ihe more aggressively Luxemburg repeated her allegations of army brutality during her defence, the less likely the court was to find any extenuating circumstances in her favour, as she well knew. In pursuing this agenda, Luxemburg and her lawyers met resistance from an unexpected quarter: their own party. The militarism trial of 1914 brought a longsimmering dispute over legal strategy within the Social Democratic Party to a head. The controversy turned on the question of the ‘apolitical’ sanctity of the courtroom, a notion which an older generation of party grandees upheld but which a tightly knit group of ideologically committed and rhetorically savvy young lawyers around Paul Levi rejected outright. To the younger lawyers, procedural even-handedness was a self-serving myth peddled by the ruling classes, the court a political battlefield where class solidarity and sacrifice must override any ‘legalistic’ concern with an individual client’s fate. Even when Socialist lawyers argued against the state, doing so in narrowly legal terms and adopting the docile, ‘dignified’ behavior expected of ‘objective’ lawyers was tantamount to acquiescing in a legal system fundamentally skewed towards the preservation of the status quo. We can trace the emergence of the ideal type of the Weimar party lawyer to this heated dispute over legal strategy in Rosa Luxemburg’s trial. Paul Levi, Kurt Rosenfeld, Karl Liebknecht and others argued that the Social Democrat barristers’ task went far beyond the defence of individual defendants. Trials should not be mis-

taken for what they purported to offer—some sort of level playing field—but exposed as another arena of the class struggle. Rather than accepting the framework of the Wilhelmine legal system, and be it just implicitly, Social Democrat lawyers had to point out the fundamentally flawed and partisan nature of legal procedure, from the content of the law via the practices of its application to the personnel to whom the administration of justice was entrusted. In the eyes of this new generation of political lawyers, the sacrifice of individual party members that this aggressive strategy at times called for was regrettable, but unavoidable. It is important to understand that Levi's vision of using trials not (just) to argue a case, but to attack the fundamental legitimacy of the Empire itself did not materialize out of thin air. Multiple causal strands fed the long-running dispute over accommo* The Wahrheitsbeweis is not a German idiosyncrasy. As one of my anonymous reviewers helpfully pointed out, truth is a defence to a defamation action in practically all jurisdictions. German defamation law, however, also provides for the prosecution of content-free gratuitous insult (Formalbeleidigung, §185 Strafgesetebuch, StGB), where proof of truth is irrelevant. Another common strategy was to invoke the ‘representation of legitimate interests’, (Wahrnehmung berechtigter Interessen, §193), which, even if it was rejected for the defendant, indemnified practically all allegations made by counsel in court. See von Olshausen, J., Kommentar zum Strafgesetebuch fur das Deutsche Reich, 8. revised edi-

tion, Berlin 1909, Kuhl, F, Der Wahrheitsbeweis bei einem nach $185 eingeleiteten Strafverfahren, Leipzig 1934, Berndt, K., Der Wahrheitsbeweis bei Injurien und seine Beschriinkungen unter besonderer Berticksichtigung der modernen Strafgesetzentwtirfe, Breslau 1915.

The Rosa Luxemburg Trials of 1914 19 dating or confronting the state authorities in court. By no means all were ideological or political: the emancipation of the German bar from branch of the civil service to free profession, the pressures of increased competition, specialization, and increased media interest in trials all played a role.’ Overlapping and mutually reinforcing one another, they both made possible and accelerated the politicization of justice on the eve of the war. These developments, apolitical in themselves but with far-ranging implications for the radicalization of political defence work will be examined at the outset, followed by a brief characterization of ‘old style’ Social Democrat legal practice. The second part of the chapter focuses on the Luxemburg case, which crystallized the opposing camps’ attitudes and brought out into the open the split over the use of judicial procedure for Socialist ends.

WILHELMINE LEGAL CULTURE AND ITS DISCONTENTS The emancipation of the German legal profession To understand the revolution in judicial culture wrought by Levi and his nonpolitical forerunners, we must first get a sense of the background against which it

unfolded. A decree issued by Kaiser Wilhelm II in response to the scandalous Heinze trial of 1891 provides a sketch of this background im nuce. Accused of murder, the pimp Hermann Heinze, his prostitute-wife Anna and his brother Rudolf were ultimately acquitted, causing a storm of moral outrage in the bourgeois press. The aggressive tactics of lawyers Alfred Ballien and Richard Cossmann prompted not just their professional censure, but much more wide-ranging calls for curtailing the recently won freedoms of the legal profession. As the Kaiser’s decree put it: [R]ules will be discussed which will prevent defence counsel from forgetting their duty

to contribute to the determination of truth and prevent them from making it their task to help injustice to victory, and be it by frivolous means [...] finally, it appears to be required that publicity be curtailed in cases in which the most serious moral crimes form the substance of the proceedings.°

Lawyers risked forgetting their duties, their obstructionism and frivolity threatened the judicial process, and publicity was the oxygen such abuse required. Even though the threatened clamp-down did not come to pass, ‘the early Wilhelmine courtroom was not a friendly environment for the conduct of an aggressive criminal defence’, as legal historian Benjamin Carter Hett notes.’ > Benjamin Carter Hett has recently (and masterfully) traced the changing ‘culture of the criminal courts in the late empire. Following Michael Stolleis and without focusing especially on the political implication of these changes, Hett argues that legal theorists (Kelsen, Laband, Windscheid) and judicial practitioners (Alsberg, Sello, Friedmann) transformed a consensual, rigid and legalistic courtroom culture into one more amenable to ‘aggressive defense’ strategies. Hett, B., Death in the Tiergarten. Murder and Criminal Justice in the Kaiser’s Berlin, Cambridge 2004, pp.4—8.

° Decree of 22.10.1891, quoted in Hett, B., Death in the Tiergarten, p.86. ’ Hett, B., Death in the Tiergarten, p.8.

20 Courtroom to Revolutionary Stage Emancipation from the state had been a long and hard-fought battle for the legal profession in Germany. The Constitutio Criminalis Carolina, decreed around 1510, had accorded a relatively independent status to the defence counsel. In 1713, however, Prussian monarch Friedrich Wilhelm I drastically slashed both the number and the income of Berlin Obergerichtsanwalte. Legal counsellors had to make do with a quarter of their previous rates, and were moreover required to wear a black robe as an outward sign of their office. Berlin lawyers despised the robes, which they regarded (probably correctly) as a deliberate stigmatization.® In 1780, Frederick the Great’s Minister of Justice von Carmer turned the insti-

tution of the defence counsellor into a branch of the civil service. Lawyers were officers employed and paid by the court rather than by litigants or defendants. One hundred and fifty-five years later, exiled SPD barrister and journalist Rudolf Olden commented: Frederick William felt the deepest antipathy towards advocates, and his great son abolished them without hesitation. The existence of an influential estate was supposed to be grounded on the possibility of identifying two equally admissible views of one and the same legal dispute? The truth was to be discerned in the battle of words, through dialectic? That, to the two great Prussian kings, appeared as open, malicious fraud, an

invention of the devil [...] In Prussia, the administration of justice has remained the lowliest of the state’s functions, and within it, advocacy has been viewed as a problematical and not quite respectable vocation.’

Apprehensions about the political reliability of the bar indeed continued to dog the efforts to reverse von Carmer’s reform in Prussia.'® In 1861, for example, the organ of the Prussian judiciary, PreufSische Gerichtszeitung, weighed in against free advocacy. An ‘accumulation of under-employed solicitors’ was bad enough in itself,

in ‘our times, where party politicking and political fermentation pervades all spheres of bourgeois society’, it was ‘doubly dangerous’."! Influenced by Napoleonic legal advances, barristers in the rest of Germany were

accorded a more and more prominent role in proceedings. Even in Prussia, the ‘accusation trial’ with public, oral proceedings replaced the ‘inquisition trial’ based solely upon written submissions in 1849. Though renamed ‘Rechtsanwiéilte’, Prussian defence counsellors, previously known as ‘Justizkommissare’, had to wait for

another 30 years for emancipation, which coincided with the passage of several Reich laws unifying the formal side of judicial proceedings. The new Strafprozefsordnung and the Gerichtsverfassungsgesetz (GVG) of 1877 were complemented a

° Knapp, W., Verteidiger, pp.14-17, 20-4. > Olden, R., Hindenburg oder der Geist der preufSischen Armee, Paris 1935, p.47 (quoted following

Miller, I., “Rudolf Olden. Journalist und Anwalt der Republik’, pp.181—92 in Redaktion Kritische Justiz (eds.), Streitbare Juristen. Eine andere Tradition, Baden-Baden 1988, p.190). Unless otherwise noted, all translations from the German are the author's. '° ‘These efforts to reverse von Carmer’s measures and re-institute free advocacy were associated above all with the liberal advocate von Gneist (Ledford, K., From General Estate to Special Interest. German lawyers 1878-1933, Cambridge 1996, p.5, pp.53-6). '"' K6nig, S., Dienst am Recht, p.12.

The Rosa Luxemburg Trials of 1914 21 year later by the Rechtsanwaltsordnung (RAO)."”* Like much of Weimar law, these

statutes remained in place essentially unchanged until 1933 and in parts even beyond that date. The central demands of the champions of liberalization were to a large extent realised.'? State control over entry into the profession ceased. A statutory fee table

determined mandatory minimum rates, and the professional statutes expressly allowed for the negotiation of individual fees. Lawyers received their mandate from individual clients and no longer from the court, with the sole exception of cases in which a barrister was mandatory, but defendants were unable to afford one and the judges appointed an ‘Offizialverteidiger (statutory barrister).'* Through the elected presidium of the lawyers’ chambers (‘Anwaltskammern’), the profession administered its own affairs.'°

‘Organ of the administration of justice’ Nonetheless, as Wilhelm II’s rhetoric illustrates, an anti-lawyerly bias continued to inform professional institutions and procedures as well as the mindsets of participants in the legal process. The concept of the ‘organ of the administration of

justice’ is a useful way to unlock this bias.'° In one fell swoop, the sobriquet denoted (and still denotes) judges, state prosecutors and barristers. While ostensibly playing down differences, this rhetorical bundling together of the various branches of the legal profession in fact helped establish subtle hierarchies and codes of conduct between them. Taking a closer look at the implications of the ‘organ of the administration of justice’ dogma highlights three aspects of judicial culture that had to be made explicit and attacked before a defence of the kind Levi envisaged for Luxemburg could come to pass. First, it reminds us of the persistence of the inquisitorial elements in German penal trials. Secondly, it implies the continued subordination, symbolical, practical and disciplinary, of the trial lawyers to the other branches of the legal profession. Thirdly, it helps explain why these trial lawyers had to overcome not just external obstacles but internal barriers. In order to embrace the identity of political lawyers, they first had to shed the

'? Konig, S., Dienst am Recht, p.13. For a detailed discussion of the Reich justice laws and associated legislation, such as the statutes regulating lawyers’ fee tables (Gebsihrenordnung fiir Rechtsanwialte, 17.6.1879) see Ledford, K., From General Estate, pp.4—-7. '° Konig, S., Dienst am Recht, pp.11-2. For a perspective on the RAO coloured by the need to defer to National Socialist ideological principles, see Vehrenberg, H., Geschichte der deutschen Rechtsanwattsord-

nung vom I Juli 1878, Freiburg 1935. 4 Knapp, W., Verteidiger, p.31, p.34. ‘The Deutscher Anwaltsverein (DAV) was a voluntary association and lobby group. Most lawyers joined the DAV, which is nonetheless not to be confused with the lawyers’ chambers, membership of which was compulsory. '© "This account is particularly indebted to Konig, S., Vom Dienst am Recht. Rechtsanwiailte als Strafverteidiger im Nationalsozialismus, Berlin 1987, pp.1—-31, Siegrist, H., Advokat, Biirger, Staat. Sozialgeschichte der Rechtsanwalte in Deutschland, Italien und der Schweiz (18.-20. Jhd.), Studien zur Europdischen Rechtsgeschichte 80, 2 vols., Frankfurt a.M. 1996, vol.2, pp.557—665, Knapp, W., Der Verteidiger—ein Organ der Rechtspflege?, Schriftenreihe Annales Universitatis Saraviensis, Rechts- und Wirtschaftswissenschaftliche Abteilung 73, Kéln 1974, pp.2—47.

22 Courtroom to Revolutionary Stage notion that by virtue of being ‘organs of the administration of justice’, they owed a debt of legal and political quietism. Let us consider each of these three aspects in turn, beginning with the inquisitor-

ial trial. There is a danger of oversimplification in the categorical distinction between purely inquisitorial and purely adversarial trial, but the former’s pre-eminence in Germany can hardly be in doubt. It allocated to the ‘organs of the administration of justice’ the task of finding justice, in contrast to merely officiating over a clash of prima facie equal camps. Justice was something substantive, essential. Just like the facts of a case, it was, in German judicial practice, conceived as existing independently of the proceedings that brought it to light. In stark contrast, the adversarial model practiced in the Anglo-American context defines justice as the outcome of just proceedings.'” To say that a, let alone ‘the’, just outcome exists prior to a trial and independently of it hardly makes sense. Flowing from this, the role of the judge is associated much more closely with the state under the inquisitorial system. Rather than a referee charged with guaranteeing due process, a steward of procedural justice, the judge in the German model acts as an arbiter. He not only watches over the application of rules, but rather applies them himself. In the final analysis, the judge’s role is based on (supposedly)

privileged access to truth and justice, which in turn is bound up with the judiciarys strong identification with the state. German legal education was (and remains to this day) geared towards training judges, as evidenced for example in the second state examination mandatory for reaching the vaunted ‘Volljurist’ status. This identification with the state also extended to state prosecutors—alone empowered to initiate criminal proceedings, state prosecutors were part of the state administration—but not to trial lawyers. Secondly, the ‘organ of the administration of justice’ rhetoric subtly subordinates lawyers to the other participants in the judicial process. It harks back to the time when barristers were officers of the court, civil servants just like the state prosecutors. As such, they had been appointed by the court (rather than chosen by defendants) and subject to orders from the ministerial nomenclature. ‘The lawyers’

release from the fetters of state control in 1877/8 was not only protracted but remained in some ways partial. Judges and state prosecutors were installed as a permanent part of the disciplinary mechanism of the bar, the so-called honour courts. In the highest disciplinary organ, the Reich honour court, the judges even had a five-to-four majority over barristers, as well as presiding over proceedings. On a less elevated, but day-to-day even more nagging and humiliating level, the judges’ right to impose the despised ‘order fines——on the spot penalties for ‘undig-

nified’ behaviour—on barristers can be cited in support of this interpretation. While order fines were abolished in 1919, the ultimate arbitration of a majority of judges in the disciplinary organs of the bar remained in place."® '” Hett floats the intriguing idea that plea-bargaining, introduced in Germany in the 1970s, amidst much controversy, can be seen as a “Trojan Horse’ through which elements of the adversarial trial are imported into inquisitorial systems (Hett, B., Death in the Tiergarten, chapter 2 fn.31). 'S Ledford, K., General Estate to Special Interest, pp.179-80, pp.188—92.

The Rosa Luxemburg Trials of 1914 23 Last but not least, the rhetoric of the ‘organ of the administration of justice’ nevertheless appealed to the vanity of defence lawyers. All the ‘organs of the administration of justice’ shared responsibility for ensuring that justice be done. Through a mixture of discipline and appeal to professional pride and status-consciousness,

the ‘organ of the administration of justice’ doctrine aimed at inculcating in the newly liberated profession an ethos compatible with the inquisitorial system. The aspiration to universality and impartiality and the share in the privileged access to judicial truth that it implied came at a price, however. As well as justifying the lawyers’ subordination to the judges, the ‘organ’ rhetoric threatened to unhinge the lawyer-client bond. In theory, just as a state prosecutor might plead ‘innocent’ if and when new evidence emerged, so a barrister might have to bring to the court’s

attention facts about his clients’ culpability. As Benjamin Hett puts it, German lawyers were much more likely than their British counterparts ‘to consider themselves their client’s first judge’.'” There was nothing happenstance about the continued symbolic and disciplinary subordination of the barristers. The ‘organ of the administration of justice’ formula paradoxically served both to justify and to mask the imbalance in power relations

between the various branches of the legal profession. It testifies to the longevity and resilience of the inquisitorial system. That the inquisitorial model tended to pit judges and state prosecutors against the marginalized trial lawyers is evident for example in the battles to minimize the lay element in judicial proceedings. Juries were questioned as costly and prone to being swayed by emotional arguments. ‘They were almost completely phased out with the Emminger justice reforms of 1924. In an ongoing tug of war, judges and trial lawyers also contested the role of lay magistrates (‘Laienrichter’ or ‘Schofferl’), often violently.”° In 1909, for example, the biannual German lawyers’ convention (Anwaltstag) called for a ‘reinforcement of the lay element’ in the administration of justice. In immediate rebuke, the comments’ pages of the Deutsche Richterzeitung, organ of the German Judges Association (Deutscher Richterbund, DRB) alighted with attacks on barristers. According to their robed critics, the lawyers were hoping

to ‘play to the crowds’ and thus ‘subvert the course of justice’. When Reichstag deputy Ernst Miller-Meiningen, a judge, supported the lawyers’ call for more lay magistrates and jury trials, the judges’ paper suggested he had ‘sided with the born enemies of the judges’ estate’. These examples, even while leaving complexities and nuances under-exposed,

speak to the essentialism (rather than process-orientation) and the statism and professionalism (rather than lay participation) that characterized German judicial practice. Playing to the crowds, pleading for the press—these were as anathema to the old-style justice as they were essential to the new. Thanks to the inquisitorial system, and despite the lip-service paid to the Shibboleth of the judges’ independence and the mantra of their immunity from dismissal Hett, B., Death in the Tiergarten, p.84. °° Ostler, E., Die deutschen Rechtsanwalte 1871-1971, Essen 1971, pp.129-39.

24 Courtroom to Revolutionary Stage (Unabsetzbarkeit),"' the judiciary was strongly associated with the Wilhelmine establishment. To attack it, one had to attack the judges and the quietist implications of the ‘organ of the administration of justice’ doctrine. This was doubly true if the judicial criticism was to transcend the individual case and move to the level of the political system. Making the juxtaposition of trial lawyers and judges visible and their conflict explicit was therefore an important stepping stone on the path to using trials as political propaganda pieces. Ironically, given its political significance, rather than by politics, this change in the style of pleading was initially fuelled by economic pressure and cultural resentment, to which we now turn.

Economic pressures Economics was one of the driving forces behind the cultural revolution in legal pleading. Competitive pressure greatly increased around the turn of the century, both between the various branches of the legal profession and within the bar. In the decades after the 1848 revolution, the number of barristers actually dropped by

around 20 per cent, to about 4,000, amidst steady economic and population growth. After 1880, this trend reversed dramatically. In each of the decades after the liberalization of the legal profession, the total number of barristers grew by a third. At the turn of the century, the breakneck pace of expansion quickened further. Hannes Siegrist estimates that the number of registered lawyers increased by more than half, to around 12,000, between 1900 and 1910 alone.” In 1899, the membership of the Berlin Lawyers Chamber broke into four figures for the first time, in 1913, it had almost doubled from that number.*? Despite economic and

population growth and urbanization, the perception therefore gained ground among barristers that the good times were over. For the first time in two generations, some of the haloed principles of the profession’s liberalization came under pressure. The fear of ‘overcrowding’ led to calls, for example, of limiting the total number of barristers. Until 1932, when the barristers’ organs of self-government voted to set such a limit, the so-called ‘numerus clausus’ debate was a weathervane for the perceived economic challenges barristers faced.” The increased economic pressure fell disproportionately on younger barristers. Not only had they missed the boom years following unification, but now found themselves disadvantaged by the restrictions on advertising anchored in the ‘organ of the administration of justice’ conception of judicial procedure. Marketing was perceived as anathema to the self-image of the legal profession as independent and *! Underpinned by lore from the days of Frederick the Great and his losing battle with Miller Arnold, a Potsdam mill owner unwilling to cede his property to palatial expansion plans. Arnold’s defiant ‘// y a des juges a Berlin’ echoed through contemporary judicial commentary. ** Siegrist, H., Advokat, Burger, Staat. Sozialgeschichte der Rechtsanwiilte in Deutschland, Italien und

der Schweiz (18.-20. Jhd.), Studien zur Europdischen Rechtsgeschichte 80, 2 vols., Frankfurt a.M. 1996, here vol.2, p.590. Stefan Konig’s estimates tally with Siegrist’s (Konig, S., Vom Dienst am Recht. Rechtsanwiailte als Strafverteidiger im Nationalsozialismus, Berlin 1987, p.24).

*> Hett, Death in the Tiergarten, p.85. ** Siegrist, H., Advokat, Birger, Staat, p.593, pp.675—-86, Ledford, K., From General Estate to Special Interest. German lawyers 1878-1933, Cambridge 1996, pp.76-8.

The Rosa Luxemburg Trials of 1914 25 beholden to nothing but abstract principles of equity and objectivity. Right down to the size and style of doorsigns, lawyers’ publicity was therefore strictly regulated. For the older, established members of the profession, this created few problems, on

the contrary, it served to shield their status. These older lawyers held sway in the lawyers’ chambers, the public law organs of the professions’ self-administration, as well as in the lawyers’ associations, their private-law equivalent. Subtle markers of prestige such as the largely honorary title of ‘/ustizrat’ or holding office in the lawyers chambers and associations were out of the reach of younger barristers. Moreover, the senior barristers were often active in local politics, clubs and benevolent associations. They were, in other words, well-known ‘pillars of society or Honora-

tioren anyway, and could do without publicity or marketing. At the same time, they jealously watched over the efforts of younger lawyers to make their names known. Energetic or high-profile defences or appearances in local newspaper coverage were at best scoffed at and at worst censured as illicit marketing. An episode from the career of Paul Levi can serve to illustrate the confluence of generational, economic, cultural and political conflicts brewing on the eve of the war. In 1911, Rosa Luxemburg’s lawyer and, as head of the German Communist

Party from 1919-1921, political heir-to-be was a recently established, but obviously brilliant trial lawyer in Frankfurt am Main. In that year, the Jewish barrister published a much-noted article exposing an elaborate fraud scheme based on the sale of small ads. Advertising space was offered in a magazine whose enormous print-runs dazzled would-be advertisers into paying high rates for publicity. This investment never bore fruit, because the only things printed in the ‘magazine’ were the overpriced ads, which in turn explains why no-one actually read it. Token cop-

ies apart, the print-runs went straight from press to pulp. Previously, courts had convicted the small fry who sold the ads, but were powerless against the ‘publishers. Levi had represented some of the hapless Frankfurt businessmen who had fallen for the scheme, and was exasperated to find that despite the convictions he helped secure, the cases showed no signs of drying up. By raising a public outcry, Levi thus succeeded in putting an end to a racket that had survived more orthodox judicial persecution unscathed.” Rather than celebrate their colleague’s success, however, the Frankfurt lawyers’ chamber reprimanded Levi. By publicising the scandal, it alleged, he had sought illicit advantages over his colleagues through covertly advertising his practice. Levi

refuted the charges with some indignation. He privately issued an edition of his article accompanied by a piece explaining his quarrel with the lawyers’ chamber, and circulated it among Frankfurt barristers. In his attackers’ view, this added insult to injury. The conflict escalated into a clash of generations within the Frankfurt bar that was only settled when Wolfgang Heine, the prominent Social Democrat lawyer and later Prussian Minister of the Interior, secured Levi’s acquittal at the Reich Honour Court in Leipzig.”° °° See AsD NL Levi Mappe 14.

°° AsD NL Levi, Mappen 14-17, ibid., Mappe 282 [non-foliated], “‘Bekampfung des Inseratenschwindels’ [private edition, distributed to Frankfurt barristers], May 1911.

26 Courtroom to Revolutionary Stage Confronting the judges Significant as the Frankfurt ad fraud case was for Levi’s subsequent career, the main

arena of this generational conflict was Berlin.*’ Here, a group of lawyers around Max Alsberg broke with the consensual, ostentatiously non-involved (sachlich) style cherished by judges and older, established barristers. ‘They did so for precisely

the reasons which the Frankfurt lawyers’ chamber had uncharitably imputed to Levi. Column inches in the local press translated into recognisability, sometimes celebrity or even notoriety, and this in turn meant more business. At the same time, it circumvented the restrictions which the profession’s bylaws placed on advertising. Relinquishing the notion that the status as an ‘organ of the administration of justice’ obliged them to restraint, these young lawyers’ redefinition of the trial lawyer role, although non-political in itself, was of great importance for subsequent political trials. Taking a confrontational stance vis-a-vis the judges was one way of adapting their pleading to appeal to the emotions of spectators and newspaper readers (and lay magistrates). In this way, Alsberg and the other Berlin lawyers not only raised the trial lawyers’ profile but also helped shift the argumentative ground away from purely legal considerations. Max Alsberg, by most accounts the most accomplished and brilliant Weimar barrister, was born in 1867 into a Jewish merchant family in Bonn. He renounced his

parents’ faith without taking up another. Having long weighed the option of a career in academia, he set up a law practice in Berlin in 1906.” Realizing that media exposure was a way of side-stepping the restrictions on advertising, he took on spectacular cases such as that of the murderer Hennig (which served as the raw material for a popular play).”” Alsberg published legal opinion pieces himself, and carefully kept tap on the way the newspapers chronicled his courtroom endeavours.*” The point here is not to question the sincerity of Alsberg’s commitment to his clients or to the fundamental legal values for which he fought—the rights of the accused, the presumption of innocence, the systemic difficulties of redressing erroneous verdicts. On the contrary, by all accounts he was nothing if not passionate about his clients. He is said to have been unable during a defence to even conduct

a conversation on anything but the matter at hand. One of his disciples relates a story how Alsberg, hosting a dinner party, narrated a case he was defending to colleagues when his pre-teen son interrupted with the question “Daddy, what did the man do?’ Alsberg, normally a picture of calm and loving parenthood, flew into a rage and, shaking his finger at the culprit, admonished him “How many times have I told you, the question is “What is the man supposed to have done”!’?! *” See Hett, Death in the Tiergarten, 2004, p.6, pp.41-2, pp.128-34. Hett focuses on Erich Sello’s confrontation with state prosecutor Braut in 1900 as emblematic for the seachange in defence culture. °*8 Alfred Apfel, a prominent Democratic Party lawyer, recalled his student days, when Alsberg had

been an awe-inspiring teaching assistant and grader at Bonn University, Apfel, A., ‘Max Alsberg’, Weltbiihne, 2. Halbjahr 1931, pp.758-9. ” Riess, C., Der Mann in der Schwarzen Robe, Hamburg 1965, p.16, p.25—30. °° E.g. Alsberg, M., “Wiederaufnahme’, Berliner Tageblatt und Handelszeitung, 11.2.1911, p.1. °! Jungfer, G., “Max Alsberg. Verteidigung als Ethische Mission’ in Redaktion Kritische Justiz (eds.),

Streitbare Juristen. Eine andere Tradition, Baden-Baden 1988, fn.18, relating a conversation with Alsberg’s son, Claud Allen.

The Rosa Luxemburg Trials of 1914 27 Pointing out the media savvy of Alsberg’s case selection and pleading is therefore

not intended to reiterate his detractors’ criticism. Rather, it is to highlight that Alsberg saw no contradiction between self-promotion and the advocacy of individuals and issues, and that this view put him at odds with contemporary judges as well as his peers. The fraud case of Gustav Glaser in 1910 illustrates how fruitful the escalation of

a conflict with the presiding judge could be in terms of publicity creation. By building a network of fictional firms dealing mainly with one another, Glaser and his father had for years defrauded creditors and investors. Both were extradited by the United States, whence they had fled, and tried in October 1910. In his final plea, Alsberg maintained that to sentence his previously blameless client as severely as the state prosecutor proposed—nine years imprisonment—would represent a ‘record’. The next day, 3 November, the judges reprimanded Alsberg for allegedly suggesting that the court was engaged in the pursuit of athletic triumphs, and fined him 50 Reichsmark. The lawyer protested that the meaning of his words had been misconstrued—the court dismissed the protest. With some aplomb, Alsberg then resigned the brief, announcing that the court’s lack of trust in his words made the discharge of his duties as an organ of the administration of justice impossible. Had Alsberg accepted the fine, the episode would have been a routine skirmish. Stepping down in protest turned the Glaser case into the causa Alsberg, and transformed a petty stand-off into a much more serious and fundamental confronta-

tion. The reprimand and the lawyer's reaction to it brought the underlying judge-lawyer conflict out into the open. For Alsberg, the manoeuvre was a spectacular success. The next day, the papers were abuzz with the lawyer's walk-out from the trial. Everyone from the patent office (on the exact meaning of ‘record’) to national dailies like the Vossische Zeitung joined the debate. Tongue in cheek, the Rheinische Zeitung pointed out that the origins of the word ‘record’ lay not in athletic language but in British judicial parlance.*” Glaser was sentenced to six years, while Alsberg’s fine was rescinded by the Berlin court of appeal. Alsberg perfected the confrontational tactics in the fraud trial against young count Metternich a year later in 1911.°? Metternich, a Berlin socialite, had fallen

out with his father, Friedrich. Although Metternich senior had cut off his trust fund, the count continued his free-spending lifestyle, signing many a bouncing check and illicit debt-obligation along the way. Finally arraigned, his jailing and indictment caused a minor sensation, and Alsberg had no intention of letting the publicity of the trial go unused. ‘Right from the start, the trial was an embittered struggle between the defence and the court, of a sort unheard of at the time— especially in Prussia. Alsberg and his partner Jaffé constantly had to complain that they were not allowed to finish their sentences, and even that attempts were made to intimidate them. It was raining order fines for the lawyers.’ Confronting the judge in dramatic fashion had the advantage of distracting the jurors and the public from the weakness of Metternich’s case. The Berlin press covered the trial with gusto and great sympathy for the youthful bohemian and his barrister. En vogue *° Riess, C., Robe p.52ff. °° Riess, C., Robe, pp.63—73.

28 Courtroom to Revolutionary Stage society novelist Fedor von Zobeltitz, for example, painted Metternich as ‘a youthful god’, a sort of German Oscar Wilde, minus the irksome homosexuality, in a series of articles covering the trial. The jurors duly handed Metternich a mild punishment, only adding three months imprisonment to the six he had already served ahead of the trial.** Not all observers were impressed. An extraordinary meeting of the Berlin lawyers association was called to discuss Alsberg’s behaviour in court. More than six hundred lawyers attended, many from the surrounding countryside rather than from metropolitan Berlin.” After much heated debate, a majority voted to censure. Alsberg was unfazed, with good reason. The disciplinary proceedings came to nothing, and his colleagues’ criticism only served to augment his own publicity.*° As his biographer put it, the ‘public at large’ was not interested in the fact that [the Berlin lawyers’ association] did not cherish his ageressiveness; it mattered more to the public at large that by this aggressiveness he had dominated the court [...] and they concluded: Alsberg was the lawyer one simply had to have. He could not be intimidated. He had courage and initiative. Soon, he was the capital’s most sought-after lawyer.”’

Alsberg’s success inspired imitation. Again according to Curt Riess, his ‘mode of defence’ became ‘fashionable’: ‘For the lawyers, the motto from now on was: no unnecessary respect before the taboos of the times! As a consequence, agitated scenes between defenders, state prosecutors and judges henceforth became the order of the day in the capital’s criminal courts’.*®

The confrontational style in Weimar courtrooms Despite the Berlin lawyers’ association’s attempt to stem the tide, other ambitious young lawyers welcomed this development. The nationalist barrister Riidiger von der Goltz, Joseph Goebbels’ favourite barrister in the Weimar years, for example, applauded colleagues who endeavoured to ‘create a “splash”’ in ‘the great Moabit trials which were plastered all over the papers under the bold headline “defence clashes with court”’.*’ Goltz thought that it was perfectly admissible for a lawyer, noticing a faulty attitude, or even a certain one-sidedness of the judge’ to ‘alert the * Riess, C., Robe, p.63. *» ‘The meeting took place on 20.10.1911, a week after the conclusion of the trial. Riess describes it as ‘a sort of trial against the defense lawyers’ (Riess, C., Robe, pp.68—9). °° ‘The disciplinary organ of the Berlin lawyers chamber, the honour court (for a longer discussion

see chapter two), amalgamated the two charges against Alsberg from the Glaser and the Metternich cases into a single hearing and acquitted him. I am indebted to one of my anonymous reviewers for pointing me to the honour court file in the Bundesarchiv Berlin (BA(B)) R.3005/1142. °” Riess, C., Robe, p.69. °8 Riess, C., Robe, p.73. * "The Moabit district, in which the various Berlin courts of appeal (and a large prison) were concentrated in a suite of characteristic buildings, became a synonym for the city’s administration of justice, see e.g. Siemens, D., “Vor den Schranken von Moabit”. Zur Kulturgeschichte der Weimarer Strafjustiz’, pp.196—210 in Diehl., PR Grunwald, H. et al. (eds.) Performanz des Rechts. Inszenierung und Diskurs (= Paragrana. Internationale Zeitschrift fur Historische Anthropologie vol.15 (2006) No.1).

The Rosa Luxemburg Trials of 1914 29 deputy judges, especially those without legal training, to this state of affairs by means of such histrionics [Auftritte]’.*° Admittedly in retrospect, von der Goltz identified the battles Alsberg, Jaffé, and others fought as formative experiences for his own career as a lawyer, and by extension for his whole generation of political lawyers.

Alsberg’s confrontational tactics paved the way for a new willingness on the lawyers’ part to acknowledge the generational and judge-lawyer antagonism openly.

On a more theoretical level, the generational and cultural fault lines that Alsberg and Levi combated in practice were elegantly analyzed (and eloquently decried) in barrister Fritz Friedmann’s Die Kunst der Verteidigung (Ihe Art of Defending, 1915). Friedmann himself was also an exponent and a catalyst of the irreverent style in German law. An enormously successful (and boisterous) Berlin lawyer, he had been disbarred in 1895 over his relationship to a 17-year old girl and forced to flee from his creditors (and the state prosecutor). The bitterness which sometimes informs his account is more than balanced by the insouciant frankness which his fall from grace made possible and which makes this such a valuable source. Friedmann rejected attacks on Alsberg and others: not barristers, but the judges were to blame ‘for the secret bitterness, the “electrically charged air” in the courtroom which is so often talked about’. He diagnosed a multi-layered resentment towards lawyers. Judges envied the lawyers’ superior income and greater social free-

dom. More importantly, they resented the procedural rights of the defence, the lawyer's privileged access to the accused and his ability to name witnesses independently of the court’s approval (§219 StPO). On the bench, a defendant's obstinacy or silence was routinely suspected to be the result of the barrister’s instructions.“

Deep down, in short, the judges thought the defence lawyer superfluous, if not positively counterproductive, a quasi accomplice. The judges’ own ‘objectivity’ was

all the protection defendants required. Friedmann poured scorn on this notion. The one-sided presentation of the prosecution's case to the judge prior to proceedings, and the lack of ‘human contact’ with the accused, his dependants and family ensured that contrary to their belief, judges made ‘poor auxiliary barristers’. Finally, Friedmann added, the judge wasn't paid by the accused, and ‘money is a useful glue

in life’. Friedmann’s argument highlights the paradigm shift sustaining the reinterpretation of the trial lawyer role. The judges felt that precisely their not being paid by the accused guaranteed their objectivity. By raising the issue of payment and its duplicitous stigmatization, Friedmann put a sharp point on his criticism of a legal system underpinned by the myth of judicial ‘objectivity’. In its place, he promoted a view of trials as the modulation of openly acknowledged conflicting interests.

Friedmann believed that this conception was embodied in British law, while 40 Bundesarchiv Koblenz (BA(K)) KLE 653 von der Goltz Band 2, [35].

“| Friedmann, E, Die Kunst der Verteidigung. Theorie und Praxis, Alfred Pulvermacher und Co. (Kurt Selten) Berlin 1915, reprinted omitting the first, autobiographical chapter as Friedmann, FE, Die Kunst der Verteidigung und der forensischen Rede. Mit einem Geleitwort von Kurt Selten, Berlin 1927, p.41. Unless otherwise specified, all page numbers refer to the 1927 edition. © Friedmann, F., Kunst der Verteidigung, p.51.

30 Courtroom to Revolutionary Stage German judges regarded free advocacy only as an ‘annoying concession’ to the English and French revolutions.” Metaphors of struggle and theatre colour Friedmann’s description of courtroom action.“ The ‘true battle zone’ was the presentation of evidence, including crossexaminations: The struggle in the courtroom, between the accused and the witnesses and among the witnesses themselves is similar to play-acting on stage, whether one likes it or not. Thrust for thrust, word against word, that way the image is created; where the interruptions begin, the dramatic life comes to an end.

But even while suppressing the defence’s theatrical flourishes, the judges used similar techniques themselves. During the barrister’s final plea, for example, they fidg-

eted in all conceivable manners ‘by which equanimity, disregard, dissent, impatience, and the emphasis on a pointless waste of time may be expressed’. Working themselves into a huff about the lawyers’ ‘playing to the crowds’, the judges were not just philistines, but hypocritical. All in all, it was ‘the most unequal

combat imaginable’, in which the lawyer almost inevitably lost out: ‘He cannot thunder, he cannot interrupt, he cannot declare an episode closed, he cannot issue an on-the-spot fine for the presiding judge.’ Although neither was a political barrister, Friedmann and Alsberg prepared the ground for the practice of Weimar party lawyers in a dual sense. Firstly, they diagnosed the cultural antagonism between judges and lawyers. Whereas Alsberg was politically naive—blissfully unaware for years, for example, that his trusted chauffeur was a National Socialist—Friedmann recognised that political enmity influ-

enced this antagonism.” As barristers began to explore the possibilities which public proceedings offered, the ‘public at large, represented by the court press’ found ‘the figure of the defence lawyer preferable’ to the judge and listened to him ‘with a merrier heart’: ‘frequently, the “Bravo” which the presiding judge hates with such venom will cross the listeners’ lips’.*° ‘Political and race questions’ exacerbated the enmity engendered by the public’s preferences: “Very often, the barrister is Jewish, almost always a liberal, these days often even a Social Democrat; an eager judge mostly conservative, never a Jew—sometimes perhaps a baptized one, in that case of course an ultra-anti-Semite, in order to blot out his origins’.

Secondly, the response they formulated to the judge-lawyer antagonism, to accept the enmity and to make it visible to external observers, informed most sub-

“8 Friedmann, F., Kunst der Verteidigung, p.48. Compare the sentiments of Artur Brandt, who also looked enviously towards Anglo-American courts, where they imagined their colleagues to be held in much higher esteem (Knapp, Verteidiger, pp.31-6).

“* Even before proceedings started, investigating judge and lawyer were locked in a ‘passionate guerilla war (Friedmann, F., Kunst der Verteidigung, p.62). * According to Munich SPD barrister Max Hirschberg’s memoirs, Alsberg was ‘politically naive,

like many rich Jews’ (Hirschberg, M. (Weber, R., ed.), Jude und Demokrat. Erinnerungen eines Muiinchener Rechtsanwalts, Miinchen 1998, p.192). The vignette about the chauffeur is related by Curt Riess, who also suggests that an early acquaintance with Hitler's Mein Kampfhad led Alsberg to underestimate the Nazi threat, as he regarded the book as ‘utter nonsense’ (Riess, C., Robe, p.320). “6 Friedmann, E, Kunst der Verteidigung, p.44.

The Rosa Luxemburg Trials of 1914 31 sequent political trials. Recognizing the stage-character of judicial procedure paved the way for the active utilisation of trials by Weimar parties. In theory and practice, Friedmann and Alsberg pioneered the antagonistic style of defending which was a precondition for the development of political pleading in the Weimar Republic. Alsberg’s and Friedmann’s attack upon the judges strongly resonated with Levi's and Rosenfeld’s radicalisation of Social Democrat pleading. In contrast to Friedmann, Alsberg had scant sensibility to the political dimensions of his critique. All the more striking, then, that perhaps the best illustration of this resonance between the political and the non-political is provided by Alsberg’s 1913 collection of essays on the law of retrials. As editor, Alsberg argued that the theoretical right to retrial (§399 StPO) was de facto rendered meaningless by the courts’ restrictive interpretation of the law. In each contribution, a barrister recounted instances drawn from his own practice.*” Alsberg had assembled a remarkable group of collaborators. Amongst the authors were three outspoken Social Democrats: Karl Liebknecht subsequently became the first leader of the Communist Party, while Ernst Mamroth and Johannes Werthauer remained active SPD lawyers in the Weimar Republic. Walter Luetgebrune, another contributor, was without party commitment at the time but subsequently joined the German Nationalist People’s Party (DNVP). Having played an important role in that party's legal office, he joined the NSDAP in 1931 as lawyer in chief of the SA. In a metaphorical sense, Alsberg’s influential book can be regarded as the seed cell of Weimar political defence work. On the eve of the war, the project aggressively asserted the rights of counsel, a stance indispensable to political pleading. Moreover, it united four political barristers whose subsequent careers dispersed them among the three parties—KPD, SPD and NSDAP—most dependent on political lawyers.

Social Democrat lawyer networks before the war Just as Alsberg’s style was initially questioned not only by the judges, but by his own colleagues, so the young generation of Social Democrat lawyers found itself in conflict with its elders, too. Although the excesses of repression under Bismarck had abated, the SPD in the late empire still found itself persecuted for its routine activities.*® Restrictive interpretations of the press law, for example, meant that SPD editors worked under the constant threat of libel suits. The law of association was used to suppress party meetings, particularly during elections. A loose network of local law practices catered to the party’s legal needs. Barristers, often themselves low-level party officers were well-known among local comrades. A small number of barristers

in higher positions, such as Reichstag deputies Otto Landsberg, Wolfgang Heine and Hugo Heinemann linked this informal network with the party leadership.”

‘7 Alsberg, M. (ed.), Justizirrtum und Wiederaufnahme, Berlin 1913. “8 Guttsman, W., The German Social Democratic Party, 1875-1933, London 1981, pp.60-1. © Jn 1918, Otto Landsberg was one of the original six people’s deputies in the first revolutionary government. Wolfgang Heine served as Prussian Interior Minister from 1919 until the Kapp Putsch, Hugo Heinemann was a close associate of party leader August Bebel. Heine is one of the ten lawyers whose biographies are sketched in chapter two.

32 Courtroom to Revolutionary Stage Well-established colleagues such as Johannes Werthauer in Berlin or Ernst Mamroth in Breslau served as regional co-ordinators.

In stark contrast to the KPD legal organisation in the Weimar Republic, the SPD lawyer network lacked central co-ordination. There was no system for monitoring cases for potential political exploitation, no central register of lawyers, no central judicial press office: everything depended on the initiative of individual lawyers. Moreover, political priorities could not be enforced centrally, and in the

absence of regular financial arrangements barristers could not be routinely employed on party business. Essentially, SPD legal work continued to be organised in this way throughout the Weimar Republic.” An example from Wolfgang Heine's practice can illustrate how the SPD’s informal network functioned. Heine, the latter day Prussian Minister of the Interior, joined the SPD as a student and entered the Reichstag in 1896. Many of his own briefs had acquainted him with the politically repressive use of the law of association. In 1907, he coordinated the SPD campaign to reform the law. Heine circulated a questionnaire requesting information about sample trials to local party associations, newspapers and lawyers.’ The Berlin lawyer condensed the responses into a manual on the pitfalls of the law of association.” Heine also used the feedback from his colleagues in his draft reform of the law, which the Reichstag passed in 1908.”

Heine's correspondence with his colleague Ludwig Strefler is another typical illustration of the way the SPD lawyer network functioned.* The Metz barrister approached Heine for assistance in a case which pitted his client against a local government official. Strefler represented a peasants’ mutual insurance association, the ‘Trierscher Viehversicherungsverband auf Gegenseitigkeit (TVG). Its activities were a thorn in the flesh of the established players in this field, the state sponsored ‘agricultural district associations’ (landwirtschaftliche Kreisvereine’, KV). What made the legal conflict between the TVG and the Kveisverein potentially explosive was the underlying political confrontation. Dominated by local government officials, the KV were the ‘favourite sons’ of the Alsace-Lorraine government, according to barrister Strefler’ As a result, the KV’s insurance scheme enjoyed tangible eco°° Wolfgang Heine’s Berlin practice continued to be a nodal point, see e.g. AsD NL Heine Band 362 Korrespondenz mit Rechtsanwalt Hans Landsberg, ibid., Band 393 barrister Hammerschlag to Heine, Magdeburg 6.12.24, ibid., Band 460 barrister von Payer to Heine, Stuttgart 9.1.25, ibid., Band 463, barrister Proskauer to Heine, Gottingen 16.6.24, ibid., Band 468 barrister Saenger to Heine, Miinchen 28.1.25. >! AsD NL Heine Band 80, Film 4 [1]-[5], ‘Fragebogen zum Vereinsrecht’, 1907. For responses see e.g. ASD NL Heine Band 101; Band 102; Band 126; Band 143. Where no folio numbers are given the Band in question consists of one document or, as in these cases, of Heine’s correspondence with one individual. >? As) NL Heine Band 66, Film 3. °> Another example of the SPD network’s operation is the defence of Prussian SPD deputies Borchardt and Leinert after they had been expelled from a session of the parliament on 19 May 1912. Heine corresponded with a number of SPD barristers, e.g. Carstens (Cottbus, AsD NL Heine Band 207), Hugo Haase (Berlin, ASD NL Heine Band 209) and Hammerschmidt (Cottbus, AsD NL Heine Band 210). ** AsD NL Heine Band 126, [1]-[5] Ludwig Strefler to Heine, Metz 27.3.1908. > “The rural mayors dominate, the small peasants are considered unimportant and the Kreisdirektoren [heads of the local administrative district], as in our case, preside’ (AsD NL Heine Band 126; [1]-[5] Ludwig Strefler to Heine, Metz 27.3.1908, [3]).

The Rosa Luxemburg Trials of 1914 33 nomic advantages—like tax breaks and government contracts—over peasant mutual associations such as the TVG. In return, they acted as veritable ‘governmental election machines’. As Strefler put it, these cuff-linked farmers [Manschettenbauern], lacking any acquaintance with the subject matter on the one hand and guided by their class instincts on the other hand, go through hail and shine with our bureaucracy’.”° In short, the local government officials viewed mutual associations such as the TVG as a challenge to their political authority and economic interests. For local SPD politicians like Strefler, on the other hand, they were important tools further-

ing the emancipation of the peasantry. Dislodging peasants from the economic dependency upon authoritarian local government structures was a prerequisite for winning them over as party supporters. In the TVG’s case, the underlying conflict had come to a head. The local Kreisdirektor, Schlossingk, had ordered police to break up a private gathering of TVG members. Schléssingk had claimed the meeting was a public one, which would have required his approval to go ahead. On another occasion, Schléssingk had announced that ‘as president of the Kreisverein he

would do all he could to curb the rise of the TVG.’ To counter the threat, Strefler had sued Schléssingk for reimbursement of the costs of the busted meeting. Strefler showed a clear awareness of the propagandistic potential of legal action over the TVG. Proceedings would make public the political partiality built into the system. Strefler urged Heine to enhance this effect by raising the matter in parliamentary debate. The barrister also announced his intention to take the matter beyond the civil and into the penal courts by accusing Schléssingk of abusing his office.”’

‘THE BEST OUTCOME IS THAT WHERE THE PARTY PROFITS THE MOST’: THE MILITARISM TRIAL AND THE REVOLUTION IN SOCIAL DEMOCRAT DEFENDING The advent of a new type of combative trial lawyer shortly before the First World War was marked by frictions with established SPD lawyers such as Heine and Hugo Heine-

mann. Willing to challenge the judicial authorities openly, these lawyers aimed to extend the battle-zone beyond the confines of the courtroom. Their battle was Alsberg’s and Friedmann’s in an overtly political key. Confrontational and rhetorically skilled, publicity-conscious and politically minded, the prototype of the Weimar party lawyer emerged. Karl and Theodor Liebknecht, Paul Levi and Kurt Rosenfeld were the chief representatives of this young generation of SPD barristers.’* To an extent the divide between old and new style lawyers coincided with political divisions inside the Social

°° AsD NL Heine Band 126, [1]-[5] Ludwig Strefler to Heine, Metz 27.3.1908, [3]. *” AsD NL Heine Band 126, [1]-[5] Ludwig Strefler to Heine, Metz 27.3.1908, [1]-[2]. 8 ‘The brothers Liebknecht, sons of party leader Wilhelm Liebknecht, set up a law practice in Berlin together with fellow political lawyer Oscar Cohn. It quickly grew into one of the city’s largest. Paul Levi succeeded Karl Liebknecht as leader of the KPD after the assassination of Liebknecht and Rosa

Luxemburg in 1919. After being ousted as KPD leader in 1921 over his opposition to the March insurrections, Levi joined the USPD, then the SPD. Rosenfeld was a leading light on the left wing of USPD, later the SPD, until expelled from the party in 1930.

34 Courtroom to Revolutionary Stage Democratic Party. The main point of contention, however, was the aggressive utilization of judicial procedure for political purposes. Rosa Luxemburg’s so-called ‘militarism trials showed that the young generation was prepared to push the use of judicial

proceedings much further than the older generation of Heine and his colleagues would ever have contemplated. It is no coincidence that they found an eager supporter for this strategy in the Berlin party leader, latter day head of the KPD legal organisation and eventually president of the GDR, Wilhelm Pieck.

Preparing the ground: ‘the court must be drowned by the sheer mass of cases’ Rosa Luxemburg, it will be recalled, stood accused of defaming the German officer corps and NCOs for alleging that the treatment of recruits equalled ‘torture’. The trial preparations, the trial itself and its subsequent exploitation in mass meetings and the press demonstrate the astute legal analysis and publicity management of the defence team. Political motives dominated legal deliberations, as the dispute

that broke out behind the scenes within the SPD over the appropriate use to be made of the trial illustrates. The confrontation between the two generations of SPD lawyers over this issue marks a watershed in attitudes towards political justice and set important precedents for partisan legal work in the Weimar Republic. In preparing for the trial, Paul Levi and Kurt Rosenfeld were guided above all by political considerations. ‘The basic strategy had been decided only two days after the Berlin state prosecutor's office issued the indictment: the aim was to adopt an offensive rather than defensive approach, pressing forward as fast as possible rather than seeking to delay proceedings.”’ Procuring witnesses prepared to testify under oath to army brutalities was the key to a successful plea. There was no shortage of press reports relating such incidents. Usually, however, such reports were anonym-

ous, whereas the Luxemburg defence needed the abused themselves or eyewitnesses to appear in court. The solution, initially mooted by Rosenfeld, was to place ads in the party press asking for witnesses to come forward.” The party leadership had severe misgivings about this method of witness procurement.®' Nonetheless, the strategy was a tri-

umphant success. Hundreds of witnesses came forward, more than a thousand were eventually registered in court. The defence had asked more than one hundred to appear on the first day alone, with Levi threatening to present as many as thirty

thousand more. Whether this last figure was a bluff or not, it is clear that the »°AsD NL Levi Mappe 255 [non-foliated], Rosenfeld to Levi, Berlin 22.5.14 and telephone conversation suggested in that letter and referred to in ibid., Rosenfeld to Levi, Berlin 25.5.14.

°° ‘The call was published in the party press on 8/9.6.1914 under the heading “Wer Soldatenmifshandlungen erlebt hat’ (see e.g. ASD NL Levi Mappe 262 Bergische Arbeiterstimme (Solingen) No.131, 9.6.14, Mappe 263 Volksstimme (FaM) No.130, 8.6.14, both papers printed the call across the entire upper half of the first page). The article opened defiantly: ‘“Militarism intends turning the courtroom into an arena for political battle, so be it, we will accept the battle.’ °! ‘The leadership had insisted on trying with a less high-profile, internal circular first, ie. a call for witnesses through local and regional party meetings (AsD NL Levi Mappe 255 [non-foliated], Rosenfeld to Levi, Berlin 30.5.14).

The Rosa Luxemburg Trials of 1914 35 response far exceeded the lawyers’ own expectations.® After a few days of legal wrangling, during which the party barristers seized all opportunities for political courtroom rhetoric the case was adjourned indefinitely, to the embarrassment of the prosecution and the Minister of War. What is perhaps most striking about the planning of this defence is the subordination of legal to propagandistic motives. The lawyers were not concerned with the furnishing of witnesses as such, but with mustering them in sufficient numbers for their publicity strategy. Rosenfeld, for example, asked whether the fear of reprisals would not keep witnesses from coming forward ‘in large enough numbers’. Levi scotched the notion that an ad could be placed without mentioning Luxemburg—only if a call for witnesses went out under the party's ‘flag’ would partisan loyalties prevail over the fear of reprisal. It needs to be stressed that the primary issue here was not the provision of evidence in support of Luxemburg’s allegations about brutality within the military. Legally, even a handful of cases would have been sufficient to bolster their case. On the other hand, even a torrent of witnesses could not guarantee that Luxemburg would be acquitted. In terms of the law, the defence would still have to demonstrate that Luxemburg had firm knowledge of these cases before making her allegations. But the legal outcome of the case was not the point. As Levi put it: a ‘handful’ of cases, ‘and be they as weighty as you like’, would not suffice: ‘instead the court must literally be drowned by the sheer mass of cases’. The prosecution and the Minister of War had to be confronted with the choice of either dropping the case or facing a never-ending string of witnesses testifying to army brutality. It will emerge that both the method of procuring evidence through the press as well as the manner and intention of its presentation were totally anathema to the older generation of SPD lawyers. Luxemburg’s lawyers feared not the verdict, but any diminution in the public effectiveness of their pleading.

The Luxemburg trial Rosa Luxemburg’s trial went ahead on 29 June 1914. The news of Arch Duke Franz-Ferdinand’s assassination pushed reports on the trial off the front pages, yet they were still given prominent position and ample space. ‘The coverage left no doubt about the victorious emergence of Rosa Luxemburg and her lawyers from the proceedings which the Minister of War had himself initiated. His conspicuous absence from the courtroom on the first day was widely interpreted as an admission of defeat. In case anyone should have missed the fact that von Falkenhayn was not

°° "The lawyers had expected between 100 and 200 witnesses to step forward (AsD NL Levi Mappe 255 [non-foliated], Levi to Rosenfeld [undated], in reply to Rosenfeld’s letter to Levi dated 25.5.14). °° AsD NL Levi Mappe 255 [non-foliated], Levi to Rosenfeld [undated], in reply to Rosenfeld’s letter to Levi dated 25.5.14. °* Anxious to avoid the exclusion of the public from the courtroom, Levi corresponded with Diisseldorf SPD lawyer Gerhard Obuch, later a leading KPD barrister, who had just experienced such a set-back (AsD NL Levi Mappe 255 [non-foliated], Levi to Obuch, Frankfurt a.M. 28.5.14, Obuch to Levi, Diisseldorf 29.5.14).

36 Courtroom to Revolutionary Stage present, the barristers ostentatiously admonished his absence. A pointless submission legally, the move had the desired effect nonetheless.” The same was true of Levi’s and Rosenfeld’s rejection of the presiding judge

Seligmann and assistant judge Schultze. The lawyers argued that both judges were or had been army officers and were therefore biased. Rejecting the presiding judge was a means of highlighting the clash of ‘two worlds’ which the militarism trial represented in Levi’s eyes.®” On one side stood the proletarian witnesses and Rosa Luxemburg, the courageous advocate of their plight (assisted, in turn, by her own courageous advocates). Facing them was the entire superannuated political order that sent officers to speak justice in a lawsuit brought by other officers. Moreover, the tactic forced the judges to rule on their own fitness to judge, a win-win situation for the defence. Whether the judges declared themselves biased or not (as was the case here), the allegation would be reafhrmed either way. On the next morning, the Chemnitz SPD paper Volksstimme was fulsome in its praise. It applauded the lawyers for rejecting the judges and subsequently ‘pinning

down their self-incriminating turns of phrase, thoroughly tousling them in the process.’ Totally disregarding the legal side of proceedings, the paper viewed the trials exclusively as a propaganda opportunity successfully seized. Luxemburg and her barristers had turned the trial into an effective weapon in the SPD’s ‘struggle for the human dignity of the worker’. Levi won special plaudits: he ‘has become a barrister on a grand scale [im grofsen Stil|, and when the names of the best are called out in the future, his will be among them.’ It is striking that what started as a simple allegation in a meeting attended by perhaps a few thousand SPD sympathisers had been transformed into a nationally publicised indictment of the entire

political system. The Volksstimme attached significance to the trial that transcended not just the individual instance but placed it in an entirely more general context. Not the beaten recruits, but the ‘human dignity of the worker’ itself needed to be saved from systemic abuse. Clearly, this end would not be achieved by redressing individual grievances, but only through a wholesale overturning of the political order.” Depending on their political orientation, other papers were less enthused, but even the staunchly conservative Kreuzzeitung was forced to relate the gruesome °° See for example AsD NL Levi Band 263 Vossische Zeitung No.324, 29.6.14 (back page of main paper). Falkenhayn was not only Nebenklager, he had also been called as a witness, but could claim the protection of a technicality for his non-appearance. °° ‘The affinity of the judges for the decorous title of a “Reserveoffizier in the armed forces drew much acerbic comment at the time and subsequently (e.g. Kiibler, RK., ‘Der deutsche Richter und das demokratische Gesetz’, Archiv fiir civilistische Praxis 162 (1963), pp.104—28, here p.107). °” From Levi’s address in the Chemnitz rally on 19.4.14, reported in ‘Der Luxemburg Prozef’—ein Stiick Klassenkampf’, Volksstimme (Chemnitz) 20.7.14, AsD NL Levi Mappe 284 [non-foliated]. °§ AsD NL Levi Mappe 263 [non-foliated], Volksstimme (Chemnitz) No.147, 30.6.14, reporting

on the court session of 29.6.14. The first 106 witnesses had been invited ‘as a sample’, they could testify to 30.000 instances of abuse, in total, one could ‘easily document ‘half a million’ brutalities: ‘For the first time, the brutalities against recruits will be thoroughly examined in a monster trial before a bourgeois court, [...] perhaps a unique chance which has presented itself to Social Democracy in its struggle for human dignity.’

The Rosa Luxemburg Trials of 1914 37 practices as described by the lawyers in their opening statements.” The independent dailies, for example the Berliner Tageblatt, were sympathetic to Luxemburg’s cause, the more so the longer the haggling over the admissibility of the evidence offered by the defence lasted.”” On 4 July 1914, in a large article dominating the front page, the respected national daily Vossische Zeitung declared the contest over. The number of witnesses named and registered at court grew by the hundreds daily and had reached 1013. Nonetheless, according to the article, not the defence, but the state prosecutor was stalling proceedings. The Minister of War, the paper concluded, had failed.”’ Soon after, proceedings were adjourned indefinitely, a hollow victory for the prosecution in legal terms, a triumph infinitely preferable to a quiet acquittal for Rosa Luxemburg and her lawyers.

The conflict over trial publicity The end of trial was only the beginning of the disputes within the SPD over the use to be made of it. Rosa Luxemburg and her lawyers, above all Paul Levi, utilized the aborted proceedings as raw material for a series of rousing public addresses. ‘The Volksversammlungen tollowing from the Luxemburg trial were a veritable road-show which

enthralled audiences all over Germany.” The party presidium, which had already opposed the unorthodox procurement of witnesses, viewed these mass meetings with suspicion. When the Berlin party proposed a series of four such meetings in the capital, the presidium felt it was time to act. Hugo Heinemann, a figurehead of the oldstyle SPD lawyer and member of the presidium, authored an official report (Gutachten) on the mass meetings which was unequivocal in its condemnation. Together with Berlin party leader Wilhelm Pieck, Levi disputed Heinemann’s memorandum, and spoke at a mass meeting in the capital in defiance of the party leadership. The Heinemann-Levi conflict is important not only because it paved the way for

further Luxemburg mass rallies. It highlights the gulf in attitudes to the use of political justice which had opened up on the eve of the war between lawyers in the SPD. Heinemann’s Gutachten and Levi's reply read like programmatic statements of intent for their respective group of lawyers. The underlying attitudes towards the use of political trials stayed essentially the same subsequently. Paul Levi's speech on 20 July in Chemnitz conveys the substance of the Luxemburg rallies and helps explain why the presidium objected to the tactics adopted by Luxemburg’s lawyers. ‘The key issue was the dramatization of legal procedure for propagandistic ends. The barrister’s speech was entitled “The trial—part of the class ° AsD NL Levi Mappe 263 [non-foliated], Deutsche Tageszeitung No.323 29.6.14, cutting marked ‘Kreuzzeitung (undated, probably 29.6.14]. ” AsD NL Levi Mappe 263 [non-foliated], Berliner Tageblatt (erstes Beiblatt) No.326, 30.6.14. “’ AsD NL Levi Mappe 264 [non-foliated], Vossische Zeitung, 4.7.14. ” Levi had spoken in Stuttgart, Hanau, Hochst (AsD NL Levi Mappe 255 [non-foliated], Pieck to Zentralvorstand des Verbandes sozialdemokratischer Wahlvereine Berlins und Umgebung, Berlin 15.7.13) and Frankfurt (AsD NL Levi Mappe 255 [non-foliated], “Aufruf? by Buchhandlung Maier,

14.7.14) until the Berlin dispute, and had planned appearances in Kiel and Chemnitz afterwards (AsD NL Levi Mappe 255 [non-foliated], Pieck to Zentralvorstand des Verbandes sozialdemokratischer Wahlvereine Berlins und Umgebung, Berlin 15.7.13).

38 Courtroom to Revolutionary Stage struggle’. The special atmosphere of such meetings is of course impossible to reconstruct, and even the full text of Levi's address has been lost. However, a newspaper

report on the rally in the local SPD paper is sufficiently detailed to get an idea of Levi's rhetorical strategy.’” Levi dramatised the confrontation between Luxemburg and the state prosecutor as the clash not of two individuals, but—like every ‘poor devil’s trial/—of two worlds. Behind the state prosecutor stood the class state in general and the Ministry of War in particular, and behind the War Ministry ‘the

whole armed forces, 600,000 men in uniform, the barracks, rifles, cannons, machine guns, the whole iron fist of the state’. By relating Luxemburg’s trial to the

political struggle on the one hand and to all trials involving ‘poor devils’ on the other, Levi opened up twin avenues for empathy. The listeners were made to feel as though they participated in Luxemburg’s struggle themselves.

Having set up the basic opposition between the ‘state’ and the proletarian masses, Levi recounted the ‘miracle’ of how the entire armed might of the state had suddenly ‘taken flight’. Trial turned morality tale: against the numerical and moral weight of the proletarian masses, who had been quite literally involved in the shape of hundreds of witnesses, the state’s forces had been powerless. Levi then recounted a few examples of abuse suffered by recruits, concluding each episode by simply reading out the mild punishments the military courts had imposed on the responsible officers. The implication was clear: Luxemburg’s trial was no isolated occasion. Each trial offered a lesson about the injustice of the political system and the opportunity to oppose it. The effect of Levi's words must have been remarkable,

thanks not least to the tense atmosphere at the time of the Balkan crisis. Levi's address, Wilhelm Pieck wrote admiringly, proved the ‘extraordinarily galvanising and agitating’ power of the Luxemburg trial rallies.” No doubt the SPD presidium’s opposition against the mass rallies was to some extent politically motivated. The party leadership, though interested in institutional

reform of the political system, nevertheless had little use in July 1914 for angry masses of workers shouting abuse directed at the Minister of War. Nicholas Stargardt has shown that despite the 1891 Erfurt programme, the idea of ‘national defence’ found strong resonance in the SPD.” Wilhelm Pieck’s request for a Luxemburg rally in Berlin was therefore denied by the party presidium in early July, a decision supported by Heinemann’ report. Still, it is significant that its opposition to Levi’s mass meetings was framed in legal rather than political terms. “Despite the summer heat and comrade Heinemann’s questionable report’, the Berlin party boss asked Levi to speak in a rally which he had called in defiance of the party leadership.”°

“Der Luxemburg Prozef’—ein Stiick Klassenkampf’, Volksstimme (Chemnitz) 20.7.14, AsD NL Levi Mappe 284 [non-foliated]. ™ Here, Pieck referred to the Stuttgart meeting (AsD NL Levi Mappe 255 [non-foliated], Pieck to Zentralvorstand des Verbandes sozialdemokratischer Wahlvereine Berlins und Umgebung, Berlin 15.7.13). ss Seaveardt, N., The German Idea of Militarism, pp.132—5,147-9, Harmer, H., Rosa Luxemburg, London 2008, p.92. 7° AsD NL Levi Mappe 255 [non-foliated], Pieck to Levi, Berlin 14.7.14 [Abschrift].

The Rosa Luxemburg Trials of 1914 39 What is the ‘object of proceedings’? The Levi- Heinemann controversy Heinemann’s Gutachten argued that the use of the militarism trial in mass meetings was ‘the most unfortunate idea imaginable’.’” The older lawyer saw some ‘grounds for criticism’ in the accusations against Luxemburg. Yet despite the judges’ obvious sympathy for the Minister of War, he thought the conduct of the court was ‘under no circumstances such that we have reason to complain’. In addition, Heinemann stressed that the trial was not over, but technically still ongoing: it was merely ‘suspended’. Calling public meetings about a suspended trial was, he claimed, an ‘abnormal’ procedure. At any rate, only ‘purely legal questions of such ‘finesse’ had arisen that mass rallies were an inappropriate medium for criticism. Political advantages would not result from such meetings either, on the contrary, they would negatively affect future legal work. Heinemann thought it unwise, for example, to criticise the state prosecutor’s ofhice for

delay when SPD lawyers routinely asked for proceedings to be stayed when faced with new material in court. ‘Summing up’, Heinemann concluded—ironically in view of Levi's role in the Luxemburg rallies—‘I strongly discourage encroaching upon the defence’s turf with protest meetings’.”* Heinemann’s criticism encapsulates the ‘old generation's’ view of the judicial process. Disagreement with the court ‘in the subject matter (i der Sache)’ notwithstanding, it was characterized by a rather deferential attitude on the lawyer’s

part. Underlying this attitude was an understanding of legal proceedings that strictly separated ‘the political’ from ‘the legal’. This dichotomy in the older lawyers thinking prevented him from recognizing the true motivation of the court's decisions. He failed to acknowledge, for example, that the ‘suspension’ of the trial was not a transitory legal state but would remain in place indefinitely, a procedural trick to avoid the admission of defeat. Indeed, public protest meetings were not the arena for discussing the ‘purely legal questions’ whose ‘finesse’ worried Heinemann. Yet Heinemann failed to appreciate (or was simply abhorred by the thought) that the ‘general phrases’ which he feared would be aired at the mass rallies were precisely the object of the exercise. Heinemann’s position was attacked for its political naiveté, first of all by Wilhelm Pieck, then in even more extreme form by Paul Levi. Pieck regretted that the presidium had failed to evaluate the situation ‘politically’: “Comrade Heinemann’s memorandum unfortunately speaks only in the jurist’s voice, and not also in the politician’s. Why stop at banning mass rallies?, Pieck asked rhetorically. All press coverage in the party papers might equally well be declared unfit for the discussion of the questions Heinemann thought too complicated for public consumption. Finally, Pieck pointed out that there could be no talk of interfering with the

’” AsD NL Levi Mappe 255 [non-foliated], ‘Skizziertes Gutachten des Genossen Heinemann’, attachment to Pieck to Levi, Berlin 14.7.14 [Abschrift]. 8 ‘In the event, only general phrases could be voiced. [...] Political advantages will not accrue from the meetings under any circumstances, precisely because only purely legal questions are at stake.’ (AsD NL Levi Mappe 255 [non-foliated], ‘Skizziertes Gutachten des Genossen Heinemann’, attachment to Pieck to Levi, Berlin 14.7.14 [Abschrift]).

40 Courtroom to Revolutionary Stage defence team’s intentions, after all, the barristers themselves were the meetings’ protagonists.” Pieck received Paul Levi's full backing. Levi agreed to give the keynote speech at

Pieck’s renegade rally and wrote a detailed reply to the action committee’s Gutachten.*° In this document, Levi argued that Heinemann was too far removed from proceedings to be able to offer an opinion and had misinterpreted the intentions behind the mass rallies. The point was not to ‘bore the audience with problems that have been dealt with in Léwe’s commentary on the formal law of penal proceedings’, it was ‘to put the Minister of War on the spot’. Since Levi's repudiation of Heinemann’s memorandum reads like a job description for the Weimar political barrister, it is worth citing at length:*! Only in such rallies can we confront the Minister of War with his cowardice and thereby move him to behave differently, to turn and face us. If we produced pages and pages of written submissions for the court files, it would simply be a waste of paper. We can cause the Minister of War to behave differently only by publicly indicting him in our agitation. Secondly, by mounting our rallies we prevent that which the Minister wants. He wants to drag the issue of military abuse into obscurity, we want it out in the open. It must be demonstrated to the Minister of War that in this respect, too, his ‘victory’ in court [meaning the suspension of proceedings] is of absolutely no use to him, on the contrary, that in this case we will present our material to the public by circumventing the courts.

In other words, the legal battle would be taken out of the courtroom and into the public sphere at large. Publicity, which Heinemann feared would be so destructive for the party’s interests, was on the contrary the very essence of the trial. The Ministry of War had attempted ‘political justice’ in Otto Kirchheimer’s definition: the use of judicial procedure for political ends. But it had miscalculated, and now the roles would be reversed: the SPD lawyers would use judicial procedure, and its derivatives, for their own political ends. Having clarified the benefits of publicity, Levi now attacked the foundations of Heinemann’s argument. First of all, he denigrated the latter's concern about the ‘intervention in a suspended trial’. The ‘reluctance about such an “intervention”, essential for liberal dailies and their vocabulary’, was misplaced in Social Democrat discourse, according to Levi. After all, the minister had done exactly the same by issuing a press release casting himself as emerging victoriously from the legal stalemate. In barely veiled form, Levi ridiculed Heinemann’s naive conception of the judicial process. The spheres of politics and the law were separate only in the selfserving rhetoric of reactionary jurists—and in Heinemann’s mind, Levi intimated. Reluctance to ‘intervene’ in the judicial process ignored the fact that such ‘interventions were the order of the day. ” AsD NL Levi Mappe 255 [non-foliated], Pieck to Zentralvorstand des Verbandes sozialdemokratischer Wahlvereine Berlins und Umgebung, Berlin 15.7.13. 8° AsD NL Levi Mappe 255[non-foliated], Pieck to Levi, Berlin 15.7.14. *! Unless otherwise stated, all quotations in the following are taken from AsD Mappe 255 [nonfoliated], “Gegenerklarung zu Heinemann’s Gutachten’, attachment to Levi to Rosenfeld, Frankfurt a.M. 25.7.14.

The Rosa Luxemburg Trials of 1914 4] Levi also criticised Heinemann’s narrow conception of the ‘object of proceedings [zur Sache gehorig|’, a key term connoting quasi-universal goodness in the language of German jurists to this day. Instead of regarding as “die Sache’ only the subject

matter of proceedings in the courtroom as formally defined,*’ Levi proposed a much wider interpretation of the term. ‘Under the “object of proceedings”, I understand over and above [the legal definition] the totality of the reasons which led to the instigation of proceedings, of the aims which the accusation was meant to serve, and of the possibilities for agitation which follow for us.’ The younger lawyers recognised that accepting the opposition’s pseudo-‘objective’ definition of what was ‘objectively’ relevant to the case and what was not was a foolish concession. In Luxemburg’s case in particular, a wide definition of what belonged to the ‘object of proceedings’ was essential. It was part of the defence’s ‘concern [Sache] to ‘illustrate the reality of a German soldier's life using these trials and in this way to curb German militarism and the growing enthusiasm for all things soldierly’. Next, Levi turned to the problem of weighing up the interests of the individual accused against those of the party. Was the party buying its propaganda success with Rosa Luxemburg’s incarceration? Levi denied this: Perhaps, on the other hand, comrade Heinemann fears that—in the wake of the damage which the ‘objective’ conduct of proceedings might sustain—comrade Luxemburg might receive a somewhat harsher punishment because of the rallies. Not even in that case would he be correct. Had the defence team remained sheepishly docile in a man-

ner apt to draw the approval of comrade Heinemann, then comrade Luxemburg would now be sitting behind bars serving a year-long prison sentence, and in that case, the best leading articles and legal deliberations formulated afterwards with the greatest finesse would help her not one bit. In this affair, the more noise in public, the smaller the punishment will have to be.

Publicity and Luxemburg’s interest in minimising her punishment were compatible, according to Levi. But the lawyer took the argument another step forward. Even if the publicity generated through the trial had not diminished Luxemburg’s sentence, it would still have been justified. For any punishment would now, after the public rallies and newspaper coverage, have a much greater propagandistic effect: ‘the propagandistic effect of any punishment, and especially of a harsh punishment, would be absolutely extraordinary. And that, too, belongs to “the object of proceedings”.

In other words, achieving a balance between the party’s interest and that of the

client was not a black-and-white matter; it necessitated a careful weighing of options. Another way of putting this was to say that the individual client’s interest could and indeed should be compromised, if the benefit to the party was commensurate. And so indeed Levi put it in concluding his argument: Our comrade Luxemburg and her defence team have relied on the party’s means to a very high extent. This in turn implies the obligation to take care in everything that is done to see how it can most benefit the party. In the 150-200 petty trials [Plakatprozesse] which Heinemann cites in his support, this may not be the case. In such cases, the best

8° Law of Criminal Procedure (Strafprozessordnung, StPO) §263.

42 Courtroom to Revolutionary Stage outcome is that where the accused are punished the least. In the Luxemburg trial, the best outcome is that where the party profits the most. This difference must be heeded very carefully in a defence.

The dissolution of the client-lawyer link It is difficult to over-state just how revolutionary a departure this statement was for a German trial lawyer. Levi argued that in large, publicised cases like Luxemburg’s,

the party's interest preceded that of the individual client. Several aspects of this view deserve special attention. First, it was the party's financial engagement which earned its entitlement to the client's fate. The party funded the defence in all its aspects: renting venues for rallies, printing posters, committing space in the party press and, last but not least, paying the lawyers’ fees. In return, Levi claimed, the lawyers and especially the defendant had the ‘obligation —not the option—to put the party’ concerns before her or his own. In Luxemburg’s case, this view was perhaps unproblematic—after all, she had greeted the news of her indictment enthusiastically and considered it ‘necessary to accustom our party to the fact that sacrifice is part of the socialist’s craft and that this should be obvious’.®? We can safely assume that Rosa Luxemburg fully shared Levi's view and was perfectly willing to put her personal future at stake. Following Levi’s argument, however, as long as the party funded a trial, the defendant’s acquiescence in the reversal of defence priorities was an obligation, not a matter of choice. The fundamental problems this view entailed are evident. By Levi's logic, it was entirely possible for defence lawyers funded by parties to act against their clients’ best interest, preferably with, but potentially without their agreement. Levi offered two safeguards, neither of which is at all convincing. The first is the argument cited

above that client’s and party’s interest were in fact congruent, that publicity and sentence minimization went hand in hand. If this had indeed always been the case, there would have been no need for Levi's passage on obligation. Secondly, Levi proposed to distinguish between cases like Luxemburg’s and routine trials like the ‘150-200 Plakatprozesse’. Firstly, the distinction was offered on false premises. It was not so much the case that in one instance the party's interests took precedence and in another the client's. Rather, in the ‘small’ trials the interest of the party was congruent with that of the individual defendants whereas in ‘large cases’ it was not. In cases small and large alike, the party’s concerns were decisive. It was just that in ‘small’ cases the party had a greater interest in keeping its active members out of prison than in making them into sacrificial lambs for propaganda purposes. The (possibly) reassuring idea that the precedence of party over individual clients’ interests was a big exception from the rule was thus a hoax. But at any rate, what would be the criteria for deciding what distinguished a ‘big’ case like Rosa Luxemburg’s from a ‘small’ case? In practice this question would depend on who decided.

4 Waiting to Walter Stoecker, an admiring comrade in March 1914 (Harmer, H., Rosa Luxemburg, p.94).

The Rosa Luxemburg Trials of 1914 43 Paul Levi's ideas foreshadowed the Communist and the National Socialist Parties’ absolute claim on their members’ loyalty. In refuting Heinemann, Paul Levi advocated nothing less than the dissolution of the traditional client-lawyer link and its replacement by the lawyers’ and the clients’ joint subjugation to the party. Of course this radical innovation was partly an expression of the difficulties of a party fundamentally opposed to the political system in which it is obliged to operate. Nonetheless, Levi prefigured the practice of KPD and NSDAP barristers who, faced with analogous problems, found analogous ‘solutions’ in the Weimar Republic. Underlying the proposed utilization of judicial proceedings for political ends was the assumption that the individual clients’ (preferably willing) sacrifice was ultimately justified by their declaration of political allegiance. As the newspaper advertisement calling for witnesses to step forward put it (albeit in a slightly different context): “Sacrifices are part of the battle [...] every Social Democrat carries with joy and pride those sacrifices which he has been burdened with for the common cause’.** By this logic, the irksome problem of weighing up party vs. client interest was defused. The decision to join a party such as the SPD in the Empire or the Nazi and Communist parties in the Weimar Republic was assumed to imply the party member's quasi-automatic acquiescence in his own sacrifice, should this be deemed necessary—by the party.

It should be stressed that Levi was not an isolated figure, nor did his ideas materialise out of the blue. Rosa Luxemburg, Kurt Rosenfeld and Wilhelm Pieck, to name but three influential party leaders,” openly supported him. The echo of the Luxemburg mass meetings, even allowing for the amplifying effect of an atmosphere pregnant with war, suggests Levi’s ideas were well received by many of the party's supporters. Finally, the nervousness in the party leadership, who had tried first to avoid the press campaign for witnesses, then to suppress the mass rallies, could not have been caused by Levi alone. The significance of Levi’s campaign is cast more sharply into relief by a comparison to previous attempts at organising mass meetings like the anti-militarism ones. During the trial against participants in the large and violent strike in the Berlin workers’ district of Moabit in the winter of 1910, a whole group of lawyers had proposed trial-based rallies.*° At that time, only three years previously, the young generation of SPD lawyers, led by Karl Liebknecht, had been foiled.*’ In 1914, as

the successful defiance of Pieck and Levi demonstrates, the sea-change in the 8¢ AsD NL Levi Mappe 263 “Wer Soldatenmifhandlungen erlebt hat’, call for witnesses printed in SPD newspapers throughout Germany on 8/9.6.14, quoted here from Volksstimme (Frankfurt a.M.) No.130 8.6.1914. ® Rosenfeld was already a Reichstag deputy at this point.

8° ‘I and Bebel were against it [i.e. the publicistic utilisation of the Moabit trials] at the time’ according to Heinemann (AsD NL Levi Mappe 255 [non-foliated], ‘Skizziertes Gutachten des Genossen Heinemann’, attachment to Pieck to Levi, Berlin 14.7.14 [Abschrift]).

®” Karl and Theodor Liebknecht, Oscar Cohn and Kurt Rosenfeld were the protagonists of that earlier trial (protocol of proceedings, AsD NL Heine Band 203). Wolfgang Heine and Karl Liebknecht even clashed openly in the courtroom (ibid., [p.1435]). The two men disliked each other heartily despite sharing the defense bench. Months after a different trial Heine still sent Liebknecht notes entreating him to return papers which Heine thought he had borrowed and was now retaining deliberately (AsD NL Heine Band 223 [non-foliated] Heine to Liebknecht, Berlin 21.11.12).

44 Courtroom to Revolutionary Stage culture of defence work could no longer be stemmed. Its impact, however, was delayed and transformed by the advent of war.

CONCLUSION In the Weimar Republic, all left-wing barristers had moved in the direction of the ‘new style’ lawyer, but not all went equally far. The older generation of SPD lawyers, like Heine, Heinemann and Landsberg now found themselves in governmental positions. With their hopes for constitutional reform essentially fulfilled, they were still somewhat reluctant to criticise the courts, despite the judiciary’s manifest discomfort with democracy. ‘The ‘new style’ SPD lawyers like Max Hirschberg, Oscar Cohn, and Kurt Rosenfeld used individual trials for propagandistic ends, but not in a way injurious to their clients’ interest. They occasionally took on work for the KPD legal organisation, but only cases where they believed their own political views and ends would be promoted. In the absence of a Social Democrat legal organisation, they pursued their own political agendas rather than their party's. Finally, young and fiercely committed KPD lawyers like Felix Halle and Ernst Hegewisch put Levi's 1914 theoretical agenda into practice, only in radicalized form. Their party’s interest dominated their defensive strategies, if necessary at the individual clients’ expense. Later, their efforts were imitated (albeit clumsily) by the German Nationalist People’s Party, then reproduced and developed by NSDAP barristers. Given Levi's ousting from the KPD and subsequent practice as Social Democrat barrister, it is ironic that he should have formulated the theoretical underpinnings which gave extremist lawyers a blueprint for their activities in the Weimar Republic. His fall from grace as leader of the Communist Party coincided with the foundation of the Communist legal organisation in 1921. Subsequently, Levi found himself in a position vis-a-vis his extremist peers that in many ways paralleled Heinemann’s relation to Levi only seven years earlier. All Weimar political lawyers had in common, however, an understanding of the working of the judicial system modelled on that formulated by Levi rather than Heinemann. The ideal type of the Weimar political lawyer was born in the wake of the Luxemburg trial. Levi’s generation had transformed the role of the barrister. Safeguarding the client’s interest had been not just the hallmark but the raison détre of the defence lawyer. To better represent the client’s interest, to ensure absolute freedom from outside influences: these had been the reasons for the emancipation of the profession from the civil service in 1877/8. Levi's arguments heralded a different kind of dependency. Though Weimar lawyers remained largely unfettered by the state, an influential minority placed themselves at the disposal of their parties. Voluntarily, they accepted a dependency which put into question their status as ‘free’ professionals and compromised the statutory loyalty of the barrister to his client.

‘Nursing Revolutionary Fighters’ and “Legal SA-Duty’: Ten Political Lawyers Siegbert Geyer was one of interwar Munich’s most controversial lawyers. A graduate of the prestigious Wilhelms-Gymnasium, he was politicized in World War One. As a lawyer, he made his mark after the liquidation of the Bavarian Soviet Republic in

April 1919. Defending the deposed Socialist leaders, Geyer’s cross-examination exposed the Bavarian government's links to the paramilitary Einwohnerwehren (citizens’ militias), to anti-Republican elements in the Reichswehr leadership and to radical anti-Semitic politicians. Depending on their ideological stance, contemporary newspapers celebrated or condemned Geyer. Press reports evoke a man driven by his mission, a pugnacious yet curiously nervous and fidgety advocate mercilessly hounding the powers that be. In 1921, Geyer defended Martin Kriiger, the controversial curator of the stateowned Munich Academy of Fine Arts. A champion of abstract, expressionist and overtly political art, the internationally acclaimed art historian Kriiger had long been a thorn in the side of conservative Bavarian politicians such as Franz Flaucher,

the peasant-partys beer-swigging Minister of Culture. Flaucher had Kriiger framed for perjury. According to his biographer Reinhard Weber, barrister Geyer took on Kriiger’s ‘utterly hopeless’ case against ‘a state that did not want to do

justice’ and ‘despite feeling no particular sympathy for the accused’. He did it because it ‘felt good to do something, to bear witness, to shine a bright light upon at least one well defined case’.' Kriiger was sentenced to three years in prison. During the struggle for a retrial, Nazi thugs assaulted Geyer (who was Jewish) and beat him within an inch of his life. But his strength and stomach for the fight were unbroken. They were vanquished only by the death of his ingrate, yet beloved son in a nationalist brawl a short time later. Dispirited, but elected to the Reichstag for the SPD, Geyer left Munich for Berlin, and the fate of Kriiger in the balance, in early 1923. Reviled by nationalist lawyers, Geyer was viewed with suspicion by judges, stateprosecutors and conservative politicians. A master of jurisprudence and courtroom rhetoric, he was also a mainstay of his party in parliament, first in the Bavarian Landtag, then in the Reichstag. Honest, vain, driven, courageous, and uncompro-

' Weber, R., “Einleitung’, pp.9—50 in Hirschberg, M. (Weber, R., ed.), Jude und Demokrat. Erinnerungen eines Miinchener Rechtsanwalts, Miinchen 1998, p.10.

46 Courtroom to Revolutionary Stage mising in his struggle for justice, Geyer epitomized the new ideal type of the political barrister. His place in the pantheon of Weimar party lawyers is not diminished, but arguably enhanced by the fact that he is a fictional character, the invention of novelist Lion Feuchtwanger.* By 1930, the year Feuchtwanger published Erfolg, the story of the Kriiger trial, the ideal type of the party lawyer had become not just recognizable, but hard to avoid. Hence we find the party lawyers’ courtroom struggles taken up by journalists, dramatists, novelists—and even poets. The socialist Erich Weinert, for example, decried nationalist attacks on socialist defenders. ‘In the courtroom’, he rhymed with heavy irony in 1925, a higher law dictates; One waits ‘til the national nod is given The sheep from the goats he separates The sheep to the right, the goats to the left are driven All the left-wing litigators Are stigmatised as people’s traitors. Damn every stubborn left-wing goat! It’s a pig who defends a leftist sod The sheep on the right rejoice and gloat Like little lambs of almighty God.’

Nationalist writer Paul Warncke took the opposite view. Socialist lawyers were opportunists and turncoats, and the republican courts let them rule supreme. In Warncke’s poem ‘Schmock’, the eponymous Jewish lawyer’ starts out by defending a slanderer of the king during the Wilhelmine Empire: But if a prosecutor dares deride The slanderer smarting in the dock Then woe betide! For at his side There stands defending hero Schmock! His cannons now inflict their shock; Down with tyranny, he sings. Manly pride before the thrones of kings! That was the battle-cry of Schmock.

After the revolution, ‘Schmock’ changes his tune and supports the state authority. The Jewish lawyer ends up representing the Social Democrat Prime Minister of * Weber, R., ‘Einleitung’ in Hirschberg, M., Jude und Demokrat, p.10—12, und idem. ‘Dr Siegbert Geyer und seine historischen Vorbilder’, unpublished study cited in ibid., p.11, fn.12. Peuchtwanger, L., Erfolg. Drei Jahre Geschichte einer Proving, Berlin 1989. To avoid ‘misunderstandings’ and ‘doubts

about the author's position’, manifestly to avoid compromising his standing with GDR authorities, Feuchtwanger had authorized the omission of passages highlighting the similarity of right- and leftwing strategies and criticising Soviet justice from the 1950 edition (Liittig, G., “Zu diesem Band’, pp.808-16, in Feuchtwanger, L., Erfolg, here pp.815-6). > Quoted from Kreiler, K., Traditionen deutscher Justiz. Politische Prozesse 1914-1932. Ein Lesebuch

zur Geschichte der Weimarer Republik, Berlin (Ost) 1978, p.7. I am grateful to Chris Clark for his translation, which I have taken over (almost!) verbatim. * As in English, the sobriquet is a not-so-subtle slur, in this case probably referring to Otto Landsberg, who routinely represented Braun, see e.g. Landesarchiv Berlin (LA[B]) A.Rep.358-01 Staatsanwaltschaft bei den Landgerichten/267,/276,/362,/2375,/2529,/2615 and/6008.

Ten Political Lawyers 47 Prussia, Otto Braun, a sturdy and long-standing defender of the republican order and as such a thorn in the nationalists’ side: Hail and victory! ‘Things are getting Better—now the world is safe and sound. But Schmock today his knife again is whetting For someone's slandered Mr. Braun. So smarten up and hold your fire For that is what good Schmock dictates. Besides, it’s what good taste requires In this, the ‘freest of all states’.°

Conflating anti-Jewish stereotypes with prejudices about lawyers in general and

the right-wing complaint of alleged Republican ‘corruption’ and nepotism, Warncke uses the figure of the turncoat Schmock to vent nationalist resentment against Weimar democracy (‘the freest of all states’). Both poems’ political venom

is clad in ironic garb, and both not only attack their ideological opponent, but impute hypocrisy to the political middle ground and to the courts’ efforts at mediation. The poems, in short, echo the practice of Weimar party lawyers. Not just in content, but in tone, too, they insisted on the irreconcilability of ideological

viewpoints. The malevolent connivance of the ‘system’, purporting neutrality while really in cahoots with the mortal enemy, forms the backdrop against which the courageous and selfless party advocates shine all the more brightly. At the same time, the bitterly ironic tone pre-emptively scorns any suggestion of compromise or moderation. With a contemptuous sneer, the notion of accepting the rules of liberal-democratic legal procedure are dismissed as naive, even deluded. Like Feuchtwanger’s novel, the poems focus on the left—testimony to the pioneering role of socialist lawyers. By the end of the 1920s, however, right-wing lawyers had become recognizable figures in their own right. After leaving Max Alsberg’s Berlin law firm, Walter Luetgebrune built a successful practice defending prominent nationalists after the war. He routinely represented Erich Ludendorff, most notoriously at the Beer Hall Putsch trial in 1924. But the ‘star attorney of the radical right’ (as his biographer Rudolf Heydeloff labelled him) was by no means an isolated figure.° Hans Frank, Riidiger von der Goltz, and Friedrich Grimm vied for pride of place among nationalist defenders. There were in reality at least half a dozen ‘star attorneys’ of the right, and many more aspiring to such prominence. The fame, and sometimes notoriety, of individual barristers is emblematic for the

rise of the party lawyers, but the fashioning of the new ideal type transcended individuals. It was an enterprise in which all party lawyers partook, to a greater or lesser degree, a collective rather than an individual project whose overall impact exceeded the sum of its parts. Lawyers like Siegbert Geyer—highly visible, elo-

quent, inquisitive, aggressive, and ideologically committed—filled a niche in RKO Band 328, [18] Warncke, P., “Majestatsbeleidigung’, Fridericus No.3, January 16>‘Heydelotf. ,BA(B) R1507 R., ‘Staranwalt der Rechtsextremisten. Walter Luetgebrune in der Weimarer Republik’, Vierteljahrshefte fur Zeitgeschichte 32. (1984), pp.373—421.

48 Courtroom to Revolutionary Stage contemporary legal and political culture that was readily recognizable to contemporaries. * OK OK

Who were the Weimar party lawyers? What distinguished them from their nonpolitical peers? How did they see themselves and their role in the administration of justice? How did their self-view and their conception of judicial procedure in turn impact political trials and political culture? And why were their services so crucial to Weimar extremist parties? In addressing these questions, the present chapter introduces the protagonists of my narrative, and aims to sketch an ideal type of the political lawyer of the Weimar years.’

In pursuing such an ideal type, we must give due weight to important differences. Right- and left-wing political lawyers differed in some respects, as did democrats and extremists. Is treating political lawyers en bloc then not tanta-

mount to lumping together indiscriminately defenders and detractors of the Republican order? Yes and no. In contrast to Communists and nationalists, democratic lawyers attacked judgements and judges in defence of democratic values and practices, and often enough simply in defence of sound legal practice. Compared with nationalists, Communists and Social Democrats tended to be better lawyers (though not necessarily better party lawyers). Furthermore, Communists were much more ready to embrace the label ‘political’ (or ‘revolution-

ary, Communist’, ‘party etc.) lawyer, in fact, they coined the phrase. Many nationalists, on the contrary, imagined themselves fighting ‘political justice’, not

practicing it—party lawyers in denial. Given that such lawyers deployed the same arsenal of politco-legal techniques as their left-wing peers, there is little need to pay such claims much heed. In any case, once the National Socialist legal

organization began to dominate nationalist legal aid, touting rather than denying one’s ideological commitment and political agenda became de rigueur on the right, too. In their self-view and their conception of judicial procedure, however, and most importantly in their practice of the law, even the most antagonistic national-

ist and Communist lawyers had much more in common with one another than with non-party lawyers. All party lawyers pursued activist, aggressive trial strategies that fused law and political propaganda in ways totally anathema to ‘old style’ lawyers, regardless of political persuasion. Clearly distinct from their non-political peers, political barristers shared traits and a legal style transcending ideological

boundaries. Jointly (though of course not necessarily collaboratively), they remoulded the relationship between trials and politics. This project had profound implications for Weimar political culture, and tracing its effects hardly admits of differentiation according to the political orientation of individual lawyers. There

” In strictly Weberian terms, this study is more interested in the ‘Realtypus’ of the Weimar political barrister, i.e. in the empirical combination of traits and patterns of behaviour that distinguished party lawyers, rather than in advancing a theoretical construct in which certain traits are exaggerated to facilitate analysis (Weber's ‘/dealtypus’) cf. Schmidt, Manfred, Worterbuch zur Politik, Stuttgart 1995, p.409.

Ten Political Lawyers 49 is, therefore, no more reason to distinguish between ‘progressives’ and ‘reactionar-

ies than there is to take seriously the protestations of nationalist lawyers to be ‘apolitical’.

As noted in the introduction, Weimar barristers have only recently begun to attract scholarly interest in their own right. Beforehand, if they featured at all, trial lawyers appeared in one of three guises. When seen as part of the legal profession as a whole, lawyers appeared as toothless liberals. German jurists were so concerned with shoring up their socio-economic status that they unwittingly made far-reaching concessions to conservative politics generally and to advocates of restricting access to their own profession in particular. In so doing, they undermined the very principles of the free professions, universalism, meritocracy and freedom of competition. By censuring certain forms of political activism and embracing the ‘numerus clausus’ cap on the overall number of members of the bar, the lawyers themselves opened the door for the Nazis’ political and racial purge after 1933.° Whereas the ‘weak liberals’ perspective has trial lawyers helplessly stand by the swelling brown tide (perhaps unwittingly opening a floodgate here and there), the

‘lawyers of the monopoly’ thesis charged barristers with ‘preparing the Third Reich’ in the same way as judges and state prosecutors.’ If trial lawyers appeared marginally less objectionable, it was because of their perceived powerlessness to influence the verdict. Even that, however, could be construed as militating against them. East German historian Petra Gangel argued that it was precisely the lawyers apparent political neutrality and their concern with the procedural rights of the accused that rendered their influence particularly noxious. By his very participation in proceedings, the average barrister ‘assisted bourgeois class justice’ by ‘obscuring and in a certain sense [...] legitimizing’ it—a curse disguised as a blessing, as it were.” Finally, individual barristers have been celebrated as courageous advocates of democracy, critics of judicial malpractice, and stewards not only of their clients’ individual rights, but of procedural guarantees in general.'’ Often the accolades are

® Jarausch, K., The unfree professions. German lawyers, teachers and engineers 1900-1950, Oxford 1990, Siegrist, H., Advokat, Burger, Staat. Sozialgeschichte der Rechtsanwiilte in Deutschland, Italien und der Schweiz (18.-20. Jhd.), Studien zur Europaischen Rechtsgeschichte 80, Frankfurt a.M. 1996 (Siegrist allows that the role of ‘politicising trial lawyers has been underestimated’, vol.2, pp.578—9.), Ostler, EF, Die deutschen Rechtsanwalte, 2.ed., Essen 1982. For ‘weak liberals’ thesis see especially the excellent Ledford, K., From General Estate to Special Interest. German lawyers 1878-1933, Cambridge 1996.

° As Karl Dietrich Bracher famously put it (Bracher, K.D., “Einleitung’ in Hannover, H./ Hannover-Driick, E., Politische Justiz 1918-1933, Frankfurt a.M. 1966, p.12). For a similar, if more simplistic English-language perspective (‘German courts preferred to risk the conviction of a few innocent people so as to assure the conviction of all who were guilty’, a practice opposed to the ‘fundamental philosophy of criminal procedure in Anglo-American societies’) see Johnson, E., Urbanisation and Crime, Cambridge 1995, p.40. '° Gangel, P., Die Rote Hilfe Deutschland und ‘thre’ Rechtsanwilte im Kampf gegen die Justiz der Weimarer Republik, unpublished dissertation, Berlin (Ost) 1985, pp.28-32, here p.30. '' Morris, D., Justice Imperiled. The Anti-Nazi Lawyer Max Hirschberg in Weimar, Ann Arbor 2005. Knobloch, M./Reifner, U., “Der “kommunistische” Anwalt und die freie Advokatur—Zur Biographie von Ernst Hegewisch (1881—1952)’, pp.23—-35 in Fabricius-Brand, M., (ed.), Rechtspolitik ‘mit aufrechtem Gang: Werner Holtfort zum 70. Geburtstag, Baden-Baden 1990.

50 Courtroom to Revolutionary Stage justified—the most recent example is Douglas Morris’ biography of Max Hirschberg—sometimes they are, as we will see, grossly misguided. But regardless

of the historical accuracy of such individual portraits, the point of singling out individual achievement is almost invariably to condemn the legal profession's general inertia or complicity with the National Socialists. The more shining the exception, the darker the tint of the sheer black backdrop formed by German jurists in general. Both general views on the profession and individual lawyers’ portraits tend to

downplay or ignore outright the many similarities between political barristers, regardless of ideological conviction.’’ This obscures the group’s identity as well as its impact on judicial culture and political discourse. How decisively party barristers shaped contemporary perceptions of ‘political justice’ can only be understood in the context of the political redefinition of the role of the trial lawyer they themselves undertook. But this politicization of the defence lawyer was a project the barristers in this study pursued collectively, not individually. The emerging image of the political trial lawyer as distinct from his non-political colleague depended not on individual barristers but on the group as a whole.'° This group ought therefore to be the object of inquiry. The argument this chapter offers is threefold. First, it establishes how party lawyers differed from ‘traditional’ German lawyers but resembled one another across

ideological divisions. Secondly, it aims to show that they were key figures in— though of course not the only cause of—the de-legalization and dramatization of trials. This was, thirdly, crucial to the extremist parties’ efforts to make the courtroom a privileged site of ideological combat. The chapter has three parts. Part one sketches the biographies of ten lawyers from across the ideological spectrum. Social extraction, education, political socialization and legal career are the main reference points. Part two is more analytical in its attempt to work out how these prominent party lawyers saw themselves, their work, and the relationship between justice and

politics. A final part surveys the uneasy relations between political lawyers and their ‘normal’ peers and amongst themselves.

Political lawyers cannot be understood in isolation from the party legal organizations that employed or retained them. The legal organizations managed '* For a recent, and excellent, study of an individual lawyer that also provides very good contextualization see Hett, B., Crossing Hitler: The Man Who Put The Nazis in The Witness Stand, Oxford 2008. Other studies of individual lawyers include Beradt, C., Paul Levi. Ein demokratischer Sozialist in der Weimarer Republik, Frankfurt a.M. 1969, Trotnow, H., Karl Liebknecht. Eine politische Biographie, Kéln 1980, esp. pp.56—72, Heid, L., ““Er ist ein Ratsel geblieben” Oscar Cohn—Politiker, Parlamentarier, Poale-Zionist’, pp.25—-48 in Benz, W. et al. (eds.), Jiidisches Leben in der Weimarer Republik,

Schriftenreihe wissenschaftlicher Abhandlungen des Leo-Baeck-Instituts 57, Tiibingen 1998. A collection of essays published by the editorial board of the journal Kritische Justiz paid some attention to the collective aspect of fashioning the party lawyer niche. However, the project suffers from the omission of all right-wing lawyers, no less ‘political’ and streitbar than their Social Democrat and Com-

munist colleagues (Redaktion Kritische Justiz (eds.), Streitbare Juristen. Eine andere Tradition, Baden-Baden 1988). See also the discussion of portraits of individual right-wing lawyers in the introduction. 'S “Non-political’ is not to say ‘apolitical’. “Non-political’ lawyers might well have been party mem-

bers and local politicians, but they separated their political role from their courtroom work.

Ten Political Lawyers 51 and financed legal aid, allocating barristers and liaising with party newspapers and parliamentary factions. In reverse, political lawyers staffed the organizations (which they had founded in the first place) —-a symbiotic relationship or, to use an even more worn metaphor, two sides of the same coin. Whichever side of the coin we look at first, lawyers or party legal organizations, the complement will remain partially obscured, even though acquaintance with it would be highly desirable for the reader. Starting with lawyers has two advantages. First, chronology suggests it. Secondly, by considering lawyers across the political spectrum before discussing the (obviously partisan) institutions they built,

the basic similarity of type is emphasized and the confrontations between opposing lawyers amidst the clamour of ideological self-stylization can be put in perspective.

BIOGRAPHIES But how to go about it? At the first peak of its activities, in 1924, the Communist Party legal office kept a list of just over 200 routinely employed barristers. Only party comrades pleaded in the most sensitive cases, but by no means all lawyers on the list were Communists. Social Democrats, members of proletarian splinter parties, or unafhiliated jurists made up more than two-thirds of the total. In the absence of a central organization, i.e. until late 1928, gauging the number of nationalist lawyers is even harder. By late 1932 the Association of National Socialist German Lawyers (Bund Nationalsozialistischer Deutscher Juristen, BNSDJ) had more than 300 barrister members. Though only a small minority of the bar, around 2—3 per

cent, 400-500 party barristers cannot all be included in this study.'* Questions about self-perception, view of the judicial process and relations to peers are qualitative. Addressing them requires a fine-grained analysis and attention to detail viable only on a smaller scale. Perhaps 30—40 ‘high-profile’ political lawyers reached national recognition (or notoriety).'? They constituted, in terms of their visibility and influence, the tip of a pyramid whose much broader base was formed by their less well-known peers. Their law practices were most clearly geared in the first instance to political work.

They tended to derive the highest proportion of their sometimes considerable income from party briefs. Finally, they were most clearly identified with the emerging ideal type of the political trial lawyer, shaping the perception of contemporaries and inspiring imitation by their lesser-known peers. This chapter is based mainly on ten of these most visible party lawyers. Apart from the availability of sources, the selection reflects the relative sizes of the political camps, at least roughly. For the German Communist Party, Ernst Hegewisch

4 Prest, W., The Rise of the Barristers. A Social History of the Bar 1590-1640, Oxford 1986, Chapter four, “Group portrait’. '° See appendix A.

52 Courtroom to Revolutionary Stage and Felix Halle are included. Hans Litten did not belong to any party, but selfidentified as a revolutionary socialist. Paul Levi was ousted from the KPD leader-

ship (and the party) in 1921 and subsequently rejoined the majority Social Democratic Party, which Wolfeang Heine and Max Hirschberg belonged to through-

out the Weimar years. Friedrich Grimm was a member of the German People’s Party (Deutsche Volkspartei, DVP) before hurriedly joining the Nazis in 1933. Walter Luetgebrune and Ridiger Graf von der Goltz both belonged to the German Nationalist People’s Party (Deutschnationale Volkspartei, DNVP) before joining the National Socialist Party—in 1931 and 1930, respectively—which had been the political home of Hans Frank all along. Strikingly, neither the Catholic Centre Party (Deutsche Zentrumspartei), nor the German Democratic Party (Deutsche Demokratische Partei, DDP) boasted party lawyers. ‘They lacked a culture of political defence work comparable to that of the SPD or the extremist parties. What prominence DDP and Zentrum lawyers attained was unrelated to trials in which they pleaded on their parties’ behalf. Tellingly, the prominence of the best-known Democratic Party lawyer, Alfred Apfel, stemmed in part from the well-publicised petition for a retrial of left-wing insurrectionist Max H6lz, which Apfel co-authored with KPD barrister Felix Halle." With regard to Centre Party lawyers, the party’s history of state persecution during the Kulturkampf begs the question whether a tradition of political defence work similar to that of the SPD had not developed. However, by the advent of the Republic, Centre Party lawyers were no longer a prominent force, a development symbolized by the death in 1918 of the last prominent Centre Party barrister, Reichstag member Julius Bachem." Women gained admission to the bar in 1922, after a drawn-out battle with the organs of professional self-government—barely enough time to practice within the

timeframe of this study. Though studying law had been possible for women in theory since 1909, in practice many hurdles remained. It was not only that male peers treated them with condescension and/or aggression, but that university adminstrations dragged their feet and faculty boycotted classes with female students. Add to that the financial obstacles, macro-economic turmoil and uncertain job prospects, and it is hardly surprising that only a handful of women entered the bar before 1933. On the contrary, given the arduousness of the journey and the uncertainty of the outcome, the surprising thing is that women should have opted for a career as a trial lawyer at all.'® '© Another famous Apfel trial was his defence of George Grosz from the charge of blasphemy in connection with a suite of drawings which became famous under the title “Der Christus mit der Gasmaske’, between April 1928 and February 1930. Found guilty in the first instance, Grosz was subsequently acquitted (LA(B), A.Rep.358-01 Staatsanwaltschaft bei den Landgerichten/358). See also Andrea Gangel, ‘Der “Rote Hilfe Anwalt”—Alfred Apfel, Weltbiihne 16/1989, pp.494-6. '7 Siegrist, H., Advokat, Birger, Staat, p.571. Kurt Pindar, a Berlin barrister, appears as the closest thing to an heir (LA(B) A.Rep.358-01 Staatsanwaltschaft bei den Landgerichten/16, ibid./51). 'S Bajohr, S., Rédiger-Bajohr, K., “Die Diskriminierung der Juristin in Deutschland bis 1945’, Kritische Justiz vol.13 (1980), pp.39-50, Manns, H., Frauen fiir den Nationalsozialismus. Nationalsozialistische Studentinnen und Akademikerinnen in der Weimarer Republik und im Dritten Reich, Opladen 1997, Griittner, M., Studenten im Dritten Reich, Paderborn 1995, p.23, pp.109—23.

Ten Political Lawyers 53 Circumstantial evidence suggests that of the perhaps fifty women who did enter the bar, a far higher than average percentage was attracted to a political practice. Hilde Benjamin, later Minister of Justice in the German Democratic Republic and nicknamed the ‘Red Guillotine’, is the most obvious illustration. She set up a law practice near Gesundbrunnen in Berlin-Wedding in 1928, and worked exclusively for (and with) party comrades.'? Her first celebrated case was the defence of the killers of Horst Wessel, a Berlin stormtrooper whose ‘martyr’ death turned him into a National Socialist poster-boy.”° There were perhaps a half dozen female party lawyers like her, usually, though not exclusively on the left. The nationalist lawyer Paul Bloch, a Jew according to the racial criteria of his would-be political allies, formed a joint practice with his daughter, shortly before the Nazis forced both out of the profession. In short, women lawyers in the Weimar Republic make for a fascinating study in their own right—in the hierarchies of party legal organizations and in Weimar courtrooms more generally they played a minor role. *K OK OK

Felix Halle was the son of a Jewish merchant from Berlin. Born in 1884, Halle was a

pacifist and fervent internationalist.2" He studied law and political science in his hometown, between 1902 and 1905 (whether he graduated is hard to establish— Halle’s name is not listed in Berlin University’s matriculation or examination rosters).” Halle worked as a journalist and built his own publishing firm, which he sold to the Communist ‘press tsar’ Willi Miinzenberg in 1924. He joined the SPD in 1912 and the Independent Socialists in 1916—a logical step, given that he worked full-time for the USPD press office. Halle spent several months on a visit to the Soviet Union in 1920/21, where he had an adjunct position in the People’s Commissariat for Justice. Halle claimed to have been tenured as a professor of law while in Moscow, and routinely used the title. In 1928 the KPD nominated him to the Staatsgerichtshof fiir das deutsche Reich (not to be confused with the State Court for the Protection of the Republic, see Appendix C) on this basis. But despite persistent efforts on Halle’s behalf (by German Communist Party Politburo member Fritz Heckert, no less) it proved impossible to procure an official letter of appointment. Eventually, Heckert was told

point blank by a Soviet official that there was no record of Halle’s appointment, and in any case for all he knew, ‘this Halle might be a Menshevik’.” On his return to

Schwarz, E., Schwarz, J., Schneider, H.-J., Die Rechtsanwiilte der Roten Hilfe Deutschlands, Bonn 2002, pp. 86—7., Gangel, P., Die Rote Hilfe Deutschlands und ‘ihre Rechtsanwalte im Kampf gegen die

Justiz der Weimarer Republik, unpublished dissertation, Berlin (Ost) 1985, p.84, Wagner, H., Hilde Benjamin und die Stalinisierung der DDR-Justiz, Aachen 1999. *° Kadi, K., ‘Biographie Prof. Dr Hilde Benjamin’ ( 21.10.2010 11:54). “I! Stascheit, U., ‘Felix Halle’ pp.153-62 in Redaktion Kritische Justiz (eds.), Streitbare Juristen, p.154.

* ‘Tischler, C., “Zwischen Selbststilisierung und Selbstaufgabe. Felix Halle und die KPD’, pp.233—50 in Hering, S./Schilde, K. (eds.) Die Rote Hilfe. Die Geschichte der internationalen kommunistischen ‘Wohlfahrtsorganisatiow und ihrer sozialen Aktivitaten in Deutschland (1921-1941), Opladen 2003, here p.234, fn.2. °° ‘Tischler, C., “Felix Halle und die KPD’, pp.233—50 in Hering, S./Schilde, K. (eds.) Die Rote Hilfe, Opladen 2003, p.238f.

54 Courtroom to Revolutionary Stage Germany, he joined the Communist Party and headed the fledgling legal co-ordination bureau from its foundation in August 1921.4 In step with the Communist legal organization’s growth, Halle steadily extended

the ambit of his activities. As well as overseeing the administration of the legal office, he visited prisoners, attended conferences, observed trials, and wrote legal guidebooks, for example on the law of asylum and abortion. His pragmatically entitled How does the proletarian defend himself in political penal matters against police, state prosecutor and the court? (1921) was an instant bestseller. With reluctant

admiration, judges referred to it as an obstruction of justice in book form, and it became a reference manual for left-wing political defendants, the ‘in-house political lawyer’ as a Communist paper put it in 1931.” Halle was ousted from the JZ leadership in 1924 after a fisthght with a Communist deputy, Gustav Menzel (of which more below) compounded internal allegations of laziness, favouritism and high-handedness, all imbued with anti-Semitic overtones. Doing without his expertise proved difficult, however, as he was reinstalled soon after in an advisory function, and became head of the JZ again in 1928, after a purge. In the same year, the Communist Party nominated Halle to sit on the Staatsgerichtshof fiir das deutsche Reich, a position he held until the Nazi seizure of power.

Ernst Hegewisch, born in Hannover in 1881, was the son of a well-to-do businessman, described variously as a factory owner or a jeweller. During his studies (in Heidelberg, Leipzig, Kiel and Berlin) he had joined the Social Democratic Party but left it after graduation to avoid complications while completing his training (budding jurists were temporary civil servants and at times penalized for membership in Socialist organizations). Still, it is remarkable that Hegewisch did not reenter the Party once qualified. In fact, the long hiatus between taking his exams in 1905 and opening his commercial law practice in the lower Saxon town of Celle in 1912 suggests that Ernst Hegewisch considered alternative career paths before settling on the bar.”° Hegewisch did not volunteer for military service in 1914, and, when conscription was introduced, was exempted on unspecified medical grounds (he suffered * According to Petra Gangel, he only joined the KPD in 1922, a year after he had been put in charge of the Juristische Zentralstelle (central legal office, JZ). According to Schneider, Schwarz & Schwarz (p.141)

on the other hand, he had already joined the KPD on his return. See also the lengthy and complicated explanation Halle himself gave of this question (Tischler, C., ‘Felix Halle und die KPD’, pp.233—50 in Hering, S./Schilde, K. (eds.) Die Rote Hilfe, Opladen 2003, p.236, Gangel, P., Rote Hilfe, p.75, BA(B) RY1/12/711 Juristische Zentralstelle (JZ) Band 1, [78]f., Halle to ZK KPD/Politburo, Berlin 22.2.28). > Halle, E, Wie verteidigt sich der Proletarier in politischen Strafsachen vor Polizei, Staatsanwaltschaft und Gericht?, 2.ed., Berlin 1924, MOPR Berlin, 6. Jahrgang No.1, January 1931, BA(B) RY1/12/711

JZ Band 11, [73]-[82] Halle an Obuch, Rosenfeld, Samter, Seckel, Herzfeld and Alexander, Berlin, 1.12.24, [78]. See also Brauns, N., ‘Die deutschsprachige Verlagstatigkeit der Roten Hilfe’, pp.96-102 in Hering, S./Schilde, K. (eds.) Die Rote Hilfe, Opladen 2003, p.97. °° Gangel, P., Rote Hilfe, p.78, Knobloch, /G.Reifner, U., “Der “kommunistische” Anwalt und die freie Advokatur—Zur Biographie von Ernst Hegewisch (1881-—1952)’, pp.23-—35 in FabriciusBrand, M. (et al., eds.) Rechtspolitik ‘mit aufrechtem Gang Werner Holtfort zum 70. Geburtstag, Baden-Baden 1990.

Ten Political Lawyers 55 from nervous exhaustion later on). A Spartacist, Hegewisch helped found the Celle

KPD. During the 1920 Kapp Putsch, the barrister was elected to represent the Celle workers’ committee in negotiations with local government. Hegewisch began

to work exclusively for the KPD. He defended high profile clients such as the ‘Communist Robin Hood’ Max Holz and Karl Plattner, both of whom translated Lenin’s stricture of looting the looters rather literally into armed robbery. But Hegewisch also pleaded in much more run-of-the-mill trials and at times moved the centre of gravity of his practice entirely to where the party needed him, e.g. after the Thuringian insurrections of 1921 and the Hamburg uprising of 1923.7 Hegewisch ardently advocated far-reaching party control over members’ legal affairs. A highly irascible character, he was one of the mainstays of the Communist Party legal office as well as its most vocal critic. In scathing attacks, the Celle barrister lambasted the party hierarchy as ponderous, timid and overly restrained in its tactics, while the party press failed to make appropriately copious and aggressive use of the raw material his trials furnished.”* Hans Litten, born in 1903 in Halle, was the son of a distinguished professor of law, Friedrich. Litten senior, a politically conservative patrician, moved the family

to K6nigsberg in 1906. Hans always regarded his father’s conversion from Judaism—without which the elder Litten would hardly have achieved tenure, let alone rectorship of K6nigsberg University—as an act of opportunism. In school, the brilliant young Litten hence made a point of studying Hebrew and joined the romantic, anti-authoritarian and socialist German-Jewish youth group Schwarzer Haufen. Paradoxically, he still heeded his father’s advice to study law (which he felt had been ‘invented by an ox, one boring day in paradise’).*’ Passing his law exams with flying colours, Litten turned down the opportunity of a position in the Reich Justice Ministry, opting instead to join the Berlin law practice of his socialist colleague Ludwig Barbasch in 1928. Although branded a ‘Communist’ by the Nazis, Hans Litten was not in fact a party member. He told Barbasch that he was seeking to join the older colleague as one of the few Berlin socialist lawyers afhliated with neither SPD nor KPD.” According to the autobiography of his childhood friend, the novelist Max First, the idealistic Litten privately criticised the KPD legal organisation for its tendency to make martyrs out of accused party members for propaganda purposes.*' On the other hand, the prominent Weimar publicist Rudolf Olden related a conversation

with Litten in which the young lawyer strongly objected to making tactical

*” See e.g. BA(B) RY1/12/711 JZ Band 7, [13]-[19] Hegewisch to [recipient blackened, probably JZ], Celle, 12.1.24, ibid [20]—[22] JZ (D.O.) to Hegewisch, Berlin 25.1.24

. 5 ays BA(B) RY1/I2/711 JZ Band 8, [110]-[165] Hegewisch to KPD central office, Celle % Quoted following Griindler, K. “Kampf um das Recht—Anwalt Hans Litten und der faschistische Terror’, DeutschlandRadio Berlin, 19.6.2003, 20.6.2010 21:30. °° Hett, Crossing Hitler, pp.46—50, here p.47. *! Cited following Diix, H., “Hans Litten’, pp.193—203 in Redaktion Kritische Justiz (eds.), Streitbare Juristen, p.197.

56 Courtroom to Revolutionary Stage ‘concessions to the courts, on the grounds that the ‘system will not last much longer anyway .*”

Whichever source is accurate (and they may very well both be), Litten did valuable work for the Communist legal office, and fiercely combated the extreme

right, especially the Nazis.*? Famously, Litten once subjected Hitler to two hours of intense questioning in the witness stand, an episode Benjamin Carter Hett recently placed at the heart of his insightful and thought-provoking biography of Litten.** At issue was a stormtrooper attack on Communists in the Eden Tanzpalast, a Berlin nightspot in early 1931. In cross-examination, Litten forced an increasingly exasperated Hitler to expose the duplicity of the so-called ‘legality tactics’ which the NSDAP affected to espouse even while the SA was

wreaking bloody havoc. At the same time, Litten brought the deep divisions over these tactics within the Nazi movement to light. Even years later, Hitler reputedly turned a dark shade of red at the mention of Litten’s name.” As a consequence, all pleas for the release of Litten, incarcerated continuously since 1933, fell on deaf ears.*° The three Social Democrat trial lawyers included in the group of ten, Wolfgang Heine, Max Hirschberg and Paul Levi, are a study in contrasts. Generationally, geographically and politically they stand for the diversity of the Weimar SPD. Wolfeang Heine, born a schoolmaster’s son in Posen in 1861 and easily the oldest of the ten lawyers, was elected to the Reichstag in 1898. During the Kaiserreich, he co-ordinated efforts to reform the restrictive laws of association, but also conducted high profile defences, e.g. in the 1911 Moabit riot trial. Heine was one of the leading right-wing Social Democrats after the Revolution. Until March 1919, he was simultaneously Prime Minister of Anhalt and Prussian Minister of Justice. He had to resign as Prussian Minister of the Interior in the aftermath of the Kapp Putsch

(Heine, it was rumored, had been prepared to enter into negotiations with the Putschists). Reverting to his legal practice full time, he and Otto Landsberg repre-

sented Reich President Ebert in the infamous Magdeburg slander trial against nationalist editor Erwin Rothardt in 1924/5. Heine also published extensively and was a member of the Staatsgerichtshof as his party’s nominee. On 11 October 1925, Heine addressed a capacity crowd in the Theater am Nollendorfplatz to announce his resignation from the court in protest over its verdicts sentencing Communist authors, publishers and book-printers for high treason.°’

** Quoted following Hett, Crossing Hitler, p.53. °° Gangel, P., Rote Hilfe, p.82. * For coverage of the trial see e.g. “Der Eid und die Gesetzlichkeit’, Vorwarts, 9.5.31, “Die national-

Woy susenen Fiihrer werden nervés’, Berliner Tageblatt, 9.5.31 (BA(B) NL 2111 Heine Band °° According to Freisler, quoted by Litten’s mother (Diix, H., ‘Hans Litten’, pp. 193-203 in Redaktion Kritische Justiz (eds.), Streitbare Juristen, p.201).

°° ‘Thanks to the untiring efforts of Litten’s mother Irmgard, even the British Conservative Lord Allen intervened on his behalf, to no avail (Diix, H., “Hans Litten’, pp.193—203 in Redaktion K7itische Justiz (eds.), Streitbare Juristen, p.201). °”? Winkler, H.-A., Weimar. Die Geschichte der ersten deutschen Demokratie. 1918 bis 1933. Miinchen

1993, pp.44, 84, 115, 120-1, 127-30.

Ten Political Lawyers 57 Max Hirschberg, born in Munich in 1883, a brilliant musician and connoisseur of Russian literature and arts, came seventh out of a cohort of 354 candidates in his final examinations. As a Jew, Hirschberg was denied entry into the judiciary or the civil service, and instead he joined the bar, and lived what he later described

as the life of an uncommitted drifter. In 1914 Hirschberg volunteered, was wounded and highly decorated. As the war dragged on, he began to attribute its origins to the capitalist economic order. “The despoiling of the globe through violence turned me into a revolutionary in spirit for good.’** It was at this point that he ‘recognised the struggle for justice’ as his calling. He decided to set up as a political lawyer in Munich, joined the USPD in 1919 and the majority SPD subsequently. As legal advisor to the Social Democrat faction in the state legislature and quasi-permanent counsel of the Bavarian SPD’s newspaper, the Miinchener

Neueste Nachrichten, he frequently crossed swords with Hans Frank in court. Between 1928 and 1930 Hirschberg appeared in a number of libel trials Hitler himself initiated to fend off the popular (and highly damaging) claim that he had been bought off by Mussolini over the question of South Tyrol, the so-called ‘Italian Gold’ allegation. Paul Levi, \ike Hirschberg born in 1883, was the son of a well-to-do Jewish merchant family from Hechingen in Swabia. His parents’ wealth meant he could study in Grenoble, France, as well as in Berlin and Heidelberg. Setting up his law practice in Frankfurt am Main, Levi made a point of taking on so-called poor law representations (Armenrechtsvertretungen). Apart from the ad-fraud discussed in chapter one, the 1911 Schwabenthan case deserves mention. Five peasant brothers from Steinhofen, a village near Levi's home, were accused of breach of the peace, and duped into waiving important procedural guarantees. Defending them, Levi accused the key prosecution witness, a judge, of breach of the peace. When country judge (Landrichter) Meyer responded with an anonymous newspaper article attacking Levi, the barrister sued him for libel. Amidst great embarrassment, Meyer’s superiors had to force him to retract his article and apologize, whereupon Levi, too, let the matter rest.*’ His passion, tenacity, and rhetorical skill seared the trial into the Hohenzollern region’s collective memory. Eight years later, in the revolutionary months of early 1919, the Neuer Alb-Bote referenced the Schwabenthan case in its attack on a ‘judiciary which will never understand its errors, who will only ever think of the delusion of its embattled, half-godly honour’. Unable to understand the Wiirttembergers’ ‘way of thinking’ and ‘emotional life’, contemporary Prussian officialdom, too, presided over ‘miscarriages of justice which poison the people’s soul’.*° Levi's rise in the Frankfurt SPD was swift. He made Rosa Luxemburg’s acquaintance in 1913, and became her lover as well as her lawyer.*! Though comprehensive,

°8 Hirschberg, M., Jude und Demokrat, pp.57-8. *»” Archiv der sozialen Demokratie (AsD) papers Paul Levi (NL Levi) Mappe 254. “© AsD NL Levi Mappe 254 [unfol.] Der Neue Alb-Bote—Ebinger Tageblatt. Freisinniges Volksblatt

fir Wirttemberg, Baden und Hohenzollern 38, 15.2.1919. “I Quack, S., Geistig frei und niemandes Knecht. Paul Levi und Rosa Luxemburg, Koln 1985.

58 Courtroom to Revolutionary Stage their victory in the ‘militarism trials’ was made inconsequential by the advent of war and Luxemburg’s ‘protective custody’ (Schutzhaft). Levi greeted the war with frustration and anger. His compatriots’ enthusiasm exasperated him. He declined, for example, the invitation to participate in a lecture series intending to sustain ‘patriotic fervour’ in Frankfurt. In his reply to the organizer, Levi attacked both the eullibility of ‘the rabble calling itself “the educated classes” and the nationalism, conceit and hypocrisy of the German academic establishment—Levi named Theo-

dor Mommsen—purporting to lead the spiritual charge.” In 1916, Levi was drafted into an artillery regiment. Secretly starving himself, he was discharged on medical grounds, and returned to Frankfurt and to the organization of the various anti-war coalitions inside the socialist movement. A founding member of the Spartacus group, Levi became leader of the KPD after the murders of Karl Liebknecht, Rosa Luxemburg, and Leo Jogiches. Ousted from the KPD leadership in 1921, he rejoined the Social Democrats together with the rump of the Independent Socialists in autumn 1922. A parliamentarian, Levi edited a newsletter, Sozialistische Blatter fiir Politik und Wirtschaft, but concentrated mainly on his law practice. His most celebrated Weimar defence was the

acquittal he secured in the slander suit brought by state prosecutor Paul Jorns. Jorns had investigated the murder of Liebknecht and Luxemburg in 1919. When, ten years later, the left-liberal weekly Zagebuch accused him of deliberately covering up for the officers responsible, he sued for libel.** Levi's plea in defence of the Tagebuch editor Leopold Schwarzschild and proprietor Josef Bornstein was an instant forensic classic. Having recounted the murder and the subsequent fate of the subaltern murderers, he closed: ‘The terrible deed, committed long ago, has brought ill fortune to all those it touched [...] one man alone rose up, military magistrate Jorns, and I believe that in those ten years he has forgotten whence his red robe takes its colour. [...] The dead letters, used to shield the guilty, and the victims’ long decayed bones: here they rise and accuse the erstwhile accuser’.

The acquittal, though subsequently reversed, was a triumph. A week into the appeal proceedings, Levi, running a high fever, fell from his window and died on the spot. The outpouring of venom in the right-wing press’s obituaries—one sug-

gested that Levi, no longer able to stand his ‘Jewish stench’, had deliberately jumped—gave a taste of what was in store for other Socialist and Jewish lawyers after 1933. As his fellow Reichstag deputies rose to honour Levi's memory, the National Socialist and Communist factions walked out. * OK Xx

We turn to the right, starting with Friedrich Grimm, the son of a railway draughtsman born in Diisseldorf in 1888. After studies at Geneva, Berlin, Marburg and

Minster he initially concentrated on commercial law (like Ernst Hegewisch). © (AsD NL Levi Band 124 [non-foliated] Levi to Ausschuf fiir Volksvorlesungen, Frankfurt a.M. (draft, dated ‘November 1914’]). 3 “Kollege Jorns, Tagebuch, 24.3.1928. The article was written anonymously by Berthold Jacob.

Ten Political Lawyers 59 A protégé of the powerful German People’s Party lawyer and Reichstag deputy Adolf Kempkes, Grimm was 25 at the start of the war.** Thanks to connections and his fluent French, he was assigned to an ofhice censoring the mail of encamped

prisoners of war and later defended French officers accused as war criminals in German military courts. Arguing that subjectively, love of their country had motivated his French clients, he claims in his unpublished memoirs to have secured a number of acquittals. When Germany lost the war, his efforts appeared to him not to be reciprocated in trials against German officers.” Grimm defended leaders of the illegal Schwarze Reichswehr, a large paramilitary formation tacitly supported by the regular armed forces to sidestep personnel ceilings imposed by the Versailles Treaty. The Black Reichswehr operated clandestine hit squads to eliminate suspected traitors, naturally without due process. The bru-

tality and the randomness with which these self-styled “Feme judges’ executed ‘unreliables’, often on the silliest of hearsay, caused a scandal when the matter came

to light during a series of trials between 1926 and 1930. Keen to protect the Reichswehr leadership, Grimm resisted calls to force the government into acknowledging its own part in arming, financing and training the paramilitaries. Instead, he campaigned for political amnesties, bringing him into an unlikely alliance with Communist Party lawyers Halle and Hegewisch between 1928 and 1932.*° Riidiger Graf von der Goltz was born in 1894, the youngest son of Prussian military nobility. As a fledgling officer of the guard, he went to war enthusiastically.

Neither his brother's death in action nor his own severe injury, both in the first weeks of the conflict, altered his stance. Crippled by the loss of a leg, he again took

up the legal studies he had sampled prior to his officer training. He rejoined the army as a staff officer on an intelligence unit. Writing for front newspapers, von der Goltz made contacts, which were valuable assets for his subsequent career as political trial lawyer.*” As head of the Vereinigte Vaterlindische Verbande, a right-wing East Elbian pressure group, Goltz’ father, Riidiger Sr., enjoyed good relations with the leadership of the German Nationalist People’s Party. Setting up his law practice in Stettin in 1922, his son tried his hand at local politics, with mixed success. Goltz’s career as trial lawyer was driven by his media-effective style of pleading

and his adroit choice of representations. In the Feme trials, he was Friedrich Grimm's nemesis. His courtroom attacks on the Weimar ‘system’, but also on the Reichswehr and the conservative establishment opened the doors to the Berlin Nazi élite. In the last two years before the seizure of power, he routinely represented Goebbels as well as G6ring and other top National Socialists (much to the chagrin of Hans Frank). “ Steveling, L., Juristen in Miinster—ein Beitrag zur Geschichte der Rechts- und Staatswissenschaftlichen Fakultat der Westfalischen Wilhelms- Universitat Miinster/Westfalen, Minster 1999, p.182, Sauer, B., Schwarze Reichswehr und Fememorde. Eine Milieustudie zum Rechtsradikalismus in der Weimarer Republik , Berlin 2004, pp.28—-34, Nagel, I., Fememorde und Fememordprozesse in der Weimarer Repu-

blik, Kéln 1991, pp.55-61. * BA(K) NL 1120 Grimm Band 9, p.1, pp.5—9. Corroborating Grimm’s account is difficult because the Bibliothéque Nationale de France has not released Grimm's papers. “6 For Grimm’s biographical data, see Krach, T., /iidische Rechtsanwailte in Preufsen, pp.154-6. “7 BA(K) papers von der Goltz (KLE 653).

60 Courtroom to Revolutionary Stage Walter Luetgebrune, born into a well-to-do agrarian family in Westfalia in 1879, studied law at Tiibingen and Freiburg. Luetgebrune excelled at his studies, and began life as a lawyer in the practice of the most celebrated Weimar barrister of all, Max Alsberg. After the war, Luetgebrune’s political views became increasingly radical and anti-Semitic, and he broke with Alsberg. Luetgebrune defended the student members of a Freikorps militia unit who had staged a mass execution of ‘reds’ at Mechterstadt near Marburg in 1919, naval officers accused of war crimes and, in 1922, the surviving assassins of Walter Rathenau. In 1924, he represented Erich Ludendorff in the Hitler-Putsch trial, securing the former field marshall’s scandalous acquittal of

the high treason charges. In 1925, he faced SPD lawyer Wolfgang Heine in the Magdeburg Ebert trial. In 1929, his fame was such that he was the main speaker at the 50th anniversary gala of his Tubingen fraternity, the Sangerschaft Zollern.** Subsequently, Luetgebrune’s views turned too radical even for the German Nationalist People’s Party, which he had hitherto been associated with. He became the lawyer in chief of the SA after making the acquaintance of Ernst R6hm in 1931.” Hans Frank was born in Karlsruhe in 1900. Frank’s father, Karl, was struck off the bar register for overcharging clients. Steeped in his divorcé father’s vdlkisch

values, Frank moved to Munich for his studies, and joined the SA in the early twenties. An attempt to join the Foreign Office failed.”’ As a trial lawyer for Munich

Nazis, Frank swiftly made his mark with his uncompromisingly rabble-rousing, anti-Semitic style. His pleas were really thinly disguised podium speeches, with frequent endorsements of violence and legal reasoning often restricted to a minimum.”! Frank won Hitler’s favour as the Nazi leader’s counsel fighting press allega-

tions that Hitler had accepted campaign money from Fascist Italy—essentially, that the Fihrer was in Mussolini’s pocket. After the so-called ‘Italian Gold’ trials, Hitler backed the foundation of the Association of National Socialist German Lawyers (Bund Nationalsozialistischer Deutscher Juristen, BNSDJ) under Frank in September 1928. The newly minted Nazi lawyer in chief scored propaganda suc-

cesses, culminating in the masterly presentation of Hitler as a witness in the so-called Ulmer Reichswehrprozess in September 1930. The trial of Richard Scheringer, a National Socialist army lieutenant accused of high treason, gave Hitler a stage for his so-called ‘legality oath’. Hitler abjured violence and ostensibly committed the party to a ‘strictly legal’ course. The echo was enormous. Delivered mere weeks before the 1930 Reichstag elections, Hitler's two-hour stump speech from

“8 Lonnecker, H, “Wenn Helden zu Problemem werden. Hindenburg und Ludendorff als Ehrenmitglieder akademischer Verbande’, pp.8—11, , 17.6.2010. ® Heydeloff, R., ‘Staranwalt der Rechtsextremisten. Walter Luetgebrune in der Weimarer Republik’, VIZ 32 (1984), pp.373-421. °° BA(K) NL Frank Band 31 Hans Frank an Brigitte Frank, Berlin (Briefkopf Dr.iur. HE, Miinchen [crossed out by hand]) 30.3.27. >! Joachim Fest perceived something ‘put-on’ about Frank’s celebration of violence (Fest, J., “Hans Frank—Kopie eins Gewaltmenschen’ in idem., Das Gesicht des Dritten Reichs. Profile einer totalitdren Herrschaft, 9.ed, Miinchen 2006). Fascist poet Curzio Malaparte, on the other hand, ascribes Frank a ‘unique mixture of cruel intelligence, refinement and crudity, of brutal cynicism and shrewd sensitiv-

ity (Malaparte, C., Kaputt, Karlsruhe 1961, pp.143-4).

Ten Political Lawyers 61 the witness stand helped project an air of respectability that contributed to the Nazis’ breakthrough at the polls. Frank’s immediate reward was promotion into the party leadership (Reichsleitung). Upon the ‘seizure of power’ he became Bavarian Minister of Justice, narrowly missing out on the Reich portfolio he coveted.

PATTERNS OF PROFESSIONAL DEVELOPMENT These brief biographical sketches have highlighted the lawyers’ diversity. What did they have in common? In keeping with patterns established by Konrad Jarausch, Kenneth Ledford, and Hannes Siegrist for the legal profession as a whole, almost

all came from bourgeois backgrounds. The exception is Riidiger von der Goltz, scion of major nobility. Relatively few married, mostly those on the right. Hans Frank wed a legal clerk, Brigitte, a few years his senior and given to fits of rage. They had two children. Although he was a notorious womanizer—one of his lovers was Wagner's niece, as /e tout Munich knew—he was clumsy and perennially self-

deceiving in the conduct of his affairs. Friedrich Grimm and Riidiger von der Goltz both married, producing four and six children, respectively. There was a fairly wide denominational spread, with two Catholics, (Frank and Grimm), and three Protestants (Heine, von der Goltz and Luetgebrune). Hegewisch was protestant by birth, but an agnostic, just like Litten, whose father had converted from Judaism. Halle, Hirschberg and Levi were atheists. It is striking that four out of six left-of-centre lawyers were Jewish. With civil service and the judges’ bench effectively blocked, an above average proportion of

Jewish jurists opted for the bar, clustering in the large cities. In Berlin, they accounted for more than a third of barristers.” The percentage was even higher among the lawyers who worked on behalf of the Red Aid.?? Many prominent Social Democrat lawyers—apart from Levi and Hirschberg in our group one might

think of Philipp Lowenfeld, Johannes Werthauer, Kurt Rosenfeld, and Oscar Cohn—were Jewish. Anti-Semitic propaganda fused the idea of the unprincipled, opportunistic and eminently buyable ‘Winkeladvokar with anti-Socialist and antiJewish stereotypes (such as the ‘Jewish oath’ or ‘talmudic practices’ of textual inter-

pretation). Even Christopher Isherwood, in Mr Norris Changes Trains (1935) introduces ‘a fat Jewish slumlawyer’ scouring Berlin police stations for clients.” Although this study pays some attention to anti-Semitic attacks on Social Democratic and Communist lawyers, Jewish lawyers are not generally discussed separately, for two reasons. For one thing, publications by Konrad Jarausch and Tilmann Krach, as well as an excellent exhibition curated by Simone Ladwig-Winters have covered the subject. Secondly, to consider the cheerfully atheist Levi and Hirschberg or the deeply spiritual, but religiously agnostic Litten under the rubric ‘Jewish »* ‘Jarausch, K., ‘Jewish Lawyers in Germany, 1848-1938: The Disintegration of a Profession’, Leo Baeck Institute Yearbook vol.36 (1991) No.1, pp.171-90. °° According to Nikolaus Brauns 60 per cent of the lawyers on the Communist party legal office list were Jewish, Brauns, N., Schafft Rote Hilfe!, p.171 with further references. * Isherwood, C., The Berlin Novels, London 1999, p.74f.

62 Courtroom to Revolutionary Stage lawyers’ appears odd. Although all three acknowledged their Jewish cultural herit-

age, and stood up to anti-Semitic attacks, none of them would have described themselves in these terms, and doing so nolens volens maps the logic of racial criteria. Most of the lawyers studied at more than one university, again in keeping with

contemporary practice. Foreign travel or study abroad was the preserve of the better off. Riidiger von der Goltz spent two months travelling through Europe in the summer of 1913. An evening with Sarah Bernhardt in her celebrated role as Dame aux Cameélias in Geneva provided the most vivid memories. Friedrich Grimm studied in Grenoble, like Paul Levi. Walter Luetgebrune travelled Europe for years after his qualifying exams for the civil service.”

Practicing the law was a second or even third career choice for many of the nationalists. Hans Frank’s ambitions to become a judge or to enter the diplomatic service were thwarted one after the other, leaving him little choice but to enter the bar. Walter Luetgebrune had intended to enter the judiciary until a visit to a penitentiary persuaded him to fight for the unjustly convicted, or so he subsequently maintained.”° More likely, the long hiatus between state examinations and entry

into the profession indicates an unsuccessful quest for a judgeship. Friedrich Grimm career path led to managing heavy industry before the war deflected it towards advocacy. Whereas Grimm’s change of tack was voluntary, Riidiger von der Goltz never planned to finish his civilian studies, let alone study law. His one and a half year stint at university was something of a studium generale, conducted

partly in Switzerland and wholly with a view to rounding the future military man. It stands to reason that the right-wingers’ willingness to violate the unwritten codes of lawyerly conduct was connected to what we may call their ‘late but zealous professional formation. Ex negativo, the case of Friedrich Grimm corroborates.

The least extreme right-wing lawyer in our group, Grimm belonged to Stresemann’s German People’s Party until 1933. Extremely well trained, he finished his Habilitation in 1921 and served as lecturer (Privatdozent), then adjunct professor (aufserordentlicher Professor) at Miinster University between 1922 and 1933. For him the bar was certainly not a stopgap career choice.”’ Perhaps for this reason, Grimm clung tenaciously to the apolitical self-view which Walter Luetgebrune, nine years his senior, had no trouble relinquishing. Grimm’s professional socialization followed a trajectory different from the ‘late but zealous’ generation of reluctant barristers a la Frank and von der Goltz.

The observation that trials are ‘like theatre’ is just one starting point for the more complex concept of the performativity of justice that underpins my argu-

> ~Heydeloff, R., ‘Staranwalt der Rechtsextremisten. Walter Luetgebrune in der Weimarer Republik’, Vierteljahrshefte fur Zeitgeschichte 32 (1984), pp.373—421, p.373.

6 ibid., p.373. *” Klee, E., Das Personenlexikon zum Dritten Reich, Frankfurt a.M. 2003, p.200f. See also the excellent Wikipedia entry on Grimm, [28.3.2010 16:10].

Ten Political Lawyers 63 ment, elaborated in chapter five. Nevertheless, it is striking that many party lawyers had thespian ambitions. Both Riidiger von der Goltz and Hans Frank wrote plays in their youth. While at school, von der Goltz portrayed the Gaul Vercingétorix as a glamorous and daring freedom fighter, contrasted with the oppressor Julius Caesar. Frank concocted a much more abstract play set in a hypothetical polity. The ‘jester’ first incites the masses to revolt, only to be accosted by the ‘judge’, a sourpuss of an official. On trial, the jester professes his idealism and is sentenced to death. At the last moment, the ‘king’, an omnipotent, fatherly figure pardons him.”’ An earlier play had featured Clio, Frederick

the Great, Caesar and Napoleon—Frank liked thinking big. Paul Levi wrote a light-hearted send-up of bourgeois sexual hypocrisy.°° Max Hirschberg loved theatre, as did Wolfgang Heine, who defended Arthur Schnitzler’s Der Reigen against obscenity charges.°!

... With the gayest youth and in the most harmless way the devil was loose’ — generational factors Turning to the generational makeup of our group, the lawyers’ youth is striking. When Hans Litten took his own life in Dachau concentration camp to escape his captors constant torture in 1938, he was only 34. Hans Frank had just turned 46 when he was executed in Nuremberg eight years later. The majority of our lawyers, six out of ten, were slightly older and belonged to what Detlev Peukert has labeled the ‘war generation’. Born between 1880 and 1895, they were between 20 and 35 years old in 1914. The war deeply affected career paths, political socialization and self-perception. While their elders profited from the post-war build-up, they had to play catch-up: decommissioning, training or re-training, founding a family. As a result, they ‘either played “second fiddle” or projected themselves as the alternative to the “old ones”’.

Youthfulness dominated the self-stylisation of the ten lawyers. With the exception of Wolfgang Heine, 57 at the end of World War One, all defined themselves in terms of dynamism, speed, and a willingness to challenge tradition. Take the lawyers’ penchant for cars. Riidiger von der Goltz opened his unpublished memoirs with a long eulogy to cars and prided himself on driving despite the loss of a leg. Paul Levi reportedly loved Greek vases, his cactuses,

and speeding around Northern Italy in his motorcar. Hans Frank bought an automobile years before he could afford one, with the result that the cherished possession was constantly at risk of being impounded. As Erich Kastner put it, die Zeit fahrt Auto.

°8 BA(K) KLE 653 von der Goltz, Band 1 [38]. °? BA(K) NL 1110 Frank Band 2, diary entries 28.11.20, and 17.6.20. °° AsD NL Levi Mappe 12 [non-foliated], ‘Die doppelte Moral’ [fragment, undated]. °! Heine, W., Der Kampfum den Reigen, Berlin 1922. °° Peukert, D., Die Weimarer Republik. Krisenjahre der Klassischen Moderne, Frankfurt a.M. 1987, p.30.

64 Courtroom to Revolutionary Stage Riidiger von der Goltz’s account of his conversion to Nazism illustrates the selfprojection as the ‘youthful alternative’. Despite obviously downplaying his involve-

ment in Nazi crimes, Goltz’s unpublished memoirs are a fascinating source. Intended for personal or family use, not publication, they were deposited in the German Federal Archive and only cleared for access in 1999. Writing in the 1950s, von der Goltz was unapologetic about his continued adherence to Nazi values, and openly flaunts his party credentials. Thanks to this unrepentant attitude, the memoirs throw much light on Goltz’s motivations, self-stylization and his relationship to other barristers.

Following in his father’s footsteps, von der Goltz had initially joined the German Nationalist People’s Party (DNVP), and represented the Landbund, an agrarian pressure group, as well as an East Elbian industrial association. To him, what distinguished the Nazis from the German Nationalists were not the political goals so much as the style in which they were pursued. It is telling, then, that the account of his conversion to Nazism opens with the observation that the ‘old generation had declared bankruptcy’ and ‘the middle was crushed, whether it wanted to or not’. ‘Youth is not prepared to settle for the resignation of age, and that is its privilege’, and so ‘the young ones did not ask, they knew’.® The rallies of the ‘young ones’—i.e. the Nazis—are painted as a sort of political carnival, where ‘with the gayest youth and in the most harmless way the devil was loose’. ‘Speed ( Zempo’) everywhere. And we were supposed to leave these boys (‘/ungens’) in the lurch? Weren't we still young ourselves, even at 36?’ the memoir asks. The

‘old generation’ tried to shore up its disintegrating platform with ‘ever harsher emergency decrees’ and ‘political justice’. “We did not want this. And that is why we belonged to the young ones! [...] Those were the thoughts. Idealism, readiness

to personal sacrifice and the will to live’. The situation is cast as one of stark choices, ‘the time of decision’, and at the same time as one where really, all decisions were predetermined: “The only choice now was between these young ones and the Communists’, only these were ‘sufficiently unselfish, faithful and willing

to sacrifice’. Von der Goltz’s outlook showed great afhnity to his most prominent client, Joseph Goebbels. The two met at a dinner party hosted by Berlin socialites Herbert von Dircksen and his wife in February 1930, shortly after the Fahlbusch trial opened. Hohenzollern prince and Nazi supporter August Wilhelm (‘Auwi’ to his friends) had introduced Goltz. The other guests were DNVP leader von FreytagLoringhoven, the Austrian Stahlhelm principal Starhemberg, Hermann Goring

°° BA(K) KLE 653 von der Goltz Band 2, [214], von der Goltz, R., Tributjustiz. Ein Buch um die deutsche Freiheit, Minchen 1932, p.68. “ “war mit munterster Jugend in harmlosester Form der Teufel los (BAUK) KLE 653 von der Goltz Band 2, [213]). 6 BA(K) KLE 653 von der Goltz Band 2, [214]. °° For a perceptive discussion of ‘bourgeois anti-bourgeois sentiment’ and the preference for the Communists on the grounds of their decisive convictions/disdain for the ‘fat nobility’ of Republican patronage see Schumann, D., Politische Gewalt in der Weimarer Republik 1918-1933. Kampf um die Strasse und Furcht vor dem Birgerkrieg, Essen 2001, p.262.

Ten Political Lawyers 65 and his wife Karin. The rapport between Goebbels and his future lawyer was immediate, and Goebbels asked von der Goltz to defend him in a number of libel suits linked to the anti-Young plan agitation.” Impressed with Goebbels’ ‘quick wit, von der Goltz agreed without hesitation. He recalled with admiration how the Nazi party boss duped von Freytag-Loringhoven at the Dircksens’ party. The Nazis’ success, Goebbels proposed, was explained by their supporters’ willingness, matched only by the Communists, to die for the party. But who, Goebbels asked, ‘would be prepared to die for the German Nationalist People’s Party’? “Freytag-

Loringhoven was the first to recover’ and ventured that he ‘could imagine that someone could be prepared to die for the German Nationalists’ cause, too’. “With lightning swiftness, Goebbels stuck a dagger straight through his heart: “Yes, but only from old age.” Von der Goltz was even more taken with the Nazi politician’s bearing on trial: ‘In a two hour long, objective address, Goebbels makes himself the pained and passionate advocate of disappointed youth’, he reported from their first outing in court together.®’ Just how ‘objective’ Goebbels courtroom speech really was is less interesting than the observation that, to von der Goltz, the Nazi leader was able to reconcile juxtaposed values and attitudes. Goltz found Goebbels passionate as well as ‘sachlich’, and both a coolly detached steward (‘of

disappointed youth’) and a hothearted believer in the cause. In short, Goltz described Goebbels as a kind of literarischer Doppelganger, in terms that evoke his own idealized self-conception as a political lawyer. Goebbels was equally taken with von der Goltz.® After the Dircksen’s party, Goebbels, his lawyer, and

the Gorings mulled over the impending trials in a gloomy Berlin cellar bar ‘until three in the morning’. ‘Goltz is knorke’, Goebbels noted in his diary, using a term of endearment of the highest order, usually reserved for SA song evenings and the like. “He gives all of us a bit of fun. Apart from that, the evening was pretty much lost’. Most of all, however, Goltz’s political interpretation of the trial lawyer's role swayed the Nazi leader.”” The young lawyer, Goebbels wrote in his diary, ‘sees the job in the right light. His thinking is political’.”’ Conversely, von der Goltz knew what Goebbels was looking for: political publicity. His analysis that the impending trials were ‘a unique opportunity for publicising [Goebbels’] ideas through the entire press of all German states’ echoed Goebbels’ agenda.” As well as admiring

°” BA(K) KLE 653 von der Goltz Band 2, [148]. The date of the dinner party was 21 February 1930.

6 BA(K) KLE 653 von der Goltz Band 2, [148]—[149], [154]-[155]. © See e.g. Goebbels, J., Die Tagebticher: Samtliche Fragmente, herausgegeben von Elke Frohlich im Auftrag des Instituts fur Zeitgeschichte in Verbindung mit dem Bundesarchiv, Teil I: Aufzeichnungen

1924-1941, vol.1, Miinchen 1987, p.587 (8.8.30), p.502 (21.2.30). ” “He explicated the Feme trials to me. Absolutely consistent and right. He will now conduct my Hindenburg trial’. (Goebbels, J., Die Tagebticher: Sémtliche Fragmente, vol.1, p.503 (21.2.30)). ” Goebbels, J., Die Tagebticher: Saémtliche Fragmente, vol.1, p.554 (30.5.30). ” BA(K) KLE 653 von der Goltz Band 2, [157], see also “Das Urteil gegen Dr Goebbels’, Vossische

Zeitung 30.4.31. For an in-depth discussion of Goebbels’ systematic libel against Berlin police vice president Bernhard Weifs, see Bering, D., Kampfum Namen. Bernhard Weifs gegen Joseph Goebbels,

Stuttgart 1991.

66 Courtroom to Revolutionary Stage one another, Goltz and Goebbels, pictured together on the front cover, shared a common perspective on judicial procedure as a vehicle for political propaganda. Von der Goltz voiced the anti-democratic resentment of his generation most clearly, perhaps because his career reflected the pattern of war-related professional disadvantages postulated by Peukert so exactly. But the self-projection as the ‘youthful alternative’ is evident in all the lawyers of this generation, for example in their

scepticism towards parliament. In June 1925, Ernst Hegewisch argued that the ‘government of workers and peasants’ was something ‘entirely different’ from a government ‘pompously installed with parliamentary tricks’. The only way to guarantee a bona fide workers’ and peasants’ government was ‘of course through armed insurrection [E.H.’s emphasis].’”” Even Paul Levi was at times ambiguous in his support for parliamentary democracy. He characterized the 1922 Law for the Protection of the Republic as an ‘impotent parliamentary measure’, and maintained that democracy and violence were both necessary ingredients in advancing towards socialism. When ‘contrasted with the past’, the ‘Republic as it is’ had an ‘entitlement to being defended’—hardly a ringing endorsement of the status quo.” ‘Youre effeminate, you eat too much, you feast, youre a far-too-much sleeper [... ]

youre a coward, you did not fight for your country—what good is all this wailing afterwards?” This passage from Hans Frank’s diary in June 1920 provides a glimpse of the ‘superfluous generation’ of Weimar politics. Born just after the turn of the century, these men were marginally too young for military service, and thus ‘excluded from the legitimising myth of the front experience’.” In Frank’s case, this may well have been exacerbated by his family’s apparent efforts to keep him out of the firing line. Just before finishing grammar school, Frank was sent to stay with his mother in Prague fora year. Feelings of exclusion and guilt fed into frustrations and self-reproach

of the sort evident in the passage above, a margin note to an earlier entry. In that earlier text Frank recounts his—supposed—bravery as a member of the Free Corps ‘liberating’ Munich in April 1919. In fact, he had seen no action then, either. According to Peukert, the ‘superfluous generation’ tended to either political radicalism or apolitical quietism.’” Hans Frank and Hans Litten fall into the first category. Strikingly, both men’s thought, rhetoric, and self-view had strong religious undertones, though Litten rejected religious afhliation. Litten’s asceticism was the very antithesis of Frank’s lifestyle aspirations. ‘The latter's estranged father regularly chided him for his extravagant travel, the two manservants the family employed, and Brigitte Frank’s expensive dress sense. The taste in luxury goods, vintage champagne, and stolen art that later earned Hans Frank the reputation as looter-in-chief of occupied Poland were evident right from the start.” In those

BA(B) RY1/12/711 JZ Band 7, [138]-[149] Hegewisch to Politburo, Hamburg 17.6.25, [146]. ” Beradt, C., Paul Levi. Ein demokratischer Sozialist in der Weimarer Republik, Frankfurt a.M. 1969, p.68, p.71, p.87, p.97. ™ BA(K) NL 1110 Frank, Band 2/1, diary entry 17.6.20. ’”° Peukert, D., Weimarer Republik, p.30.

” Attitudes which Peukert saw embodied by Heinrich Himmler and the actor Heinz Rithmann, respectively.

8 ‘Im Westen liegt Frankreich, im Osten wird Frank reich’, as the popular saying went.

Ten Political Lawyers 67 earlier days, they mostly earned him dates at court facing angry creditors, as the appetite for luxury often exceeded Frank’s means.” His motorcar, for example, was regularly threatened by repossession. In the winter of 1928, a Leipzig mink coat dealer added to Frank’s financial woes by asking him to return a coat purchased, but not paid for, by Frank’s wife. Unfortunately, the Nazi barrister had been forced to pawn the coat in the meantime, and his attempts at reclaiming the unpaid garment were frustrated by the fact that the pawnshop had already sold it. Frank, true to form, threatened the coat’s new owner, a ‘Miss Anny at hairdresser Dadlhuber, Munich’, that he would sue her for the possession of ‘goods illegally sold’.*°

Trivial as each episode appears by itself, in sum they paint the picture of a man

entertaining delusions of grandeur and unable to match his ambitions to his means, as well as that of a compulsive liar. In Frank’s case, the link between the psychological effects of ‘missing out’ on the war and his practice as a Nazi barrister

appear manifest. He compensated the perceived stigma of his non-participation in hostilities by formulating a self-view informed by religious self-exaltation. In some passages of his diary, Frank addresses himself directly to God: “Do you hear me, I myself want to be the leader, you have sanctioned it, let us say, by giving me the will to be it, I will! The vehicle for his leadership would be ‘greater Germany,

the fate of the world’®’ or the ‘German people, saviour of humanity’.* In his diary, passages of elation and self-reproach are often intertwined, linked by the idea of penitence paving the way to imagined greatness. Both play on the religious themes of guilt and redemption through sacrifice.” Religious themes thus underpinned Frank’s radical nationalism and his almost manic self-importance. It does not take much imagination to see a relation between Frank’s youthful delusions of

grandeur and his highly-strung court appearances. At the same time, his ideas about the redemptive nature of sacrifice would have made it easier for Frank to dismiss qualms about the fate of his clients as martyrs to the National Socialist cause.

Summing up, the ten lawyers form a diverse group, notwithstanding their homogenous social extraction, the age clustering, and some similarity in career patterns. But they shared a new conception of judicial procedure. In remoulding the trial lawyer role, they were united to a degree that belies their ideological enmity and occasionally catty infighting. It is to this collective and deliberate project of redefinition that we now turn.

” BA(K) NL 1110 Frank Band 44 [non-fol] Karl Frank to Hans Frank, Miinchen 29.10.29. ®° BA(K) NL 1110 Frank, Band 43, copy of the mink coat dealer's letter by Frank’s office (page headed “BarerstrafSe 57 P, Miinchen 3.4.29) and Frank to ‘Frl. Anny bei Friseur Dadlhuber, Miincher’, [no place given], [undated].

5! BA(K) NL 1110 Frank Band 2, diary entry 17.6.20. °° BA(K) NL 1110 Frank Band 2, diary entry 25.4.19. °° Frank evoked a ‘Sphdarenlinie der ewigen Harmonie der Menschengeschichte, deren deutscher Teil durch meinen Kopf gelegt ist!’ (BACK) NL 1110 Frank Band 2, diary entry 17.6.20).

68 Courtroom to Revolutionary Stage Rationalizing the ‘Struggle for Justice’ The monikers party barristers chose for themselves offer a first glimpse of their

reconceptualization of judicial procedure. ‘Revolutionary trial lawyer and ‘intellectual specialist worker’ were the preferred sobriquets of KPD barristers. Ernst Hegewisch, to whose drawn-out disputes with the KPD we owe the most evocative (if perhaps not the most objective) account of the work of party lawyers, styled his activities ‘nursing duties performed for revolutionary defendants’.™ The self-descriptions of Nazi lawyers stressed party discipline (invoking notions of duty and comradeship) as well as an aggressive interpretation of the trial lawyer role. Apart from relishing the chance to play ‘state prosecutor for the movement, Hans Frank liked to speak of the ‘legal SA duty’ Nazi lawyers performed. Just like

Hegewisch pictured himself metaphorically nursing stricken revolutionaries, so Frank portrayed the Nazi party lawyer as ‘treuer Eckehard¢, standing steadfast and selfless like the eponymous figure from the Nibelungen saga beside their comrades in the dock.® Apart from such flowery euphemisms, self-designations as ‘political defender’, ‘political lawyer’, ‘revolutionary lawyer’, and ‘national lawyer’ abound, as do constructions simply prefixing the party name, as in ‘Communist lawyer’. In the context of the apolitical self-perception of the German legal profession, which commentators from Dahrendorf to Ledford have stressed, these names were anything but throwaway labels. Rather, they self-consciously emphasize the party lawyers departure from the liberal norms of their profession. ‘They expressed that being a party barrister was ‘not a mere vocational activity but ‘constant political

action, as Communist barrister Rolf Helm put it.*° Political lawyers thought of themselves as such—and, by the same token, referred to the rest of their colleagues as ‘non-political’.®”

Party lawyers had many opportunities (usually relished) to reflect on their work,

bequeathing us with an array of useful sources. Disputes with their parties over

84 “Sanitatertatigkeit an revolutiondéren Angeklagten’ BA(B) RY1/12/711 JZ Band 7, [13]-[19] Hegewisch to [recipient blackened, probably Politburo], Celle, 12.1.24, [18], “kommunistischer Facharbeiter ibid., Band 8 [5]-[19] Hegewisch to Radek, Celle 7.8.23, [14], ‘intellektueller Facharbeiter’, ibid., [20]—[24] Hegewisch to Bilke, Celle 23.8.23, [20], ‘der Partei zugehoriger juristischen Fach-

arbeiter ibid., Band 1, [75]-[77] Halle to ZK KPD, Berlin 5.12.26, [76], ‘revolutionarer Anwalt ibid., Band 7, [13]-[19] Hegewisch to [recipient blackened, probably Politburo], Celle, 12.1.24, [17], ibid., Band 8 [5]-[19] Hegewisch to Radek, Celle 7.8.23, [13], ibid., [110]-[165] Hegewisch to KPD central office, Celle 8.5.22, [119], ‘politischer Verteidiger ibid., [110]—[165] Hegewisch to KPD central office, Celle 8.5.22, [165], ibid., Band 11, [258] ‘Erinnerungen eines politischen Verteidigers’ [draft article by Artur Samter], ‘revolutiondrer Rechtschutz’, ibid., Band 8, [25]-[53] Hegewisch to Vorstand KPD Ortsgruppe Celle, Celle 28.7.23, [25]. Hegewisch’s Sanitdterdienst echoes Clara Zetkin’s dictum that the Red Aid was the ‘Sanitatskolonne im Klassenkampf (Schilde, K., ‘Schafft Rote Hilfe!’, pp.31-56

in Hering, S./Schilde, K., Rote Hilfe, Opladen 2003, p.42). ® “Staatsanwalt fiir die Bewegung BA(K) NL 1110 Frank Band 28-1, Frank to Hitler, Miinchen 21.6.28, ‘juristischer SA Dienst ibid., Band 31-1, Frank to Hans Zoberlein, Miinchen 9.7.30 ‘“getreuer Eckehard?t ibid., Band 361], ‘BNSDJ Jahresbericht’ 1932. 8° Gangel, P., Die RHD und ‘ihre Rechtsanwalte im Kampf gegen die Justiz der Weimarer Republik,

unpublished dissertation, typed manuscript, Berlin (Ost) 1985 p.101. *” Hirschberg, M., Jude und Demokrat, p.136, p.198, BA(K) NL 1150 Luetgebrune Band 142 [non-foliated], Luetgebrune to Smend, Hannover 15.3.28.

Ten Political Lawyers 69 defence strategy, access to the party press, or simply over pay occasioned self-justification and praise or criticism of other lawyers. Moreover, opponents routinely jeered their court appearances, and even within their own parties, they were often viewed with suspicion.®** In response to these challenges, political barristers developed a sharp profile and a distinctly ideological, partisan, and confrontational view of judicial procedure and their own function within it. War metaphors dominate the way political lawyers described their role in the judicial process. Ernst Hegewisch’s ‘nursing duties for accused revolutionaries’, for example, equated the detention of political offenders with injuries sustained on the

battlefield. In the sense that a mild verdict or acquittal promised alleviation, the courtroom was the infirmary. And in the sense that the lawyer was the field surgeon, any measures he took were justified. It was more common, however, to apply the war metaphor to courtroom action itself. Hegewisch himself hailed ‘the struggle against white justice’, not without pointing out that ‘in order to wage war one requires money.’ Stuttgart KPD barrister Hainz deplored ‘pacifist’ tactics as the antithesis of genuinely “Leninist’ defending. Barristers who came under political pressure, such as Artur Samter, were quick to protest that they were not partisans

of a ‘pacifist tendency of pleading’.”” The fortnightly legal supplement to the Volkischer Beobachter, edited by Hans Frank, was named the ‘struggle for German justice’. Communist Party legal functionary Eugen Schénhaar imagined himself marshalling his troops for ‘judicial war’, and so on and so forth.”’ To an Anglo-American reader accustomed to adversarial trials and steeped in a

tradition of fictional courtroom drama, recourse to these metaphors may seem unremarkable. In the context of the inquisitorial trial, however, facilitated by ostensibly neutral ‘organs of the administration of justice’, such talk jarred—especially coming from one of these organs. True, even in the German context, one need not be a political lawyer to discern elements of a struggle in court. But the persistence

with which political barristers employed war metaphors locates their activities within a political rather than a judicial context. ‘The barristers’ talk of ‘legal struggle’ aligned their professional lives with their party's ideological project. Their con-

ception of legal procedure, in other words, tended to minimize, if not erase altogether, the distinctiveness of the sphere of law vis-a-vis other arenas of political 8 Hans Frank, for example, featured in the Hamburg SPD weekly Das Echo der Woche as ‘Hitler’s lawyer-for-rent [Leihanwalt Hitlers)’ (BACK) NL 1110 Frank Band 27-2 ‘Hitlers Verrat am Deutschen Volk’, Das Echo der Woche, ‘Wahl\-Sonderausgabe Nr.2’, 24.7.32). National Socialist announcements

about his appearance were alternatively denounced as a fraudulent election promises (ibid., Band 31-11 NSDAP Pforzheim [signed “Ortsgruppen- und Bezirksleiter Fritz Rilling’] to RR [care of Frank], Pforzheim, [undated, Eingangsstempel 5.8./8.8.]) or as a measure designed to guarantee the

loyalty of the accused (ibid., Band 29-8, barrister Lothar Giinther to Landgericht Dresden (4.Zivilkammer), Dresden 13.7.32). Magdeburg NS lawyer Kuhlmey was belittled as ‘the little Nazi brother of Frank II’ (ibid., Band 24, barrister Kuhlmey to Frank, Magdeburg 4.9.30). 8 BA(B) RY1/I2/711 JZ Band 8, [5]-[19] Hegewisch to Radek, Celle 7.8.23, [8], ibid., [25]-[53] Hegewisch to Vorstand KPD Ortsgruppe Celle, Celle 28.7.23, [25]. °° BA(B) RY1/I2/711 JZ Band 11, [209] Samter to KPD central office, Berlin 28.5.25. °! BA(B) RY1/12/711 Band 1, [58], JZ [probably Halle] to Politburo, Berlin 17.12.24, BACK) KLE 653 von der Goltz Band 1, [97], BA(K) NL 1110 Frank Band 36I Kiewitz to Frank, Oppeln 22. and 23.4.30.

70 Courtroom to Revolutionary Stage conflict. At the same time, it flew in the face of the self-conception of the German administration of justice in general and of German barristers in particular. That is why both (hotly disputed) disciplinary measures against party lawyers in court and the internal disciplinary machinery of the bar, the so-called “honour courts’, invoked

the ‘dignity of the organ of the administration of justice’ in order to justify censure. The notion of justice as struggle stresses the performative, political and existen-

tial dimensions of trials. It downplays the dispassionate weighing of factual evidence, applicable law, and procedural rules. A welcome consequence of this shift was the sidelining of legal competence. In court, extremist barristers attached far greater significance to partisan zeal than to sound legal argument. Recommending themselves to their parties, they stressed all sorts of qualities—their ideological commitment, their (alleged) willingness to forego economic advantages, their connections to the press—except legal prowess.” In October 1932, for example, Berlin barrister Alfons Sack sought a promotion. Unable to leave Munich, Hans Frank had transferred one of Hitler's jealously guarded personal mandates to Sack. ‘The brief gave Sack nervous jitters—'there is a danger that I will be made responsible for the conduct of the trial to date. Nevertheless, since it is one of the Fiihrer’s mandates, I will gladly suffer this danger’—as well as some leverage. Wondering aloud ‘whether I must not be accorded a special place in the ranks of the party’s lawyers’, Sack hastened to reaffirm his allegiance to Frank. “You, revered party comrade, know me well, both as a man and as a lawyer

[...] you know that I am completely aligned with you on all matters’. Sack then pointed out that he had ‘selflessly [...] championed the simple SA mar’ and ‘taken on trials which were sent my way barely a quarter of an hour before the opening bell’. Personal loyalty, selflessness, commitment to the paramilitary agenda of the stormtroopers, and work ethic recommended Sack—not, say, legal sophistication, good connections to Berlin judges or academic merits. In fact, Sack never even mentions his legal competence nor laws and legal arguments. In general, party lawyers seldom stressed their legal abilities, even on the left, where they were in greater supply. They were anxious not to present detractors with an open flank as ‘bourgeois’ or ‘out of touch with the real world’. In the eyes of the extremist parties, political reliability trumped legal skills. As we will see in the next chapter, this preference was reflected in the party legal organizations’ manuals, fee tables, and day-to-day liaison with the lawyers. At times legal skills appeared positively onerous. Consider for example Hamburg NS barrister Hans Rave’s defence of his colleague Heinz Wessig at a party

disciplinary hearing in December 1930. Wessig was seeking to overturn his expulsion from the NSDAP following a conviction for an unspecified violent offence. The ‘investigation and reconciliation committee’, or USCHLA (short for

** See e.g. BA(K) NL 1110 Frank Band 27-5, Sack to Frank, Berlin 11.10.32, BA(B) RY1/I2/711 JZ Band 1, [57] Halle to Zetkin, Berlin 3.11.24, ibid., [78]f., Halle to ZK KPD, 22.2.28.

Ten Political Lawyers 71 Untersuchungs- und Schlichtungsausschuss), with Hans Frank presiding, heard that

Wessig’s expulsion from the party contravened the National Socialist ‘idea of German law’. ‘An old Germanic Council, free from legal dialectic and sophistry’ would have acquitted his colleague, Rave argued. Wessig’s actions had expressed ‘a certain Furor Teutonicus. Were ‘bomb throwers’ unworthy of membership of a nationalist movement just because they had been convicted by a criminal court? Even if Wessig was expelled from the bar, was this a reason for expelling him from the Association of National Socialist German Lawyers? After all, many ‘extremely honourable party comrades’ had had ‘brushes’ with the criminal law. The qualities of National Socialist barristers, in other words, were not just independent from the legal framework governing the profession, but enhanced by defying it. In principle, Rave’s praise of his colleague’s qualities was a variation on Frank’s theme of ‘legal SA duty’. While celebrating Wessig’s ‘teutonic fury’ (as expressed by his unspecified offence), ‘legal dialectic and sophistry’ was disparaged. In the end, Wessig’s undoing was not his criminal conviction but the personal enmity of Hamburg Gau leader von Allwérden. In order to be a good political lawyer, being a good lawyer was as unnecessary as renouncing violence.”° All extremist party barristers’ endorsed violence, more or less openly. Readiness to resort to it, Ernst Hegewisch wrote to the party leadership in May 1922, was a sine-qua-non of a ‘sound Communist mindset’ (gute kommunistische Gesinnung), its renunciation never more than a concession to tactical necessity. Disowning the ‘revolutionary adventurism’ of Karl Plattner completely, for example, was a mistake. The party’s motto vis-a-vis ‘terrorist groups’ such as Plattner’s bank robbers ought to be ‘march separately, strike jointly’ (getrennt marschieren, vereint schlagen’). Political murder was a legitimate tactic (Hegewisch approvingly cited a recent killing in Spain as an example).”* In public, Communist lawyers were slightly more restrained. At the Red Aid’s 1925 convention, KPD barrister Seckel attacked the explosive substances law. Was it just, he asked, to sentence someone to ‘years in prison’ for nothing worse than ‘scaring political opponents by lobbing a hand grenade onto their veranda?” Nationalist lawyers echoed Seckel’s euphemism about ‘scaring opponents’, or went one better. Riidiger von der Goltz described the 1930 bombing campaign of

the Landvolk peasant radicals as ‘demonstrating with bombs’ or, presumably tongue-in-cheek, as a ‘noisy demonstration’.”° Roland Freisler, subsequently chief justice at the notorious National Socialist People’s Court (Volksgerichtshof ), was a particularly violence-prone member of Frank’s Association of National Socialist German Lawyers. Pleading in a 1931 Osnabriick trial, and with the court in full session, the barrister snapped up a courtroom whisper that a brawl was in progress

°> BA(K) NL 1110 Frank, Band 29-1, Hans Rave to von Alwérden [Gau leader Hamburg] [Abschrift], [carbon copy], Hamburg 2.12.30. BA(B) RY1/12/711 JZ Band 8 [129]-[133]. 5 BA(B) RYI/I4 RHD Band 1 [102]-[118). °° Von der Goltz, R., Tribut-Justiz. Ein Buch um die deutsche Freiheit, Berlin 1932, p.62.

72 Courtroom to Revolutionary Stage outside. Freisler promptly called upon the Nazi witnesses and audience members,

40 stormtroopers in all, to accompany him outside to take part.’” When Hans Frank spoke of ‘juridical SA duty’ or of being a National Socialist lawyer ‘mit ganzer Faust (roughly, ‘whole-heartedly and fists clenched’), he meant it literally.

Theorizing paranoia: tribute justiceand ‘class justice On both extremes of the political spectrum, party lawyers at once razed the distinction between the spheres of law and politics and sought to escalate confrontations in both. Underlying the emphasis on ‘struggle’ and the advocacy of violence was a view of justice as a—more or less pliable—weapon in the all-encompassing clash of ideologies. Two views of justice which party lawyers developed in some detail can serve to illustrate this assertion: Rudiger von der Goltz’s ‘tribute justice’ and the (much better known and more nuanced, but also more ambiguous and controversial among subscribers) notion of ‘class justice’. ‘Tribute Justice’ was shorthand for grafting radical right-wing revisionism onto some well-established tropes of Weimar judicial criticism. The basic argument of Riidiger von der Goltz’s eponymous ‘book in pursuit of German freedom’ was simple. The obligations of the Versailles Treaty had been incorporated into the Republican constitution and internalized by the democratic parties. Their power now depended on turning Germany’s external ‘enslavement’ inwards, against its own citizens, or rather ‘subjects’ (Untertanen). The courts were a means to this end: ‘no law and no application of the law exists in a vacuum. And within the German sphere, the air these days is called Versailles’. Goltz outlined his theory of ‘Staatsnotwehr’ (self-defence by the state) and made much of Article 178, which

guaranteed that the Versailles obligations were untouched by constitutional norms.”® But the mainstay of his argument, and its strength, was the string of case studies. From the persecution of submarine officers for war crimes to Goebbels’

spate of libel trials in the wake of the anti-Young plan agitation, Goltz drew on celebrated and controversial political trials, foregrounding those he had pleaded in. For all Goltz’s bias, misrepresentation, and relentless partisanship, this mode of presentation was highly effective. Though written for the legal layman, and entirely devoid of juridical analysis, legal terms and phrases are sprinkled through-

out the text in just the right dose to convey an air of authority. But what really makes the case studies captivating reading is their first-hand, up close and personal nature. What general deductions about von der Goltz’s conception of judicial procedure can we make from 7ributjustiz? We can distinguish three levels of Goltz’s argument. Firstly, The ‘machinery of justice’ was ‘objectively in the service of compliance

°” Schriftfihreramt des DAV (ed.), Die Entscheidungen des Ehrengerichtshofs ftir deutsche Rechtsanwalte, vol.26, Leipzig 1932, EGH session 22.9.32, pp.180—2. For the other decisions involving Freisler, see ibid. vol.21, Leipzig 1927, pp.140—2, pp.193-—5, and vol.22, Leipzig 1928, pp. 128-30. °§ Von der Goltz, R., Tributjustiz, p.8.

Ten Political Lawyers 73 [Erfiillung| and thereby [...] also in the service of the enemy vis-a-vis freedom loving parts of the people’.”” Partly out of a misguided sense of ‘objectivity’ and respect

for positive law, partly because the prosecuting practice of Republican governments forced their hand, the courts were guilty of failure to resist. This failure was particularly problematic because, secondly, the more ‘tribute justice’ became obscure and underhand over time, the more dangerous it got. Under the influence of the ‘creeping poison of trials... outwardly clad in the garb of regular law’, ‘ever-wider circles of the people’ were alienated, feeling that they no longer owned their laws, no longer owned their state’. There was something creepy and infectious about tribute justice—the less visible it became, the more corrosive its effect. Any ‘bourgeois hope’ that ‘the administration of justice and the people’ could live in this way ‘without damaging their soul, damaging their char-

acter was misguided: ‘Under enemy coercion, no law of our own; without our own law, our identity as a people and as a state become unthinkable’.'°° At bottom,

the notion of tribute justice thus plays on the fear of division. By pitting the ‘freedom loving parts of the people’ against the misguided fulfillers of the Versailles

Diktat, ‘tribute justice’ threatened the very fabric of the German nation. Warped judicial procedure turned Germans unto Germans and prevented their uniting against the rest of the world. Thirdly, the compelling drama and human interest of the trials drives von der Goltz’s argument, not the far from airtight logic of his analysis or deductions. It is written in an emphatic, not an analytical key. Youth, health, honour, nationalism, courage, and sacrifice are contrasted in protagonists like Fahlbusch, Schulz, and Goebbels with the representatives of the ‘system’: greedy, corrupt, cowardly, selfserving, degenerate, international, and weak. Von der Goltz’s criticism of the Reichsgericht (the supreme court) in the trial of the submarine officers Boldt and Dittmar is instructive. The two Lieutenant-Majors were tried for sinking a British hospital ship, and then, in an apparent cover-up, destroying the lifeboats escaping from the stricken vessel. Far from conceding guilt, von der Goltz commended the two sailors. It was ‘widely known’ that British hospital ships were used as cover for munitions shipments, and besides the political repercussions of sinking what turned out to have been a ‘real’ hospital ship would have been ‘damaging to the Reich’. Moreover, the state prosecutor should never have indicted the officers. The Allies had identified only Captain Paatzig, their commanding officer, who had died in the meantime. “But the German state prosecuting authorities were objective, and demonstrated that all these prosecutions were not conducted on enemy orders, but sprang from a sense of justice (Rechtsempfinden) all one’s own’ by indicting Boldt and Dittmar. Even worse, the Reichsgericht, ‘the Leipzig megaphone, to which the whole world cupped its ear’, missed the chance of ‘mount[ing] a counterattack by hearing the most extensive evidence of enemy atrocities’. This would have ‘demonstrate[d] the impossibility of complying’ with the Versailles Treaty and ‘thereby furnished the government [...] with the best possible ~ ibid., p.6, p.120. 100 ibid. p.7F, 15.

74 Courtroom to Revolutionary Stage weapon to renegotiate it. Not a single war crimes trial would have been concluded, ‘because the highest German court would have turned into the prosecutor of the enemy's entire conduct of war. That would have been legally right, and politically the only right thing to do’."”!

In Goltz’s disappointment with the “Leipzig megaphone’ lies a prescription for the conduct of political trials. Not the individual conviction or acquittal was the ‘ultimate’ aim of a trial, but to shift political perceptions, to pave the way for the fundamental revision of a flawed constitution. The boundary between trial and politics became fleeting: witnesses were called and pleas were framed with

a view to exploitation in the press, rather than because they promised legal reprieve. Where recalcitrant judges withdrew the right to speak, as for example in the 1930 libel cases against Goebbels, the prohibited pleas were printed in the party press (and reprinted, verbatim, in 7ributjustiz), garnished with the

insinuation that there must have been ‘good reasons’ for cutting short the defence. Just as trials were the continuation of politics by other means, so trialbased journalism and pamphleteering recycled judicial procedure for propaganda purposes. To his opponents, Goltz imputed motives for conducting trials strikingly similar to his own. By the submarine officers’ prosecution, ‘the enemy intended to punish the entirety of the German armed forces for the string of victories which over years he had been unable to answer in the field’. Goebbels was to be ‘eliminated [beseitigen| by way of tribute justice’, the murderers of Foreign Minister Rathenau were put on trial to ‘kill off the ‘national freedom movement etc.'** In essence, the conception of judicial procedure von der Goltz ascribes to the purveyors of ‘tribute justice’ mirrors his own. At the same time, this view of judicial procedure validated aggressive trial strategies. The ‘idealists’, ‘youths’, ‘freedomloving elements of the people’ etc. were already convicted when they set foot in the courtroom. Sacrificing them rather than arguing for mitigating circumstances, let alone admitting culpability or showing remorse, was not a moral quandary but a logical conclusion. To Ernst Hegewisch the judicial system was ‘an instrument of power employed

by the ruling class against the proletariat’ and ‘visible expression of the class character of the present order of state and society’.!° Max Hirschberg saw ‘class justice propping up the domination of the ruling class over the proletariat’. Social Democrat and Communist lawyers agreed that Weimar justice was class justice. They disagreed, however, on its precise mechanisms and degree of intentionality.'™

Social Democrats Ernst Fraenkel and Erich Kuttner developed a highly differential analysis of the judiciary’s class bias. Law students were predominantly 'l Thid., p.15f, p.21f. ' Tbid., p.22, p.100. ' BA(B) RY1/I2/711 JZ Band 8, [25]-[53] Hegewisch to Vorstand KPD Ortsgruppe Celle, Celle 28.7.23, [49]. '4 Linnemann, G., Klassenjustiz und Weltfremdheit. Deutsche Justizkritik 1890-1914, Kiel 1989, pp. 107-20.

Ten Political Lawyers 75 drawn from the privileged strata of society. The few graduating proletarians were discouraged by the prospect of the long, practically unpaid wait for a spot on the justice’s bench. Once there, recruits were socialized in a professional milieu that was culturally as well as politically conservative, cherishing a professional ethos of analytic rigor and unfeeling dispassion. As a result, judges lacked first-hand acquaintance with and sympathy for working class life as well as the capacity (let alone inclination) to empathize. The shorthand for this charge was Weltfremd-

heit, a hard to translate pejorative implying pampered naiveté and lack of acquaintance with the real world. Flanking the fundamental problem of the judges’ class was a whole host of auxiliary measures, routines and administrative shortcuts penalizing working class defendants. From lack of information to the language of officialdom, from being coaxed into self-incrimination by scornful policemen to being excluded from the lay magistrates’ roster by scheming judicial clerks, workers were disadvantaged in their dealing with the justice system. This systemic disadvantage showed up in the verdicts against them, Kuttner and Fraenkel argued. Max Hirschberg’s analysis of ‘class justice’ shows that Fraenkel and Kuttner’s work was influential at the cutting edge of political justice. The SPD lawyer ascribed ‘a narrow, petty-bourgeois horizon in political questions’ to the ‘overwhelming majority of judges’: ‘in the majority drawn from the petty bourgeoisie, they were against the proletariat and in favour of those in power. Whether they played their anti-revolutionary role in good faith [...] or abused their judicial power deliberately to subdue the revolution made little difference’.'”’ Social Democrats like

Hirschberg championed judicial reform, often through gritted teeth. Making judges accountable to parliaments; more liberals and Social Democrats on the bench; protecting barristers from intimidation through court fines or disciplinary action; reversing the virtually total abolition of the jury system in the 1924 reforms etc. Important battlefields, but to SPD lawyers, the fight against ‘class justice’ was a struggle to reform, not to replace the judicial system. Their KPD colleagues used ‘class justice’ in a much broader sense, as a wholesale denunciation of the Republic, and scorned ‘reformism’. Remarkably, West German

historiography has transported this Communist criticism of Social Democracy from partisan into scholarly discourse almost seamlessly. According to Heinrich Hannover, Max Hirschberg’s major shortcoming was his limited grasp of ‘class justice’: ‘He refused to acknowledge the political dimension of justice, the instrumentalisation of the penal law as a weapon of the ruling class’. Magnanimously, Hannover accords Hirschberg a ‘will to fight [...] that let him do the right thing even where his theory was wrong’.'°° Contrary to Fraenkel’s and Kuttner’s overly refined interpretations, there was nothing unconscious about the bias of the judicial

system, and addressing ‘imbalances’ was a waste of time. The solution was not

'© Hirschberg, M., Jude und Demokrat, p.120f. '°6 Hannover, H., ‘Max Hirschberg (1883-1964) Der Kritiker des Fehlurteils’, pp.165—79 in Redaktion Kritische Justiz (eds.), Streitbare Juristen. Eine andere Tradition, Baden-Baden 1988, p.178.

76 Courtroom to Revolutionary Stage ‘piecemeal’ reform but to sweep aside the judicial system along with the political order it allegedly conspired to protect. Whereas left-wing lawyers could at least agree that the courts were a problem,

right-wing lawyers were divided even on this question. Some, like Friedrich Grimm, were basically sympathetic to the judges. Political interference in their work was the problem, unshackling, not attacking the courts was the order of the day. By contrast, Hans Frank called for a ‘struggle against a judiciary traitorous to its own blood’ and rejected co-operation with the Weimar courts. Riidiger von der Goltz took a more ambiguous position—some judges were ‘independent’, others the stooges of democracy.'*” Often, it was precisely the German judges’ objectivity and devotion to the law that made them such pliable tools of ‘tribute justice-—the deutscher Michel in robe and wig, so to speak. * OK OK

Von der Goltz’s Tributjustiz owed much to the notion of class justice. The assertion

that ‘the people has a much more refined feeling for justice than many a highly educated man’ echoes the charge of ‘Weltfremdheit’. At times, the accusation was taken up verbatim, as in the iteration ‘weltfremd, volksfremd, frontfremd’. In one fell

swoop, the phrase implies being out of touch, alien (with a racial inflection) and cowardly, or at least inexperienced in combat. Both left and right juxtapose a ‘coldly objective’ or ‘abstract’ jurisprudence with the human suffering it imposes on pre-

cisely the most worthy people. Hence von der Goltz lamented the humiliating transport of the submarine officers (‘“in accordance with the directives for murder suspects , as a ministerial communiqué put it [...] a long chain around the ankle’). Communist and nationalists also shared a conspiratorial view of justice. The Communist central legal office saw the spectacular Tscheka trial as an effort to ‘morally

condemn the party in public’ and to facilitate revoking the immunity of KPD Reichstag deputies.'°* According to Riidiger von der Goltz, the Feme trials intended to ‘demoralise’ the Reichswehr. Branded murderers, its leaders would be compelled to hand over the reigns to Social Democracy ‘in the pacifist sense’.'°’ Goebbels’ trials he regarded as a ‘concerted’ campaign scheduled to ‘go on stage to destroy at all costs his increasing public renown before the September 1930 Reichstag elections’.'"° Against nationalists, he felt state prosecutors acted ‘subjective through and through, subjective like—a barrister’.''' The barristers’ perception of their opponents’ motivation, though primarily a reflection of their own, justified a reply in kind. Even metaphors of left- and right-wing judicial criticism overlapped. Depicting

Justitia as a whore was popular with both political extremes and SPD lawyer Hirschberg.''* The image implied duplicity and bourgeois double standards, as '°7 Von der Goltz, Tributjustiz, p.7f., plole. '8 BA(B) RY1/12/711 JZ Band 4, [20]-[23] “Kurzes Exposé. Urbahns- 7scheka-Zentraleprozess [undated], [20].

' Von der Goltz, R., Tributjustiz, p.33. 110 BA(K) KLE 653 von der Goltz Band 2, [157].

1 (BA(K) KLE 653 von der Goltz Band 2, [93]). "2" Der Angriff 11.3.29, p.4 “Die Helden im Loch’, Hirschberg, M., Jude und Demokrat, p.154, p.198.

Ten Political Lawyers 77 well as a mercenary materialism. Last but not least, it lent itself to lurid plays on words and titillating visualization. The anarchist weekly Schwarze Fahne, for example, devoted a title page to a crude cartoon showing the heavy-set figure of a judge in robe and cap raping a blindfolded justice.'!’ For the right, the judges were the ones being violated, which called for an adaptation of the imagery. Rather than dwelling on the trope of rape, the right-wingers used the image of ‘justice in chains’. The element of

coercion stayed, but the potentially humiliating and embarrassing sexualization of the supposed victims of political interference, the judges, was dropped. There is something deeply ironic about the notion of German judges cajoled into passing verdicts favourable to Weimar democrats, given how miserably efforts to restrict ‘judicial independence’ foundered. However, pointing out this irony (as many commentators have) should not detract from the powerful appeal of this genre of judicial criticism. Gefesselte Justiz (Justice Enchained) by disgruntled ex-civil servant Ewald Moritz was a great publishing success, selling in excess of 100,000 copies within two years. The only book on the topic of political justice with comparable sales figures was Felix Halle’s Wie verteidigt sich der Proletarier... ?,

selling 76,000 copies by 1929.'* Both figures dwarf the pre-1933 sales of Hitler’s Mein Kampf.

Nationalist lawyers and publicists even hijacked the slogan of ‘class justice’

itself. Hartmut Plaas, an intimate of fellow Rathenau conspirator Ernst von Salomon and his lawyer Walter Luetgebrune, for example, lamented the detention of Nationalists in the Dungeons of the Bourgeoisie in his eponymous pam-

phlet. An ‘administration of justice in whose judgements a certain societal, political or social tendency manifests itself is not grounded on justice, but on power. It is class justice.’ One contributor to the volume was Martin Bormann, later Hitler's ‘private secretary and one of the most powerful men in the Third Reich. Bormann had spent a year in prison for his part in the Feme slaying of Walther Kladow, suspected of betraying the Nazi martyr Leo Schlageter to the

French. His piece, entitled ‘Klassenjustiz, argued that not Communists but nationalists were the main victims of the courts’ political bias. Bormann contrasted the alleged mistreatment of nationalist prisoners such as himself with the supposed favouritism towards Socialists. Like the Communists’ use of the term, Bormann’s notion of ‘class justice’ identified the courts with the ‘system’ in a wholesale denunciation of both: Back in freedom, we witness the system that abused and enslaved us in captivity holding power. We hate this system [...]. We have forgotten how to be ‘just’. The ‘just’ is always a weakling, trying to hide his weakness beneath the mantle of justice. We have no belief in a German administration of justice while it is the politicians’ whore [...] That is why we will not rest until the fall of the system has become reality.''” "S LA(B) A.Rep 358.01/371 [non-foliated] ‘Die Justiz wird vergewaltigt!’, Schwarze Fahne 10/1925. IY Seascheit U., ‘Felix Halle (1884-1937) Justitiar der Kommunistischen Partei’ pp.153-62 in Redakhon Kritische Justiz (eds.), Streitbare Juristen, here p.153. " Bormann, M., ‘Klassenjustiz’, pp.60—5 in Plaas, H., Wir klagen an! Nationalisten in den Kerkern der Bourgeoisie, Berlin 1928, p.65.

78 Courtroom to Revolutionary Stage Plaas’ pamphlet strenuously emphasized hatred for the ‘bourgeoisie’ in whose ‘dungeons’ the nationalists smarted. This appeal to the workers was compromised, however, by the inability of contributors to disguise their disdain for the ‘masses’: ‘formless [...], not to be grasped in their slimy, corrosive mollusc-likeness [...] like armies of rats, the dust and excrement of the gutter on their backs’.'!° Objectively,

attempts to equate left- and right-wing suffering from judicial bias should have foundered on the shoals of conviction rates and average jail terms. Nevertheless, the slogan ‘class justice’ appealed to constituencies nationalists hoped to sway. Its purchase lay not in analytical rigor but in the visceral allure of its central assertion, that in Weimar's courts, prejudice was posturing as neutral arbiter. “Class justice’ harnessed the anti-judicial rhetoric of the left to the goals of the radical right in a wholesale attack on the ‘system’. It was in this visceral sense, and not in the sophisticated sociological analyses of Ernst Fraenkel and Erich Kuttner, that the notion ‘class justice’ had most traction.

That right-wing lawyers sought to emulate this mode of argument pioneered by

their Communist peers suggests, independently of their success, that both extremes saw practical judicial criticism touch a nerve in contemporaries. Fundamentally as they disagreed on the meaning of ‘class justice’, extremist barristers used the slogan to assert the primacy of ideology. Politics determined everything, including the administration of justice, whose neutrality and independence was a hoax. In a sense, the greatest enemy of this position was not the ideological antagonist but the insistence that an arena for moderation could be found in the courts. That is why Plaas belittled the ‘pale liberal obsession with justice’ [der blasse liberale Gerechtigkeitsfimmel].''’ The pattern of the extremes’ mutual cross-legitimisation,

each furnishing the other with a justification for its radicalism, applied with a vengeance to the sphere of law. Even while combating one another, the extremes undermined the foundations of liberal politics in tandem. Conceiving of judicial procedure as power politics in a robe and a wig helps explain why the moral problem of forsaking individual clients in the party's interest hardly ever occupied the lawyers responsible for it. As Felix Halle’s guidelines for proletarian defendants put it: For conducting a political trial, the outcome alone, which depends upon the verdict of the bourgeois court, cannot be the yardstick [...] In the interest of the movement, it may be necessary to conduct a trial with fundamental acridity in order to force the bourgeois courts to make their class justice transparent to the broad masses as clearly as possible.'!®

Even though Halle offers a partial qualification (in some cases of ‘lesser significance’ it could be ‘thoroughly unfitting [...] to play the revolutionary hero’), he justifies, indeed mandates, the party lawyers’ disregard for their clients’ sentencing.

"6 Anon., ‘Abrechnung’, p.14f. in Plaas, H., Wir klagen anil, p.14. "” Plaas, H., Wir klagen anl, p.9. "8 Halle, Wie verteidigt sich der Proletarier... ?, p.xii.

Ten Political Lawyers 79 The necessary ‘fundamental acridity’ required aggressive and unrepentant posturing by defendants (and their lawyers), while the ‘transparency’ of class justice increased with the harshness of sentences.

‘CLEANING THE TOILET FOR UNCLE SCROOGE’: PARTY LAWYERS VS. THEIR NON-POLITICAL PEERS This final part of the chapter looks at the relations between political lawyers and their colleagues. Charting the flows of praise and vitriol that connected political lawyers with one another and their non-political peers does more than add colour. It illustrates to what extraordinary degree the lawyers were perceived (not least by themselves) as innovators as they carved out the niche of political specialization. The following thus helps situate party lawyers more exactly in the broader context of the Weimar legal profession. As political specialization grew more pronounced, existing partnerships were strained. ‘Grave differences’ prompted Max Hirschberg to dissolve his pre-war partnership ‘with a non-political lawyer’. He joined Philipp Lowenfeld and Adolf Kaufmann, ‘Social Democrats and political defenders like myself.’ On the right, Walter Luetgebrune’s preoccupation with ‘grosse Sachen’, high-profile trials, frustrated his partner Smend. The mundane, but lucrative run-of-the-mill briefs that were the lifeblood of their G6ttingen practice suffered as a consequence, and Smend dissolved the partnership in 1928.''’ There were exceptions: Riidiger von der Goltz shared his Stettin practice with a non-political colleague called Weiss, to their mutual benefit, as he recalled.'*° But the overall trend towards increased specialization is clear. Younger lawyers joining the profession in the late 1920s (Hans Litten, Hans Frank, Hilde Benjamin, Gétz Berger) did so in ideologically

aligned partnerships dedicated exclusively or almost exclusively to political defence work.'*' In fact, the very designation ‘non-political lawyer’ announces the rise of the political specialists—previously, lawyers had been non-political by default. Non-political lawyers saw their political peers as unprofessional, self-important, and vain. In 1929, Hitler sued the liberal Welt am Montag for libel over a satirical account of a meeting with nationalist media tycoon Alfred Hugenberg. Initially,

Hans Frank inspired nervousness in his opponent, barrister Riegelhaupt, who asked the court repeatedly to defer proceedings. Once privy to Frank’s written arguments, nervousness turned to exasperation. The writ was ‘from a legal perspective about the most baseless thing I have come across’, Riegelhaupt wrote. Frank incriminated language that was not even used in the contentious piece. His main

BA(K) NL 1150 Luetgebrune Bd. 142 [non-foliated], Luetgebrune to Smend, Hannover, 15.3.28.

a BAK KLE 653 NL von der Goltz Bd.2, [124]. *! Hirschberg, M., Jude und Demokrat, p.136, p.198, BA(K) NL 1150 Luetgebrune Band 142

[non-foliated], Luetgebrune to Smend, Hannover 15.3.28.

80 Courtroom to Revolutionary Stage point seemed to be that the lampooned meeting had never taken place. Apart from the fact that Hugenberg and Hitler jad frequently met, Frank ignored the distinc-

tion between factual reporting and satire and its reflection in legal precedent. Riegelhaupt felt ‘tempted to lecture on the most basic principles of criminal law and regretted that he had asked for proceedings to be postponed in anticipation of ‘interesting legal problems’: ‘one refutes such attacks with the nonchalant posture of ironic superiority. Another Munich lawyer, barrister Kiihlmann, was retained by Franz-Xaver Weixler, a National Socialist editor from Augsburg, who sued Frank for charging inflated fees. The services for which Frank had billed 1200 Marks, Ktthlmann wrote, took an hour at most ‘unless a “well-known barrister” takes longer for such tasks’ .'”*

The verdicts of the bar’s disciplinary organs, the honour courts, reflected the unease party barristers inspired in their non-political colleagues. Honour court procedure had changed very little since 1877. Complaints from clients, colleagues,

judges or government could trigger disciplinary proceedings. On average, the elected boards of lawyers’ chambers rejected 80 per cent of complaints out of hand. In most of the remaining cases, the board simply voiced its ‘disapproval’. The vast majority of complaints thus never gave rise to a formal investigation, the next level of escalation in disciplinary proceedings, handled by the state prosecutors’ office of the relevant Oberlandesgericht (higher court of appeal).'’’ If the state prosecutor pressed charges, the honour court itself was convened. It consisted of

five members of the local lawyers’ chamber’s board, including the president. Appeals could be lodged with the Reich honour court at the Leipzig supreme court. The Reich honour court featured seven judges: three lawyers qualified to plead at the Reichsgericht and four Reichsgericht judges, including the president or his deputy. A majority of judges, not barristers thus had the final say in discipli-

nary matters, a poignant reminder of the limitations of the emancipation of the legal profession discussed earlier. The honour courts’ task was moderate in scope. Hannes Siegrist estimates that between 0.5 per cent and 2 per cent of lawyers were formally investigated per year, with less than half facing the honour court subsequently.'* In 1909 and 1910 the Reich honour court only sat a handful of times, passing judgement in 122 cases for the two years combined. ‘The bar’s bylaws (Rechtsanwaltsordnung) compelled barristers to maintain the ‘dignity of the profession’ (§28). Debt or alcohol problems, '* BA(K) NL 1110 Frank Band 28-2, barrister Riegelhaupt to Amtsgericht Miinchen [Abschrift], Berlin 2.4.29; ibid., Band 35-8, Kihlmann to Landgericht Miinchen I (6. Zivilkammer) [Abschrift], Miinchen 24.4.30 and 19.5.30. See also ibid., Band 35-3, barrister Abitz-Schultze to Landgericht Miinchen, 8.5.31.

'° Offensive to professional autonomy, this point had been hotly disputed in the deliberations leading up to the Rechtsanwaltsordnung of 1877. However, experiments with investigations by lawyers’ chambers themselves had not been satisfactory. Vehrenberg, H., Geschichte der deutschen Rechtsanwaltsordnung vom 1 Juli 1878, Freiburg 1935, pp.14—-18, Ledford, K., ‘Lawyers, Liberalism, and Procedure:

The German Imperial Justice Laws of 1877-79’, Central European History vol.26 (1993), .165-93.

Pee Sieprst H., Advokat, Birger, Staat. Sozialgeschichte der Rechtsanwalte in Deutschland, Italien und

der Schweiz (18.-20. Jhd.), Studien zur Europdischen Rechtsgeschichte 80, 2.vols, Frankfurt a.M. 1996, pp.641-9, p.642.

Ten Political Lawyers 81 extra-marital affairs, illegitimate children, even a wife’s restaurant ownership could therefore lead to honour court proceedings just as easily as overcharging clients.'” All the more remarkable, then, that political activity was exempted, in principle at least, from censure. In a landmark 1905 ruling, the Reich honour court held that in disciplinary matters, ‘political activity’ was to be ‘disregarded entirely’: any ‘lawyer is free to express his political orientation as long the manner of its exercise does not violate the limits set by the law in general and the duties of his estate.’'”° In practice, however, party lawyers routinely occupied the honour courts in the Weimar Republic. By statistical average, one in ten Weimar trial lawyers could expect to be subject to disciplinary investigation—which, as a rule, did not culminate in full-blown proceedings—over the course of his career.'”” By contrast, all the lawyers discussed here, with the exception of Wolfgang Heine and Friedrich Grimm, faced the honour court during the fourteen years of the Republic alone, Hans Frank and Ernst Hegewisch more than once. Roland Freisler, subsequently chief justice of the feared National Socialist People’s Court was tried in the Reich honour court a record four times. Clearly, party lawyers attracted disproportionate disciplinary censure. After Paul Levi squashed the 1911 ad fraud racket, the Frankfurt bar association reprimanded him for covertly advertising his practice, Levi challenged the censure,

and the row escalated all the way to the Reich honour court, where Wolfgang Heine secured Levi’s acquittal. Heine also took an interest in the case against Max Falkenfeld, an SPD lawyer from Frankfurt/Oder. Falkenfeld had been taken into ‘protective custody’ by the Kapp Putschists, and took them to court for civil damages after the amnesty curtailed a criminal investigation. He was indicted for allegedly violating the ‘dignity of the profession’ by the publication of extracts from Reichsgericht files he had obtained in his civil action, but acquitted in February 1922.'*° Max Hirschberg faced the honour court for likening the Bavarian ‘Standgerichte to ‘“Schandgerichte’, ‘shameful courts’ rather than ‘special courts’ at a Munich USPD convention in February 1920.'” Although Hirschberg was deemed to have crossed ‘the boundary which the dignity of the profession draws for the politician’, he was cleared of all charges on 11 December 1920. The fact that his outbursts had been ‘isolated occurrences’ made them ‘probably excusably’. The following October the appeal against Hirschberg foundered at the Reich honour court.'*? ‘A few years later’, Hirschberg speculated in retrospect, ‘the verdict would probably have been different’. ' Siegrist, H., Advokat, Birger, Staat, pp.641-9. 6 Schriftfithreramt des DAV (ed.), Die Entscheidungen des Ehrengerichtshofs fiir deutsche Rechtsan-

walte, vol.12, Leipzig 1906, EGH session 25.11.1905, p.43. '7 How many barristers were investigated varied geographically. Bavaria had the highest rate of complaints, 80 per cent of Munich barristers faced a complaint during their careers (Siegrist, H.., Advokat, Birger, Staat, p.641). 8 BA(B) NL 2111 Heine Band 127, [25b] Anwaltskammer Potsdam to Heine, Potsdam 16.5.22, ibid., [21]-[25] “Urteil’ [Abschrift], Ehrengericht Potsdam, Potsdam 18.2.22. '9 Weber, R. ‘Einleitung’, pp.9-50 in Hirschberg, M. (Weber, R. ed.), Jude und Demokrat. Erinnerungen eines Miinchener Rechtsanwalts, Miinchen 1998, p.14 and ibid., pp.139—42.

'°° Hirschberg, M., Jude und Demokrat, p.139, Schriftfthreramt des DAV (ed.), Die Entscheidun-

gen on erengerselsnep fiir deutsche Rechtsanwalte, vol.19, Leipzig 1924, EGH session 5.11.21, pp.124—5.

82 Courtroom to Revolutionary Stage Extremist barristers attracted the bulk of the honour courts’ attention. Ernst Hegewisch, for example, was fined for exhorting a mass meeting to free Max Holz, the self-styled ‘Communist Robin Hood’, ‘if necessary’ by violence. Subsequently, he was wary of the disciplinary organs, who ‘make an elephant out of a mosquito where revolutionary trial lawyers are concerned.’ He had in mind the case of fellow KPD lawyer Ferdinand Timpe, who the honour courts had disbarred.'°' Nationalist, and above all National Socialist, lawyers began to occupy the hon-

our courts in earnest from the late 1920s onwards.'*? The radicalization of the nationalist lawyers’ behaviour in court reflected that of the ‘movement’ as a whole. In the first half of 1930 alone, the Munich lawyers’ chamber received two com-

plaints against Hans Frank. In Stettin, Riidiger von der Goltz clashed with the head of the local lawyers’ chamber, his opponent in a custody lawsuit. Goltz was issued a ‘note of censure’, which he, like Levi, rejected, whereupon he was reprimanded again. After the seizure of power, he ousted his nemesis and assumed the leadership of the lawyers’ chamber.'’’? Roland Freisler occupied the Reich honour court on four separate occasions. The last of the verdicts, from September 1932, passed judgement on a whole series of incidents, including Freisler’s marshalling of 40 witnesses as shock troops for a fistfight, discussed above.'** The Reich honour court condemned Freisler’s ‘fully deliberate steps, intended to serve the gratification of his need for agitation’: ‘It is inadmissible that a barrister [...] makes his party political confession into the sole guiding light for his thinking and action.’

If Freisler was unwilling to accept this, he had ‘in the final analysis to choose between politics and profession’.'*? Somewhat belatedly, the court thus responded to political specialization in the bar. That this ruling essentially reversed the landmark 1905 judgment underlines the impact of radicalized party lawyers. The high incidence of disciplinary action against party lawyers points to a cultural gap: their style grated with their non-political colleagues. The ban on advertising, for example (substantially in place until 1994, and still influential today),'%° meant that honour courts were quick to sense unfair attempts at self-promotion in colleagues’ media appearances. Not entirely without reason—Ernst Hegewisch once suggested quite seriously that the Communist Party need not pay Berliners, as the press coverage they enjoyed was ample compensation. Political lawyers, on the other hand, relied on media coverage for other reasons as well. Newspaper '! BA(B) RY1/I2/711 JZ Band 7, [13]-[19] Hegewisch to [recipient blackened, Politburo?], Celle 12.1.24, [17], ibid., [65]-[67] Hegewisch to Pieck and Timpe, Hamburg 24.4.25, [67], ibid., Band 8 [110]-[165] Hegewisch to KPD central office, 8.5.22, [137], ibid., Band 9, [45]-[72] Hegewisch to Amtsgericht Celle, Celle 27.11.22. '* Krach, T., Jiidische Rechtsanwailte in Preuffen, Miinchen 1991, p.150. 133 BA(K) KLE 653 von der Goltz Band 2, [84]. '34 Schriftfithreramt des DAV (ed.), Die Entscheidungen des Ehrengerichtshofs fiir deutsche Rechtsanwialte, vol.26, Leipzig 1932, EGH session 22.9.32, pp.180—2. For the other decisions involving Freisler, see ibid., vol.21, Leipzig 1927, pp.140-2, pp.193—5, and vol.22, Leipzig 1928, pp.128—30. ' Schriftfiihreramt des DAV (ed.), Die Entscheidungen des Ehrengerichtshofs, vol.26, Leipzig 1932, EGH session 22.9.32, p.182. '6 T am grateful to my father, Reinhard Grunwald, for alerting me to recent changes in the handling of the professional by-laws. See also Guthmann, A., ‘Neuere Rechtsprechung zur anwaltlichen

Werbung’, Neues Wirtschafisrecht 2 (2002), www.nwit.de/archiv/NWIR%202/anwaltliche%20 Werbung. pdf (19.4.2012).

Ten Political Lawyers 83 headlines were often the only point of bringing a lawsuit. It was standard practice, for example, to indict detractors for libel (Ernst Rohm’s infractions of §175 penalizing homosexual contacts are a good example). Once friendly newspapers had reported defiantly on the brave battle against the enemies’ lies, the libel allegations were quietly dropped. ‘The noise lawyers like Freisler, Frank and Hegewisch made stood in inverse relation to the strength of their legal arguments. No wonder that ‘normal’ lawyers scratched their heads and appealed to the honour courts. Their verdicts reflected deep-seated reservations towards the dramatization and politicization of trials and the use of media essential to the party lawyers’ work. Political barristers reciprocated the resentment. They frowned upon the supposedly selfish and money-minded motivation— ‘ftir Herrn Raffke Toilette putzen’ (cleaning the toilet for Uncle Scrooge)—and lack of ideological commitment of their apolitical peers.'°’ Communist lawyers regularly complained of ‘bourgeois’ colleagues who had ‘stabbed their clients in the back’, without specifying what exactly they meant.'** Ernst Hegewisch accused non-political competitors of dumping. Colleagues undercutting

his honorariums were either ‘beginners’ eager to get a foot in the door or lawyers ‘popular with hustlers and credit sharks’. “Naturally such a lawyer ‘who would never uncompromisingly [E.H.’s emphasis] defend Communists, who is solely interested in getting his name in print’ was ‘able to conduct a political trial at a rate below his own costs’.'°’ But even where political lawyers did not question the ethics of non-political peers, they emphasized the value of party membership, for example because they could be entrusted with illegal activities.'*° ‘Bourgeois business lawyer’ and ‘political defender’, in short, were mutually exclusive interpretations of the barrister role.'*!

Party barristers may not always have flocked together, but they certainly recognized each other as birds of a feather. The main frame of reference for political lawyers were other political lawyers. Both across ideological boundaries and within their own camp, they looked upon one another as collaborators, but also as rivals. Rhetorical or tactical skill, for example, was recognized and praised, especially in retrospect. Hilde Benjamin recommended Hans Litten’s speed of thought, his legal erudition, and his combativeness in court.'** Benjamin herself, whose office in Badstraf$e in the workers’ district Berlin-Wedding represented (and employed) only KPD members, was similarly praised by her junior associate, Gétz Berger.'*? Riidiger von der Goltz found retrospective words of praise for Walter Luetgebrune (a ‘first class jurist’) and Roland Freisler (a ‘restless soul’, ‘highly talented’ though ‘stubbornly wedded to his own ideas’, and a man with ‘an essentially good heart’).'** Von

” BA(B) RY1/I2/711 JZ Band 8, [20]-[24] Hegewisch to Bilke, Celle 23.8.23, [22]. 8 Gangel, P., Rote Hilfe, p.106. ' BA(B) RY1/I2/711 JZ Band 8, [5]-[19] Hegewisch to Radek, Celle 7.8.23, [10]. 40 BA(B) RY1/12/711 JZ Band 11, [199]-[202] Samter to KPD central office, Berlin 18.4.25, [201], ibid., [206]—[208] Samter to KPD central office, [no place given] 28.5.25, [206]. ‘4 BA(B) RY1/12/711 JZ Band 8, [110]-[165] Hegewisch to KPD central office, 8.5.22, [165]. '2 Benjamin, H., ‘Hans Litten’, Weltbiihne 19.6.1973. ‘8 Berger, G., ‘Kampferin gegen Faschismus und Klassenjustiz’ in Dokumentation von Mitarbeitern der Justiz anla(sllich des 65. Geburtstages der Genossin Dr Hilde Benjamin, Berlin (Ost) 1967 (quoted following Gangel, P., Die RHD und ‘thre’ Rechtsanwalte im Kampf gegen die Justiz der Weimarer Repu-

blik, unpublished dissertation, typed manuscript, Berlin (Ost) 1985, pp.83-5). 4 BA(K) KLE 653 von der Goltz Band 2, [131]; Band 3, [102], [105].

84 Courtroom to Revolutionary Stage der Goltz also appreciated ‘Communist barrister Levy [sic]’, as ‘a man with an enchanting gift for forensic speech’. Goltz could quote passages from Levi's plea in the Jorns/Bornstein trial almost verbatim.'* The examples could go on: across ideological boundaries, mutual recognition linked political lawyers.'*° Stark criticism was more common than praise, however, especially within the

same ideological camp. Right-wing barristers couched their criticism of one another in terms harking back to the old-style, ‘apolitical’ lawyers’ ethos. Friedrich

Grimm accused Riidiger von der Goltz, Alfons Sack, Paul Bloch and Walter Luetgebrune to seek out ‘sensational political trials’. With his tendency ‘to submit spectacular petitions for the submission of evidence’, to ‘make “the bomb go off”, Goltz in particular came in for criticism for aspiring to become the ‘mouthpiece’ of radical nationalism.'*” As to Luetgebrune, though ‘doubtless a talented barrister, Grimm thought him too lazy for those aspects of a political defence which

went beyond the plea. To protect his lucrative Feme briefs, Grimm claimed, Luetgebrune had asked him to stop agitating for a general political amnesty. Grimm ‘disdained’ this ‘pure business point of view, which, like his KPD colleague Ernst Hegewisch, he believed to be incompatible with a political practice: And this man wanted to be a national barrister, who was supposed to fight against injustice, against the abuse of justice! But the barrister was supposed to aid the persecuted! But the barrister’s profession was no business enterprise!’!** Allegedly, Luetgebrune even entreated Grimm to relinquish the defence of Paul Schulz. In an exact reversal of this accusation, Riidiger von der Goltz claimed that Grimm had asked him to give up his client August Fahlbusch to protect the army leadership.” Even while political lawyers relegated their own clients’ interests to the back row, they discredited rivals by imputing client neglect. Paradoxically, Grimm was a political lawyer who thought of himself as apolitical. This was manifestly wrong. He enjoyed excellent rapport with journalists and publishers, and had no qualms about bringing them to bear on ‘on-going proceedings.'?? In the Feme trials, Grimm wrote not one but two glossy pamphlets, one of

them with Luetgebrune, the latter's ‘business’ standpoint notwithstanding. Nonetheless, Grimm claimed that ‘it was not me who had brought politics into the

45 BA(K) KLE 653 von der Goltz Band 2 [6]f. See also Quack, S., ‘Paul Levi (1883-1930). Politischer Anwalt und sozialistischer Politiker’ pp.131—40 in Redaktion Kritische Justiz (eds.), Streitbare Juristen, 1988.

46 BA(K) NL 1120 Grimm Band 13, pp.43-5. 47 BA(K) NL 1120 Grimm Band 13, p.14, p.38. 48 BA(K) NL 1120 Grimm Band 13, p.17. Grimm furthermore claimed that Luetgebrune’s clients shared his sentiments. Paul Schulz was ‘very dissatisfied’, Munich publisher Lehmann, ‘outraged’: ‘Luetgebrune had defended Ludendorff and since taken on a style of living which was cause for concern in right-wing circles, even amongst his friends. He always travelled with his secretary and demanded very high fees [...]’ (ibid., p.16). 49 BA(K) KLE 653 von der Goltz Band 2, [113]. 9 In the French military court trial of a French lieutenant, Rouzier, for shooting an NSDAP member from Germersheim during the occupation of the Palatinate, Grimm held twice daily press briefings for dozens of journalists. BA(K) NL 1120 Grimm Band 12, pp.1—29, p.12, p.26; Grimm, F/ Luetgebrune, W., Antrag und Begriindung zur Wiederaufnahme des Verfahrens zugunsten des Oberleut-

nants a.D. Paul Schulz aus Berlin, Minchen 1928.

Ten Political Lawyers 85 courtroom’ and that ‘even in the great political trials it always appeared to me as though the barrister [...] stood above the parties’ quarrel’. In his memoirs, Grimm attacked Luetgebrune, von der Goltz and the others for ‘following the line of the right-wing parties’.'’' The rivalry continued unabated after 1933. Despite the ‘misgivings that allegedly accompanied his entry into the NSDAP in 1933, Grimm appeared as a deputy in the puppet Reichstag only two years later. Grimm’s appoint-

ment so irked von der Goltz that he approached Rudolf Hef for his own ‘parliamentary seat. Again reversing Grimms charges, von der Goltz ridiculed his rival’s policy of asking ‘the unfortunate [Wilhelm] Frick for permission before accepting briefs’.'"°? Even while denying their own submission to party control, Grimm and von der Goltz imputed it to each other. The lynx-eyed watch political lawyers kept on one another gave party legal organizations leverage, as moderate lawyers had to beware of being ‘outflanked’.'” It strengthened, for example, Hans Frank’s position at the head of the NS lawyers’ organization as the ultimate arbiter in all disputes. Thus barrister Alfons Sack criticised his Berlin colleagues Richard Frost and Wolfgang Zarnack (‘in a certain sense [...] not up to the task’). Frost, in return, informed Frank that Sack lied to win mandates and ‘should not belong to a community of National Socialist lawyers’. In 1928, Roland Freisler even instigated honour court proceedings against Walter Luetgebrune, admittedly before the latter's entry into the NSDAP.'” Frank avoided taking sides in disputes among his subordinates. He merely asked everyone to stay on board ‘in the interest of the accused’.!”° Rivalries between KPD lawyers were also common. Ernst Hegewisch was keen

to distinguish himself from Frankfurt KPD barrister Artur Samter, whom he labelled a ‘propaganda speaker’. The courts held Hegewisch in high regard because ‘in spite of my uncompromising decisiveness the judges have the impression that any craving for sensation is anathema to me (Unlike Pol [sic] barrister Samter, of

whom the judges frequently assume the opposite).’!°’ Whereas Samter was too polemical, other colleagues were not polemical enough. Felix Halle’s writings, for example, would not entice a dog to leave his place behind the oven, according to Hegewisch.'°

! BA(K) NL 1120 Grimm Band 12, p.21, ibid., Band 13, p.1 (ibid., [14]. (ibid., [15]). '° BA(K) KLE 653 von der Goltz Band 3, [115]f. To be fair, it appears as though Goltz was

true to his word at least insofar as he defended his cousin, Dietrich Bonhoeffer, at the Volksgerichtshof.

3 Cf. BA(K) KLE 653 von der Goltz Band 2, [130], BACK) NL 1110 Frank Band 31-2, Raeke to

Frank, Hamburg 23.9.31, [attached] Raeke to president of Schwurgericht Hamburg, Hamburg 14.9.31.

se BAK NL 1110 Frank Band 33-2, Frost to Frank [‘vertraulich und persénlich’], Berlin oe BAK NL 1150 Luetgebrune Band 142, “Urteil’, Ehrengericht der Anwaltskammer Celle, Celle

a7 BAK) NL 1110 Frank Band 33-2, Frank to Frost, Miinchen 23.5.32. 7 BA(B) RY1/I2/711 JZ Band 7, [65]-[67] Hegewisch to Pieck and Timpe, Hamburg 24.4.25, On BA(B) RY1/I2/711 JZ Band 8, [5]-[19], Hegisch to Radek, Celle 7.8.23, [16].

86 Courtroom to Revolutionary Stage Strikingly, Communist barristers viewed as their greatest antagonists not National Socialists, but Social Democrats. The enmity towards Kurt Rosenfeld, Paul Levi's partner in the Luxemburg trials, for example, bordered on paranoia. Gerhard Obuch, a Communist barrister-parliamentarian from Dusseldorf accused Rosenfeld of faking concern for prisoners in order to spy on them and procure material for ‘counter-agitation’..'” Artur Samter’s protest against being removed from an important trial culminated in the charge that the Communist Party legal organization ‘has done barrister Rosenfeld’s bidding’. For Ernst Hegewisch, Rosenfeld’s defence of the Socialist Revolutionaries in the 1922 Moscow trial was ‘treason. Rosenfeld, furthermore, had a ‘father in law who is a millionaire and leather-goods producer’. ‘As a revolutionary lawyer’, he refused to be placed ‘on the same level as bourgeois lawyers, let alone on that of Herr Kurt Rosenfeld’ .'° Nazi attacks on left-wing lawyers conflated stereotypes of lawyers and Jews.'®' In

his famous 1912 pamphlet Wenn ich der Kaiser war, nationalist barrister and president of the Pan-German League (Al/deutscher Verband) von Claf set the tone. “The Jew’, he wrote remains a Jew in all that he undertakes [...]. If he becomes a barrister, he has a corrosive effect, because his inborn conception of law stands in opposition to those inherent in the written German law, and the talmudic practices which twist lawfulness into lawlessness and vice versa are the result.'

Within this general framework, attacks on Jewish Social Democrats could be remarkably personal. In an article entitled ‘Jewry and the bar: a contribution to the psychology of trial conduct’, Nazi theoretician Wilhelm Stapel described Jewish jurists as ‘psychologically unsuited to the law. Their ‘oriental temperament’ meant they were bound to plead emotionally, to curry favour with judges, and to resort to personal smears. “The Jew’ merely strings argument to argument, much like an impressionist painter puts one splash of paint next to another. Not the logical clarity of contours, but the intensity of the splash of paint is characteristic of his kind. After all, his means of achieving an effect is not objective logic, but subjective stimulation [W.S.’s emphasis].'©

') BA(B) RY1/12/711 JZ Band 11, [120]f. Obuch to Pieck, Diisseldorf 18.8.28, [121], ibid., Band 11, [206]-[208] Samter to KPD central office, Berlin 28.5.25, [207]. Ernst Hegewisch expressed similar resentment (ibid., Band 7, [26]-[41] Hegewisch to KPD central office, Hamburg, 9.11.24, [37]).

'©° BA(B) RY1/12/711 JZ Band 8, [110]-[165] Hegewisch to KPD central office, Celle 8.5.22, 'el Hannes Siegrist notes that the currency of anti-Semitic stereotypes led even Jewish barristers to partially own the underlying prejudices. Munich barrister Siegbert Feuchtwanger—whose name has an uncanny ring given Lion Feuchtwanger’s character Siegbert Geyer—for example, thought that the ‘commercialisation’ of the profession would be less advanced if the bar numbered fewer Jews (Siegrist, H., Advokat, Birger, Staat. Sozialgeschichte der Rechtsanwalte in Deutschland, Italien und der Schweiz (18.-20. Jhd.), Studien zur Europaischen Rechtsgeschichte 80, Frankfurt a.M. 1996, vol.2, pp.868—71). ' Quoted following Krach, T., Jiidische Rechtsanwiailte in Preufsen, Miinchen 1991, p.28f. '©3 Stapel, W., ‘Anwaltschaft und Judentum. Ein Beitrag zur Psychologie der Prozessverhandlung’, pp.752-7 in Deutsches Volkstum, 2.9.1932, here p.752f.

Ten Political Lawyers 87 Full of half-expressed anxieties, misrepresentations, and internal contradictions, Stapel’s anti-Semitic stereotypes were staples of nationalist legal discourse.’ Typical Jewish lawyers are cunning, ‘calculating’, effeminate (though they also threaten to ‘penetrate’ the sanctity of Roman-Germanic ‘objectivity’), cowardly, hypochondriac, choleric, and overbearing (‘gre//’). In short, they represent a danger to a truly Germanic administration of justice, and ought hence to be barred from Iustitia’s palace (as well as from university faculties). ‘Jewry and the bar’ unfolds its panorama of ‘typical’ Jewish lawyering with explicit reference to Max Hirschberg and his partner Philipp Lowenfeld, or ‘Montanus’ and “Campanus’ in Stapel’s ham-fisted parody. ‘The two had cross-examined

Stapel in a 1932 lawsuit, and sued for libel over the article—reluctantly, because well aware of the potential political cost. Going after Stapel was ‘an unwelcome obligation’ to themselves, their fellow Jewish citizens, and the dignity of the bar, as they put it. To defend himself, Stapel at first insisted on the ‘purely scientific nature’

of his diatribe. However, after the emergency decree of 20 December 1932 gave courts the option to curtail cases in which a political offence was likely to result in a sentence under two years, he abruptly changed his tune. ‘Political motivation’ had guided his pen, the right-wing publicist now assured the court, which duly closed the case on 28 January 1933. There is rich irony in this final twist. To escape punishment, the anti-Semite engaged in exactly the kind of mendacious, spineless, and supremely pragmatic legal wiggling that he accused Max Hirschberg of, and imputed to Jewish lawyers in general. Despite their own efforts at dramatising legal proceedings for political ends National Socialists saw no contradiction in accusing Jewish lawyers of ‘turning the courtroom into a playpen of class struggle and playacting’.'®

Just like the Communists, National Socialists had particular bétes noirs. Hans Frank intended turning a libel suit involving Munich barrister NufSsbaum into a ‘Judeneid trial: ‘expert witnesses would offer an exegesis of ‘the famous talmudic passage about the Jew’s oath towards an acum’.'°° Frank even managed to get the Jewish lawyer arrested, but Nufsbaum’s death in early 1929 cut Frank’s plan short.'©

Berlin Nazi barristers Sting and Roland Freisler attacked Johannes Werthauer, a prominent barrister-parliamentarian, in the Prussian Landtag and the Angriff. Not only was the war to blame on ‘Juda’s seed’, but Werthauer belonged to ‘those who fattened themselves with whatever a starving economy bleeding to death could be

'64 Weber, R., “Einleitung’, pp.9-50 in Hirschberg, M. (Weber, R. ed.), Jude und Demokrat. Erinnerungen eines Miinchener Rechtsanwalts, Minchen 1998, p.24—6, Morris, D., Justice Imperiled: the Anti-Nazi Lawyer Max Hirschberg in Weimar Germany, Ann Arbor 2005, esp. pp.46-9. ' Krohn, M., Die deutsche Justiz im Urteil der Nationalsozialisten, p.242, p.284. Cf. the libel suit Berlin barrister Max Feblowicz brought against the article ‘Jiidische Anwaltsmethoden’, Angriff No.81, 9.10.1930, LA(B) A.Rep 358.01 Staatsanwaltschaft bei den Landgerichten/18 and further examples given in Krohn, op.cit., p.266.

16 BA(K) NL 1110 Hans Frank Band 40-14, Frank to Hermann Esser, Miinchen 18.1.29. 67 BA(K) NL 1110 Frank Band 28-1, Frank to Hitler, Miinchen 21.6.28.

88 Courtroom to Revolutionary Stage blackmailed and cheated out of’.'® Friedrich Grimm, in his unpublished memoirs, accused Jewish lawyers, especially the ‘pacifist demagogue’ Werthauer, of monopolizing reparations litigation, with ‘corruption’ and transnational ‘Jewish’ co-operation defrauding the German government. Grimm also lamented the ‘gruesome demagogy of the left-wing press’ during the Feme trials, with the ‘Jewish element’, and Werthauer in particular, prominent. ‘And so it came about that this bitter inner-political struggle perhaps contributed most to the expansion of antiSemitism which subsequently had the unfortunate consequences during Hictler’s time which in the end led to the catastrophe.’ In other words, Grimm blamed the Jews for the Nazi genocide, an intimation so repulsive it merits no comment.’ Anti-Semitism shaped courtroom interactions, too. In spring 1930, Hans Frank defended stormtroopers accused of grievous bodily harm in Schweidnitz, Upper Silesia. Breslau SPD barrister Foerder represented the victims, who had joined the criminal action as Nebenkldger. Frank heckled Foerder in open court, and encouraged his charges to do the same. In a newspaper article published during the trial, Frank claimed that ‘his race’ prevented Foerder from ‘understanding the sentiments of German men’. Foerder’s complaint to the Munich lawyers’ chamber highlighted the article and Frank’s refusal to stop his clients wearing their brown SA uniforms, in defiance of the court’s explicit orders. Frank, Foerder wrote, had not only violated the ‘dignity of the profession’ but harmed his clients. The Munich lawyers’ chamber took no action, possibly because of the passage of the 1930 political amnesty.'” Not even stridently nationalist lawyers could escape the racial anti-Semitic bias. Paul Bloch, a Protestant convert, was a skilled and prominent lawyer and DNVP member. He defended National Socialists such as Edmund Heines and Paul Schulz. Loyalty and competence were not enough, however, to pacify ardent anti-Semites

like Munich publisher Lehmann. Even though Lehmann liked to boast that he regarded legal fees as ‘propaganda costs’ and saw Bloch as an ‘outstanding barrister in principle’, he was mortified when his author Ewald Moritz retained the ‘Jewish’ lawyer. Lehmann had taken away from the Feme trials (in which Bloch had energetically defended the nationalist killers) ‘the permanent sentiment that in the end, he [Bloch] was never really in our camp and that he will never become unfaithful to the people of Israel, even when apparently representing Germans in a trial’.'”" A

‘born Jew’, Bloch was ‘unable to act in a way other than that prescribed by his Jewish custom- and blood-law’, Lehmann wrote on a separate occasion.'””

'68 “Der Anwalt der Sklarz und Barmat’, Angriff; 20.3.31, “Was sagt die Anwaltskammer?’, Angriff;

11.3.31. Werthauer was particularly suitable as a target for this allegation, as he had defended Secretary of State Hermes of the Ministry of Nutrition against the charge of corruption in 1922, brilliantly exposing the mechanisms of right-wing political justice (AsD NL Levi Mappe 82 [non-foliated], ‘Pladoyer Werthauer’).

'© BA (K) NL 1120 Friedrich Grimm Band 10, p.47, p.51, Band 13, p.10. 9 BA(K) NL 1110 Frank Band 36], barrister Foerder to Vorstand der Anwaltskammer Miinchen, Breslau, 5.7.30. See also ibid., Philipp Loewenfeld to Vorstand der Anwaltskammer Miinchen, Miinchen, 24.4.30. ‘71 BA(K) NL 1205 Zarnow Band 6, [212] Lehmann to Zarnow, Miinchen 9.2.31. See also LA(B) A.Rep 358.01/271f.,/274f.,/277,/280 and/2616. 2 BA(K) NL 1205 Zarnow Band 6, [132] Lehmann to Zarnow, Miinchen 16.5.31.

Ten Political Lawyers 89 CONCLUSION In August, 1923 Ernst Hegewisch sent a letter to Karl Radek, Lenin’s special envoy to Germany. As ‘the mouthpiece of countless proletarians, who wish to see preserved my activity as political lawyer of the revolutionary movement’, he solicited Radek’s support in a pay dispute with the party. Forty-three attachments detailed his selfless service.'’° It is deeply ironic that Hegewisch addressed himself to Radek, who, eleven months earlier, had filed a secret and unequivocally damning report on him. Radek had taken particular exception to the ‘disgusting’ mutual adulation between the lawyer and Max Hélz. Hegewisch was ‘in the main responsible for the fact that today, Hélz is no longer quite normal’, Radek wrote, and recommended that the barrister be removed from any sort of political responsibility.'”* Blissfully unaware of Radek’s report, Hegewisch wrote to other prominent Communists. He was not ‘an average lawyer’ occupied with ‘average matters’, he informed Zinoviey, for example.'”? Hegewisch’s self-confidence was striking. The revolutionary movement had no ‘barristers equal to myself’, and ‘for revolutionary fighters, only the best lawyers ought to be good enough’.'”° Hegewisch took pride in his fast-paced lifestyle as a ‘travelling barrister’,'’’ desired ‘representations in large criminal trials’ and refused to occupy himself with ‘every piece of dirt’ that came along.'”* Commanding the affections of the ‘heart of the workers’, Hegewisch thought himself a ‘lawyer revered, even loved, by the proletarians’. Defendants not represented by him would feel disadvantaged and rebel.'” This hubris reached its apex in the barrister’s belief that defendants were not concerned about the personal consequences of a trial as long as he defended them, that they would ‘rather be sentenced with Hegewisch than acquitted with barrister... [sic].’'*° The vignette illustrates the impact of Weimar political lawyers. In contrast to the mainstream of German jurists, party lawyers sought rather than shirked publicity, media presence and controversy. They were driven by a strong sense of personal mission to redress injustice, which they tended to see as endemic in the administration of justice. Because redressing systemic ills dominated their agenda, party bar-

risters interpreted the role of the trial lawyer aggressively, and were unlikely to

'73 BA(B) RY1/12/711 JZ Band 8, [5]-[19] Hegewisch to Radek, Celle 7.8.23, [5], ibid., [20]—[24] Hegewisch to Bilke, Celle 23.8.23.

4 BA(B) NY 4051 Hdélz Band 14, [302]-[304] Radek to Executive of the Communist International, [no place given] 14.9.22. '? BA(B) RY1/12/711 JZ Band 8, [1]-[4] Hegewisch to Zinoviev, Celle 23.9.23, [3]. '76 BA(B) RY1/12/711 JZ Band 8, [5]-[19] Hegewisch to Radek, Celle 7.8.23, [11].

177 1 178 RAR) RYL/II7I1 JZ Band 8, [110]-[165] Hegewisch to KPD central office, Celle 8.5.22, [160]. During the hyper-inflation, the JZ proposed adjusting the lawyers’ pay in line with the

remuneration tables for civil servants, which were published monthly. Hegewisch, however, wanted higher pay: ‘the civil servant index cannot be the measuring stick for a revolutionary barrister’ (BA(B) RY1/12/711 JZ Band 8, [5]-[19] Hegewisch to Radek, Celle 7.8.23, [13]). '‘” BA(B) RY1/I2/711 JZ Band 7, [13]-[19] Hegewisch to [recipient blackened, Politburo?], Celle 12.1.24.

189 BA(B) RY1/12/711 JZ Band 8, [5]-[19] Hegewisch to Radek, Celle 7.8.23, [5], [17], ibid., [110]-[165] Hegewisch to KPD central office, Celle 8.5.22, [111].

90 Courtroom to Revolutionary Stage avoid confrontation with judges, state prosecutors and peers. Judicial procedure was by no means ‘above politics’ to them, rather it was a means of wielding political power (although nationalists were likely to bemoan the politicization of justice and to present their own work as a sort of antidote). The party lawyers’ style was per-

sonal and subjective, shunning the traditional exhortation to ‘objectivity’ (Sachlichkeit). Finally, they were prepared to radically submit themselves, but also their clients, to party discipline. While they preferred pleading in line with the legal interests of their individual clients, they were ready to relinquish them when they felt it was necessary or they were ordered to. These traits made political lawyers indispensable for Weimar extremist parties. As the trial lawyer and publicist Bruno Weil put it, the ‘barrister who regards as the main question whether his client is fined ten Marks or is acquitted totally misapprehends the nature of political trials. The trial is nothing, the echo is everything.’'*! In the extremist parties’ struggle to combat the Weimar ‘system’, trials were both unavoidable and a unique platform for propaganda—and lawyers like the ones portrayed in this chapter crucial for the de-legalization of trials, and for the aestheticization, dramatization and politicization of justice.

Aggressive, media-savvy and ideologically committed lawyers like Ernst Hegewisch and Riidiger von der Goltz, Hans Frank and Felix Halle unshackled extremist parties from the need to manoeuvre around ‘legalistic’ misgivings from barristers intent on safeguarding their clients’ interests. What is more, they could rely on the lawyers’ ambition, eagerness for publicity and procedural inventiveness to turn judicial procedure into engaging and dramatic performances of ideology. At the same time, the parties came to depend on the services of such barristers, as we will see in the next two chapters. Ernst Hegewisch is a case in point. Despite his querulousness, his pricetag and Radek’s disdain, Ernst Hegewisch not only continued to work for the KPD, but did so more or less on terms of his own choosing. The rise of political lawyers suggests that in Weimar political trials, the impor-

tance of the verdict was limited. While certainly not ‘nothing’, as Bruno Weil polemically argued, the verdict was only one of many variables that political bar-

risters sought to influence, and in many cases not the most important. In that sense, the ‘echo’ really was ‘everything’. This observation has far-reaching implications for our study of Weimar political justice. Firstly, it suggests that we should take seriously the intention to ‘turn the courtroom into a revolutionary stage’. We ought to look at the political lawyers’ dramatization of judicial procedure not as a quirky and individualistic incidental to the ‘actual’ legal business of negotiating offence, norm and sanction, but as a key element of trials. Secondly, it stands to reason (and subsequent chapters substantiate this hypothesis) that the employers

of political barristers, mainly the extremist parties of left and right, shared their priorities. But if the barristers and their paymasters prioritized ‘echo’ over ‘verdict’, how useful are perspectives on political trials that take as the primary (and often '8! Weil, B., Gegen die Rechtsnot der deutschen Juden, p.119, quoted following Beer, U., Die Juden, das Recht und die Republik. Verbandswesen und Rechtsschutz 1919-1933, Rechtshistorische Reihe 50,

Frankfurt a.M. 1986, p.188.

Ten Political Lawyers 91 enough, only) yardstick the differential incidence of verdicts? Again, this is not to

absolve the Weimar judiciary from blame for the pro-nationalist bias which undoubtedly informed its judgements. It is merely to point out that given the ‘defence’ priorities of party lawyers, the verdicts in Weimar political trials were in many ways neither surprising nor their most instructive feature. Rather than focusing exclusively on the ‘what’ of verdicts, we should look seriously at the ‘how’ of the ‘echo’, at trial coverage, clemency appeals, parliamentary interventions, protest rallies, and amnesty campaigns. Looking at party lawyers is certainly not a sufhcient, but probably a necessary first step to achieving this more comprehensive view of Weimar political justice.

“To Fight The Class Struggle With ‘The Bourgeois Courts With All Acridity’: the Communist Party Legal Organization Berlin has never been short of spectacular trials. From the captain of K6penick to Karl Liebknecht, dashing crooks and courageous rebels have captured the city’s

imagination and made ‘Moabit’, the courthouse district, a shorthand for high forensic drama.' And yet, when Max Holz faced his judges on the morning of 13 June 1921, the city was bustling with more than the usual excitement. This was partly a function of the defendant’s prominence, partly a consequence of the political earthquake triggered by the Communist Party's botched attempt at revolution in March 1921, and finally also an expression of the public’s growing appetite for courtroom drama—and the public would not be disappointed. ‘I do not see myself as a defendant but as the prosecutor of bourgeois society represented by you, the judges. And if you have been able to drag me here, then for a single reason: you have the power, and thereby also the law on your side’, Hélz declared in his opening statement.” Holz was born near Riesa in Saxony in 1889, the son of poor agricultural labourers. A sickly youth, he worked as an itinerant labourer and a railway draughtsman, eventually settling in Falkenstein in the Vogtland region on the advice of his doctors. In 1914, H6lz volunteered for military service. The war politicized him and in 1917, a chance acquaintance with the editor of the Leipzig Volksstimme and

future Communist leader Georg Schumann converted Hélz to revolutionary Marxism.

After the war, Hélz founded the Falkenstein branch of the Communist Party and quickly built a reputation for revolutionary activism. As leader of the local workers’ and peasants’ council in early 1919, he imposed ad hoc taxes on landowners and hiked up unemployment benefits by 50 per cent. During the Kapp Putsch, H6lz organized a “Red Guard’, ingeniously captured a police weapons depot, and

fought pitched battles with Reichswehr. Foiled by the general strike, the Kapp Putsch collapsed, and by 22 March 1920 both SPD and KPD had called for an end

' Siemens, D., “Vor den Schranken von Moabit’, pp.196—210 in Diehl, P/Grunwald, H./Scheffer, T./Wulf, C. (eds.), Performanz des Rechts: Inszenierung und Materialitit (= Paragrana. Internationale Zeitschrift fiir Historische Anthropologie, vol.15 (2006) No.1). * Halle, E, Holz’ Anklagerede wider die biirgerliche Gesellschaft, Berlin 1921.

The Communist Party Legal Organization 93 to armed workers’ resistance. H6lz, however, continued his local insurrection. Here is an account by one of his red guards: The commando, motorized, counts 60 to 200 men. In front, a reconnaissance group with machine rifles or lighter arms: the heavily armed trucks follow. ‘Then the ‘chief’ in a motorcar, ‘with the cash’ and his ‘minister of finance’. As cover, another heavily armored truck. All decorated with red flags. Upon arrival, provisions are requisitioned, the post offices and savings banks ransacked. ‘The general strike is proclaimed and paid for by the employers with a ‘tax’. Butchers and bakers are ordered to sell their mer-

chandise 30 to 60 percent cheaper. All resistance is crushed immediately and violently [...].°

One of Hélz’s proclamations read: [WJorkers, women and children [are] shot in Mitteldeutschland, simply because they are workers and fight for their bread and their freedom. As a countermeasure, we have immediately imposed proletarian martial law. We slaughter the bourgeoisie regardless

of age and sex, we dynamite their villas, and we take the stolen money that their exploitation and profiteering robbed the workers of in the first place.*

In reality, H6lz was much more circumspect than the bloodthirsty prose suggests. His insurrection was eventually squashed, but Hélz managed to evade arrest by the German authorities (he did spend some time in Czech custody).

Holz resurfaced during the so-called “March Action’, the KPD’s ill-judged attempt to spark revolution in the spring of 1921. A general strike in the Leuna industrial area, so ran the ‘Offensivtheorie’ pushed by Radek, Guralski, and Kun, would provoke repressive measures and these in turn catalyze the spread of revolu-

tion throughout Germany. It turned out to be wishful thinking on a grandiose scale. The hoped for wave of solidarity stubbornly refused to materialize, a fact the KPD deliberately concealed from the isolated and increasingly beleaguered insurrectionists for as long as possible. During the fighting, H6lz was in his element. Allegedly, he once walked into the Falkenstein police station demanding the ransom on his own head. The duty ofhic-

ers handed over the cash. By the time reinforcements arrived, H6lz had disappeared again.’ Another time, already surrounded by five policemen, he evaded certain arrest by threatening to drop the armed grenade in his outstretched fist (which in fact clenched only his key-ring). Ascertaining the truth of such stories is difficult, but their very existence proves the extraordinary position of H6lz in leftwing lore—even the New York Times reported on his exploits.° Along with several thousand “March fighters’, H6lz was finally arrested and brought to trial. Assisted by no less than three Communist lawyers—Ernst Hegewisch, Victor Frankl, and James Broh, of the Communist Workers’ Party—H6lz turned the trial into a dramatic clash of ideologies. As the journalist Max Hermann NeifSe put it: > Quoted without specifying source in Heath, N., ‘Max Holz, 1889-1933’ [27 September 09, 10:00]. * Breitbach, U., ‘Legende: Der Kesselheizer der Revolution’, Der Freitag 12.09.2008. > Gebhardt, M., Max Holz. Wege und Irrwege eines Revolutiondrs, Berlin (East) 1989, p.75.

° E.g. on the 15.4., 16.4., and 17.11.1920.

94 Courtroom to Revolutionary Stage ‘Not since Liebknecht has anyone in all of Germany faced the class court with such inner victoriousness [im Innersten sieghaft] as Max Holz. From the very first, he has

refused to cede the merest inch of ground, and be it in the most insignificant of formalities, towards recognizing its authority. On the attack from the get-go, turning the tables, transformed from the accused into the most relentless prosecutor.” On the second day of the trial, the transcript recorded merriment amongst the spectators. Hélz had just described the rule of his “Red Army’ as one of peace and quiet, ‘it was only when Ho6rsing showed up [...] that the commotion and the bloodletting began.’ Derision greeted this claim, prompting barrister Hegewisch to ‘enter on the record that the entire audience opposes Holz. That is the proof that only members of the propertied classes are allowed to enter here. If it were workers filling those benches, H6lz’s words would have been met with the liveliest acclaim.’ ‘Do you as a lawyer count on the acclamation of the audience?’, the judge asked, to which Holz replied that the judges only dared sit in his presence under the protection of arms, and feared nothing more than the revolution. Holz and his lawyers continued to play on the theme of the court's alleged fear of the proletarian masses and the juxtaposition of bourgeois duplicity and proletarian honour. On 18 June, for example, barrister James Broh filed a motion to allow H6lz to appear in court in civilian clothes. He must have felt vindicated when the

state prosecutor opposed the motion on the grounds that it might facilitate a rumoured attempt to spring Holz from captivity while the court was in session. Holz then declared that he did not mind his attire, as he ‘regarded prison garb as a uniform of honour for revolutionary workers’, but challenged the presiding judge to admit workers into the courtroom instead of reserving admission for ‘the propertied class and its pimps’. Both motions were rejected.® On 22 June, Hélz was sentenced to life for high treason, but crucially also for killing the owner of a farm he and his entourage had occupied, a certain Hess. H6lz denied manslaughter, but was more than happy to accept the court’s verdict of high treason. As he pointed out in his closing speech, the higher the sentence, the better his ‘marks’ as a revolutionary: When you pass judgement on me today, I will look upon it as an exam in school. If you sentence me to ten years in prison, that will be a ‘D’, life would be a grade ‘A’, and the death penalty, a starred ‘A’. For me, the bourgeois honour you wish to strip me of

doesn't exist. Were you to award it to me I would be ashamed. ‘The only honour I know is proletarian honour. That is the honour of unconditional solidarity with the proletariat, and that honour you cannot take away from me.

After disregarding (for the umpteenth time) the presiding judge’s exhortation to

silence, H6lz was dragged from the courtroom, crying ‘long live the world revolution.’

” Gebhardt, M., Max Holz, p.166. ®° “Holz vor dem Moabiter Sondergericht’, RF 18.6.21. > Halle, E, Holz’ Anklagerede wider die biirgerliche Gesellschaft, Berlin 1921, quoted from Hannover,

H./Hannover-Driick, E., Politische Justiz 1918-1933, Frankfurt a.M. 1966, p.217.

The Communist Party Legal Organization 95 H6lz’s was already part of left-wing lore, and after his trial the myth of the ‘Communist Robin Hood’ was embellished further. In addition to official propaganda, Holz was lionized by scores of contemporaries, amongst them such diverse

and talented ones as Erich Mitihsam, Johannes R. Becher, Bertolt Brecht, and Erich Schairer. His legacy is further complicated by the fact that Hdlz, assassinated in the Soviet Union in 1933, became a persona-non-grata under Stalin. His was the dubious honour of being smeared in a fantastical paranoia narrative—the so-called Hélz-Wollenberg plot—two years after his death. Despite his rehabilita-

tion at the 20th Party Congress in 1956, authors in Communist East Germany gingerly tiptoed around Holz. In his twin guises as erstwhile conspirator and later victim of Stalinism, one thing about H6lz remained constant: it was safest to leave his story well enough alone.'® As a result of Hélz’s storied life and his ambiguous status—part proletarian hero, part political hot potato—sorting fact from fiction is close to impossible in the biography of this fascinating figure. Fortunately, for the purposes of our argument, the facts of H6lz’s biography are less decisive than

the way his myth was perpetuated. In the Potemkin village of H6lz the icon of anti-judicial propaganda, the facades are even more interesting than the reality of Holz the man. * OK OK

There are four reasons why H6lz opens this chapter on the Communist Party legal organization. First of all, his trial is emblematic for the performance of ideology the Communist Party aspired to. Combining courageous defiance and idealistic self-sacrifice in court, Hélz embodied the proletarian community. Secondly, the trial facilitated the institutionalization of Communist legal aid. H6lz’s lionization and rehabilitation were one of the new legal organization's top priorities. His case therefore affords important insights into the fascinating, dynamic web of mutual dependency and control between Communist lawyers, administrators and clients.

The high profile of the Hélz campaign points, thirdly, to the close connection between law and the public sphere, and to the traction which trial-based propaganda developed at their intersection. Fourthly, Hélz was controlled, manipulated, and utilized by the party through his lawyers, often with, sometimes without his consent. Both this disenfranchisement and the way his rehabilitation was finally achieved at the expense of another's self-sacrifice underline that political imperatives trumped legal and humanitarian concerns in Communist legal aid. Given the prominence of the Communist party legal office’s most successful politico-judicial campaigns and the number of trials it managed, its neglect in scholarly literature is striking. The Red Aid—an ostensibly ‘above party legal aid and welfare association, in fact entirely aligned with and controlled by the KPD—boasted half a '° Bramke, W., “Nachwort’ in Hélz, M., Vom ‘Weifven Kreuz zur Roten Fahne, 4. ed., Halle 1984 (reprint, first published Berlin, 1929) makes no mention of Hélz’s proscription and rehabilitation, nor do Hortzschansky, G., ‘Max Hélz, Kampfer ftir Freiheit und soziale Gerechtigkeit, ftir die Macht der Arbeiter und Bauern’, Beitrage zur Geschichte der Arbeiterbewegung vol.31 (1989) No.6, pp.775—90 and

Chasanow, M., ibid., pp.824—-8. See also Hermann Weber’s comments on Holz historiography in Weber, H., “Deutsche Kommunisten (II)’, Archiv fur Sozialgeschichte vol.25 (1985) No.3, pp.670-7.

96 Courtroom to Revolutionary Stage million members. Even allowing for inflated figures, it was the Weimar Republic’s largest proletarian organization after the trade unions. Yet both Eric Weitz’s and Klaus-Michael Mallmann’s recent studies of German Communism pay scant attention to the Red Aid and omit mention of the /uristische Zentralstelle altogether."' Much the same goes for even highly accomplished students of political socialization. While Siegfried Weichlein discusses the Red Aid’s role in the generation of proletarian milieus, he pays little attention to the specificity of anti-judicial propaganda, Catherine Epstein, emphasizing the postwar period, mentions neither.'” In East German historiography, the Red Aid entered the pantheon of proletarian mass organizations. Hagiographies of first GDR president Wilhem Pieck make passing reference to his achievements as the Red Aid’s leader.'? Petra Gangel’s 1985 study of the Red Aid, while empirically of some value, is ideologically blinkered in its guiding assumption that the Communist Party represented a superior ‘democratic culture’. Insofar as the archival record of Communist legal aid was likely to blight this picture, Gangel omits it. Precisely the most telling features of Communist legal aid are thus absent from Gangel’s sanitized account. By characterising the Weimar Republic as the ‘system of rule of German monopoly capitalism’, Gangel sidestepped an engagement with the KPD’s actual track record of vitriolic opposition to the democratic order. Her work thus echoes the official stance of the Ger-

man Democratic Republic, unsurprisingly given that former Minister of Justice Hilde Benjamin—herself a political lawyer in the Weimar Republic—was her thesis advisor and examiner.'* More recently, the Red Aid, the KPD central legal office and its lawyers have attracted a modicum of scholarly attention in Germany. Nikolaus Brauns’ study of the Red Aid makes an important empirical contribution. Re-rehearsing the Hannover orthodoxy, however, Brauns’ work is more celebration than critical engagement.’ Carola Tischler provides a useful introduction to the legal aid activities of

the Communist Party. Referencing scholars, notably Andreas Wirsching, who explain the deterioration of Weimar political culture in part through Communist provocation, Tischler moves beyond the orthodoxy—but not far. Tischler points out that ‘in the last instance, decisions [about granting legal aid] were made not by

the Red Aid, but by the Communist Party’.'° She also concludes that internal '\ Weitz, E., Creating German Communism, 1890-1990. From Popular Protests to Socialist State, Princeton 1997, p.4, Mallmann, K.-M., Kommunisten in der Weimarer Republik. Sozialgeschichte einer revolutiondren Bewegung, Darmstadt 1996, especially pp.5—15, pp.79-83, pp.256-68. 2 Weichlein, S., Sozialmilieus und politische Kultur in der Weimarer Republik: Lebenswelt, Vereinskultur, Politik in Hessen, Kritische Studien zur Geschichtswissenschaft 115, Géttingen 1996, p.301, Epstein, C., Last Revolutionaries. German Communists and their century, Boston 2003. Vofke, H., Wilhelm Pieck. Ein Leben fiir den Sozialismus, Berlin (Ost) 1975. 4 Gangel, P., Die Rote Hilfe Deutschland und ‘ihre Rechtsanwiilte im Kampf gegen die Justiz der Weimarer Republik, unpublished dissertation, Berlin (Ost) 1985 p.1, p.7, p.116. Brauns, N., Schafft Rote Hilfe! Geschichte und Aktivitdaten der proletarischen Hilfsorganisation fur politische Gefangene in Deutschland (1919-1938), Bonn 2003. '© ‘Tischler, C., ““Die Gerichtssale miissen zu Tribunalen gegen die Klassenrichter gemacht werden.” Die Rechtsberatungspraxis der Roten Hilfe Deutschlands’, pp.105—30 in Hering, S./Schilde, K. (eds.) Die Rote Hilfe. Die Geschichte der internationalen kommunistischen ‘Wohlfahrtsorganisation’ und ihrer sozialen Aktivitaten in Deutschland (1921-1941), Opladen 2003, p.108, p.117.

The Communist Party Legal Organization 97 tensions over legal aid ‘mostly’ occurred ‘between the party leadership and those lawyers who were unacquainted with the policies of the KPD and who oriented themselves mainly according to what benefitted their individual clients’.'” In other words, a culture of defence work prevailed in which lawyers did not orient themselves according to their clients’ interests. Yet Tischler has no comment on what this might imply for the impact of Communist legal aid on political culture, or on the veracity of the Red Aid’s ‘above party’ self-stylization. The resilience of the basic assumption about the ethical probity of the KPD’s anti-judicial campaigns is striking testimony to the staying power of the Hannovers’ orthodoxy. Summing up, the Communist Party central legal office has escaped scholarly notice almost entirely. Work on the mass membership legal aid association, the

‘Red Aid’, on the other hand, is ideologically blinkered and/or fundamentally misconstrues the organization’s role by taking at face value its ‘above-party’ humanitarian pretence. It was a humanitarian operation—in part. In the main, it was a means of promoting the Communist Party’s self-stylization, as well as an instrument of asserting party control over defendants, trials, and their media echo. Above party it was not, not even in the limited sense of an organization fostering proletarian unity. In February 1930, the executive secretary of the East Prussian Red Aid, Ernst General, commented on the imprisonment of Social Democrat Werner Jurr: ‘purportedly left-wing social fascist journalists, too, will occasionally get caught in the net of the Law for the Protection of the Republic. Jurr is a social fascist and we have not the slightest interest in such people. May they die a miserable death in prison.’'® So much for ‘above party’ solidarity, although, to be fair, the dislike between Red Aid and SPD was mutual. It is ironic

that the very same scholars who—quite rightly—unmask nationalist claims of being ‘above party’ as a self-serving myth docilely accept the Red Aid’s equally spurious, and equally corrosive claims. The Communist Party’s success in organizing its lawyers, and in controlling, financing, and publicizing their cases deserves close scrutiny. Even by sheer scale, the party's legal aid was impressive. By 1929, the central legal ofhice had provided a lawyer in more than 15,000 cases, not counting more routine legal advice and

counselling provided informally.'’ In February 1924, the peak month, 2,600 cases were processed. Possibly even more remarkable was harnessing lawyers as disparate, brilliant, and headstrong as the ten we met in the previous chapter to a party bureaucracy. Fraught as relations between lawyers and party often were, this feat was crucial to the success of legal aid and justice-based publicity campaigns.

This chapter recounts how it was achieved, and with what consequences. It is

'” Tischler, C., ““Die Gerichtssale miissen zu Tribunalen gegen die Klassenrichter gemacht werden.” Die Rechtsberatungspraxis der Roten Hilfe Deutschlands’, pp.105—30 in Hering, S./Schilde, K. (eds.) Die Rote Hilfe. Die Geschichte der internationalen kommunistischen ‘Wohlfahrtsorganisation’ und ihrer sozialen Aktivititen in Deutschland (1921-1941), Opladen 2003, p.112. 'S General, E., ‘Mag Jurr im Zuchthaus verrecken’, Gegen den Strom No.6, 8.2.1930, p.99, quoted following Brauns, N., Schafft Rote Hilfe!, p.274, fn.65 with further references to the subsequent discussion in Gegen den Strom.

MOPR Zeitschrift fir Kampf und Arbeit der IRH, No.10, 1929, p.3 and No.11, 1929, p.10).

98 Courtroom to Revolutionary Stage structured in three parts. The first looks at the forerunners and the institutionalization of Communist legal aid. The second gives a general account of the office’s mode of operations. In the final part, the focus is on party lawyers as agents of party control over defendants and proceedings.

COMMUNIST LEGAL AID: EVOLUTION AND ORGANIZATIONAL STRUCTURE Bottom-up pressure from party lawyers drove the institutionalization of Communist Party legal aid in 1921. Notwithstanding the propaganda success of the H6lz trial, the judicial fall-out from the March insurrection had brought the deficiencies of the KPD’s legal aid arrangements sharply into focus. Barristers were appointed amidst chaotic conditions, if at all. It was unclear where information about trials was collected and who decided on personnel and tactics of a defence.”” Just a week after the March uprising, KPD lawyers had begun pressing for routine conferences to discuss the problems they were likely to face in the resulting lawsuits.*' The office of Gerhard Obuch, Communist deputy in the Prussian state parliament and trial lawyer from Diisseldorf, had developed ad hoc into a clearing house for lawyers and cases, though it was understaffed, lacked funding and had no official recognition. On 6 August 1921, a conference of Communist trial lawyers, among them several members of the Prussian Landtag, and representatives of the party leadership met in Berlin. The meeting resolved to institutionalize Obuch’s ad hoc clearing house as the ‘central legal office’ (Juristische Zentralstelle, JZ), attached to the parliamentary factions in the Prussian state parliament and the Reichstag. The mission statement declared that ‘the party grants legal aid in all cases where a penal trial has resulted for the persecuted [party member] from his active engagement for the revolution’ .”

The Juristische Zentralstelle: Forerunners and origins Of course, Communists had faced judicial persecution before. Local solidarity committees organized on behalf of the families of incarcerated proletarians were forerunners of institutionalized legal aid. The “Women’s aid for political prisoners’, started after the liquidation of the Munich Soviet Republic in May 1919, was the

first. Under the energetic leadership of Rosa Aschenbrenner, a long-time union organizer, the Frauenhilfe made a self-consciously female appeal for humanitarian support. By early 1921, it supported roughly 150 prisoners, and twice as many dependants.’ The Women’s Aid also practiced genuine cross-party solidarity. After °° BA(B) RY1/12/711 Juristische Zentralstelle (JZ) der KPD, Band 11, [5]f. Obuch to Koenen, Berlin, 8.2.21, [7] Zentrale to Obuch, Berlin 8.7.21, [8] Obuch to Zentrale VKP, Diisseldorf 22.7.21. Further examples in Gangel, P., Rote Hilfe, p.87. *! BA(B) RY1/I2/711 JZ Band 11, [335] Seckel to JZ [Obuch’s Berlin office?], Frankfurt a.M. 26.3.21. 3 Gangel, P., Rote Hilfe, p.106, p.52. *> Brauns, Schafft Rote Hilfe', p.22.

The Communist Party Legal Organization 99 the February 1921 reorganization, when incorporation into the Gewerkschaftsverein solidified its finances, all three proletarian parties had a representative on the supervisory board. With hardly any members jailed for political offences, the Social Democrats’ support is especially remarkable.** The co-operation of the three pro-

letarian parties hints at the unifying potential of the Frauenhilfe’s humanitarian mission, but the politicization of legal aid left no space for pragmatic cross-party interventions. At the end of 1923, the union association dissolved the Frauenhilfe. Many women activists, including Rosa Aschenbrenner, remained engaged in prisoner relief fundraising within the Red Aid.” Legal aid, too, predated the Juristische Zentralstelles foundation. Individual lawyers such as Arthur Wolff, Ernst Hegewisch, and Siegfried Weinberg worked on the party’s behalf in 1919 and 1920. A January 1920 Communist Party circular even announced the creation of a central fund, the Ausgleichsstelle ftir die Unterstiutzung politischer Gefangener. It aimed to spread the cost of legal aid between hard-hit and less affected districts, and exhorted members to ‘intensify collections’.*° However, the lawyers’ complaints, the rhetoric marking the formal institutionalization of the JZ, and the office’s first year report suggest there was no central coordination prior to 1921. The scant documentary evidence paints a picture of case-by-case negotiations between various and not always particularly cooperative supporters of left-wing defence work. The case of Sass and associates (violent resistance to the state authority) illustrates what Com-

munist lawyers were complaining about. After protracted negotiations, the defense costs were split three ways between the Mecklenburg trade union commission, the Rostock Social Democratic Party leadership and the Mecklenburg

Communist Party. However, even in late July 1921, when the local lawyer pleading the case was informed of the funding arrangement, the KPD had still not officially endorsed the deal.’” We can thus read the foundation of the /uristische Zentralstelle as both an ad hoc response and part of a broader trend towards centralization in the KPD.*® *K OK OK

The Juristische Zentralstelle initially had three functions: legal aid, handling complaints by prisoners, and advising the parliamentary party. Defence tactics were set * 81 Frauenhilfe prisoners self-identified as KPD supporters, 13 as Independent Social Democrats, one voted SPD. Although prisoner numbers are unavailable after 1921, the total volume of Frauenhilfe

support payments is: 162,000 RM in the last three quarters of 1921, 454,000 RM in 1922 (Brauns, Schafft Rote Hilfe!, p.21ff.).

> Gerstenberg, G., “Rosa Aschenbrenner. Eine Pionierin der Roten Hilfe’, pp.225—32 in Hering, S./Schilde, K. (eds.), Die Rote Hilfe, Opladen 2003. °° BA(B) RY1/14/4 Rote Hilfe Deutschlands Band 10, [8]f KPD Ausgleichsstelle fiir die Unterstiitzung politischer Gefangener Nr.1, Berlin 12.1.1920. *7 BA(B) RY1/12/711 JZ Band 11, [335] Seckel to JZ, Frankfurt a.M. 26.3.21, ibid, [7], JZ “He.H.’ Obuch, Berlin 8.7.21, ibid., [8] Obuch and Geyer to Zentrale VKP, Diisseldorf 22.7.21. See also Gangel, Rote Hilfe, p.87. *® Prometheus Research Library (ed.), Guidelines on the organizational structure of communist parties, on the methods and content of their work. Resolution of the Third Congress of the Communist International, 12 July 1921, New York 1988, Fowkes, B., Communism in Germany under the Weimar Republic,

London 1984.

100 Courtroom to Revolutionary Stage centrally, usually in the form of general guidelines, but occasionally, and depending on the visibility and sensitivity of a trial, plea by plea. Collecting information about cases—who was charged with what, where, how closely tied to the party were the defendants and the incriminated acts, had the case generated publicity?—

was a process the central legal office sought to make as routine as possible. It decided on the eligibility of legal aid applications and maintained an up-to-date list of local lawyers. Matching barristers and cases, the Zentralstelle acted as a clearing house, while at the same time assuring party control over trials. The system also furnished empirical raw material for the party press, local rallies, chapter meetings,

and so forth. Over time, a dedicated press bureau developed, later transferred to the Red Aid.” In the next four years, the central legal office grew quickly. In its first year, and by its own count, the ofhice handled 9,336 cases, including legal advice and petitions for clemency.” Whereas Communist Party staff levels were declining overall—an internal memo highlighted the ‘substantial reduction in staff between January 1921

and July 1922—the JZ grew.°' Starting with a staff of two, by 1924 it employed nine permanently, in addition to three parliamentarians doubling as officers of the Juristische Zentralstelle. By January 1925, the count was 14.°* Wilhelm Pieck replaced

Felix Halle as leader in March 1924. The personnel shuffle signalled a hiatus in Halle’s career, although he continued to advise the parliamentary factions in legal matters and entered the Reichstag in 1928. Like Pieck, the leaders of the legal aid section, Gerhard Obuch, and the prisoner relief section, Gustav Menzel (affectionately known as Zuchthaus-Onkel) sat in the Prussian parliament. The legal aid section was the central office’s largest and most important. Alongside Obuch, himself a barrister, Ferdinand Timpe and Willy Korbmacher worked on case evaluation, lawyer appointment, trial strategy, and clemency proceedings. Timpe was disbarred in Hamburg for unknown reasons, whether Korbmacher had formal training in law is unclear. Three stenotypists did the bulk of the legal aid section’s clerical work, whereas ‘uncle jailhouse’ Menzel at the head of the Strafvoll-

zug und Begnadigung (imprisonment and clemency) section was assisted by Eleonore Pieck, Wilhelm’s daughter.’? Three employees worked in the press office, Hans Tittel, his assistant Ella Kaul, and a messenger. In autumn 1925, Tittel’s press office was transferred to the Red Aid, the mass membership branch of the Communist legal organization, of which more below. In addition to the permanent

staff, five lawyers were temporarily attached to the office or consulted in ” *Tatigkeitsbericht Juristische Zentralstelle 1.10.21-1.10.22’, BA(B) RY1/I2/711 JZ Band 1, [1]-[20], Brauns, N., Schafft Rote Hilfe!, p.167, idem, ‘Der Mann im Hintergrund. Eugen Schénhaar als Organisator der Arbeiterbewegung und der Roten Hilfe’, pp.201—10 in Hering, S./Schilde, K. (eds.), Die Rote Hilfe,

Opladen 2003.

. 30 piekeisberiche Juristische Zentralstelle 1.10.21-1.10.22, BA(B) RY1/I2/711 JZ Band 1, [1]-[20], mi BA(B) NL Wilhelm Pieck NY 4036 Band 518, [12] “Kassenbericht fiir das Jahr 1921 und das Halbjahr 1922’. °* BA(B) RY1/I2/711 JZ Band 1, [63]f. Member of the Prussian Landtag ‘KO’ [probably Wilhelm Koenen] to Politburo, Berlin 29.1.25. °> Eleonore Pieck took her husband’s family name, Staimer, after she married.

The Communist Party Legal Organization 101 administrative functions: Fritz Lowenthal, Reichstag member Eduard Alexander (whose son edited a party newsletter digesting instances of judicial persecution), Ernst Hegewisch, Victor Frankl, and Joseph Herzfeld. Eduard Alexander represented the KPD in the Reichstag committee on penal law (Strafrechtsausschuss), while Hegewisch and Frankl sat on the Staatsgerichtshof (as Beisitzer) from 1924—-

28, after which date and until the Nazi ‘seizure’ of power as Joseph Herzfeld and Felix Halle took their places. Before discussing the organizational history of the central legal office after 1924, it is necessary first to clarify its relationship to the Red Aid (Rote Hilfe Deutschland, RHD) founded that year. Ostensibly, the Red Aid was a mass-membership, ‘above

party humanitarian and welfare organization. In reality it was independent from the Communist Party only on paper. Formally constituted in October 1924, the Red Aid had two forerunners: more or less spontaneously formed relief committees and the International Red Aid (often referred to as MOPR, from the organization’s Russian acronym). Responding to a call in the Rote Fahne on 12 April 1921, grassroots Rote Hilfe Kommittees collected and distributed funds to imprisoned workers and their families, vetted and hid fugitives and helped procure forged identity documents and jobs. Majority and Independent Social Democrats boycotted the committees. Subject to the Juristische Zentralstelle’s approval, Red Aid commit-

tees also funded defence lawyers. A Rote Hilfe central committee coordinated regional initiatives as best it could.** Housed in the Communist Party’s Berlin headquarters, it consisted exclusively of KPD officers, with the sole exception of the anarchist Arthur Holitscher. In contrast to the bottom-up story of the Red Aid committees, the International Red Aid was very much a top-down affair. The brainchild of Felix Dzierzynski was constituted at the 4th Congress of the Communist International in November 1922. Julian Marchlewski headed the organization’s central (after 1924 renamed the executive) committee, whose mission was ‘to render material and moral aid to all captives of capitalism in prison’. Clara Zetkin succeeded him in 1924.” After the autumn 1923 ban on the Communist Party and the Red Aid committees was lifted, the solidarity organization was re-launched on 1 October 1924. The statutes of the Rote Hilfe Deutschland (German Red Aid, RHD) emphasized its non-partisan character: ‘anyone who supports the aims of the “Red Aid” and regularly pays membership dues can become a member’. At the same time, corporate membership was reserved for ‘proletarian parties, trade unions and sport organizations’, and ‘factory workforces’. Membership fees varied according to income and employment situation, the minimum set at ten Pfennig per month. Strongly centralized, the Red Aid required elected local and regional committees to report to the central committee, in whose sole discretion the granting of relief payments was

placed (§5). Per the statues, the central committee, elected in the yearly Reich Ganeel, P.,, Rote Hilfe, p.87f., BA(B) RY1/14/4 Rote Hilfe Deutschland (RHD) Band 3. > Brauns, N., Schafft Rote Hilfe!, pp.23-31, idem., ‘Der Mann im Hintergrund. Eugen Schénhaar als Organisator der Arbeiterbewegung und der Roten Hilfe’, pp.201—10 in Hering, S./Schilde, K. (eds.), Die Rote Hilfe, Opladen 2003, here p.205. Lazitch, B./Drachkovitch, M. (eds.), Biographical Dictionary of the Comintern: New, Revised, and Expanded Edition, Stanford 1986, p.xxviii.

102 Courtroom to Revolutionary Stage assembly, could replace mandated local and regional officials without further consultation. Any legal entitlement to grants was explicitly excluded (§8). The Red Aid by-laws allowed neither locally elected Red Aid officials nor individual benefciaries to challenge the central leadership. For a clear understanding of Communist Party legal aid, the notion that the Red Aid was in any sense an independent or ‘above party’ organization has to be jettisoned. Astonishingly, the story of the Red Aid’s independence survives to this day.*° Red Aid and KPD central legal office were closely intertwined in both organization

and personnel, and synchronized their decisions exactly, before and after 1924. Wilhelm Pieck united in his person the overall leadership of both, and Felix Halle and Gustav Menzel regularly attended Red Aid central committee meetings. Moreover, as the surviving protocols from the year 1923 testify, the central legal office staff were often virtually amongst themselves on the Red Aid’s top decision-making body.” On 4 January 1923, for example, Pieck, Halle, and Menzel were joined only by comrade ‘Wilhelm’, probably Elena Stasova.** Their personnel virtually identical, it is hardly surprising that the business of one organization was discussed at board meetings of the other. The Red Aid central committee meeting of 23 June 1923, for example, passed two resolutions which the protocol recorded as the central legal office’s.*” Nor was this an isolated occurrence: Red Aid and /uristische Zentralstelle decisions were made at the same time, in the same meeting, by the same people.*° In practice, the operation of both merged seamlessly into one another. The Communist Party determined both organizations’ decisions right down to the nuts and bolts of legal aid. Blacklisted lawyers like the Social Democrat Kurt Rosenfeld were shunned even when Communists specifically requested them. Even Ernst Hegewisch complained that party political motives alone determined whom legal aid was extended to, admittedly in a huff over being refused a coveted brief.*! In 1923, the International Red Aid urged the integration of other proletarian associations into the German Red Aid’s leadership and day-to-day work. This, the Red Aid central committee resolved, was a ‘political question’ and as such ought to be decided by the Communist Party's Politburo. While this alone makes a mockery of ‘above party pretensions, the reasoning underpinning the resolution was even more

°° Paech, N., ““Ich habe nur als proletarischer Anwalt meine Pflicht den angeklagten Proletariern gegentiber erftillt.” Hans Litten, Rechtsanwalt (1903—1938)’, [], anon., “Die Anwalte der Roten Hilfe Deutschlands. Politische Verteidiger in der Weima-

rer Republik.’ Rote Hilfe Zeitung 2/98 [].

°” BA(B) RY1/I4/4 RHD Band 3, [1] protocol ZK RHD 4.1.23; ibid., [2]-[6] protocol ZK RHD 12.2.23, ibid., [7]-[9] protocol ZK RHD 2.3.23, ibid., [10]-[12] protocol ZK RHD, 5.4.23; ibid., [16]f. protocol ZK RHD, 12.2.23, ibid., [33]-[35] protocol ZK RHD 23.6.23, ibid., [53]-[56] protocol ZK RHD 25.7.23, ibid., [61]-[63] protocol ZK RHD 3.8.23. °8§ BA(B) RY1/I4/4 RHD Band 3, [1] protocol ZK RHD 4.1.23. °? Both concerned the non-appointment of specific lawyers for political reasons (BA(B) RY1/14/4 RHD Band 3, [33]-[35] protocol ZK RHD 23.6.23, here [35}). “© BA(B) RY1/14/4 RHD Band 3, [33]-[35] protocol ZK RHD 23.6.23. For similar decisions see e.g. ibid., [2]-[6] protocol ZK RHD 12.2.23, [7]-[9] protocol ZK RHD 2.3.23, [24]-[26] protocol ZK RHD 14.6.23. ‘| BA(B) RY1/I4/4 RHD Band 3, [33] protocol ZK RHD 23.6.23, here [35].

The Communist Party Legal Organization 103 revealing. ‘In terms of propaganda, opening up would certainly be ‘useful in the sense of the “unity front”’. On the other hand, ‘in terms of organization, the leadership would then slip from the Communists’ hands, which from the conspiratorial point of view is unacceptable’.*” In the light of such resolutions, the Reich government’s move to ban the Red Aid along with the Communist Party in autumn 1923 appears less unreasonable than is often supposed in historiography. After the ban was rescinded in March 1924, the Communist Party deemed it necessary to ‘bring the above-party character of [the Red Aid] solidarity committees more to the fore’.** But

the Red Aid’s opening to other proletarian parties was never more than windowdressing, and in any case over by 1928. Even during this period, central legal office and Red Aid leadership overlapped, in fact more JZ employees than before featured on the RHD central committee.“ Scholars have not so much missed these overlaps as disregarded their implications for the independence and non-partisanship of the Red Aid. Nikolaus Brauns, for example, writes that ‘the continued interlacing of personnel between the central legal office, the Red Aid and the Communist factions in the Reichstag and the Prussian Parliament made possible both the efficient exchange of information and the combination of parliamentary and extra-parliamentary activities’. Indeed— but they also cast doubt on the de-facto influence of non-Communists in the Red Aid. Moreover, aside from humanitarian aid and publicity campaigns, such ‘extraparliamentary activities’ included the large-scale and highly professional production of forged identity papers.*” Time and again, Communist lawyers in their communication with the Red Aid allude to activities on the organization's behalf they had rather not put into writing.*° Illegal activities formed part of the landscape of political, legal, and humanitarian services the Red Aid provided on behalf of the Communist Party. The existence of each is logical and perfectly defensible from the point of view of a party fundamentally opposed to the status quo. Children’s homes and passport forgery both illustrate what Mallmann has called the fundamental quandary of a revolutionary ® BA(B) RY1/I4/4 RHD Band 3, [44] protocol ZK RHD 5.7.23. * Gangel, P., Rote Hilfe, p.35f. “ ‘Timpe, Eickenjager, and Obuch in addition to Halle, Menzel and Pieck and Korbmacher (BA(B) RY1/14/4 Band 3 [96]-[98] protocol Zentralvorstand RHD 25.4.1927, ibid., [99]f. protocol Zentralvorstand RHD 16.5.1927, ibid., [101]-[105] protocol Zentralvorstand RHD 20.5.1927, ibid., [106] protocol Zentralvorstand RHD 23.5.1927). In 1925, the two JZ employees working in the press office were funded by the RHD even before the office was formally attached to that organization (BA(B) RY1/12/711 JZ Band 1, [63] MdL *Ko/Sch’ [probably Koenen/Schroers] to Politburo, Berlin 29.1.25). Halle and Menzel became official Red Aid central committee members in 1924, at the 1925 Reich Red Aid congress, Frankl, Obuch and Menzel were voted into the Zentralvorstand of the RHD, from May 1927 Timpe and Menzel ditto, while Korbmacher became a member of its executive committee (Brauns, Schafft Rote Hilfe!, p.168).

® Half of all KPD deputies in the Reichstag and almost all members of the central committee had received forged identity papers (BA(B) RY1/12/711 JZ Band 10 [40] Barrister Herzfeld to Politburo, 12.7.26). 46 BA(B) RY1/I4/4 RHD Band 25, [30]-[36] Pieck to Exekutive IRH, 28.5.26, here [36], see also BA(B) RY1/I2/711 JZ Band 11, [199]-[202] Samter to KPD central office, Berlin 18.4.25, here [201] and ibid., Band 7, [13]-[19] Hegewisch to [recipient blackened out, probably JZ or Politburo], Celle 12.1.24, here [17].

104 Courtroom to Revolutionary Stage party operating under non-revolutionary conditions. As scholars we may sympathize with both, and even favour the latter. But it is dishonest if, in criticizing Weimar authorities for persecuting the Red Aid we look only to the children’s homes, and not also to Eugen Schénhaar’s passport forgeries.*” Internally, the Red Aid’s subordination to the Communist Party was acknowledged quite openly, before and after the 1924 reorganization. As Ernst Hegewisch put it in 1922, it ‘cannot be the task of the Red Aid, as an organization connected to the Communist Party in the closest way, to pay heed to the opinions and prejudices of backward Social Democrat and Independent Socialist workers in its activities on behalf of revolutionary workers’.** Five years later, Red Aid leader Pieck echoed this sentiment almost verbatim: “The Red Aid cannot renounce its political tasks, it has to make it obvious that Social Democracy is merely shielding the Bourgeoisie and is moreover guilty [...] of the terror verdicts against workers.” The organization's practice mirrored this attitude. In May 1927, for example, the efforts by non-Communist barrister Alfred Apfel to start a cross-party committee for a retrial of the Plattner group (ostensibly Communist bank robbers with a romantic ideological cachet) were given the cold shoulder.” ‘It is resolved: Menzel continues to be in charge of the Plattner case, therefore the possibility of another above party Plattner committee is out of the question for us.’ Some above party committees were evidently more above party than others.” The Red Aid was so closely linked to the KPD that it suffered Stalinist purges

along with the rest of the party machine. On the orders of the Politburo, Red Aid central committee members Schl6ér, Altwein, Ehlers, and Korbmacher (the latter one of the protagonist of the /uristische Zentralstelle) were expelled, iron-

ically for endangering the unity of proletarian aid through faction building. Pieck’s ability to replace four Red Aid central committee members against that body’s own wishes in 1929 is emblematic for the KPD’s de facto control. As Walter Ulbricht, the future head of the postwar East German government, put it at a Moscow meeting in February 1929: ‘Only those comrades may hold ofhice who are willing to actively combat within the Red Aid all comrades which

do not endorse the line of the central committee of the German Communist Party one hundred per cent.’ We have dwelt on the duplicity of the RHD’s ‘independence’ from the KPD at such length because of its central importance for Communist legal aid, but also because scholarship has so far accepted its ‘above party character largely without “7 Hannover/Hannover-Driick, Politische Justiz, pp.233—-7, Knobloch, G./Reifner, U., ‘Der “kommunistische” Anwalt und die freie Advokatur’, pp.23—35 in Fabricius-Brand, M. (et al., eds.) Rechtspolitik ‘mit aufrechtem Gang’, Baden-Baden 1990, here p.25. *8 BA(B) RY1/12/711 JZ Band 8, [130] Hegewisch to KPD central office, 8.5.22.

BA(B) RY1/I4/4 RHD Band 3, [118]-[139] protocol Zentralvorstand RHD 5.12.27, here 1D Ulrich, V., Der ruhelose Rebell. Karl Plattner 1893-1945: Eine Biographie, Miinchen 2000. >! BA(B) RY1/I4/4 RHD Band 3, [99]f. protocol Zentralvorstand RHD 16.5.1927. >? BA(B) RY1/I4/4 RHD Band 25, [30]-[36] Pieck to IRH Executive, Berlin, 28.5.26, [30], ibid.,

Band 26 [32] ‘Dringendes Sonderrundschreiben’ by ZK KPD, 28.2.29, ibid., [34] “Dringendes Sonderrundschreibern’ by ZK KPD 1.3.29.

The Communist Party Legal Organization 105 question. Authors from the Hannovers to Udo Reifner and Schilde/Hering have placed welfare, rather than legal aid and partisan politics in the foreground of its activities.°’ However, only a fraction of the RHD’s outlay was in fact devoted to welfare, as the JZ files reveal. The item ‘children’s home’ in a February 1924 balance

sheet of the RHD’s activities, for example, is equivalent to less than 5 per cent of current and outstanding lawyers’ bills.°* An uncritical acceptance of the RHD’s ‘independent’ status therefore hampers our understanding of Weimar political justice, because it obscures the provision of legal aid as a political tool. *K OK OK

The remainder of the organizational history of Communist legal aid is swiftly sketched. After 1924, finance, publicity, and routine administrative tasks fell into the Red Aid’s responsibility.” Lawyer allocation and, in larger and more sensitive cases, defence strategy were still decided by the central legal office, who also con-

tinued to advise the party leadership. In a 1925 report, the central legal office described itself as providing barristers with ‘factual material and advice’ and functioning ‘like a special staff, available at all times’ to them and the Red Aid.” The close personnel overlap between party legal office and Red Aid continued. When

the Red Aid central committee created its own legal department (/uristische Abteilung) to relieve the party central legal office of routine legal evaluations in 1928, the leadership was entrusted to JZ co-founder Gerhard Obuch. In 1932, he handed over to Ferdinand Timpe. Under Obuch, the Red Aid Juristische Abteilung began to offer general legal advice clinics in non-political matters, from credit and loan matters via labour law to tenancy and rent problems. Three auxiliary offices afhliated with the Red Aid and closely associated with Communist Party merit a brief mention: the International Red Aid’s Central European Bureau (Mitteleuropdisches Biro, MEB), the International Jurists’ Bureau, and the press agency ‘Justitia’. Eugen Schénhaar’s job at the MEB was to help build up national sections of the International Red Aid in a broad swath of countries from Denmark and the Netherlands to Hungary. By 1925, the task was largely accomplished, though only Germany boasted a mass membership—everywhere else, the Red Aid was a loose network of party activists and intellectuals forming ad-hoc committees. After 1925, the Central European Bureau ‘took on the bulk of the publishing activities of the Red Aid sections’ in its area.°”” MOPR’s International

°> Recently, historiographic verdicts have begun to shift. Whereas Petra Gangel echoed the party line by blaming Schlér and the others for ‘neglecting political mass agitation’, Nikolaus Brauns unequivocally condemns Thalmann for the purge but refrains from drawing his own argument’s most obvious conclusion, namely that the Red Aid was not an above party organization (Brauns, Schafft Rote Hilfe!, pp.249-52, Gangel, P., Rote Hilfe, p.58). 4 BA(B) RY1/14/4 RHD Band 25, [3]-[8] ‘Bericht an IRH’, 11.2.24, here [6] ‘Erforderliche Mittel zur Aufrechterhaltung von Rechtschutz und Unterstiitzung’, “Voranschlag Februar’.

°° BA(B) RY1/I2/711 JZ Band 1, [63] MdL ‘Ko/Sch’ [probably Koenen/Schroers] to Politburo, Berlin 29.1.25, Brauns, Schafft Rote Hilfe!, p.167, Gangel, P., Rote Hilfe, pp.40-2. © BA(B) RY1/12/711 JZ Band 1, [32]-[36] “Tatigkeitsbericht JZ’ (October 1924—January 1925). *” Brauns, N., ‘Der Mann im Hintergrund. Eugen Schénhaar’, pp.201—10 in Hering, S./Schilde, K. (eds.), Die Rote Hilfe, Opladen 2003.

106 Courtroom to Revolutionary Stage Jurists Bureau (nternationales Juristenbtiro) was a loose association of lawyers not necessarily afhliated with the KPD. Under its auspices, barristers were sent abroad to defend in political trials, mostly in Eastern Europe.”® ‘Justitia syndicated the Red Aid digests of police high-handedness and political trials.°? From 1929 onwards, ‘Justitia and the MEB’s publishing activities were merged with Willy Miinzenberg’s ‘red publishing empire’.® As well as subsidizing legal aid, Miinzenberg modernized and vastly expanded the reach of anti-judicial propaganda.°' This merger is remarkable given the Red Aid central committee’s dim view of Miinzenberg’s ‘International Workers’ Aid’. As late as November 1927, the Red Aid chided that organization for operating ‘in total misapprehension of its political tasks’.°? However, even in rivalry, Miinzenberg had helped spur the Red Aid’s propaganda, as the runaway success of Tribunal demonstrates. Modelled on Minzenbereg’s Arbeiter-Illustrierte-Zeitung, the print-runs of the illustrated antijudicial weekly launched in January 1929 exceeded 150,000 by the end of that year.©? We will return to the publicity generation aspect of the Communist legal organizations in chapter five, for the moment we return to its core, legal aid.

COMMUNIST LEGAL AID IN PRACTICE What was the scale of Communist legal aid? The caseload coincided roughly with Weimar’s classic threefold periodization. Case numbers were generally

high between 1919-1924, with an exceptional peak of 2,600 in February 1924. During the ‘stability phase’, the number of trials dwindled, but the visi-

bility of individual proceedings increased. From 1923 onwards, the courts assumed the existence of a Communist plot to overthrow the Republic as ‘gerichtsnotorisch’, that is to say as proven in a multitude of prior proceedings. Designating the party’s ‘body of functionaries’ a ‘high-treasonable association’ de facto reversed the burden of proof. Party functionaries now had to demonstrate that they were vot involved with the revolutionary project. In the courts’ repressive sentencing practice, collecting membership dues in a housing project

just once qualified party members for inclusion in the Funktiondrskorper. > Gangel, P., Rote Hilfe, p.64 see also BA(B) RY1/I2/711 JZ Band 3, [28] memo on trial of Polish CP leader Lancucki [undated, March 1925], ibid. Band 2, [1]-[7] ‘Zentralvorstand der RHD Berichtmaterial’, dated ‘im Juni 1929’, [2]. °° BA(B) RY1/14/4 RHD Band 25, [60] MOPR Verlag to KPD central office, 3.12.26, see also more detailed discussion in chapter five. °° McMeekin, S., The Red Millionaire. A Political Biography of Willi Miinzenberg, Moscow’ Secret Propaganda Tsar in the West, 1917-1940, New Haven 2003. °! Willet, J., Zhe new sobriety. Art and politics in the Weimar period 1917-1933, London 1982, p.71.

The importance of publishing houses such as MOPR notwithstanding, the party itself underwrote the guarantee of legal aid ‘in the case of the publishing house's inability to pay’ BA(B) RY1/12/711 JZ Band 3, [125] JZ to ZK KPD, Abteilung Sekretariat, Berlin 1.11.28. ° BA(B) RY1/14/4 RHD Band 26 [13] 26.11.27. 63 BA(B) RY1/I4/4 RHD Band 2, [1]-[7] ‘Zentralvorstand der RHD Berichtmaterial’, dated ‘im Juni 1929’, [4].

The Communist Party Legal Organization 107 Shifting the burden of proof gave prosecutors greater freedom and opened the door to arbitrariness. At the same time, the central legal office grew more astute in exploiting trials propagandistically, as for example the GArtner trial, the rehabilitation campaign for Max H6lz, and the so-called Tscheka trial illustrate. As I have argued in greater detail elsewhere, the public perception of political justice thus increased just as case numbers declined.®* With political radicalization and economic recession advancing in step, the caseload increased once again after 1929. The Communist Party legal organization administered tens of thousands of cases. Reconstructing the scale of operations more precisely requires some extrapolations, however. Including Rechtsausktinfte, legal advice, the central legal office claimed to have dealt with 9,336 cases in the twelve months following October 1921.° According to an official RHD publication, until 1929 a trial lawyer had been provided in 15,937 cases, whereas in an additional 27,051

instances, some form of legal advice had been forthcoming. For the years 1924-1931, a different kind of statistic is available: the total cost of RHD legal aid.®’ Correlating the cost with the number of cases administered by the RHD according to its own statistics yields an average cost of 32-39 RM per case administered.®* This is a low cost indeed, explicable only through the will-

ingness of Red Aid lawyers to tolerate the Red Aid’s practice of paying on average only around half of what lawyers billed, and that usually with a lengthy delay. Applying the average case cost to the years for which the overall legal aid expenditure, but not the number of cases is known, yields an estimate of cases per year. Combining this extrapolation with officially reported figures gives us this very rough approximation of the scale of KPD legal aid:

“ Grunwald, H., “Die “Vertrauenskrise der Justiz” in der Weimarer Republik. Justizkritik als Krisendiagnostik’, pp.177—99 in Grunwald, H./Pfister, M. (eds.), Krisis! Krisenszenarien, Diagnosen, Diskursstrategien, Paderborn 2007. ° Gangel, P., Rote Hilfe, p.116. °° MOPR Zeitschrift fiir Kampf und Arbeit der IRH, No.10, 1929, p.3 and No.11, 1929, p.10. Here as elsewhere, it is unclear whether the figures refer to defendants or trials.

°” The 1929 report on the RHD’s activities gives the following figures: 1925: 556,885 RM, 1926: 144,994 RM, 1927: 98,964 RM, 1928: 72,308 RM (BA(B) RY1/14/4 RHD Band 2, [1]-[7] ‘Zentralvorstand der RHD Berichtmaterial’, dated ‘im Juni 1929’, [4]). In addition, Petra Gangel gives the following figures partly agreeing, partly conflicting(*) with the above: 1924: 405,310

RM, 1925: 556,885 RM, 1926: 144,994 RM, 1927: 41,525 RM*, 1928: 52,160 RM*, 1929: 71,720 RM, 1930: 190,080 RM, 1931: 351,596 RM (Gangel, Rote Hilfe, p.70£). °8 ‘The case statistics are only available for the first six months of 1930 (2,388 trials) and the same

period of 1931 (4.530 trials), but not the latter half of 1930 (Gangel, P., Rote Hilfe, p.93, p.95). Depending on how the number of cases is projected for the unknown six months in each year, the cost per trial varies by about a quarter. If we allow for a roughly linear growth in case numbers throughout the period, a total of 6000 cases in 1931 (2500 and an assumed 3500) and 11,000 cases in 1932 (4500 and assumed 6500) results (equivalent to a cost of 32 RM/case, the ‘high estimate’ because it implies a higher numbers of cases). If, however, it is assumed conservatively that case totals for the second half

of each year equal that of the first, a total of 5,000 and 9,000 cases for 1931 and 1932 respectively results, equivalent to a figure of 39 RM/case (the ‘low estimate’).

108 Courtroom to Revolutionary Stage Low High 1921: 9,300

1922: 4,400 10,900* 1923: 4,400 10,900* 1924: 10,400 12,700 1925: 14,250 17,400

1926: 3,700 4,500

1927: 2,500 3, 100# 1928: 1,850 2,250**

1929: 1,850 2,250 1930: 5,000 6,000 1931: 9,000 11,000

1932: [Q1 caseload up >100% on Q1 1931] " (figures only available for the two year period) * (1100/1300 based on Gangel’ figures) “ (1350/1650 based on Gangel’ figures)

However, it is clear that for 1925-1929, this extrapolation yields exaggerated figures. During these years, the emphasis was on publicity campaigns, with even the appearances of trial lawyers as speakers at conventions booked as ‘legal aid’. In other words, the average cost per case must have been substantially higher during

this time than in 1930/1931, when a much higher level of judicial persecution coincided with moves to cut legal aid costs. Even before 1925, high-profile cases

like Max H6lz’s soaked up disproportionate amounts of funding, meaning the figures for 1921-1925, too, may well be exaggerated. In total, our best guess is that the Juristische Zentralstelle and the Red Aid offered advice or provided a lawyer in forty to seventy thousand instances between 1921 and 1933. * OK OK

The Red Aid statutes promised legal aid in all political cases—but what did ‘political’ mean? Ernst Hegewisch urged the inclusion of offences committed out of economic distress in July 1923.” Barrister Hugo Seckel, addressing the first Red Aid Reich Congress in 1925, agreed: where ‘hardship’ or ‘economic action had led ‘class warriors’ into conflict with the law, the Red Aid should help. The ‘old woman,

who does not know the name of communism but has been swept along by the movement and goes into the bakery to fetch a couple of rolls for her sick child’ was

a political prisoner, too.’ To its advocates, covering ‘crimes of need’ not only reflected sound Marxist theory—after all, the basis of all criminality was economical © But the first quarter of 1931 amounted to less than 15 per cent of that year’s total figure, so it was perhaps an unusually ‘quiet period’ unsuitable as a base for projections for the whole year. ” BA(B) RY1/12/711 JZ Band 8, [25] Hegewisch to KPD central office, Bezirksvorstand Hannover and Vorstand of KPD Ortsgruppe Celle, Celle, 28.7.23. ” BA(B) RY1/I4/4 RHD Band 1, [102]-[118] transcript of Seckel’s speech at the first RHD Reich congress, Berlin 17.5.25, here [106]f.

The Communist Party Legal Organization 109 in the final analysis—but moreover promised broadening the party's appeal. Felix

Halle’s legal guidebook, on the other hand, painstakingly distanced political offenders from ordinary criminals (‘those pitiful creatures broken by the capitalist system’). Quasi in a nutshell, Halle’s neologism ‘Kriminalverbrecher—troughly, ‘criminal criminals—conveys his alarm at lumping the two together. Supporting ‘common criminals’ was too costly, and risked adulterating the Red Aid’s message about the selflessness and idealism of Communist defendants. In practice, the Red Aid did not support ‘crimes of need’, although it made some telling exceptions. It supported the family of a party member from Essen imprisoned for manslaughter, but refused ‘on grounds of principle to pay the support permanently, because it is not a political case and our political opponents would make use of it, as a weapon against the Red Aid as well as the party.’’” Nonetheless, two months later Quedlinburg resident Karl Ktihnast received some aid in kind, despite the central committee’s conviction that ‘the entire Kiihnast family is a typical criminal family’.” Red Aid policy veered between principled misgivings and the eagerness to support sympathisers even in the absence of political motives. In May 1927 the Berlin

district leadership petitioned the second Reich Congress to extend legal aid to ‘normal criminality’. In response, Zentralvorstand member Diiwell underlined that

the Red Aid was ‘not an organisation devoted exclusively to welfare’, and the motion was defeated. However, by December 1927 the secretariat amended that line. Aid to ‘normal criminals’ should be restricted ‘to the most high-profile cases’, ‘especially where such a case has already aroused the interest of the working class public.’ The Red Aid also lobbied for pardons and amnesties for ‘“Notkriminalitét’’*. Considerations of popularity and marketability, as well as a healthy dose of opportunism informed the Communist Party’s decisions about the extent of legal aid. Whether for or against covering ‘criminal crimes’, the crucial concern of Red Aid lawyers and administrators was the party's benefit.

Who paid for legal aid? Until 1924, the German Communist Party and International Red Aid were the two main funding sources. Besides bankrolling the central legal office (partly out of the compensation of its deputies in the Prussian parliament), the Communist Party also shouldered around a fifth of the Red Aid committees running costs in cash and provided substantial aid in kind.” The International Red Aid of the Third International, in turn mainly funded by the Soviet Communist Party, covered the remaining 80 per cent.’ In the wake of the Hamburg insurrection, as case loads shot up, an internal report found a funding shortage of 113,000 Reichsmark ($28,500), including 62,500 RM in overdue and ” BA(B) RY1/I4/4 RHD Band 3, [10]-[12] protocol ZK RHD 5.4.23, [12]. * BA(B) RY1/I4/4 RHD Band 3, [33]-[35] protocol ZK RHD 23.6.23. ” BA(B) RY1/I4/4 RHD Band 3, [118]-[139], protocol Zentralvorstand RHD 5.12.1927, here [135]. ® ‘The itemised monthly contribution from the KPD was $2,380 or 10,000 RM. About half this amount flowed back to the KPD to cover ‘administrative costs and auxiliary personnel’ (BA(B) RY1/ 14/4 RHD Band 25, [3]-[8] “Bericht an IRH’, 11.2.24, here [6] ‘Erforderliche Mittel zur Aufrechterhaltung von Rechtschutz und Unterstiitzung’). ’”° In the report quoted above, the contribution of the IRH was itemised as 42,000 RM ($10,000) per month (BA(B) RY1/I4/4 RHD Band 25, [3]-[8] “Bericht an IRH’, 11.2.24, here [6] “Erforderliche Mittel zur Aufrechterhaltung von Rechtschutz und Unterstiitzung’).

110 Courtroom to Revolutionary Stage current legal fees. The report urged that the International Red Aid’s contribution be raised by 50 per cent, to $15,000 per month. These financial difficulties must have contributed to the decision to re-launch the Red Aid as a fee-paying mass membership organization. Even so, in mid-1925, the International Red Aid still clandestinely supported the German party.’”” In 1931, funding shortfalls forced the Red Aid to ‘drastically cut the number of barristers assignments .’® Lawyers who still received Red Aid briefs were asked to donate 50 per

cent of their fees back to the organization. Four out of five Red Aid lawyers agreed. In practice, the Communist legal organization’s lax payment further reduced legal aid cost.” Given such chronic funding shortage, it is striking that the party frowned on independent fundraising, as the example of the Vogtland Hélz committee shows. By late 1922, and in stark contrast to his bravado on trial, H6lz grew increasingly plaintive, convinced that the party was keeping him in prison deliberately.®° Inviting the party leadership to ‘bake its own martyrs’ or trade places, he bypassed the hierarchy in appealing for funds directly to German party districts and Communist Parties abroad. ‘The affair was highly embarrassing for the KPD. The Danish and Belgian Parties inquired about H6lz’s mistreatment. The Swiss suspected that Holz’s letter was an ‘orchestrated right-wing swindle’.*' Closer to home, a ‘Max Hélz Collection Committee’ formed in the Vogtland district to ensure that the party pursued H6lz’s rehabilitation with the requisite ‘energy’.** Pieck was furious. The Red Aid had not only supported all legal moves to reopen the case, but picked up all kinds of expenditures by H6lz’s lawyers ‘as well as all your personal expenses’.*°

By pretending to be left in the lurch, H6lz had sullied the KPD’s name, or, as Pieck put it, emptied the manure buckets of the Communist Workers’ Party [a left-wing rival] over our heads’.** While H6lz’s appeal for international solidarity had been an embarrassment, the internal challenge of the Hélz committee was intolerable. In matters ‘which can only be handled effectively through central decision-making’, the institution of a

local committee was ‘inadmissible’: ‘total disorganisation’ would be the effect. ‘Either we have a central party’, began one of Pieck’s sentences—the ‘or’ sub-clause

is missing.’ To nip the committee in the bud, the KPD ordered H6lz’s barrister, Victor Frankl, to refuse payments from sources other than the RHD.*° With ” BA(B) RY1/14/4 RHD Band 25, [9] Pieck to IRH, Berlin 26.6.25. ’® Gangel, P., Rote Hilfe, p.70f. ” Brauns, N., Schafft Rote Hilfe!, p.175.

89 BA(B) NY 4051 NL Holz Band 14, [127] Pieck to Holz Berlin 6.12.22, ibid., [151] Holz to Schumann, Breslau ‘Dezember 22’, Eingangsstempel 21.1.1923.

*' BA(B) NY 4051 NL Holz Band 14, [130] Belgian, [131] Danish (both 8.12.22), [132] Swiss Communist Parties (11.12.1922) to KPD central office, ibid., [127]ff. Pieck to H6lz, Berlin 6.12.22, ibid., [305f.] Pieck to H6lz, Berlin 27.12.22. *° Tbid., [149] KPD Bezirksleitung Erzgebirge-Vogtland to KPD central office, Chemnitz, 20.12.22. 83 ibid., [127] Pieck to H6lz, Berlin 6.12.22. 8 ibid., [325] Pieck to H6lz, Berlin 27.12.22, penciled marginalia: ‘not sent off on the advice of members of the J [probably the JZ)’. ® Tbid., [160] Pieck to KPD Bezirksleitung Erzgebirge-Vogtland, Berlin 23.12.22. 86 Tbid., [156] [Abschrift] Pieck to Frankl, Berlin 23.12.22.

The Communist Party Legal Organization 111 support from at least two other districts (Bochum and Mittelrhein), the Falkenstein Communists defied the ‘shabby’ and ‘ossified’ central leadership.*’ “We declare

to you that our comrade H6lz is much too valuable to us to serve as advertising fodder for an election campaign.’ Under these circumstances, they did ‘not even contemplate’ handing money over to the Red Aid. ‘If we succeed in snatching one Holz from the claws of the administration of justice, then we shall have justified hope that all the other proletarian fighters smarting in the penitentiary will be given back to us’, the letter closed.** Meanwhile, rival groups were eager to exploit

the rifts. The Syndikalist printed ‘a sentimental and kitschy balderdash entitled “Max Hélz”’, claiming that ‘Max H6lz stands completely alone, he has no support whatsoever’, barrister Frankl warned the party leadship. “Naturally, these phrases can be traced back to Hélz’s own loose talk.’® With the aid of an ad-hoc commission and Frankl, the party central office managed to assuage the Falkenstein Communists at least to an extent. Over the next years, the conflict continued to simmer and occasionally boil over.”° Studying the financing of legal aid highlights how closely the central legal office, the German, and the International Red Aid were intertwined. Attempts at autono-

mous fundraising outside the Red Aid were interpreted as threats to the political authority of the party. Legal aid finances also testify to the primacy of political over humanitarian considerations. Keeping a tight grip on legal operations was more important than maximizing funds for legal aid, as the episode of the Falkenstein Hélz committee shows. Meanwhile, the embarrassing need to pacify the foreign party comrades impressed Pieck with the need to ensure close control over defendants and public relations. Unless harnessed effectively, anti-judicial propaganda risked being misdirected or even hijacked.

Modus operandi: rules and procedures How did Communist legal aid work? In theory at least, there was a standard procedure, tweaked according to a case’s individual merits, the funding situation, and the public’s interest. Red Aid bylaws obligated members to report arrests. The Red Aid then assessed the ‘urgency at district level, forwarding recommended cases to the central legal office for the final decision on legal aid. Standard questionnaires ensured the transmission of fundamental information: names, location, and charges. Certain recurring offences, for example violations of the press law, had their own *” Ibid., [35] KPD Unterbezirksleitung Bochum to KPD central office, Bochum 24.1.23, ibid., [36] KPD Bezirksleitung Mittelrhein to KPD central office, 21.1.23, ibid., Band 15, [6] Siewert to KPD Ortsgruppe Falkenstein, Chemnitz 3.1.23. °8 Tbid., Band 15, [24] [Abschrift] “Komité [sic] zur Betreibung des Wiederaufnahmeverfahrens in Sachen Holz to KPD Sekretariat Chemnitz, ‘to be forwarded to KPD central office’ [undated, announcing the results of the ‘general assembly’ of 7.1.23]. 89 Tbid., [44] Frankl to Pieck, Berlin 5.2.23. °° BA(B) NY 4051 NL Holz Band 15, [38] Pieck to Siewert and Schumann, Berlin 22.1.23, ibid. [41] Pieck to Frankl, Berlin 22.1.23., ibid., Band 18, [255], ibid., [212]-[216] ‘Erklarung von Max Holz fir ZK der KPD, RH und die vogtlandischen Genossen tiber seinen Konflikt mit der RH’, Sonnenburg, 9.12.27, [214].

112 Courtroom to Revolutionary Stage more detailed forms. If legal aid was granted, the central legal office inserted the name of the selected lawyer(s) into a standardized appointment letter. All the accused had to do was sign.”’ Designed to take as much of the decision-making out of the defendants’ hands, the lawyer appointment process instead placed it in the party’s. The bigger and more sensitive a case, the more importance attached to the appointment of a barrister both reliable politically and ‘active’ in his conduct of proceedings. Lawyers themselves had little say in the matter, though more than their clients.”* In especially sensitive trials, the Politburo monitored lawyer allocation. Some appointments were made conditionally at first: “When an arrest is reported to us, it is not immediately obvious what kind of thing we are dealing with. Only as the matter progresses further can a judgement be made whether it is a so-called “big affair” Lgrosse Sache]. Only then can the selection of barristers [...] be made.’”’ While the process clearly disenfranchised defendants, it could be argued that without it, most indicted proletarians would have had no legal representation at all. Few trials qualified for a statutory attorney. Even defendants able to afford their own lawyer might not have known how to hire one, or chosen the same lawyer as the party. While this argument has some merit, in principle it falls wide of the mark. The procedures established by the party were questionable precisely because most proletarian defendants were so ignorant of their rights and options. How likely is it that they had any notion, for example, that they did not Have to sign the Red Aid appointment letter: Control over lawyer appointment was taken away not only from the accused, but also from local functionaries. In January 1926, the leader of the International Red Aid’s Berlin ofiice Eugen Schénhaar questioned this highly centralized mode of operations.” “The fact that today, the entire judicial war [/ustizkrieg] is waged from our side, from the central legal office in Berlin, is undoubtedly a weakness of our organisation’. He criticised that ‘every last insignificant case, even a plea for pardon, a submission to grant amnesty [...] and other little defensive measures are submitted from the entire Reich to the /uristische Zentralstelle which then carries them out’.” Instead, local ‘legal aid functionaries’ should work to ‘weaken or delay or circumvent the verdicts of our judiciary’.”° In practice, the standardization of procedures likely fell well short of the KPD’s aspirations. There must have been a reason, after all, why the exhortation to report arrests was ensconced in the Red

°! Gangel, P., Rote Hilfe, p.65, BA(B) RY1/12/711 JZ Band 1 [49a]-[50b], [undated], ibid. 14/4 RHD Band 3 [2]-[6] protocol Zentralvorstand RHD 3.2.23. °° Even direct requests by lawyers to be removed from certain cases were ignored, see e.g. BA(B) RY1/12/711 JZ Band 6, [30] Frankl to KPD Direktorium, Berlin 3.1.24, BA(B) RY1/I4/4 RHD Band 3, [73]-[78] protocol ZK RHD 13.9.23, [77]. °> BA(B) RY1/I2/711 JZ Band 3, [52] JZ (Timpe) to Politburo, Berlin 28.4.25. *€ Schénhaar was killed by the National Socialists in early 1934, see facsimile of Das Tribunal, February 1934, underground paper edited by Rote Hilfe Prenzlauer Berg, in Grubitzsch, P., Prenzlauer Berg. Geschichte der Berliner Verwaltungsbezirke 21, Berlin 1995, p.128.

» ‘Transcript ‘Rede Eugen Schénhaar vor kommunistischen Anwilten’, 26.1.26, Staatsarchiv Potsdam, 2A Regierung Potsdam, I Pol Nr.1065, quoted following Gangel, P., Rote Hilfe, p.65. °° Gangel, P., Rote Hilfe, p.65f., p.68.

The Communist Party Legal Organization 113 Aid’s ten-paragraph admission pledge. Certainly, the central legal office frequently felt obliged to remind local Red Aid offices to keep up the flow of information. In small and unpublicised trials the Communist legal organization was happy for any broadly sympathetic lawyer to plead. In November, 1925, for example, Erich Kohlrausch, a teacher from Ruhla in Thuringia, approached the central legal office about his impending disciplinary proceedings. His union had offered to fund Jena SPD lawyer Dr Kiess. Preferring a party comrade, Kohlrausch wondered whether to accept. Central legal office lawyer Timpe allayed his fears: because SPD-KPD relations did not play ‘a decisive role’ in his case, ‘the Social Democrat lawyer will by all means be able and willing take into account the important aspects in question. Naturally, Timpe added, ‘it would be desirable if we could send out a party comrade lawyer anyhow’, but ‘financial reasons’ made this impossible. “The main thing is, after all, that you aren't left standing in court without barrister’, Timpe concluded.” Within the Juristische Zentralstelle, this position was contested, however. Felix Halle shared Timpe’s pragmatic view. In run-of-the-mill trials, ‘playing the revolutionary hero’ could be entirely uncalled for, as Halle put it in his reference manual How does the proletarian defend himself? Others felt that non-Communist lawyers were a threat to the party's political objectives. Prussian deputy Gustav Menzel, for example, strongly argued against involving statutory defenders. Their appointment ‘must under all circumstances be avoided’, even if it left defendants without legal counsel.”® Where it was legally unavoidable, the contribution of the Offizialverteidiger was kept to a minimum. Hence the Baden-Pfalz Red Aid leadership reported

on a 1932 trial in Mannheim that ‘[w]e'll see to it that this statutory attorney is sufficiently taken care of and that otherwise comrade Geffke herself will conduct the defence.’ Regardless of the disagreement over statutory attorneys, not even moderates questioned that in ‘big affairs’ and wherever else the KPD’s agenda clashed with an individual member's, the party’s interests would prevail. Appointing a Red Aid lawyer, let alone a party barrister to every accused Com-

munist was impossible for sheer lack of numbers. In March 1924, the Red Aid listed just above 200 lawyers, in October 1924, 188.'°° In 1929, that number had shrunk to 132, according to a survey by the Prussian Interior Ministry.'*' In 1924, just under two per cent of German trial lawyers were thus on the Red Aid lists, five years later the figure is equivalent to just under one per cent. In February 1924, an average list lawyer would be handed a case every two days. Moreover, only a minority of the lawyers patronised by the Red Aid were ‘Communists’. Gangel estimates

°*” BA(B) RY1/12/711 JZ Band 3, [114] JZ (Timpe) to Erich Kohlrausch, Berlin 13.11.25. 8 Tbid., [41]f£ JZ (Menzel?) to Politisches Sekretariat, Berlin 6.4.25, here [41b]. °° BA(B) RY1/12/711 JZ Band 43, [49] RHD Bezirk Baden-Pfalz to Zentralvorstand RHD, Man-

nheim, 17.3.32. Nationalists, too, were wary of statutory attorneys. Hamburg NS lawyer Walter Raeke, for example, once attempted to virtually blackmail a judge into appointing him as statutory lawyer (BA(K) NL 1110 Frank Band 31-2 [non-foliated], Walter Raeke to Vorsitzender Schwurgericht Hamburg, Hamburg 14.9.31 [Abschrift], attachment to Raeke to Rechtsabteilung Reichsleitung NSDAP, Hamburg 23.9.31). See also BA(K) KLE 653 von der Goltz Band 2 [89]f. 10) BA(B) RY1/14/4 RHD Band 6 [84]. '°l Gangel, Rote Hilfe, p.72f.

114 Courtroom to Revolutionary Stage that the ‘most reliable core’ of barristers was ‘formed by about 20 members of the KPD’, a figure also given by G6tz Berger, a junior Communist lawyer.'"* Most lawyers listed by the Red Aid belonged to the two Social Democratic parties, with a smattering of liberals, Centre Party and non-aligned lawyers. In fact, the case of Jena barrister Dr. Schubart suggests that not even all lawyers listed necessarily identified with its ostensibly non-partisan and humanitarian goals. Facing disciplinary action for undercutting professional minimum rates in his work for the Red Aid, Schubart protested that he had signed his letters ‘with the Red Aid salute’ only ‘in order to mirror the mentality of the people’.'°° Appointing non-party barristers could give defence teams a less partisan appearance. Communist lawyers assigned to such mixed teams held separate caucuses to

co-ordinate their steps and share privileged information.'* In a May 1925, for example, Ernst Hegewisch specifically requested the involvement of a ‘bourgeois’ lawyer. Arrested for possession of explosives disguised as coals, the defendant Botzenhardt had shown himself ‘politically unreliable’ by implicating the party. Albeit disowned, Botzenhardt would continue to receive Red Aid support—in the shape of a non-party barrister. Legal aid was to be presented as an act of magnanimity rather than party control, but, as Hegewisch wrote, ‘it goes without saying that [the bourgeois lawyer] must work absolutely hand in hand with the Communist lawyers of the other accused’.'” Perhaps the best example of tactically motivated involvement of non-KPD lawyers was the so-called ‘7scheka trial’ against a group of KPD members who had killed a suspected traitor, the hairdresser Rausch. Arthur Brandt, a bourgeois lawyer on the Zscheka trial team, wrote a pamphlet castigating the court's high-handedness

towards the defence. One trigger for Brandt’s indignation had been the forcible removal of Communist barrister Artur Samter from the courtroom. Samter had repeatedly defied the judges’ procedural decisions and instructions, but nonetheless his eviction was highly controversial. While the judge held the authority to ensure order in the courtroom (‘sitzungspolizeiliche Gewalt’), using this power against lawyers was unprecedented. In similar exclusions of KPD lawyers Obuch and Horstmann, and again of Samter in October and November 1926, the Reichsgericht used a different reasoning. Qua Communists, party barristers were suspect of the same offence as their clients: the ‘gerichtsnotorisch’ plan to overturn the constitutional order of the ‘high-treasonable association’ KPD! As barrister Alfred Oborniker commented, by the Reichsgericht’s logic only non-Communists could defend

' Brauns, N., Schafft Rote Hilfe!, p.170. '3 Gangel, P., Rote Hilfe, pp.72-4. '4 In September, 1925, for example, the JZ announced a two-day lawyers’ conference starting on 19.9.25 at three o'clock in the afternoon. The ‘party comrade lawyers’ would meet beforehand at 11 a.m. ‘for a special conversation (BA(B) RY1/I2/711 JZ Band 3, [173], JZ (Obuch and Menzel) to Orburo, Berlin 2.9.25). For similar arrangements, see ibid., [162] JZ to Politburo, Berlin 17.12.24, ibid. [164], Arthur Wolff to JZ, Diisseldorf 5.1.25.

' BA(B) RY1/I2/711 JZ Band 7, [125]-[135] Hegewisch to KPD central office, Hamburg 26.5.25, here [133].

The Communist Party Legal Organization 115 Communists, a clear violation of the freedom of the profession as well as of the defendant's free choice of representation.'”° Der Tscheka-Prozess owed its effectiveness to Arthur Brandt’s party-political independence. Not even the fact that the Communist Party complimented him off the defence team soon after the Samter incident deterred him from writing it. If lending an ‘above party’ aura to the defence team had been the idea of including Brandt in the defence roster, it worked. Given the court’s transgression of custom in evicting Samter, it seems only fair to presume that Brandt was motivated by genuine disapproval. On the other hand, the Communist Party paid handsomely for the pamphlet, which throws an odd light on the party’s citing financial difficulties when it asked Brandt to relinquish the 7scheka briet.'°’ Moreover, resigning a brief would normally be a decision taken in consultation with the client rather than his party. Carefully managed, the inclusion of non-party lawyers could pay dividends, but in more sensitive cases, the Red Aid used only lawyers from the ‘reliable core’. Even within that group, the /Juristische Zentralstelle at times intervened. In June 1923, for example, the Red Aid central committee was ‘concerned about the lawyer allocation in very important political trials [...] where the SPD is trying to influence our comrades. As barrister [Joseph] Herzfeld is not sufficiently active, the fear persists that this trial will not come to a favourable conclusion’. Despite Herzfeld’s impeccable party credentials, it was resolved that ‘these trials are re-allocated to barrister Seckel’.'°°

‘Rigorously Leninist defending’ What exactly being ‘sufhciently active’ meant was hotly disputed at times. These conflicts reveal just how irrelevant the fate of individual defendants was in comparison to the party's interest and the lawyers’ ambitions. Communist barristers

disagreed over how best to represent the interest of their party, but they never questioned its primacy over the individual client's. In March 1925, Stuttgart KPD

barrister Hainz demanded that a ‘rigorously Leninist style of defending’ be enforced. Hainz attacked defence strategies ‘oriented in a revisionist, opportunist and Social Democratic sense’. Many party comrades scandalously failed to ‘foreground the fundamental opposition to the existing capitalist order’ in their pleas. The ‘correct defence method’ was always to plead absence of a ‘subjective consciousness of illegality’, and hence ‘not guilty’. “The accused holds fast to his Communist principles, he had to, and still has to, act in this way, and moreover he had to do so of necessity because of his political stance’, and ‘[i]t follows that the defendant has to be set free.’ Conceding that sentences would get harsher initially, Hainz spun a complicated tale about the long-term ‘psychological reorientation’ '6 Konig, S., Vom Dienst am Recht. Rechtsanwalte als Strafverteidiger im Nationalsozialismus, Berlin

1987, pp.14-18. '°’ Brandt, A., Der Tscheka-Prozefs. Die Denkschrift der Verteidigung, Berlin 1925, BA(B) RY1/ 12/711 JZ Band 6, [9] Brandt to KPD central office, Berlin 6.5.25, ibid., [8] JZ (Obuch) to Brandt, Berlin 19.3.25. '8 BA(B) RY1/I4/4 RHD Band 3, [33]-[35] protocol ZK RHD 23.6.23, [35].

116 Courtroom to Revolutionary Stage that rigorously Leninist pleading would effect. It is hard to see this as anything but a half-hearted attempt to deflect objections to making scapegoats out of the accused workers.'”’ In any case, the main point, as Hainz emphasized, was to ensure that defendants struck the ‘aggressive posture of the accuser’ rather than appear as ‘guiltridden offenders’. The Stuttgart barrister demanded ‘the eviction of all non-Communist lawyers’, and, in the interest of the party's ‘clarification and purification’, advocated purging ‘pacifist’ lawyers. For ‘opportunist defending’ posed ‘an immense danger for the party. The ‘rigorous Leninist’ risked getting a worse verdict than the ‘opportunist lawyer begging for attenuating circumstances.’ The ‘immense danger’ of ‘all Social Democrat methods’ was thus that they made hard-line lawyers like Hainz look incompetent.''® Hainz decried this ‘short term’ thinking. Instead, KPD lawyers ought to foster, through ‘a stable and rigorously upright [charaktervoll] practice the public conviction that Communism is not illegal as such but [...] is made illegal through [...] the illegal laws of the ruling class.’ Furthermore, the ‘strict exhortation of aggressiveness for the barrister’ and the ‘complete renunciation of all moderation and reconciliation tactics’ were to be fixed in ‘defence lawyer guidelines in the rigorously Communist sense.’ Hainz’s proposals amounted to an extreme reduction of the legal aspect of trials in favour of political and propagandistic motives. The universal plea of an absent ‘subjective consciousness of wrong-doing’ was a one-size-fits-all approach designed primarily to cast the defendant (and his lawyer) as the ‘aggressive accuser’. The true beneficiary was the party—and the ‘rigorously Leninist’ barristers. Although he exempted certain colleagues—such as Ernst Hegewisch—from his criticism, Hainz linked the remoulding of tactics to his own political promotion.''' Hainz’s insistence on Communist lawyers, a report by the Reich Commissariat for the Protection of Public Order commented, was ‘directed against Social Democrat barrister von Bagnato (Esslingen), who has been a specialist for Communist trials [unreadable word] for some time and whom Heinz [sic] seems to want to remove from the sad-

dle at the KPD.’'” Given that von Bagnato in at least one case reported on the conduct of Communist defendants directly to the party legal organization, it stands to reason that either Hainz’s attack helped push him into remarkably close cooperation with the KPD, or that he was a Communist mole in the first place.''” Despite interest from the political leadership, the central legal office received Hainz’s initiative coolly indeed. His attacks on Communist legal aid were unlikely to ' BA(B) RY1/12/711 JZ Band 6, [109]-[112] Hainz to Thalmann, Degerloch 6.3.25, here [110b]. Unless otherwise stated, the remaining quotations in this section refer to this document. 't° ‘The result would be ‘a completely wrong perspective of the party central office with regard to the de-facto success of the two lawyers’ (ibid., [111b]). '"! Hainz voiced his regret that he had thus far been unable to ‘speak for the party in the supreme court trials’ and insisted that ‘many shortfalls exist, which must be eradicated’. (ibid., [112b]).

"2 BA(B) R1507 Reichskommissar zur Uberwachung der 6ffentlichen Ordnung (RKO) Band 261, [120]f, report on conference of RH Bezirk Wirttemberg, Stuttgart 29.11.25, here [121] ‘Referat RA Heinz [sic]’.

lS BA(B) RY1/12/711 JZ Band 43, [6] JZ to Zentralvorstand RHD, Berlin 12.11.25 [attached ‘Berichte tiber das Verhalten des Genossen Stetter vor dem Staatsgerichtshof’].

The Communist Party Legal Organization 117 be popular with those co-ordinating it. However, the main reason for rebuking Hainz was that he proposed carrying coals to Newcastle. With full justification, the /uristische Zentralstelle could point out that Hainz’s core demands were already implemented. Sensitive trials were reserved exclusively for KPD lawyers or else kept under

tight control by the Communists on mixed defence teams. The demand that the accused profess his loyalty to the Communist Party’s revolutionary stance was stand-

ard procedure. Hainz’s proposals indeed ‘contained nothing new, as Ferdinand Timpe put it in reply to the Politburo’s request for evaluation. His ideas were not rejected because they were based upon the sacrifice of the individual client, but because they were already put into practice. And Hainz failed to play a more prominent role in the Communist legal organization not because he was too radical but because as an orator he was not up to scratch. Even the police report quoted above noted that Hainz’s speech at the November 1925 Red Aid Wiirttemberg district conference had been ‘too lofty for the legally untrained listeners and therefore unintelligible to them’.'" Party barristers had to look over their shoulders constantly lest they risk being outdone in turning the courtroom into a revolutionary stage by eager rivals like Hainz. Both the substance and the edgy tone of the /uristische Zentralstelle’s response suggest that this internal competition fostered a dynamic not unlike that which scholars have labelled ‘cumulative radicalization’ in the case of National Socialist rule. To paraphrase Ian Kershaw, established KPD barristers had no alternative to ‘working towards rigorously Leninist pleading’, at least not while ambitious colleagues were intent on pushing the envelope.

Lawyer remuneration ‘Rigorously Leninist’ or not, lawyers expected to be paid. Remuneration was contentious, straining relations between the party and even its most ‘reliable core’ of lawyers. Studying these conflicts reinforces the argument about the primacy of political considerations. The party was adamant in curbing lawyers’ attempts to bypass the Red Aid, and staggered fees to privilege more dramatic aspects of legal aid. On the other hand, its inability to dictate the terms of employment of its most prominent barristers illuminates the complex and volatile balance of power between the central bureaucracy and ‘its’ lawyers.

The Red Aid leadership regarded attempts by lawyers to negotiate payment locally as a political challenge, and rebuked them sharply. In June, 1923, Wilhelm Pieck raised the issue in the Red Aid central committee, describing ‘propositions to receive payments directly from the districts’ as an attempt ‘to discredit the Red Aid central office and to disorganise its work’.''’ The meeting moved to warn the districts and reprimanded lawyers Hegewisch and Frankl over their ‘unacceptable’

'l4 BA(B) R1507 Reichskommissar zur Uberwachung der dffentlichen Ordnung (RKO) Band 261, [120]f. report on conference of RH Bezirk Wurttemberg, Stuttgart 29.11.25, here [121] ‘Referat RA Heinz [sic]’.

"> BA(B) RY1/I4/4 RHD Band 3, [24]-[26], protocol ZK RHD 14.6.23 [25].

118 Courtroom to Revolutionary Stage actions. A month later, Hegewisch was in fact removed from a case in Pirmasens after refusing to hand over money received from the local party to the Red Aid.'"° In early 1924, the Red Aid introduced a fee table standardizing lawyer remu-

neration.''’ Its provisions put a premium on activities safeguarding the party's interest and/or amenable to generating publicity. A court appearance commanded a fee three times higher than written defence submissions.''® This is striking because in many petty cases, oral arguments could potentially be covered in minutes. Preparing the written defence submission—researching facts, norms and precedents— was more time-consuming. If court appearances were better paid nonetheless, it was because the plea provided a spectacle for the audience and fodder for the party press, whereas legal briefs were read only by a judge. Lawyers were thus encouraged to concentrate on their courtroom performance, rather than on the careful preparation of the same. ‘The result was that pleas were long on politics, which remained

constant, and short on legal points, which differed from case to case. Without going into further detail at this point, it should be noted that privileging oral argument was equally a tactic of the right. In a 1928 libel suit Hitler brought against volkisch politician von Brehmer, Hans Frank refused outright to answer the oppos-

ing counsel’s submissions in writing. Such arguments, he informed the court, ‘belonged in the plea’ and that was where he would present them.'"” Other provisions of the fee schedule also prioritised dramatic pleading over legal refinement. A single visit to a group of four prisoners in a trial lawyer’s hometown paid twenty Reichsmark, as much as drafting a petition for a retrial, one of the most complex and time-consuming legal instruments (Alfred Apfel charged the Red Aid one hundred times more for the Hélz Wiederaufnahmeantrag). The party generally regarded them as a waste of time.'”? Morale boosting visits to freshly incarcerated members, on the other hand, enjoyed high priority. They ensured party control over potentially disgruntled comrades and were moreover necessary for evaluating a case’s propaganda potential. A separate Red Aid memo even held that forsaking the presence of a defence lawyer in the courtroom was preferable to cutting down on such visits, whose ‘great effectiveness’ it hailed.'*' In fact, the party continued funding such visits even after 1931, when legal aid in the sense of representation by a lawyer in court came under increasing financial pressure. A further stipulation ruled that appeals for clemency were in all cases to pass through the parliamentary faction to ensure that no politically embarrassing ones were made.'** Formalizing what had been standard procedure in the central legal office anyway the fee schedule denied

"6 BA(B) RY1/14/4 RHD Band 3, [53]-[56] protocol ZK RHD 25.7.23, [55]. "” Officially passed by the RHD central committee in April 1924, it appears to have come into force prior to that date (BA(B) RY1/12/711 JZ Band 2, [2]f. “Tarifsatze fir Anwalte’, 25.4.24), ibid., Band 7, [20] JZ (D.O.) [Obuch?] to Hegewisch, Berlin 25.1.24. 8 BA(B) RY1/I2/711 JZ Band 2, [2]f. “Tarifsatze fiir Anwalte’, 25.4.24, $6. BA(K) NL 1110 Frank Band 29-6, Frank to Amtsgericht Torgau, 9.10.28. 20 BA(B) RY1/I2/711 JZ Band 2, [2]f. “Tarifsatze fiir Anwalte’, 25.4.24, §7, §9, ibid., Band 6, [101] “Vertrag zwischen Prof. Felix Halle und Rechtsanwalt Dr Apfel’, Berlin 30.1.28. I! BA(B) RY1/I4/4 RHD Band 25, [2]-[6], report to IRH, Berlin, 11.2.24, [3]. '* BA(B) RY1/I2/711 JZ Band 2, [2]f. “Tarifsatze fir Anwilte’, 25.4.24, ‘Anmerkung f’.

The Communist Party Legal Organization 119 lawyers the decision about appealing for clemency on their clients’ behalf point blank. It is difficult to imagine a more straightforward way to posit the primacy of party control over the interests of the individual accused. Perhaps the most salient point about the fee schedule, however, was how regularly it was made redundant. Especially at times of peak demand for their services, high-profile lawyers could more or less determine the terms of their employment. The central legal office had great difficulty, for example, filling an administrative post in January 1925. Despite a salary of 6,000 RM (one third of German lawyers earned less) and a lengthy search, only Ferdinand Timpe, a disbarred Hamburg lawyer, was prepared to accept the appointment. “Hiring a different lawyer proved impossible’, Gerhard Obuch informed Pieck, as even inexperienced lawyers were not prepared to enter our employment on the terms in question’.'”° If we can infer from the recruitment difficulties that the expectations of Communist lawyers exceeded the compensation offered, then the Red Aid fee schedule must have been routinely circumvented, at least in the ‘stability phase’. The remuneration of top Communist barristers bears out this conjecture. In January 1924, only six months after castigating Ernst Hegewisch, the /Juristische Zentralstelle was torced to yield to his payment demands. ‘The party asked Hegewisch to take charge of the Hamburg trials against the Thalmann insurrectionists of Octo-

ber 1923. Despite their subsequent glorification in the GDR, this attempt at revolution was a failure similarly farcical as Hitler's Beerhall putsch, though bloodier. In

fact, the Hamburg Communists under the leadership of Arkady Maslow struck only because the messengers reversing orders did not reach them in time—everywhere else in the Reich, revolutionary violence was stayed at the last moment. Before agreeing to defend in Hamburg, Hegewisch advanced a whole catalogue of demands, including free lodging, a stand-in lawyer to mind his practice in Celle, the right to subcontract other lawyers at his discretion, travel costs, and clerical staff. In addition, Hegewisch demanded weekly wages of 270-300 Goldmarks.'** Grudg-

ingly, the central legal office agreed. Including a travel allowance, Hegewisch received almost 500 RM per week, or 26,000 RM per year. The deviation from ‘the tariff conditions which you are familiar with’, the JZ insisted weakly, was an ‘excep-

tion with a view to ‘the size of your Hamburg tasks’.'” It is telling that the only point on which the central legal office prevailed was the inclusion of the 2.5 per cent revenue tax in the total. Small wonder that Hegewisch could afford a three week Spa in Arosa, Switzerland, as well as a private boarding school for his children.'”° Despite the protestations that Hegewisch’s Hamburg deal was exceptional, sepa-

rate arrangements with high-profile lawyers became the norm. Felix Halle, for

°° Konig, S., Vom Dienst am Recht. Rechtsanwalte als Strafverteidiger im Nationalsozialismus, Berlin

1987, p.25, BA(B) RY1/I2/711 JZ Band 1, [60] Menzel to Orburo, Halle 5.1.25, [61] Obuch to Orburo, Berlin 17.1.25. '4 BA(B) RY1/12/711 JZ Band 7, [13]-[19] Hegewisch to [recipient blackened], Celle, 12.1.24. ' BA(B) RY1/12/711 JZ Band 7, [20]-[22] JZ (D.O.) to Hegewisch, Berlin 25.1.24. 6 BA(B) RY1/I2/711 JZ Band 8, [110]-[165] Hegewisch to KPD central office, Celle 8.5.22, here [154], ibid., Band 7, [46] Hegewisch to Pieck, Arosa, 2.1.25, ibid., [50] KPD central office to Hegewisch, [no place given] 20.1.25.

120 Courtroom to Revolutionary Stage example, managed to bracket more and more of his activities out from his normal duties. His activities as a writer justified a monthly allowance for phone bills and magazine subscriptions. Advising the party on legal reform required special remu-

neration, as did the preparation of the Max Holz retrial. Here, the conflict reemerged: ‘as an employee of the KPD’, the Red Aid admonished Halle, ‘you have

the duty to put your powers at the disposal of the entire proletarian movement outside office hours, too.’ But Halle prevailed. With the explicit agreement of Red Aid leaders Golke and Schlor, he and Alfred Apfel entered into a contract detailing the commercial exploitation of the defence submission’s publication. Apfel had flatly refused working for the standard fees in the H6lz case, as had Breslau barrister Laskowski, who billed 1,500 RM.!?’ Prominent Communists were not alone among party lawyers in putting a premium on their services. Nationalist barrister Ridiger von der Goltz refused to plead in ‘potato trials’. Selectivity carried no economic penalty, on the contrary: ‘the reputation of not accepting anything and everything is beneficial’.'** Paul Levi charged the SPD 1,000 RM for two weeks of absence from his Frankfurt practice during the Luxemburg trials in 1913, when only a quarter of lawyers earned 6,000 RM per year or more.'”” In Reich President Ebert's infamous libel suit against the nationalist editor Rothardt in 1924/5, Wolfgang Heine and Otto Landsberg charged 10,000 and 7,000 RM, respectively. Both figures exceeded the yearly income of one third of their colleagues. The Reich president’s office even asked the Berlin lawyers’ chamber whether the fees were appropriate (they were).'’? Like von der Goltz, Landsberg thought that clients measured the quality of the legal expertise in terms of its cost. They were not only willing, but expecting to pay better lawyers more money.'*!

Resentment against lawyers Not least because they styled themselves idealistic servants of the cause, lawyer remuneration fed resentment of the ‘bourgeois specialists’. Ernst Hegewisch’s relationship to the political brigand Karl Plattner is a case in point. Initially warm—Hegewisch hailed Plattner as the ‘embodiment of revolutionary energy —telations deteriorated swiftly. In 1924, Plattner accused his lawyer of inability to empathize and lack of commitment: ‘Oh Ernst Hegewisch, thou twig on the family tree of the bourgeoisie, I wish I were able 7 BA(B) NY 4051 NL Holz Band 18, [34] RHD Sekretariat (signed Stelzer) to Halle, Berlin 30.7.27, BA(B) RY1/I2/711 JZ Band 6, [101] ‘Vertrag zwischen Prof. Felix Halle und Rechtsanwalt Dr Apfel’, Berlin 30.1.28, BA(B) NY 4051 NL Haélz Band 18, [195] Apfel to Halle, Berlin 3.12.27 (referencing agreement of 25.11.27), BA(B) RY1/I4/4 RHD Band 3, [118]-[139] protocol Zentralvorstand RHD 5.12.27, here [136], BA(B) RY1/12/711 JZ Band 6, [98]f. Laskowski to KPD central office, Breslau, 3.11.25. 28 BA(B) KLE 653 von der Goltz Band 2, [82]. '° AsD NL Levi Mappe 255 [non-foliated] Levi to Riegner, [no place given] 27.11.14, for pre-war income statistics see Siegrist, H., Advokat, Burger, Staat, 2 vols., Frankfurt a.M. 1996, here vol.2,

pp.613-18. 150 AsD NL Heine Band 370, [2] Berliner Anwaltskammer to Heine, Berlin 10.2.25, attached Berliner Anwaltskammer to Reich president's office [Abschrift], Berlin 10.2.25, ibid., Band 410 [nonfoliated], Heine to Vorsitzender der Berliner Anwaltskammer, Berlin 28.1.25.

'! BA(B) KLE 328 Landsberg Band 5, [42] Landsberg to barrister Bittkow (Stassfurt Bezirk Magdeburg), Brussels, 4.8.22 Konzept’, ‘geht ab mit Kurier v.9/8.22’ [pencilled marginalia]).

The Communist Party Legal Organization 121 to squeeze you into my skin, just for once! Then you would not just cry tears, no, you would long since have collapsed [...] Oh, if only this sorry world of the bourgeois were sunk into a sea of flames at last!’ As well as a Mimosa, Hegewisch was ‘brutal through and through, a malevolent and cynical tormenter of men—that is the only way to make sense of him, lest he be a lover of scandals!’!** A party disciplinary committee investigated (unfounded, as it turned out) claims that Hegewisch was overcharging tenants of his property, but the underlying suspicions never quite dissipated. As Hegewisch put it, success in the courtroom meant that the ‘revolutionary lawyer was hailed’, writing a bill led to the stigmatization of the greedy ‘bourgeois advocate’.'*? Resentment against lawyers inside the KPD sparked anti-Semitic attacks, and, in Felix Halle’s case, violence. As director of the Juristische Zentralstelle, Halle frequently travelled to international congresses. His absences rankled with the other employees, as did his alleged nepotism (Halle had hired his wife in a clerical position).'** Halle also supported the calls for higher pay by trial lawyers in the field, which put him on a collision course with Gustav Menzel. Together with the /uristische Zentralstelle employees Timpe and Korbmacher, Menzel worked to discredit Halle within the party. In November 1923, for example, Korbmacher refused to let Halle countersign the legal aid forms he had assessed. Halle, Korbmacher claimed, had stated that he needed to sign because ‘otherwise people will think that I am never in the office at all’.!” On the background of these tensions, a complaint by a minor Communist functionary, a certain Miss Voigt precipitated a fight in January 1924.'°° In the presence

of the aggrieved activist, Menzel accused Halle of laziness and inefficiency, and attacked the barrister appointed to the case in question, Victor Frankl, as a selfish ‘bourgeois parasite’.'°’ “Parasites of a foreign race [fremdrassige Ausbeuter|’ were exploiting the party in order to fund their luxurious life-style. Halle demanded to know whether Menzel included him in this category, to which the latter replied ‘yes’.

Furious, Halle attempted to hit Menzel. Menzel retreated, grabbed a heavy stone ashtray and knocked Halle to the ground. Later, he claimed that Halle had tried to bite his hand. Embarrassingly, a Centre Party physician had to be fetched to tend to Halle, bleeding heavily from a head wound. Subsequently, the outsider’s involvement was one of the features of the fight both participants were most eager to disown.'*°

An internal investigation was inevitable.'’ Menzel denied the anti-Semitic inflection, but otherwise owned up to his remarks. His statement goes far beyond

'2 Ulrich, V., Der ruhelose Rebell. Karl Plattner 1893-1945: Eine Biographie, Minchen 2000, P Ba RVI /12/711 JZ Band 8, [110]-[165] Hegewisch to KPD central office, Celle 8.5.22, here [113]. 34 BA(B) RY1/12/711 JZ Band 8, [148] Halle to KPD Sekretariat, Berlin 9.8.1929, ibid, Band 1, [101]f., Korbmacher to Pieck, Berlin 20.11.23, [101].

' [bid., [102]. '36 BA(B) RY1/12/711 JZ Band 3, [3] JZ (Timpe) to Geschke, Berlin 8.6.25. ” BA(B) RY1/I2/711 JZ Band 1, [84]-[90], Halle to “Direktorium’, [no place given], 5.2.24, here [85], ibid., [92]-[97] “Bericht tiber meinen tatlichen Zusammenstof$ mit dem Landtagsabgeordneten Menzel’, [no place, sender, recipient given], received ‘beim Sekretariat’ 7.2.24, here [94]. '°8 Tbid., [pencilled marginalia], [95], ibid., [98]-[100] ‘An Florian! Bericht tiber die Boxerei des Herrn Halle und mir’, Berlin 16.2.24, [99]. '° BA(B) RY1/I2/711 JZ Band 1, [81]f. ‘An das Direktorium’ (report by investigative commission), Berlin 11.3.24.

122 Courtroom to Revolutionary Stage the personal attack on Halle in articulating the inner-party resentment against high-profile lawyers: The truth is that I said that there are people who have camped out on the proletariat’ back for years and fed from it. I meant thereby those people who go on great journeys, who bill double expenses, who travel only by car and in second class train compartments, so that the audit commission has had to admonish them constantly. If Halle felt stung by this, then it’s because the shoe fits him. His style is always to brag about his work, which another lawyer could do in an hour where he requires months. But at the end of the day, the man has to do something for his money [...] It was Halle who attacked me first, just after I had pointed to Korbmacher’s desk and declared: You look after nothing, that is where the legal work is done. [...] For me, the man is what I always held him to be, but I don’t want to put that down in writing here.'*°

Reporting to the Politburo, the investigating commission reprimanded Halle and Menzel for conducting their dispute violently and in front of an unknown comrade. Significantly, the commission sidestepped investigating Menzel’s alleged racist taunt: “The commission has regarded as unresolved and inconsequential [lat es dahingestellt sein] for its deliberations whether Menzel has or has not made the remark on the parasites of foreign race which Halle reports. It would, if this should have been the case, ask the directorate to forbid comrade Menzel such trains of thought very vigorously.’'4! No mention was made of Menzel’s attack on barrister Frankl. In early 1924, Halle was replaced as Juristische Zentralstelle leader by Wilhelm Pieck, who was succeeded a year later by barrister and Prussian deputy Gerhard Obuch. We must be careful not to overstate the importance of this anti-Semitic episode.

The altercation coincided with the highest caseload the Juristische Zentralstelle would ever experience, and the pressure on its protagonists must have been considerable. Moreover, the conflict between Menzel and Halle/Frankl appears to fit into the general pattern of the KPD’s ‘de-intellectualization’ after 1923 which Cather-

ine Epstein has demonstrated.'* Still, the episode shows that resentment against lawyers was tinged with anti-Semitic overtones on the left as well as on the right. Though in its violence the Halle-Menzel clash was an isolated event, at least one other report details anti-Semitic slurs (against Artur Samter).'* The resentment of some functionaries notwithstanding, and despite the legal organisation's anxiety to control and standardize legal aid funding, some lawyers wielded considerable bargaining power. ‘Their ability to command big fees, and in a sense even the resentment they provoked, show that the so-called ‘grofse Sachen’ 40 BA(B) RY1/I2/711 JZ Band 1, [98]-[100] ‘An Florian! Bericht iiber die Boxerei des Herrn Halle und mir’, Berlin 16.2.24, [99]. ‘4 Voigt, who was from Menzel’s electoral district, had not been questioned on the anti-Semitic slur, this was to be done ‘at a later point’ (BA(B) RY1/12/711 JZ Band 1, [81]f. ‘An das Direktorium’ (report by investigative commission), Berlin 11.3.24). ‘2 Epstein, C., Last Revolutionaries. German Communists and their Century, Boston 2003, p.24. 3 Korbmacher reported an ‘unheard of anti-Semitic remark’ towards Samter which Hugo Urbahns had made two years previously (BA(B) RY1/12/711 JZ Band 3, [80] JZ (Korbmacher) to ZK KPD, 15.11.26.). In view of Korbmacher’s anti-Halle alliance with Menzel, it is ironic that he of all people condemns Urbahns’

anti-Semitism. It stands to reason that his actions in November 1926 owed more to the party's desire to disown Urbahns than to outrage over anti-Semitism towards barrister Samter. After all, Korbmacher could have called attention to the matter two years earlier, when the remark was allegedly made.

The Communist Party Legal Organization 123 were central to Communist legal aid. Only lawyers with a rare combination of legal and rhetorical skills as well as ideological commitment could be used in spectacular, highly publicized proceedings. Ultimately, that was why the Communist Party yielded to their financial demands.

LAWYERS AS AGENTS OF PARTY CONTROL Co-operative defendants were the sine gua non of turning trials into spectacles of ideology. In order to bring to life the party’s claim to revolutionary irreconcilability, the accused had to embody it. And to credibly illustrate both the party’s idealism and its victimization, the accused had to be sacrificed. Moreover, exercising control over comrades in the dock was of great practical importance. For protecting the higher party echelons, it was crucial that the accused withhold information on the chains of command. For all these reasons, the Communist Party sought to exercise control over incarcerated members, to whom lawyers enjoyed (and provided) unrivalled access, guaranteed by law. Stiffening the defendants’ resolve, refreshing their sense of revolutionary solidarity, and, where necessary, enforcing their loyalty was an important part of the party lawyers’ job description. Without

their readiness to put party over client, ideological self-representation in the medium of trials would have been difficult, if not impossible. Willingly and in a few cases eagerly, barristers made themselves the instruments of party control. Communist lawyers regularly reported on how defendants ‘held themselves’ in court. In September 1923, for example, a strike in Lorrach had escalated into a gunfight between the uniformed pickets (‘Ordnungsdienst’) and the police. Thirtysix strikers were subsequently tried for high treason and related offences. Reporting from the trial in December 1924, Felix Halle evaluated their performance: [T]he defendant Steiner, who had been implicated the most by the confiscated material and by the co-defendants, has held himself especially well. As even the Reich state prosecutor has had to acknowledge, he implicated nobody in his turn [...] The defence of the accused Riimmele was not of the same standard. Through his exaggerated selfagerandisement, he damaged his standing with both sides, the non-Communist opponents and his own comrades. ‘Then again, the composure of comrade Langendorf was

respectable. In the main proceedings, comrades Roth, Grimm and the teacher Hetz attempted to remedy their mistakes from the preliminary investigation.'**

Courtroom behaviour thus became a benchmark for ideological reliability. Defendants who refused to implicate others won praise. Dramatic proclamations of allegiance likewise earned special plaudits—in the Lorrach trial, Halle singled out comrade Weissenberger for his ‘exceedingly strong, genuinely proletarian avowal of communism’.'* On the other hand, Halle sharply criticized the admis-

sion by a group of Elberfeld Communists to have acted upon party orders in 4 BA(B) RY1/12/711 Juristische Zentralstelle (JZ) Band 11, [73]-[82], Halle to barristers Obuch, Rosenfeld, Samter, Seckel, Herzfeld and Alexander, Berlin 1.12.24, [79]. M45" Tbid., [79].

124 Courtroom to Revolutionary Stage disarming a National Socialist paramilitary unit (killing some of its members in the process) in the autumn of 1923. Even though defendants Michels and Engel revoked their statements in court, the judges largely disregarded the recantation.'*° Remarkably, in at least one instance in November 1925, a Social Democrat, Esslingen barrister von Bagnato, filed such a report card for a Communist defendant, a certain Stetter.!*’

The lawyers’ reports enforced conformity with the courtroom behaviour demanded by the party. Sanctions as well as incentives abetted this pressure. Politically reliable defendants could hope to be put on ballot lists, with a view to their election securing parliamentary immunity, and sparing them incarceration. Barrister Hugo Seckel, for example, recommended placing the above mentioned Steiner on the Baden Landtag ballot despite the fact that ‘in principle’, he was against ‘putting comrades onto electoral lists simply because they are sitting in prison’.'*8 How irreplaceable the lawyers’ endorsement was for this incentive sys-

tem is illustrated by the case of Cottbus KPD member Berger.'* Berger’s wife besieged Communist parliamentarians to step down in her husband’s favour (so that the parliamentary immunity would benefit him) in an act of ‘genuinely Communist love of thy neighbour’. The appeal caused great embarrassment. In the central legal office, the letter passed from hand to hand like a hot potato. In the end, more than three weeks after it was written, ‘Karl’ forwarded Berger's letter to the Orgburo. ‘[I]t will be a good idea to reply to the comrade that this is a hopeless manner of proceeding, because we know from experience that conferring a mandate does not bring the mandate bearer out of prison’, he recommended. This answer was not just evasive, but duplicitous: Berger made her appeal just as comrade Steiner’s courtroom bravado was helping secure his spot on the ballot list. Effective as the incentive of parliamentary immunity was, most carrots get even tastier when a stick is at hand. What could be conferred could equally as well be removed. Landtag candidate Max Almstedt from Stargardt was pulled out of the elections after allegedly incriminating other Communist deputies in police interrogations in December 1924. His betrayal, the KPD Reichstag faction pointedly remarked in a letter to the central legal ofhce, ought moreover to be ‘of relevance’ to the funding of Almstedt’s defence.'” 46 BA(B) RY1/12/711 JZ Band 11, [55]-[57] Halle to barristers Obuch, Rosenfeld, Samter, Seckel, Herzfeld and Alexander, Berlin 20.9.24, [55], see also ibid., Band 10, [28]-[38] Herzfeld to Politburo, Berlin 28.9.25.

47 BA(B) RY1/I2/711 JZ Band 43, [6] JZ to Zentralvorstand RHD, Berlin 12.11.25 [attached ‘Berichte tiber das Verhalten des Genossen Stetter vor dem Staatsgerichtshof’].

Nn :

4 ie RY1/12/711 JZ Band 11, [439] “Bericht tiber Strafgefangene in Sachen Herbster, Bader’ i" 3 BACB) RY1/12/711 JZ Band 6, [4] Berger to barrister Barbasch, Cottbus 16.9.24, here especially [4], ibid., [3] Barbasch to Fraktion KPD, Berlin 18.9.24, ibid., [5] Barbasch to Berger, Berlin 18.9.24; from the Reichstag faction, Barbasch’s letter was forwarded to ‘Pischl’, then to “Karl (ibid., [3]

Barbasch to Fraktion KPD, Berlin 18.9.24 [pencilled marginalia]), who finally expedited it to the Orburo (ibid., [6] “Kar? to Orburo, Berlin 8.10.24). °° BA(B) RY1/I2/711 JZ Band 11, [83] KPD Reichstag faction to barristers Obuch, Samter and Herzfeld, Berlin 31.12.24.

The Communist Party Legal Organization 125 On trial, lawyers protected the party by pressurizing defendants. One of the accused in the Jscheka trial, Poge, had incriminated the KPD in the preliminary investigation, only to retract during the trial. After sentencing, he revoked the revocation, blaming it on his lawyers: ‘I succumbed to outside influences. I hoped that my wife would be supported by the KPD. I was going to revoke [the revocation] prior to the barrister’s plea. [...] The decisive thing for me was that various defence lawyers reproached me, I wasn’t supposed to incriminate my own com-

rades, I wasn’t supposed to hand my class enemies weapons.’'?' Party lawyers regarded legal aid as a quid-pro-quo for the defendants’ refusal to co-operate with the courts, and vice versa. Lobbying the Juristische Zentralstelle to provide legal aid for the Plattner gang, Ernst Hegewisch stressed that the defendants regarded refusal as ‘treason’. Without legal aid, ‘these comrades are no longer willing to remain silent’ to protect the party hierarchy, he warned.'” To the outside, the party denied that JZ support entailed conditions. Pége, for example, was accused of being an informer and agent provocateur (Spitzel). Similar cases are, however, documented in the JZ files and the state prosecutor's files in the Landesarchiv Berlin. In 1922, two Braunschweig prison guards overheard Ernst Hegewisch instructing clients to refuse testimony in order to shield comrades. With great effort, Hegewisch avoided disciplinary proceedings. Berlin Communist Heinz Schiiler, witness in a 1931

murder trial against party comrades, testified that barrister Hans Litten had instructed him to give false testimony to cover for his comrades. Litten was charged,

but the December 1932 amnesty cut short the investigation.'”’ Lawyers also helped conceal that defying the party line compromised recalcitrant defendants. Thus one of the accused in the trial of the Hamburg insurrectionists of autumn 1923, a certain Levy, not only denied that he had taken part in the uprising, but disowned the attempt at revolution itself. The central legal office was appalled at this insubordination, and instructed its lawyers to discredit their client. Levy was to be smeared as a Social Democrat and a stool pigeon. It was left to the barristers’ discretion whether they would ‘bring about positive representations on Levy’s behalf afterwards [source’s emphasis]’.!°* Even while ostensibly ‘defending’ Levy, the Communist legal organization essentially abandoned him to his forensic fate.

Of course, it could be argued that this handful of cases indicates occasional rather than systemic abuse. However, given the highly confidential nature of these communications and the overall dearth of surviving sources, even a handful of documented instances is significant. Moreover, defendants depended on their lawyers for information, legal instruction, and guidance, quite apart from the threat of removal of benefits should they refuse to toe the party line. Given this power '! KPD barrister Joseph Herzfeld reported Pége’s testimony to the Politburo verbatim (BA(B) RY1/12/711 JZ Band 10, [28]-[38] Herzfeld to Poliburo, Berlin 28.9.25, here [37]).

hee Pa® RY1/12/711 JZ der KPD Band 8 [110]-[165] Hegewisch an Zentrale der KPD, 8.5.22, 3 BA(B) RY1/12/711 JZ Band 8, [110]-[165] Hegewisch to KPD central office, Celle 8.5.22, [140], Landesarchiv Berlin A-Rep 358.01 Staatsanwaltschaft bei den Landgerichten/1510, [2] ‘Aussage Heinz Schiiler, Neukéllr’ [beglaubigte Abschrift], Berlin 1.10.32. 4 BA(B) RY1/I2/711 JZ Band 4, [20]-[23] ‘Kurzes Exposé. Urbahns- 7scheka-Zentraleprozess’ [no place given, undated], [22].

126 Courtroom to Revolutionary Stage asymmetry, it seems unlikely that many party members contemplated steps that would have necessitated a more obvious exercise of party control. Does it not therefore seem more reasonable to suppose that we are looking at the tip of an iceberg of cajoling and pressure rather than at the flotsam of occasional individual lapses?

The few occasions where lawyers stood up to pressure from the party leadership underline how crucial their general compliance was for controlling defendants. In July 1921, Victor Frankl refused a request by the Juristische Zentralstelle. To delay proceedings was not in the interest of his client, a certain Kunz, he declared.'” In

January 1924, a disgruntled KPD emissary identified only by his code-name, ‘Karl’, complained about barrister Frankl again. In the light of Frankl’s obstinacy,

and given that he had ‘no other way of getting to Grothe [the accused] except through the defence lawyer’, he refused to take responsibility for the trial’s outcome. ‘Karl’ asked to be ‘relieved of the mandate of politically influencing the conduct of the trial’.!°° ‘Karl’s’ exasperation suggests that Frankl’s obstinacy, whatever it may have been, was very much the exception that proves the rule. Party barristers easily persuaded themselves that their actions reflected the will

of their clients. In the 1926 high treason trial against Breslau Communist Schmialek, the prosecution alleged that the accused was the party’s district treasurer. In fact, Schmialek was nothing of the kind. His lawyers, however, prevented him from exposing anything about the organizational set-up of the Breslau KPD in self-exoneration. We know something about the case thanks to a letter of instruction that the local barrister, a certain Lichtenstein, wrote to his Berlin colleague Oscar Cohn, who had been appointed as the sensitivity of the case became apparent. ‘All of the witnesses [named by Schmialek] are believed to be members of the KPD. The regional leadership in its letter of 25 June does not desire the naming of these witnesses’, Lichtenstein wrote to his colleague. In particular, the appearance of the brothers Ligensa was ‘not desired’ [Lichtenstein’s emphasis]. The lawyers thus refused outright to call the witnesses Schmialek identified. Insofar as his interests featured at all, Lichtenstein was dismissive: ‘Schm. [sic] is surely on the same line as the regional leadership [geht da sicher mit der Bezirksleitung konform|] as he does not wish to implicate others.’’”” Lichtenstein not only sanctioned the nonappearance of witnesses potentially crucial to his client’s sentence, but pre-emptively rationalized party control. Acting as agents of party control came so naturally to KPD lawyers, in fact, that it hardly needed pointing out at all. Ernst Hegewisch— who, it will be recalled, believed Communists would rather be sentenced with him then acquitted with another barrister—casually reported how he had to ‘strengthen the backbone’ of comrades threatening to implicate the party leadership.’ And this cavalier attitude in turn was relevant not only for the relatively few cases where > BA(B) RY1/12/711 JZ Band 6, [26] Frankl to “Zentrale der VKPD’, Berlin, 16.7.21.

ae RY1/12/711 JZ Band 6, [32] ‘Karl’ to ‘Oskar’, [handwritten letter, no place given] 6.1.24. ''7 BA(B) RY1/12/711 JZ Band 6, [16]-[23] Lichtenstein to Georg Cohn, Hindenburg 28.6.26, 17], {19}.

| 13 BAG) RY1/12/711 JZ Band 8, [110]-[165] Hegewisch to KPD central office, Celle 8.5.22, [130].

The Communist Party Legal Organization 127 defendants did decide to resist the parties’ demand for their personal sacrifice, but also and especially for the many where they did not. Predicating legal aid, family support, and electoral opportunity on courtroom intransigence was a novelty. To be sure, using parliamentary immunity to evade judicial persecution was a tactic extremist parties employed regularly. Nominally, parliamentarians edited both Rote Fahne and Volkischer Beobachter. Their immunity licensed the actual writers to spew their anti-Republican venom with impunity until the Reichstag curbed the practice in November 1931.'” Goebbels, too, was no stranger to the shelter that parliamentary immunity could offer from law enforcement. But to hold out the prize of such immunity in exchange for protecting one’s superiors and publicly sacrificing oneself on the altar of party discipline

was a new twist. Using parliamentary immunity to encourage defiance of the courts—a practice Petra Gangel applauds—made a mockery out of the division of powers and, in its use of democratic means to anti-democratic ends, approximates the Nazis’ ‘legality tactics’.!°° Apart from corroding Weimar political culture, the practice empowered the party leadership, in this case a closely knit coterie of lawyers and the central legal office, vis-a-vis the rank and file. * OK OK

The greater a trial’s political sensitivity, the more directly the party leadership intervened. In the case of Arkady Maslow, the party micro-managed courtroom appear-

ances with such scant regard for either legal outcome or Maslow’s standing in proletarian eyes that the trial foreshadows Stalinist show-trials. In 1924, the Communist press castigated the high treason indictment against the leader of the Hamburg insurrection.'®’ But by the time proceedings opened in 1925, Maslow had fallen foul of the new Stalinist KPD leadership.'®* On trial, Maslow tried to hush up internal rifts.'©? Neither his loyalty nor the four-year sentence could pacify his opponents within the party, however. In a secret resolution, the central committee declared Maslow’s court appearance ‘unworthy of a Communist leader. The Maslow trial had totally misrepresented the partys ‘revolutionary goals’: ‘From Maslow’s bearing, it had to be concluded that the German Communists were harmless, and that the KPD was not a revolutionary party and therefore was incapable of committing high treason in the first place.’ The party, the resolution closed, ‘demands of every comrade, especially of a responsible party leader, that he protect the honour of the party in the class court’. The affair ” Mergel, T., Parlamentarische Kultur in der Weimarer Republik. Politische Kommunikation, symbol-

ische Politik und Offentlichkeit im Reichstag, Beitrage zur Geschichte des Parlamentarismus und der politischen Parteien, Band 135, Diisseldorf 2002, p.165. '©0 Gangel, P., Rote Hilfe, p.94.

'! BA(B) RY1/I2/711 JZ Band 1, [113]-[130] “Chronik des Weissen Terrors’ [MEB press digest] No.3, May 1924, [119] ‘19.5. Berlin’. '? Winkler, H.A., Der Schein der Normalitat: Arbeiter und Arbeiterbewegung in der Weimarer Repub-

lik 1924-1930, 2.ed., Geschichte der Arbeiter und der Arbeiterbewegung seit dem 18. Jahrhundert 10, Berlin 1988, p.422. 63 BA(B) RY1/12/711 JZ Band 11, [110]-[112] Obuch to KPD central office, Diisseldorf 29.9.25, ibid., Band 5, [3]-[5] Ruth Fischer to presidium of the Russian CP Congress [Abschrift], Moscow 30.12.25, [3].

128 Courtroom to Revolutionary Stage would be handed over to an internal control commission. After ‘class justice’ was done, Maslow was tried a second time for his ‘un-Communist deviance in court.

Those who dared to defend Maslow shared his fate. Three months after the trial, Ruth Fischer told the 14th party congress of the Russian Communist Party that “‘Maslow’s bearing before the bourgeois court was not just faultless, but an excellent representation of the Communist idea and the Communist Party.’ In refuting her, the German delegation at the congress embellished its attack on Maslow. The disgraced leader had failed to declare his ‘undignified line of defence’ in the ‘draft [of his defence statement] submitted in advance’. He had moreover

‘denounced’ the German and Russian leadership and violated ‘the printed party guidelines for political prisoners’. Worst of all, “Maslow attempted in the manner of a petty-bourgeois to ingratiate himself with the bourgeois class judge’. ‘Despite her orders’, Fischer had not just failed to report ‘Maslow’s un-Communist deviance’, but launched an ‘unheard of attack against the highest organs of the KPD and the Comintern, who have condemned Maslow’s behaviour’.'“ Shortly afterwards, Fischer was expelled from the Politburo, and the central legal office stopped funding Maslow’s representation.'® Eager to assert control, the new party leadership had no qualms about using ‘bourgeois’ judicial proceedings to discredit a political rival.'° Chastened by its experience with Maslow, the KPD imposed even more strin-

gent demands upon Hugo Urbahns, the leader of the Hamburg Communists. Whereas Maslow only had to hand in a ‘disposition’ outlining his defence, Urbahns’

statement in court was decided by the Politburo and drafted for him verbatim by the Juristische Zentralstelle.'°’ Above all, Urbahns had to avoid issuing ‘an antiPutschist declaration’. Magnanimously, the central legal office allowed Urbahns to point out that he had not even been in Hamburg on the day of the insurrection. The party, barrister Richter explained, had ‘no interest in handing over a comrade to the class justice for acts he has not committed’, intimating that if the party did, the comrade would have nothing to complain about.'® Whilst quarreling over Maslow’s trial, no one questioned the politicization of justice. Like the party leadership, Ruth Fischer evaluated Maslow’s courtroom performance solely under the criterion of utility for the party, although she reached a different conclusion. That the personal fate of the accused was secondary was a given. Ihe Communist Party used the Maslow and Urbahns trials to discredit former leaders and to disseminate its interpretation of the abortive revolution of '4 BA(B) RY1/I2/711 JZ Band 5, [6]-[9] ‘Erklarung der Vertretung des ZK der KPD beim Exekutivkommittee der Komintern’ [signed Otto Ktthne, Heinz Neumann], 31.12.25, points v, vi.4, vi.6, vi.9 and vi.10. 6 BA(B) RY1/12/711 JZ Band 11, [180] Rosenfeld to KPD central office, Berlin 19.8.26, see also [170] Rosenfeld to Reich Minister of Justice, Berlin 2.7.26, ibid. [174] Rosenfeld to editorial board of Volkswacht [pencilled marginalia ‘2.8.26’], ibid., [179] Rosenfeld to KPD central office, Berlin

a Winkler H.A., Schein der Normalitat, p.425f. '7 BA(B) RY1/I2/711 JZ Band 4, [1]-[3] protocol Politburo 17.1.25 [excerpt]. 168 BA(B) RY1/12/711 JZ Band 4 [4]-[7] Richter to Pieck, Berlin 19.1.25 ‘Richtlininen des Politbiiros ftir die Filhrung des Prozesses’, [6] (point 7).

The Communist Party Legal Organization 129 1923. To ensure that the party line prevailed, self-incriminatory statements were vetted or drafted verbatim, and critics intimidated or disowned. Albeit under the auspices of an inimical justice system, and with less influence on the verdicts, in these respects the trials foreshadow Stalin’s use of his courts a few years later. * OK OK

Perhaps the most egregious instance of Red Aid barristers’ willingness to put party over client is the case of Erich Friehe. To help secure a retrial for Max Holz, the Communist legal organization had been searching for witnesses to exonerate him, particularly from the manslaughter of the farmer Hess. As capital crimes were excluded from the political amnesties that freed the great majority of political offenders, it was the manslaughter conviction that kept Holz in prison. In October 1926, Erich Friehe confessed to the Hess killing, and demanded his own prosecution. By this point, the Red Aid had been through all sorts of highs and lows with Hélz who, according to Pieck ‘changed his lawyers like his undershirts’.'© Finally, the Red Aid had appointed the prominent lawyer Alfred Apfel, a member of the left-liberal Democratic Party, with Felix Halle managing the case for the central legal office. The same Apfel also represented Friehe. It quickly emerged that Friehe was in dire straits financially, and that he expected Communist Party support. Much to the central legal office's consternation, he began alluding to a promise that he would be sent to Russia after his confession. He claimed to have sold all his possessions with a view to his departure. If the party expected him to stay, he needed money. The would-be killer also requested money from Hélz, and from their counsel. Apfel in his turn pleaded with the Red Aid to settle Friehe’s debts (of around 300 RM): ‘I would like to ask you to treat this matter with special atten-

tion as it is of great importance [A.A.’s emphasis] [...] you will understand of your own accord why I am pressing for a mechanism to settle it’.'”” The Red Aid, however, at first refused cash payments. It had already procured a clerical position in a metal

workshop for Fricehe—who, not exactly overcome with gratitude, had pointed out that he was unable to do ‘hard labour—and arranged for a monthly stipend of 80 RM from the Independent H6lz Committee, a group of Berlin intellectuals around the poet Erich Miihsam. Friehe also received money on an ad-hoc basis from the local Red Aid office in the town of Halle.'”' If it did even more, the Red Aid fretted not unreasonably, the state prosecutor might conclude that ‘Friehe was bought and our year-long struggle for freeing Max H6lz would be rendered illusory’. Friehe, however, was not easily satisfied. With tiresome regularity, he would show up at the Halle Red Aid bureau and demand further support. After Friehe literally ransacked the office for cash in September 1927, the local Red Aid chief warned the Communist Party leadership about his unreliability. Whenever Friehe did not get his way, he ‘threatened to take everything back immediately [sofort alles '©° BA(B) RY1/I2/711 JZ Band 6, [79]-[81] Pieck to H6lz, Berlin 8.8.25, [80]. '° BA(B) NY4051 Holz Band 18, [43] Friehe to Apfel [Abschrift], Halle 29.8.27, ibid., [44] Apfel to Altwein, Golke, Halle, Timpe, Berlin 30.8.27, ibid., [46] Apfel to ZK RHD [Abschrift], Berlin 1.8.27.

° a hid. [201]-[209] “Besprechung mit Gen. Erich Friehe in der Angelegenheit Max Holz am 7.12.27’, [201], [204].

130 Courtroom to Revolutionary Stage riickgdngig zu machen’. “\he impression that Friehe has lost his appetite for work and attempts with all possible methods to get his hands on money is overwhelming’, the district leader complained. If Friche were any less important, ‘we would have thrown him out long ago’. He entreated the party leadership to pay Friehe more so that he would ‘step off our toes’.'”” Two months later, things took an even more dramatic turn when Friehe threatened to withdraw Alfred Apfel’s mandate. Head over heels, the lawyer travelled to Halle on 15 November 1927. Because ‘at this point Friehe rescinding the mandate is not palatable under any circumstances’, Apfel informed the Red Aid leadership, ‘I have brought the matter into order. I don’t want to put down in writing in which way this was done, by way of a hint let me say that I have personally taken over certain commitments towards Friehe’s creditors, who are hot on his heels. Hopefully, I will succeed in receiving compensation from another quarter.’ Apfel, in other words, had started paying his own client to continue incriminating himself. The lawyer must have felt under considerable pressure even to hint at this arrangement in writing. Other aspects of the Friehe representation corroborate the impression that the KPD held fast to a witness it knew at first hand to be extremely unreliable. Apfel and Felix Halle did all they could to hasten proceedings. Friehe’s lawyer offered state prosecutor Parrey his ‘loyal co-operation’ as long as Parrey agreed ‘to clear up the Hélz case at the same time’.'”* When the Vossische Zeitung reported that the state prosecution contemplated closing the Friehe case, Apfel wrote a letter to the

Prussian Ministry of Justice demanding that proceedings against his client be opened, ‘for the purpose of ascertaining the truth which Friehe himself desires’.'”

After four months of investigations, the Halle court of appeal closed the case: Friehe, it held, was not sufficiently suspect.'”° Whether Friehe actually killed the farmer Hess is more than doubtful, but that is not the point. Rather, at issue is that the Communist legal organization used him to push for the release of Max Holz without any concern for ascertaining his reliability. The longer Friehe’s case continued the more reason there was to suspect the would-be rescuer of Hélz was simply making it up. To prevent this insight from spreading, the Communist Party went to considerable lengths, buying off not just

Friehe but his creditors, too. The party was able to do so only because barrister Apfel did not perceive a conflict of interest in the representation of both Hélz and Friehe. Far from attempting to prove Friehe’s innocence, Apfel ignored all indications that his self-accusation was unreliable. Offering the state prosecutor his ‘loyal co-operation’, he demanded that proceedings be opened against his own client, all

'? Tbid., [49] RHD Bezirk Halle-Merseburg (signed Hartel) to Apfel [Abschrift], Halle a.d. Saale 26.9.27. in “Ibid, [48] Apfel to Altwein, Golke, Timpe, Halle, Berlin 22.11.27. '74 “The conversation finished on an almost hearty note’ (BA(B) NY4051 Holz Band 18, [44] Apfel to Altwein, Golke, Halle, Timpe, Berlin 30.8.27).

'® Tbid., [196], Apfel to Prussian Minister of Justice (‘zu Handen Oberjustizrat Herrmann’) [Abschrift], Berlin 3.12.27. '76 Gebhardt, M., Max Holz, p.240f.

The Communist Party Legal Organization 131 with a view to rehabilitating Hélz. Apfel even paid Friehe to ensure the continuation of his mandate. This arrangement was all the more remarkable given that the lawyer had contracted with Felix Halle to split the revenue generated by publishing their joint petition for a retrial for Hélz—a venture whose success Apfel believed to depend largely on Friehe’s conviction. Apfel, of course, was not a Communist at all—which throws the Communist legal organization’s impact on Weimar justice into even starker relief than if he had been. If even a non-party member was prepared to play by the central legal office’s rules to such a degree, how much more pliable are ideologically committed lawyers, anxiously assuring anyone who would listen of their revolutionary reliability, likely to have been? But Apfel’s involvement is revealing in an even broader sense. That it made sense for a celebrity lawyer to adopt the causa Friehe/H6lz reflects the pull of political trials. This attraction, however, was not a given, but in large part a consequence of the aggressive trial and propaganda strategies pioneered by the Juristische Zentralstelle and the Red Aid.

CONCLUSION In February 1924, the German Red Aid reported on its finances to the Third International, then its principal sponsor. The report’s authors felt obliged to explain why half the Red Aid’s money was spent on lawyers’ fees. “This distribution of spending’ was ‘chosen with full deliberation. Experience has shown that the diminution in the length of sentences achieved through an efficient defence alleviates the burden of welfare to a high extent. In addition, there is the great value of the moral effects of all defence efforts.’'”” In a nutshell, this passage sums up the utility of Communist legal aid. Financially, reducing prison sentences lowered costs. Legal

aid was an investment, but it paid dividends. Secondly, the report praised the ‘moral effects’ of providing party lawyers. The party’s practical solidarity boosted the defendants’ morale. It also reminded them of their proletarian duty to profess revolutionary implacability and otherwise remain tight-lipped. Moreover, the suffering of the prisoners and their well-advertised support from the party spurred party members in freedom. In its broadest sense, the ‘moral effect’ of legal aid was to make courtroom performances of ideology resonate in Weimar’s public sphere. By the time H6lz was released from prison in 1928, the Communist Party had succeeded in moving the goalposts in the public perception of political justice, a

reframing made possible and driven by partisan legal aid.’ Of course, oldfashioned, inflexible, and biased judges like Alexander Niedner were a near-perfect foil. But by themselves, judges and verdicts would not have shifted the perception 7 BA(B) RY1/14/4 Rote Hilfe Deutschland (RHD) Band 25 [2]-[6], report to IRH, Berlin, 11.2.24, here [5]. See also the transcript of Wilhelm Pieck’s address to the first Reich Congress of the RHD (17.5.1925), ibid., Band 1, [174]—[192], here [190]. ‘8 Grunwald, H., Die “Vertrauenskrise der Justiz’ in der Weimarer Republik. Justizkritik als Krisendiagnostik, pp.177—99 in Grunwald, H./Pfister, M. (eds.), Krisis! Krisenszenarien, Diagnosen, Diskursstrategien, Paderborn 2007.

132 Courtroom to Revolutionary Stage of Weimar political justice in the way that the Communist legal organization achieved: Gartner, H6lz, ‘the 7000’, the support of Albert Einstein and the brothers Mann, the notion of ‘judicial murder’ (Justizmord), the widespread currency of the concept of ‘class justice’, the debate about the ‘crisis of the trust in justice’ (Vertrauenskrise der Justiz), the acerbic attacks of Brecht, Tucholsky, and Mithsam. All these depended more or less directly on the control of the defendants, the stagemanagement of court proceedings, and the manipulation and promotion of trial coverage in the media. And these in turn depended on Communist legal aid and related activities furnished by the Juristische Zentralstelle and the Red Aid. Not by coincidence was it precisely this moment, the height of the ‘stability phase’, when efforts by right-wing parties to emulate the Red Aid’s success were newly invigorated. In the eyes of its enemies (soon also to be imitators), this success consisted not just, and by 1928 not even primarily, in freeing prisoners and generating intraparty solidarity. Important as these were, the main benefit of party legal aid was its ability to shape the broad perception of politics. With its legal organization, the Communist Party had set a precedent that other extremists were keen—although not always able—to emulate.

The Compliment of Imitation: The Rise of National-Socialist Legal Organizations Weimar right-wing parties lacked a tradition of political defence work, their lawyers experience of a politically hostile environment. Judicial persecution was not particularly threatening in the first years of Weimar. After the assassination of Foreign Minister Walther Rathenau and the passage of the “Law for the Protection of the Republic’ in 1922, this changed, but even then nationalists were

less energetically persecuted than Communists. Without a strong incentive to organize, nationalist political defence work therefore offers a much more fragmented picture until 1928, when the NSDAP lawyers’ organization was founded. Two attempts to organise right-wing legal aid are of interest as forerunners

of the Association of National Socialist German Lawyers (Bund Nationalsozialistischer Deutscher Juristen, BNSDJ). The fledgling lawyers organization of the German Nationalist People’s Party (DNVP) suffered from a number of defects brutally highlighted by its first serious challenge, the trial of Rathenau's assassins in 1922. Five years later, the ‘Patriotic Prisoners Relief/National Emergency Aid’ (Vaterlandische Gefangenenhilfe/Nationale Nothilfe, VGH/

NN) consciously modelled itself on the Communist legal aid organization. Political divisions and a misconceived strategy prevented lasting success, however. Successful or not, nationalist lawyers’ organizations took their cue from Communist legal aid. In pioneering aggressive, well-publicised, and ideologically committed defence work, the Communist Party proved the effectiveness of using trials as a platform to de-legitimize Republican politics. All nationalist legal aid vied to emulate its example, from the (aspiration to) universal coverage and humanitarian

relief to the dramatization of trials and the media choreography of anti-judicial propaganda—which helps account for some striking similarity of personnel, rhetoric, and techniques. Despite its importance as the vehicle for the Gleichschaltung of the legal profession, even the Association of National Socialist German Lawyers has attracted only scant scholarly interest. A striking gap, considering its Weimar protagonists’ glittering careers after 1933. Both Hans Frank, the governor of occupied Poland, and

134 Courtroom to Revolutionary Stage Roland Freisler, the notorious chief judge at the National Socialist Volksgerichtshof, started their careers as BNSDJ barristers. Frank in particular left a deep imprint on

the conduct of Nazi political trials. Michael Sunnus’ study of the Bund Nationalsozialistischer Deutscher Juristen, however, is not really interested in the Weimar Republic.' The chapter on the five-year period 1928-1933, crucial years for both the lawyers’ association and the party as a whole, occupies all of five pages riddled with factual inaccuracies.’ Studies of the Deutschnationale Volkspartei as well as recent (and excellent) work on nationalist paramilitary movements have no comment on legal organizations.* Some individual barristers have attracted attention but not the impor-

tance of the framework party legal organizations provided for them. The foundation of the BNSDJ is routinely mentioned in biographies of Hans Frank, for example, without occasioning more serious interest.* Likewise, the SA legal office features in Heydeloff’s study of Walter Luetgebrune only as a stage in the barrister’s career.’ Tilmann Krach has briefly commented on the ‘attempts at selforganization’ of vélkisch lawyers.° While offering valuable observations on the differences between National Socialist barristers and their ‘apolitical’ peers, Krach almost totally neglects the organizational preconditions of their activity. His brief description of the BNSDJ, moreover, suffers from factual inaccuracies and overlooks both the central role of Hans Frank and attempts to emulate the KPD legal organization’. To an even higher degree than on the political left, the significance of extremist party legal organizations of the right has so far escaped scholarly attention.

' Sunnus, M., Der NS-Rechtswahrerbund (1928-1945), Rechtshistorische Reihe vol. 78, Frankfurt a.M. 1990. * Sunnus, M., Rechtswahrerbund, pp.21-4,51-3. For example, Sunnus seriously overestimates the pre-1933 membership, uncritically drawing on ex-member Richard Schmid’s eulogy of the ‘time of struggle’.

> Beck, H., Fateful Alliance. German Conservatives and Nazis in 1933: The Machtergreifung in a New Light, New York 2008, Reichardt, S., Faschistische Kampfbiinde. Gewalt und Gemeinschaft im italienischen Squadrismus und in der deutschen SA, Industrielle Welt vol. 63, Koln 2002, Schumann, D., Politische Gewalt in der Weimarer Republik 1918-1933. Kampf um die Strasse und Furcht vor dem Biirgerkrieg, Essen 2001, Striesow, J., Deutschnationale Volkspartei und die Volkisch-Radika-

len 1918-1922, Frankfurt a.M., 1981, Wirsching, A., Vom Weltkrieg zum Biirgerkrieg? Politischer Extremismus in Deutschland und Frankreich 1918—1933/39. Berlin und Paris im Vergleich, Miinchen 1999. * KlefSmann, C., “Hans Frank—Parteijurist und Generalgouverneur in Polen’, pp.42—51 in Smelser,

R./Zitelmann, R. (eds.), Die Braune Elite I. 22 Biographische Skizzen, 2. ed., Darmstadt 1990, here p.42, Schudnagies, C., Hans Frank. Aufstieg und Fall des NS-Juristen und Generalgouverneurs, Rechtshistorische Reihe 67, Frankfurt a.M. 1989, pp.19—20. > Heydeloff, R., “Staranwalt der Rechtsextremisten. Walter Luetgebrune in der Weimarer Republik’, V{Z 32 (1984), pp.373—421, here pp.402—09. _ © Krach, T., Jiidische Rechtsanwalte in Preufsen. Uber die Bedeuting der freien Advokatur und ihre Zerstorung durch den Nationalsozialismus, Miinchen 1991, pp.146—50. ’ Krach over-estimates BNSDJ membership, mistakenly claims that there was no separate barristers organisation within the BNSDJ after 1933, and assigns the ‘decisive role in shaping the image of the NS barrister’ to Roland Freisler rather than to Frank (Krach, T., jiidische Rechtsanwailte in PreufSen,

p.147, p.149).

The Rise of National-Socialist Legal Organizations 135

(MIS-)MANAGING THE RATHENAU TRIAL: THE REICH LEAGUE OF GERMAN NATIONALIST TRIAL LAWYERS The Revolution of November 1918 inspired hatred and fear on the German right. As the moderate Social Democrats held the upper hand, only the fear receded. Novelist Ernst Jiinger spoke of a ‘turnips’ revolt’. Ernst von Salomon, an accessory to the Rathenau murder, belittled a ‘revolution in which even women participated’. Their

contempt reflects the fact that in victory, the Social Democrats’ political strategy was—and had to be—to accommodate the old élites, including the judiciary.® As a consequence, sentencing often displayed remarkable sympathy towards right-wing anti-republicans, while bearing down hard on proletarian insurgents.” The courts’ leniency towards the right sapped early attempts to build a rightwing legal organization. In April 1919, the Deutsches Tageblatt bemoaned the lack of an association of ideologically committed nationalist lawyers. Readers were asked to submit the addresses of suitable candidates to the Nationalsozialistische Freiheitspartei. Perhaps in response to this article, the Jewish publicist Alfred Wiener warned of an association of anti-Semitic lawyers, but the absence of records in the files of the Reich Commissar for the Protection of Public Order and the lack of any public utterances suggest that the initiative sank without a trace.'” The first nationalist lawyers’ association was thus the ‘Reich juridical subcommittee’ (/uristischer Reichsausschufs) of the German Nationalist People’s Party. It campaigned for

the exclusion of all Jews from the bar, urging all ‘vd/kisch thinking Germans’ to boycott Jewish lawyers meanwhile." Practically unknown outside the DNVP, the Reichsausschuff appears to have been obscure even within the party. The Reich Commissariat for the Protection of Public Order opened a file on the organization, but apparently found absolutely no material to include in it. When push came to shove, prominent DNVP politicians attached greater significance to a barristers competence than to the Reichsausschuff ‘guidelines’. When Reich Finance Minister Mathias Erzberger sued the DNVP leader, Karl Helfferich, for libel in a spectacular 1920 trial, the former Vice Chancellor hired a Protestant convert from Judaism, Max Alsberg, as his counsel. * Heinrich August Winkler has argued that co-operation with representatives of the old order was not only an ‘objective’ requirement but also a function of the Social Democrats’ interpretation of the historical situation, which led to an overriding desire to avoid “Russian conditions’. Nevertheless, Winkler takes a critical view of the SPD’s inability (and unwillingness) to discipline anti-republican attitudes in the administration (Winkler, H.A., Weimar 1918-1933. Die Geschichte der ersten deutschen Demokratie, 1993). For a more recent, and critical summary of these ‘fateful compromises’ see Weitz, E., Weimar Germany. Promise and Tragedy, Princeton 2007, pp.27-8. > Hannover, H./Hannover-Driick, E., Politische Justiz 1918-1933, Frankfurt a.M. 1966, pp.46-8. For an illustration of the reach of this argument see Roberts, J.M., A History of Europe 1880-1945, Harlow 2001 pp.367—84. '° Deutsches Tageblatt, 25.4.1919 quoted following Krach, T., iidische Rechtsanwalte in Preufsen, Miinchen 1991, p.146, /m Deutschen Reich 1919, p.289, p.293. '' “Richtlinien des Juristischen Rechtsausschusses der DNVP’, [undated], signed barristers John, Thiede, Zwehl (quoted following Heydeloff, R., ‘Staranwalt der Rechtsextremisten’, V/Z 32 (1984), pp.373-421, here p.378).

136 Courtroom to Revolutionary Stage Helfferich had attacked Erzberger as a corrupt traitor in a series of articles programmatically entitled ‘Away with Erzberger’ (Fort mit Erzberger). The Berlin Court of Appeal fined Helfferich a modest 300 RM, and vindicated many of his allegations. Disgraced, Erzberger had no choice but to resign. A propaganda triumph for Helfferich, the trial was a slap in the face for the ReichsausschufS lawyers.

Despite his renown, accomplishment, and conversion, to them Max Alsberg was first and foremost one of the ‘Jewish lawyers’ they wished to see shunned. Yet not even the close attention of the media in this most public trial had persuaded the party leader to forego his services.'

The Rathenau trial The assassinations of Mathias Erzberger in 1921 and Walther Rathenau one year later brought the favourable climate for right-wing offenders to an end. For the DNVP lawyers’ organization, the corresponding trials were a litmus test it failed. The Rathenau trial will be discussed in some detail because it highlights the organization’s shortcomings, which in turn explain why the most ambitious and radical right-wing lawyers joined the National Socialist legal organization after 1928.'° Walther Rathenau, the controversial chief executive of the Allgemeine Elektrizitdts-Gesellschaft turned Foreign Minister stood for a policy of compliance with the Versailles treaty. Besides his republicanism, his charisma and the fact that he was a Jew made him a target for nationalist hatred. Killing Rathenau, his youthful assassins believed, would trigger the ‘decisive battle’ and overturn Weimar.'* On 24 June 1922, in bright daylight on Ko6nigsallee in the heart of Berlin’s Grunewald district, Rathenau was shot from a speeding car and killed. An unprecedented wave of anguish and rage swept the country. After a seven-week manhunt, Erwin Kern und Hermann Fischer, the main perpetrators, died in a gunfight with the police at their hideout, Saaleck castle. Their death, in at least one case a suicide, left the accessories, young men aged between sixteen and twenty-one, to stand trial on their own. Proceedings opened at the supreme court in Leipzig in September, 1922, and resulted in harsh prison sentences for all involved. Even Ernst von Salomon received five years imprisonment—not exactly the kid gloves treatment for a man who, despite his subsequent self-aggrandizement, had done no more than recruit a chauffeur for the getaway car, Waldemar Niedrig, whose services in the end weren't even required.

'? Tgnor, A., ‘Max Alsberg (1877—1933)’, pp.654—81 in Grundmann, S., Kloepfer, M., Paulus, C., et al. (eds.), Festschrift 200 Jahre Juristische Fakultat der Humboldt-Universitat zu Berlin: Geschichte, Gegenwart und Zukunft, Berlin 2010, pp.678-81. '3 "The account of the Rathenau trial is based on Sabrow, M., Der Rathenaumord, Schriftenreihe der Vf£Z Band 69, Miinchen 1994, and Hannover, H./Hannover-Driick, E., Politische Justiz. The sections

relating specifically to DNVP lawyers Hahn and Luetgebrune draw mainly on the private papers of

paner ustesbrune held in the Bundesarchiv, Koblenz (BA(K) NL 1150 Luetgebrune [non‘4 See the transcript of their interrogation in Hannover, H./Hannover-Driick, E., Politische Justiz, p.120.

The Rise of National-Socialist Legal Organizations 137 For the German Nationalist People’s Party, the trial was highly problematic. Two defendants belonged to the party’s youth wing (Deutschnationaler Jugendbund). One of these two, Willy Giinther, was also a member of the party itself. All others had belonged to closely associated clubs and societies such as Deutschvolkischer Schutz- und Trutzbund or Bund der Aufrechten. Moreover, less than twenty-four hours before Rathenau was shot, DNVP leader Helfferich had addressed parliament calling for the Wirth government to stand trial for ‘treason’ on account of the Rapallo accords with Soviet Russia. Helfferich of all people knew he was playing with fire—Erzberger had been assassinated less than a year before. Now the mood swung heavily against the Nationalists. In the heated Reichstag debate which followed the news of Rathenau’s murder, Helfferich was hissed and booed out of the House. Like the proscription of the Schutz- und Trutzbund and the spontaneous mass demonstrations, the manner of his exit augured ill for the DNVP at the Rath-

enau trial.’ In orchestrating the defence, the Nationalist Party was hamstrung by its legal organization’s shortcomings. Unlike the Communist Party’s central legal office, the Reich Association of German Nationalist Barristers and Notaries (Reichsbund deutschnationaler Rechtsanwalte und Notare) was only a loose association. Its meetings at the Nationaler Club, Sommerstrafse 6 in Berlin-Schéneberg occasionally hosted Rathenau defence team conferences, and the Reichsbund leader, Willy Hahn, was the leading counsel in the trial.'° However, the nationalist lawyers were paid not by

the party, but by the defendants. When they disagreed, the Reichsbund had no clout to settle disputes, in fact nobody so much as appealed to it for arbitration. Even in administrative matters, its role was limited—Walter Luetgebrune once complained about having to shoulder his own copying costs.'” The most glaring failure of the Reichsbund, however, was its inability to keep nonparty lawyers off the defence team. Willy Giinther was a Berlin law student with a minor role in the assassination (his main contribution had been dissuading 17-year old pupil Karl Stubenrauch from carrying out his rival assassination plot). Giinther’s choice of lawyer destroyed the unity of the nationalist defence team. Having first approached DNVP lawyer Walter Luetgebrune, he subsequently appointed an associate of Max Alsberg’s practice, Kurt Gollnick, as his barrister. Why Ginther had this change of heart is unclear. He and Gollnick had been friends in school, and Ginther’s father may have distrusted a lawyer associated with the German Nationalist People’s Party. In any case Luetgebrune went to extraordinary lengths to prevent the appointment of Gollnick.'® Against all protocol, Luetgebrune visited his ex-client Giinther in prison on 12 August 1922, two weeks after he had been sacked.

"9 Hannover, H./Hannover-Driick, E., Politische Justiz, p.114-8. '© Deutsche Nachrichten Agentur report (BA(K) NL 1150 Luetgebrune Band 11 [non-foliated] ‘Die Beteiligten im Rathenau-Prozefs’. Luetgebrune, whom Heydeloff identifies as the leading counsel, was not only listed behind Alsberg, Hahn and Alfons Sack, but had his name misspelled (Litgebrunn)), a recurring problem (ibid., Hahn to ‘Liitjebrur [sic], 8.8.22). '7 BA(K) NL 1150 Luetgebrune Band 11 [non-foliated], Hahn to barristers Greving, Sack and Luetgebrune, Berlin 10.9.22, Hahn to Luetgebrune, Berlin 8.8.22. '8 Tbid., Giinther to Luetgebrune, Berlin 28.7.22.

138 Courtroom to Revolutionary Stage Deliberately, Luetgebrune had picked a date when Gollnick was out of town on holiday, but to no avail. Informing Hahn of his failure to sway Gunther ‘in the manner agreed’, he now entreated him to bring the wayward prisoner back in line. Luetgebrune urged haste, as Gollnick’s return was imminent.” A month later, Luetgebrune even offered to represent Willy Giinther for free, in open contempt of the bylaws of the legal profession. Giinther, however, stuck to his guns, and replied that he wanted to be represented by Gollnick alone, adding that his father would feel ‘uncomfortable’ accepting Luetgebrune’s suggestion.” Having failed to prevent Gollnick’s involvement, Hahn and Luetgebrune tried to ensure that at least Alsbere—who had begun to revise his own ingénue conservative political stance—was ‘taken out of the equation in as far as possible’.*' Nonetheless, Hahn took a glum view of the DNVP lawyers’ position in the proceedings. The ‘nationally conscious defendants and lawyers’ faced the untrustworthy Giinther, suspected of mendacity, represented by the Jew Alsberg (for Gollnick will surely make way for him)—and in addition barrister von Voss, who has been active as a Communist in Upper Silesia, defending the suspected Communist Niedrig. For the defence, this conglomeration is truly unpleasant and may spring many a surprise on us.”

Hahn was right. The inability to exclude politically unsympathetic lawyers was decisive for the disastrous course the trial took from the DNVP’s point of view. Alsberg, who represented the owners of the garage where the car used in the plot had been hidden prior to the murder, demonstrated that his clients had fallen victim to the scheming and rhetoric of far-right organizations. In cross-examination, barrister Gollnick encouraged Willy Giinther to lay open his connections to rightwing organizations and politicians. Gunther, it turned out, had received 320,000 RM from DNVP leader Hergt himself, though not in direct connection with the assassination plot.” Incensed, Luetgebrune jumped up to denounce Ginther as a ‘pathological liar’ and a ‘fellow devoid of honour’. In reply, barrister Gollnick coolly pointed out that only weeks before, Luetgebrune had been vying to be entrusted with the defence of Gtinther’s honour. The Vossische Zeitung declared the episode symptomatic for the ‘basic problem’ of the trial: the lawyers’ attempts to get their clients to implicate themselves and thus exonerate the nationalist political leaders. With their tendency ‘to bring their clients to self-destructive statements’, BA(K) NL 1150 Luetgebrune Band 11 [non-foliated], Hahn to barristers Greving, Sack and Luetgebrune, Berlin 10.9.22, Luetgebrune to Hahn, Gottingen 15.8.22. *° Tbid., Giinther to Luetgebrune, Moabit 23.9.22. *! Barristers Sack and Hahn worked on the parents of the Techow brothers, who were not of legal age, to extend their own mandate to include Luetgebrune. ‘The aim was not only to have Luetgebrune participate in the trial after Giinther’s refusal to appoint him as his lawyer. It was also that no defendant could have more than three lawyers, so that by the Techow brothers employing Luetgebrune, the danger of their appointing Alsberg in addition to Hahn and Sack was kept at bay (BA(K) NL 1150 Luetgebrune Band 11 [non-foliated], Hahn to Luetgebrune, Berlin 28.9.22). * BA(K) NL 1150 Luetgebrune Band 11 [non-foliated], Hahn to Luetgebrune, Berlin 28.9.22. *> Briefing barrister Hahn, Hergt claimed that Giinther had misused his son Oskar’s name, and that he had only authorised the money ‘for purposes of defence’ (BA(K) NL 1150 Luetgebrune Band 11 [non-foliated], “Notiz Riicksprache mit Staatsminister HERGT, tiber Giinther’ [carbon copy], signed Hahn, [no place given] 17. (or 27.) 9.[1922]).

The Rise of National-Socialist Legal Organizations 139 the nationalist lawyers were happy to sacrifice them on the DNVP altar, the paper concluded.” The presence of non-party lawyers destabilized the tectonics of the DNVP’s defence. After Giinther had broken ranks, the remaining defendants started implicating each other—not exactly a dignified spectacle of youthful nationalist idealism. On 13 October, Ernst-Werner Techow, the most senior conspirator on trial, gave a full confession, though he stopped short of denouncing the DNVP or other right-wing organizations. Techow’s restraint may have been reinforced by the box of Sarotti chocolates containing a high concentration of arsenic which Gunther received one day and which he—wisely or fortunately—shared with his co-defendants. Thanks to Giinther’s generosity, only bouts of sickness were induced by the poison. The message, however, was clear.” An element of bad luck (from their perspective) notwithstanding, the DNVP lawyers had failed. The general climate had been unfavourable, and it was unfortunate from the party’s point of view that Gollnick and Ginther were school friends. Otherwise, Luetgebrune might well have cajoled Giinther into shielding the party. Some defendants appear to have been swayed in this way, or simply bribed.” Bearing in mind the Communist legal organization's success, however, the main reason for the DNVP’s Waterloo in the Rathenau trial was the failure to provide an infrastructure to ensure that the party, not the individual accused, would appoint, pay, and control lawyers.

That this was an organizational failure is underlined by the individual competence and energy of the lawyers involved. Walter Luetgebrune in particular did what he could to promote a more aggressive line of defence. He sent articles covering the trial to the party press and encouraged the DNVP leadership to co-ordinate all similar efforts. His push for more media exposure expressed not only his zeal for the German Nationalist cause, but illuminates the nexus of personal and political ambition, and of ideological and economic motives in party legal aid. Luetgebrune had an associate scan the press for articles on the trial naming him (which, the clerk assured Luetgebrune, ‘all the major dailies had done’). Reports in the local Géttinger Tageblatt and Hannoversche Landeszeitung, where potential clients might come across his name, were especially welcome.” In the Reichsbund, his initiative met with a lukewarm response. Willy Hahn refused to endorse Luetgebrune’s plan, and while the party leadership politely opined that his ‘suggestions’ were ‘of great significance’, it took no action beyond pointing Luetgebrune towards the Deutsche Tageszeitung editor Paul Baecker.** Unabashed, Luetgebrune syndicalized his articles independently of the party, as we will see in chapter five below.” *4 Die Helfer im Verhér’, VZ 6.10.22, quoted following Heydeloff, R., ‘Staranwalt der Rechtsextremisten. Walter Luetgebrune in der Weimarer Republik’, V/Z 32 (1984), pp.373-421, p.387. *> ‘The provenance of the poisoned chocolate was never cleared up (Hannover, H./HannoverDriick, E., Politische Justiz, p.119f.).

*° BA(K) NL 1150 Luetgebrune Band 11 [non-foliated], Bloch to Luetgebrune, 1.9.22, Giinther to Luetgebrune, 17.9.22 and 23.8.22; Hahn to Luetgebrune 28.9.22. *” Tbid., Walter Luckhardt to Luetgebrune Gottingen 31.8.22. °* Tbid., Willy Hahn to ‘Liittgebrunn’ [sic], Berlin 30.8.22, ibid., Parteivorstand DNVP to Luetgebrune, [signed Kube (?)], Berlin 18.9.22. ” Tbid., “Berliner Korrespondenz-Bureau’ [a conglomerate of news agencies owned by Martin Sochaczewski, including the “B.S. Korrespondenz’] to Luetgebrune, Berlin 31.8.22.

140 Courtroom to Revolutionary Stage Frustrated with the Nationalist Party’s lack of initiative, its most ambitious lawyers called for far-reaching control over defendants.°*’ In the future, Walter Luetgebrune argued, a much tighter reign was necessary so that next time ‘a unitary fighting front is not compromised or even just hobbled’.*! Concern for the fate of the individual accused was misguided insofar as it interfered with the protection of the party’s interest. Luetgebrune had chafed, for example, at Willy Hahn's second thoughts over the proposed ‘defence’ of Willy Giinther. Was it

really appropriate, Hahn had wondered aloud, to try to commit Ginther to silence in court given that Luetgebrune fully intended to attack him as a traitor? Luetgebrune had dismissed these concerns out of hand even before the trial.* Now, seeing himself vindicated, he argued that lawyers who thought their cli-

ents more important than political organizations were to be excluded from defence work outright. As to defendants, Luetgebrune made the ‘entitlement’ to legal aid dependant on their willingness to subordinate personal interest to the party’s.*°

In response to the Rathenau trial, Walter Luetgebrune thus formulated a radicalized model for nationalist defence work. Closely echoing the principles of party legal aid Paul Levi had postulated in the Luxemburg trials, his vision approxi-

mated what the Communist legal organization was practicing already. Right down to the clash of generations and personalities—for Levi vs. Heinemann read Luetgebrune vs. Hahn**—the Rathenau trial catalyzed the radicalization of rightwing defence work in a way reminiscent of the militarism trial on the left. It also showed that the DNVP Reichsbund was unable to function in a way comparable to the KPD legal organization. As the defendants’ ‘youthful idealism’ descended into bickering over who did what and when, with daily confessions, accusations, and counter-accusations, the opportunity for a public display of principled defhance was missed. The barristers’ and defendants’ infighting merely looked unprofessional and selfish. Although Willy Hahn’s Reichsbund continued to exist as a loose discussion club issuing the occasional polemic or book review at least until 1931/2, it was soon eclipsed.*? The more ambitious and radical young nationalist lawyers turned elsewhere, and eventually formed an important constituency of nascent National Socialist legal aid. By 1931, Alfons Sack had joined the Association of NS German Lawyers, while Walter Luetgebrune headed the rival SA legal organization.

°° ‘Ina letter to his wife Milly, Luetgebrune complained about the ‘inner rage’ which ‘all this trouble’

with Alsberg had given rise to (Heydeloff, R., ‘Staranwalt der Rechtsextremisten’, V/Z 32 (1984), pp.373-421, p.387). °! Luetgebrune to Bloch, 18.10.22, quoted following Heydeloff, R., ‘Staranwalt der Rechtsextremisten’, V{Z 32 (1984), pp.373-421, p.387. *° BA(K) NL1150 Luetgebrune Band 11 [non-foliated], Luetgebrune to Hahn, 15.8.22. °° Luetgebrune to Bloch, 18.10.22, quoted following Heydeloff, R., ‘Staranwalt der Rechtsextremisten’, V{Z 32 (1984), pp.373-421, p.387. BA(K) NL1150 Luetgebrune Band 11 [non-foliated], Hahn to Luetgebrune, Berlin 28.9.22. °° BA(K) NL1150 Luetgebrune Band 11 [non-foliated], “Erklarung gegen $5 Republikschutzgesetz [carbon copy], [no place given, undated], issued by “Reichsbund Deutschnationaler Anwalte und Notare’,

The Rise of National-Socialist Legal Organizations 141

SYMBOLS WITHOUT SUBSTANCE? THE PATRIOTIC PRISONERS AID/NATIONAL EMERGENCY AID On 28 January 1928, barristers Willy Hahn and Alfons Sack gave the keynote speeches at a mass rally in the teachers’ union house on Alexanderplatz in Berlin.

The meeting's motto was a popular Communist slogan: ‘Out with the political prisoners!’ A first indication that the prominent right-wing barristers, both involved in the Rathenau trial, had not dramatically switched sides in the five intervening years was given by the rally’s date. 28 January was Kaisergeburtstag, the birthday of exiled ex-monarch Wilhelm I. Not the Rote Hilfe Deutschland was the initiator of the meeting, but the newly founded ‘Patriotic Prisoners Aid’ (Vaterlandische Gefangenenhilfe, VGH).°°

As the motto borrowed from the Communist legal organization suggests, the Vaterlindische Gefangenenhilfe intended to reproduce its success. Like its role model,

it aimed to utilize political trials to de-legitimise the democratic order. In connection with the so-called Feme trials, the Patriotic Prisoners Aid (fused soon after with the similarly inspired Nationale Nothilfe, National Emergency Aid) achieved some of its goals. Especially building up Paul Schulz as an iconic martyr figure, modelled deliberately upon Max Holz, proved an astute propaganda strategy. Ultimately, however, the organization could not sustain its early successes. It suffered from two deficiencies: an over-reliance upon a particular type of case and a fractious leadership which prevented the identification and organizational union with one political party. Still its importance can hardly be overestimated. ‘The Patriotic Prisoners Aid demonstrated the ready adaptability of the anti-judicial rhetoric, symbolism, and courtroom techniques pioneered by the extreme left to the aims and requirements of the extreme right. In that sense, it pushed open the door for the National Socialist legal organization and then conveniently stepped aside.

Origins and organizational structure The incentive for Nationalist legal aid was provided by the so-called Feme murder trials against members of the irregular militias known collectively as the ‘Schwarze Reichswehr .°’ Paranoid about ‘traitors’, the organization’s leader, lieutenant-major

Paul Schulz, instituted a system of repression and control known as the Feme courts in allusion to a form of justice allegedly practised in the Middle Ages. The

°° BA(B) R1507 RKO Band 328, [6] ‘Heraus mit den Politischen Gefangenen!’, Fridericus No.2, January 1928. 37 Sauer, B., Schwarze Reichswehr und Fememorde. Eine Milieustudie zum Rechtsradikalismus in der Weimarer Republik, Berlin 2004. See also Irmela Nagel’s perceptive discussion of the Feme killings and

trials (Nagel, I., Fememorde und Fememordprozesse in der Weimarer Republik, Kélner Historische Abhandlungen 36, KéIn 1991). Ulrike Hofmann’s study adds a wealth of detail, but little of conceptual novelty (Hofmann, U., ‘Verrater verfallen der Feme!’ Fememorde in Bayern in den Zwanziger Jahren,

K6éIn 2000). See also Gumbel, E., Verrater verfallen der Feme, Berlin 1929, on which Hannover/ Hannover-Driick’s discussion of the subject matter largely relies (Hannover, H./Hannover-Driick, E., Politische Justiz, pp.152-75).

142 Courtroom to Revolutionary Stage ‘courts. consisted of Oberleutnant Schulz’s subalterns travelling around under cover to kill suspected ‘traitors’ on the grounds of the silliest of hearsay. One Feme victim, Kadow, was suspected of being a Communist because he carried with him a blue card reminiscent of the membership pass of the KPD youth wing. Another, Schmidt, vented his anger after learning he had contracted a venereal disease. His driver had informed Edmund Heines (later the SA chief of staff and Breslau police president killed in the ‘Night of the Long Knives’), who decreed Schmidt's death

less than six hours after the throw-away remarks were made.*® The murders Schulz’s lieutenants perpetrated between 1921 and 1923 were adjudicated in the so-called Feme trials of 1926-1930. In June, 1926, the Reichsgericht ruled that the killings were unconnected to the Kiistrin Putsch of 1923 and therefore not high treason, clearing the way for the Landgerichte to prosecute for murder. Initially, only the subalterns and the ‘soldiers’ they occasionally ordered to carry out the killings were charged. On 26 March 1927, however, Oberleutnant Schulz himself was found guilty of ordering the murder of non-commissioned ofhcer Wilms. Along with his subordinates Klapproth, Umhofer, and Fahlbusch (who had fled abroad and was convicted in absentia), Schulz was sentenced to death by the Berlin Landgericht.”°

Though commuted to life imprisonment, the verdicts sparked protests. “Nationalists in the Dungeons’, screamed the headline of Arminius the morning after the trial. The organ of the ‘new nationalists’ around Free Corps leaders Ehrhardt and right-wing publisher von Oppen grandly announced the foundation of the Nationalistische Nothilfe (Nationalist Emergency Aid). The ‘upright and defiant’ Feme killers had ‘acted in the service of the state’ not just by their deeds but also by shielding the regular army.*° The public’s acceptance of the verdicts, the paper argued, was therefore tantamount to ‘the death of nationalist will’, and legal aid the antidote: “The Red Aid exists, the Nationalist Emergency Aid has been called into being’. In early 1928, the organization, renamed Nationale Nothilfe, fused with the Vaterlindische Gefangenenhilfe, and the Berlin right-wing weekly Fridericus took over Arminius mantle as the flagship organ. Its editor, Friedrich Carl Holtz, assumed the leadership of the organization.*! According to its statutes, the Patriotic Prisoners Aid aimed to ‘protect and promote the rights and interests of nationally conscious Germans’ accused of ‘political crimes’. In particular, it would ‘provide them with legal assistance free of charge’ and

°S Hannover, H./Hannover-Driick, E., Politische Justiz, p.155, p.159; BA(K) KLE 653 von der Goltz Band 2, [103]. °°? Hannover/Hannover-Driick, Politische Justiz, p.166, p.169. “© BA(B) R1507 Reichskommissar zur Uberwachung der dffentlichen Ordnung (RKO) Band 328, [4] ‘Nationalisten in Kerkern’, Arminius No.13, 27.3.27. “1 Just how von Oppen and Friedrich Holtz reached agreement is unclear. Arminius closed down due to financial difficulties (BA(B) R1507 RKO Band 328, [16] ‘12. Rechtsradikale Hilfsorganisatio-

nen [excerpt from RKO report ‘Inl.124’, 24.12.27]), but ‘clandestinely’ the NN continued to be ‘busily operational’ and had by early 1928 made payments to a number of right-wing prisoners, including the Rathenau assassin Ernst-Werner Techow. The political branch of the Berlin police department thought it likely that the NN would succeed in its aim of uniting all right-wing organisations in its campaign (ibid., [11] Polizeiprasident von Berlin, Abteilung IA to RKO, Berlin 25.1.28).

The Rise of National-Socialist Legal Organizations 143 support their dependants. External commentators echoed the organizations’ selfview as a nationalist version of Communist legal aid. The Reich Commissariat for the Protection of Public Order summarized its mission as ‘providing defendants and prisoners with legal and material aid in a way similar to the Red Aid’.** In late December, 1927, Friedrich Holtz founded the Deutsche Hilfe (‘German Aid’, DH) as a mass-membership, union-like association to ‘free the national workers’ from the ‘economic terror’ of ‘the Reds’.“* Like the Red Aid, the Deutsche Hilfe saw itself not (just) as an ‘insurance club’ or an ‘association for the collection of charity’ but rather

cast itself as a ‘fighting association [Kampfbund]’ and a ‘protection and defence association of German men and women [Schutz-und Trutzbund deutscher Manner und Frauen]’. Vis-a-vis the projected mass membership organization, the Patriotic Prisoners Aid/National Emergency Aid would co-ordinate the political pressure for retrials of the imprisoned nationalists and campaign for a general amnesty.” In his unpublished reminiscences, nationalist lawyer Friedrich Grimm corroborates that the Deutsche Hilfe looked after the ‘personal support of the Feme victims’ (meaning the killers, not the killed), while the National Emergency Aid conducted the ‘legal

struggle and the political and publicistic struggle’. Grimm also emphasized the importance of the “Berlin press bureau’ led by Gotz Stoffregen, the author (under the pseudonym Friedrich Felgen) of a successful pamphlet on the ‘Feme-lie’.“° Here, too, the parallels to Communist legal aid are manifest.

Clearly, the Patriotic Prisoners Aid and the Deutsche Hilfe aspired to emulate and rival Communist legal aid, but to what degree did they succeed? In terms of membership, they failed to live up to the high expectations of their founders, who had envisaged an ‘immense organization’. Presenting the ‘masses’ with ‘the goodly and understanding helper’ rather than the ‘lusty, convoluted snout of the amusement-devil’ found little resonance.** Purportedly ‘inundated’ by the response to their call to arms, nationalist legal aid organizations never published membership figures. By contrast, the exhortations to contribute grew increasingly exasperated: ‘Quite a few glasses of beer could remain un-drunk, quite a few cigars and cigarettes un-smoked, and the savings donated to the so-called “political criminals” whose crime is loving their fatherland’, the Deutsche Zeitung admonished its read-

ers in August 1928.” Reich Commissariat for the Protection of Public Order

reports on attempts to build local chapters paint a despondent picture. In “ BA(B) R1507 RKO Band 328, [2] “Bericht Polizei Prasident Berlin Ende Dezember 1927’. *S BA(B) R1507 RKO Band 328, [16] ‘12. Rechtsradikale Hilfsorganisationer [excerpt from RKO report ‘Inl.124’, 24.12.27]. “ BA(B) R1507 RKO Band 328, [19] ‘Satzungen der DH’, Fridericus No.3, January 1928, ibid., [30] ‘Deutsche Hilfe’, Fridericus No.5, February 1928. ® Tbid., “Deutsche Hilfe’, [excerpt from ‘Lagebericht Polizei Président Berlin No.20 vom April 1928]. “%e Felgen, EF (pseud. for Stoffregen, G.)/ Weifs, W./ von Birckhahn, H.-A., Oberleutnant Schulz ein Opfer der Femeliige. Zweite Auflage des Buches “Die Femelige”, Miinchen 1929. Apart from Stoffregen, the

VGH/NN employed another ‘manager’ full time (BA(K) NL 1120 Grimm Band 13, p.41). ‘7 BA(B) R1507 RKO Band 328, [30] “Deutsche Hilfe’, Fridericus No.5, February 1928.

“8 Otherwise, ‘the people in its distress must become embittered, must become desperate, must become evil [schlecht]’.

” Tbid., [98] “Euch geht es schlecht? Und ihnen?’, Deutsche Zeitung No.197, 22.8.28.

144 Courtroom to Revolutionary Stage Offenbach, the organization’s success was ‘very small’ according to a November 1928 report, whereas in Plauen a mere 30 members had joined in nine months.” Political infighting further cobbled nationalist legal aid. Nationalist politicians including Hitler, the DNVP’s Count Eulenburg, the Stahlhelm leader Seldte, and the leader of the Vereinigte Vaterlindische Verbdande von der Goltz senior supported the organization's Feme campaign. But the various right-wing groups also imported their enmity into the Patriotic Prisoners Aid. The National Socialists in particular were accused of ‘demagogy to raise their own profile.?! Moreover, Friedrich Holtz was an irascible and vain character, whose spats with other leaders were legion. In March 1929, the executive of the Patriotic Prisoners Aid (under its ‘president for life’ Holtz) banned members from ‘political’ activity, i.e. party membership.’ This decision sealed the organization's fate, especially as it coincided with the launch of the National Socialist legal aid, which henceforth eclipsed it. Its shortcomings notwithstanding, the Patriotic Prisoners Aid provided the infrastructure for successful propagandistic work and attracted large donations. By the end of 1928, it had taken in almost 80,000 RM. Every month it paid around 6,000 Marks to 42 prisoners and around 150 dependants. In 1928, the Patriotic Prisoners Aid’s budget (including support payments) exceeded the amount the Red Aid spent on legal aid.’’ In its heyday, between early 1928 and the summer of 1929, its initiatives resonated broadly. The Reich Commissariat for the Protection of Public Order estimated that rallies in Berlin in January and Bremen in February 1928 were attended by 2,500 and 1,700 people, respectively. Whereas a Dresden meeting in April of that year only attracted 300 people, 5,000 attended the rally for the ‘Feme judge’ Paul Schulz, released on grounds of ‘ill health’ in Berlin’s Zirkus Busch in July 1929.% A respectable turn-out, though modest compared to the estimated 80—100,000 that had greeted Max Holz in the Berlin Lustgarten on his release a year earlier. Patriotic Prisoners Aid press releases were printed by many right-wing newspapers, from the vélkisch

organ Deutsche Tageszeitung via the DNVP friendly Kreuz-Zeitung to the National Socialist Volkischer Beobachter. Before the Patriotic Prisoners Aid through its own errors retreated into obscurity, it proved the adaptability of the anti-judicial strategy pioneered by the KPD to the needs of the nationalists. From the start, the mode of operation of the Patriotic Prisoners Aid was modelled explicitly on the Red Aid. According to Friedrich Holtz, it was ‘called into life °° RKO report (BA(B) R1507 RKO) Band 328, [124]), ibid., [99] “Bericht Dresden’ [excerpt], 21.8.28. i BAB) R1507 RKO Band 328, [33] “Kundgebung der Vaterlandischen Gefangenenhilfe’, Deutsche Werksgemeinschaft No.5 [Eingangsstempel 5.2.28], ibid., [131] ‘Die entscheidende Waffenhilfe Mahrauns. Der “Fridericus” tiber die jungdeutsche Arbeit ftir die Femetater. Die Nationalsozialistische Fiihrung schweigt!’, Der Jungdeutsche No.179, 30.7.29. ** ‘An alle Einheiten und Mitglieder der DH’ (BA(B) R1507 RKO Band 328 [125] Fridericus No.10, March 1929. °> BA(B) R1507 RKO Band 328, [95]f. RKO memo entitled “Hilfsorganisationen der Rechtsbewegung ftir politische Gefangene’, [undated], ibid., [61] “Vaterlandische Gefangenenhilfe’, Fridericus No.22, June 1928. * Tbid., [93] ‘Aus Lagebericht Bremen Nr.3 vom 6.3.28’, ibid., [56] “Bericht Dresden 24.4.28° Sea, ibid., [130] ‘Heraus mit den Femerichtern’ [number of issue unreadable], [Eingangsstempel

The Rise of National-Socialist Legal Organizations 145 following the example of the Red Aid [...] All that which the Red Aid is capable of, the VGH should be able to provide with ease’. According to Friedrich Grimm, Nationale Nothilfe founder von Oppen was thinking along exactly the same lines: ‘As example and template, Herr von Open envisaged the Red Aid’, ‘a powerful organization in public life’.”” Material support to prisoners and their families was designed to bolster the loyalty (and reticence) of offenders.” Right-wing prisoners hailed the Patriotic Prisoners Aid as providing a counterweight the KPD legal organization. ‘In a truly outstanding manner’, an open letter in the Fridericus claimed, ‘the Red Aid provides its supporters with everything a prisoner needs. And many a weak one has already changed into the other camp because—helpless himself—he knew no other way.’ ‘The editor had set the passage in bold type and recurred to it in his concluding remarks, asking whether ‘we nationally thinking Germans want to let ourselves be put to shame by the Communists?!’ In the following months, Fridericus continued playing on the theme of ‘shame’: “The Communists look after the left-wing political prisoners through the Red Aid. Do we want to let the Communists shame us? Are the wives of our prisoners to stand

before their hungry children with empty hands, thinking “If your father was imprisoned as a Communist, you would not need to starve” Never!’?’

More important even than actual prisoner support was its propagandistic exploitation.”® Considerable thought and energy were expended on regular meetings with sympathetic reporters, who were liberally ‘lubricated’, i.e. provided with ample supplies of alcohol and food.” Press releases and rallies were designed to ensure a public echo for the Patriotic Prisoners Aid’s agenda of securing retrials, pardons, and a general amnesty. The main thing, according to Friedrich Grimm, was ‘influencing the public’: ‘financing and directing the struggle for justice ourselves was of paramount importance, not just the trials, but above all the struggle in the press’.®° The captives’ supposedly inhuman conditions of imprisonment,

dramatised reports on the activities of local chapters of the German Aid, and appeals for nationalist solidarity stood in the foreground. By portraying individual prisoners as models of patriotic self-eftacement, the Patriotic Prisoners Aid created powerful vehicles for its anti-Republican message. In January 1928, for example, a long article in the Fridericus eulogized Theodor Benn, imprisoned for his part in the Feme murder of Erich Pannier.®' The ex-lieu-

tenant’ death sentence had been commuted to life imprisonment, or to being ‘buried alive’, as the paper put it using a metaphor equally popular on the left. >> BA(B) R1507 RKO Band 328, [36] Sachsisches Innenministerium to RKO, Dresden 16.2.28, ibid., [46] RKO report from the Dresden Stahlhelm convention 7.2.28, BA(K) NL 1120 Grimm Band 13, p.40. “SP Sec e.g. BA(B) R1507 RKO Band 328, [34] “Vaterlandische Gefangenenftirsorge”. Schulz droht aus dem Gefangnis’, Berliner Tageblatt No.61, [Eingangsstempel 5.2.28]. *” BA(B) R1507 RKO Band 328, [57] Fridericus No.14, April 1928. 8 BA(B) R1507 RKO Band 328, [19] ‘Satzungen der “Deutschen Hilfe”’, Fridericus No.3, January

1° BA(K) . NL 1120 Grimm Band 13, p.41.

60 BA(K) NL 1120 Grimm Band 13, p.40. °! Hannover/Hannover-Driick, Politische Justiz, p.161.

146 Courtroom to Revolutionary Stage Despite his own family’s suffering, Benn had reported from prison only his subordinates’ hardships. “In this man in the prisoner’s kilt’, the author enthused, ‘the old spirit of the superior, leader, and officer is still alive, who says: The comrades first’. The paper also printed a poem composed by Benn in the ‘loneliness of his cell’. The poem is addressed to ‘you my fatherland’, and recounts in pathetic verse the story of Benn’s ‘love’ for his country. This love occasions sacrifice, and is then spurned: “You shun my love and spit on it/For my faith you ridicule me! -/And had I done injustice ten times over/I did it for you, I did it for you’. The poem has a happy ending, though: the ‘helping comrades’ hand’ rekindles Benn’s love and hope and renews his readiness for self-sacrifice: ‘And whether you repay me with suffering/It matters not,—If only you awaken again,/My Germany!!’” By highlighting the uplifting effect of the ‘comrades’ helping hand’, the poem strongly endorses the Patriotic Prisoners Aid. Moreover, it sets the stage for the prioritisation of the ‘national’ over all other values, especially the law: ‘And had I done injustice | Unrecht] ten times over/I did it for you’. Glossing the piece, Fridericus took up this theme: “Guilty or not guilty! The cause of these men is the cause of every nationally conscious German [...] History will one day pass a different verdict on the “Feme murderers” than German courts, hemmed in by the law's paragraphs, have done.’ It hardly needs pointing out how corrosive the exaltation of nationalism over law—to the point of sanctioning murder—was for democratic political culture. Just like the Red Aid, the Patriotic Prisoners Aid banked on the unifying potential of anti-judicial rhetoric. The Deutsche Zeitung, for example, pinned high hopes on the German Aid’s first mass meeting in Berlin, ‘a beginning’ which ‘must become a mighty affirmation of all those which have not yet lost in the grey everyday struggle for their pitiful little selves every stirring of comradeship and union with men who have risked blood and estate for our cause.’ Political lawyers gave much impetus to the Patriotic Prisoners Aid. The organization’s secretary and second in command, Heinrich Brandt, had trained as a lawyer and barristers held local leadership positions.®%* Prominent attorneys spoke at

the organization's rallies and provided arguments for its campaigns. Friedrich Grimms theory of ‘national self-defence’, for example, exonerated the Feme killers. The Patriotic Prisoners Aid cited Grimm with gusto: ‘even those who have killed traitors are innocent.°° Echoing barrister Hainz in his plea for ‘rigorously Leninist defending’, Friedrich Grimm argued that the Feme killers lacked any subjective consciousness of wrong°° BA(B) R1507 RKO Band 328, [25] ‘Vaterlandische Gefangenhilfe’ Fridericus No.3, January ve BA(B) R1507 RKO Band 328, [9] ‘Gerechtigkeit fiir Schulz! Der Wiederaufnahmeantrag ftir

Schulz, Fuhrmann, Klapproth und Umbhofer’, Deutsche Zeitung No.16 [Eingangsstempel ae BAB) R1507 RKO Band 328, [61] “Vaterlandische Gefangenenhilfe’, Fridericus No.22, June 1928), ibid. [102]-[106] ‘Abteilung IA Bericht [Abschrift], [signed Dr Braschwitz] Berlin 30.9.28, [105]; BA(K) KLE 653 von der Goltz Band 2, [108]. ° BA(B) R1507 RKO Band 328, [115] ‘Aufruf’, Deutsches Tageblatt No.300 [Eingangsstempel

ae rate nue piece under the title ‘Fiir unsere politischen Gefangenen’ VB No.288, 11.12.28

The Rise of National-Socialist Legal Organizations 147 doing because of their ideological commitments. Moreover, the necessity of selfdefence in Upper Silesia had created a ‘state of emergency above the law’, a cue Walter Luetgebrune and Riidiger von der Goltz took up subsequently. Defending Edmund Heines, von der Goltz evoked ‘ultimate principles of justice’: Were the Feme killers not ‘licensed in the last by the rule of law [Rechtsordnung], if we accord them their timeless justification [uberzeitliche Rechtfertigung]? Rights of the state of emergency? Selfless self-defence in favour of the state, which in its prostrate condi-

tion could not defend itself?’ The argument also recalled KPD barrister Ernst Hegewisch’s justification of the Hamburg insurrections of October 1923. The botched revolt could not be high treason because the constitution had already been ‘punctured [durchlochert]’ by the Reich government's offensive against Zeigner’s government in Saxony. In a state of lawlessness, it was pointless to speak of breaking the law.

An anti-positivist tenor informed the arguments of party lawyers from both political extremes. Something ‘higher’ than the ‘paragraphs’ of the law existed, a distinction expressed in the German terms ‘Gesetz’ (statute) and ‘Recht’ (justice or law). Communist and nationalist lawyers naturally disagreed on the origin and content of “Recht.°’ They agreed, however, that their respective version of ‘Recht’

took precedence over the Republic’s “Gesetz’.. The extremist barristers’ antipositivism legitimised political crime while accusing parliamentary democracy of perverting ‘justice’ through its ‘statutes’ .°* Symbolism and imagery highlighting the victim role of the right in political trials underpinned nationalist legal aid. Articles in the Fridericus often carried a frontispiece depicting a drowning man, battered by waves and about to go under. Rowing towards him through the storm is a group of sturdy figures in oilcloth, one of whom reaches, Sistine-Chapel style, for the outstretched arm of the shipwrecked sailor. The German Aid logo featured a happy group of toilers watched over by a glowering figure with a large, rectangular, pointed shield: the “German Aid Knight’.”” Evocations of this figure also pepper articles celebrating the organization: ‘Above the knight with the sword and the shield emblazoned “Deutsche Hilfe’ our banner flies proud’; ‘[w]here things are at their reddest, the knight with the black, white, and red shield and the motto “German Aid” feels most in his element.’”’ These symbols obviously

imitated Communist anti-judicial aesthetics—the ‘German Knight’ locked horns with the ‘Red Helper’-—although the concrete form and ideological content differed. The ‘Knight’ protected a quasi-feudal idyll, where family and estate hierarchies were °° BA(K) KLE 653 von der Goltz Band 2 [95]-[98], here [97], Bessel, R., “The Potempa Murder’, Central European History, vol.10 (1977), No.3, pp.241—54, p.250f. °” BA(B) R1507 RKO Band 328, [26] ‘In Mérderzellen gesteckt’, Fridericus No.4, January 1928. °8 Cf. Heydeloff, R., “Staranwalt der Rechtsextremisten’, V/Z 32 (1984), pp.373—421, p.390.

|.

° BA(B) R1507 RKO Band 328, [25] ‘Vaterlandische Gefangenhilfe’ Fridericus No.3, January

“v0 See ibid., [28] “Deutsche Hilfe’, Fridericus No.5 February 1928, ibid., [110] “Deutsche Hilfe. Mitteilungen der Bundesleitung’, Fridericus No.46, November 1928 and especially ibid., [101] leaflet ‘An die Schaffenden aller Stande’, [undated]. ”’ BA(B) R1507 RKO Band 328, [60] “Vaterlandische Gefangenenhilfe’, Fridericus No.19, May 1928, ibid., [122] “Wie die DH Ordnung schaffte’, Fridericus No.2, January 1929.

148 Courtroom to Revolutionary Stage clearly signalled in dress and posture. By contrast, the “Red Helper’ or the prisoner breaking out of a stylized dungeon were simple, angular human figures, naked, muscular and free from any social trappings or insignia of status, almost machine-like in their featurelessness and the modernity of their depiction.” Nevertheless, the basic message such icons conveyed was the same: judicial repression elicited the solidarity and reinforced the cohesion of the respective ideological camp. In the use of language, too, the Patriotic Prisoners Aid borrowed liberally from

the left, denouncing ‘class justice’ and calling for a ‘unity front.” ‘Femejustiz’ became a word eulogizing the murderous activities of Schulz’s subalterns. Thanks to the Patriotic Prisoners Aid’s campaigns, ‘quite soon [...] one came to understand’ under the term ‘victims of the Femejustiz’ not just the six ‘traitors’ ‘executed’ between 1920 and 1923, ‘but also all the numerous officers, subalterns and privates prosecuted|[...] because of the so-called Feme murders.”

Casting Paul Schulz as the right-wing Max Holz In a collection of polemical essays programmatically entitled Paul Schulz, victim of the Feme-lie, Dietrich Loder addressed a poem “To Oberleutnant Schulz’: For you, there was no mercy in their amnesty— that “mercy” reached out only to Hélz and company.

Unlike this hero of the mob you failed to burn and rob You only sacrificed ten years To spare Germania’s tears.”

Modelled explicitly on the Communist Party's Max Holz propaganda, the Schulz campaign was the Patriotic Prisoners Aid’s greatest success. Pathos, imagery, and marketing techniques lifted straight from the Red Aid’s copybook built up Schulz as a larger-than-life figure, as ‘the’ political prisoner of the right. Schulz was the mainstay of the speaking tour Patriotic Prisoners Aid founder Holtz undertook in February 1928.”° The NSDAP scheduled a ‘public protest rally against the injustice done to front soldier Paul Schulz’ in the Burgerbraukeller in Munich, with Goebbels address (‘Death Dance of the German People’) the main event.’”” When the ” BA(B) RY1/I4/4 Rote Hilfe Deutschland (RHD) Band 2, [10] ‘Einladungskarte zum II. Reichskongref$ der Roten Hilfe Deutschlands, Berlin’ [12—14.10.1929]. > BA(B) R1507 RKO Band 328, [97] leaflet ‘An die gefangenen Kameraden!’

7 BA(K) NL 1120 Grimm Band 13, p.40. ” Loder, D., ‘An Paul Schulz’, p.79f. in Felgen, FE. (pseud. for Stoffregen, G.)/ Weif$, W./ von Birckhahn, H.-A., Oberleutnant Schulz ein Opfer der Femeliige. Zweite Auflage des Buches, Die Femeliige’, Miinchen 1930. ”© BA(B) R1507 RKO Band 328, [46] RKO report from the Dresden Stahlhelm convention 7.2.28. and ibid., [47] RKO report on Leipzig VGH rally, 26.2.28. ’” On the right, the persecution of the Feme murderers was widely bemoaned as typical for a sup-

posedly peculiarly German tendency to self-destructive behaviour (BA(B) R1507 RKO Band 564, [61] VB No.39 [Eingangsstempel 16.2.28}).

The Rise of National-Socialist Legal Organizations 149 1928 political amnesty temporarily foundered in the Reichstag in April, Schulz was used to pressurise deputies. The German Nationalist People’s Party—which had

objected to the amnesty law to prevent the release of left-wing offenders—felt obliged to justify itself to the Patriotic Prisoners Aid.” Contributors to the ‘fighting fund Schulz’ received a signed photograph of the ex-Oberleutnant.”” Schulz’s barristers played a crucial role. The campaign's legal basis was the one hundred page motion for a retrial submitted to the Berlin Landgericht by barristers

Walter Luetgebrune and Friedrich Grimm.*’ Again, the parallel to Hélz, whose release was facilitated by the media echo of Felix Halle and Alfred Apfel’s motion for a retrial, is striking. Via the right-wing press, the motion was circulated far beyond the courtroom under headlines eliciting “Justice for Schulz!’.*' A rhetorically embellished version (Truth and Justice for Feme, Black Reichswehr, and Ober-

leutnant Schulz) appeared in the nationalist Lehmann publishing house. The volkisch Lehmann ‘relentlessly put his connections and his publishing house at the service of this struggle for justice’, as Friedrich Grimm recalled. In fact, the publisher announced that all proceedings from Luetgebrune’s books would go directly

to Schulz, and thereby benefit ‘all the Feme judges’. Luetgebrune, Grimm, and Alfons Sack promoted Schulz’s cause in numerous public meetings, as well as in the press.’ Writing in the Deutsche Zeitung in December 1928 (‘Christmas in prison’), Grimm eulogised Schulz as the ‘ideal type of the old soldier, true to his duty, modest, and upright’. Twice, in almost identical passages, Grimm hailed Schulz’s courage and readiness for self-sacrifice. An ‘extraordinarily sympathetic appearance’, Schulz had been unjustly sentenced not by mistake, but precisely because his idealism was anathema to the present political order.*° The parallels between the presentation of Schulz and the Max Hélz campaign were no coincidence. In an ‘open letter’, Schulz himself drew the parallel. After complaining of food, clothing and mistreatment, Schulz asked—in bold type— ‘how has Max Hélz been treated in prison?’** The DNVP faction in the Prussian

parliament submitted a query about Schulz’s treatment in captivity, timed to ’® BA(B) R1507 RKO Band 328, [51] Welt am Montag No.14 [Eingangsstempel 2.4.28]. ” BA(B) R1507 RKO Band 328, [65] ‘Schulz im Zuchthaus Minster’, Tagliche Rundschau No.279, 17.6.28, [32] ‘Kampffonds Schulz’, Deutscher Vorwarts No.7, February 1928, [95]f. RKO memo entitled “Hilfsorganisationen der Rechtsbewegung ftir politische Gefangene’, [undated]. ®° Grimm, B/Luetgebrune, W., Antrag und Begriindung zur Wiederaufnahme des Verfahrens zugunsten des Oberleutnants a.D. Paul Schulz aus Berlin, Miinchen 1928.

*' BA(B) R1507 RKO Band 328, [9] “Gerechtigkeit ftir Schulz! Der Wiederaufnahmeantrag ftir

Schulz, Fuhrmann, Klapproth und Umbhofer’, Deutsche Zeitung No.16 [Eingangsstempel 19.1.28]. ®° Luetgebrune, W., Wahrheit und Recht fiir Feme, Schwarze Reichswehr und Oberleutnant Schulz, Miinchen 1928. During the war, Lehmann’s contacts and publishing house had been a ‘valuable asset’ to the Alldeutscher Verband (Kershaw, |., Hitler 1889-1936, 2.ed., Stuttgart 1998, p.183). See also Large, D.C., Hitlers Miinchen: Aufstieg und Fall der Hauptstadt der Bewegung, Miinchen 1998, p.111, p.133, BA(B) R1507 RKO Band 328, [119] ‘Auch Weihnachten im Gefangnis’, Deutsche Zeitung No.299 [Eingangsstempel 20.12.28], BA(K) NL 1120 Grimm Band 13, p.40. ®° Grimm, F, ‘Auch Weihnachten im Gefangnis’, Deutsche Zeitung No.299, BA(B) R1507 RKO Band 328, [119] [Eingangsstempel 20.12.28]. * BA(B) R1507 RKO Band 328, [65] ‘Schulz im Zuchthaus Minster’, 7agliche Rundschau No.279, 17.6.28.

150 Courtroom to Revolutionary Stage coincide with Schulz’s open letter. One of its central allegations was that Max Holz received preferential treatment. Positioning Schulz as the nationalist H6lz and representative of ‘all the Feme judges’, the Patriotic Prisoners Aid contrasted idealism with the spinelessness and mendacity ascribed to the Republic and the courts. Like the Holz campaign, rehabilitating Schulz ultimately aimed at de-legitimizing the Republic. Most Germans, National Socialist chief whip Wilhelm Frick wrote, ‘take the simple fact that the Communist murderer and arsonist Max Holz still runs free [...] while the front fighter Paul Schulz, wounded in action sixty-four times is still serving his sentence as evidence for the complete moral corruption of the judiciary and the Republic’.” “Every word’ of Schulz’s was, according to the Deutsche Zeitung, ‘a severe indictment against the originators and disseminators of the Feme-lie, but also against all official authorities’ which had allowed the trials to proceed. Again, the paper highlighted that Schulz was treated ‘worse than the murderer and arsonist Max Holz’, and concluded: “The last word on the men sentenced for the so-called Feme deeds must not have been spoken. The struggle against the political system, whose guilt increases with every day the men are suffering in prison, continues.”*° Paul Schulz was released on 28 June 1929, officially because health problems rendered him unfit for captivity—even the circumstances of his exit from prison paralleled Max H@lz’s case. Paradoxically, this success was the beginning of the end for the Patriotic Prisoners Aid. Focused almost exclusively on the Feme murder cases, with no permanent lawyers’ organization and without close ties to a political party, it ran out of steam as its figurehead walked free. The fact that Schulz became Gregor Strasset’s second in command in the organization division of the NSDAP is emblematic for the decline of nationalist legal aid.*’ Eventually, barristers Alfons Sack, Walter Luetgebrune, Rtidiger von der Goltz and in 1933 also Friedrich Grimm followed suit by transferring their loyalty from the ‘above party Patriotic Prisoners Aid to the Nazis. In the Schulz campaign, the Patriotic Prisoners Aid not only employed juridico-

political techniques pioneered by the Communist Party, but used Max Hodlz’s popularity as a stepping stone. Although Hélz was castigated as a ‘murderer and arsonist’, in terms of political ‘idealism’ (expressed in violent action) he was Schulz’s equal. In that sense, the Patriotic Prisoners Aid’s embrace of an amnesty including

left-wing offenders such as Hélz was only logical.** It mirrored the sympathy of KPD leader Karl Radek for nationalist martyrs like Karl Schlageter and provides a stark illustration of the blurring of political extremes in paramilitary violence, rituals of male bonding, and apotheosized self-sacrifice. Patriotic Prisoners Aid leader Friedrich Holtz even invited the head of the Bremen Red Aid to a local rally (where his was the only vote out of 1700 cast against the final resolution). Including

® Quoted following Fulda, B., Press and Politics in the Weimar Republic, Oxford 2009, p.213.

86 Gloss on Schulz’s ‘open letter’ from prison (BA(B) R1507 RKO Band 328, [65] ‘Schulz im Zuchthaus Minster’, [agliche Rundschau No.279, 17.6.28). 8” Unlike Edmund Heines, who was shot in the ‘night of long knives’, Schulz narrowly escaped

with his life. After the war, he applied for support as a victim of Nazi persecution (Hannover/ Hannover-Driick, Politische Justiz, p.174). *§ BA(B) R1507 RKO Band 328, [46] report from the Dresden Stahlhelm convention 7.2.28. ®° BA(B) R1507 RKO Band 328, [93] ‘Aus Lagebericht Bremen Nr.3 vom 6.3.28’,

The Rise of National-Socialist Legal Organizations 151 offenders from the opposite extreme in amnesty initiatives foreshadowed and facili-

tated the eventual collusion of the extremist parties that secured the sweeping political amnesty of 20 December 1932. Both the KPD legal organization and the Patriotic Prisoners Aid exploited the unique suitability of judicial procedure to carry anti-Republican messages. Moreover, both the Hélz and the Schulz campaigns took place in the Republic’s ‘stability phase’. This observation bolsters recent arguments that even as the Republic found surer footing, anti-democratic elites laid the groundwork for the collusion of the political extremes that eventually brought its demise.”” Intended as conciliatory gestures, the release of Schulz and Holz failed to pacify the extremists’ antiRepublican zeal. On the contrary, the NSDAP and KPD would seize with renewed vigour the opportunities exacerbated ideological conflict in the Republic’s final years offered. In so doing, however, both could build on foundations laid in the so-called stability phase. Limited though it was, the Patriotic Prisoners Aid’s suc-

cess illustrates that trials could be made to serve extremist political ends quite independently of the verdicts. Objectively, claiming an unfair bias of the courts against nationalist political offenders flew in the face of the facts. Crucially, their ‘objective’ untruth did little, however, to diminish the publicity effect of the Patriotic Prisoners Aid’s polemics.

THE ASSOCIATION OF NATIONAL SOCIALIST GERMAN LAWYERS On 13 September 1928, a large advert in the Volkischer Beobachter announced the foundation of the Association of National Socialist German Lawyers (Bund Nationalsozialistischer Deutscher Juristen, BNSDJ). “The predicament of German legal life’,

Hitler declared ‘is a pressing concern of the times and an area of interest in the foreground of our party’s agenda’. The party leader exhorted all kinds of jurists— ‘barristers, assistant judges, state prosecutors, judges, civil servants etc. etc.—to join. However, the announcement that ‘organizational preparations’ had been entrusted to ‘the general counsel of the party leadership, Dr Hans Frank’, already signalled that in practice, political barristers would dominate the NS Lawyers Association.”' To avoid misconceptions, several differences between the Communist and Nazi

legal organizations require pointing out. In comparison to Communist legal aid, the NS Lawyers Association was poorly organized and much less methodical. Unlike the Red Aid, the NS Rechtschutz, for example, was a diffuse and fledgling legal insurance scheme an individual administrative unit (Gaz) could, but did not have to, accede to. Many functions centralized in the Communist Party’s case (such

°° Wirsching, A., Weltkrieg zum Burgerkrieg, Miinchen 1999, p.5. *! Schudnagies, following Frank’s posthumous autobiography presents the BNSDJ as geared exclusively to political defence work (Schudnagies, C., Hans Frank. Aufstieg und Fall des NS-Juristen und Generalgouverneurs, Rechtshistorische Reihe 67, Frankfurt a.M. 1989, p.19).

152 Courtroom to Revolutionary Stage as press co-ordination or procuring funds) were discharged by various and only loosely associated offices such as the ‘Anti-Defamation Office’ (Ligenabwehrstelle), Paul Schulz’s office in the Organisationsabteilung, and Hitler’s chancellery under

Rudolf Hef’. The importance of sympathetic publishing houses, such as Franz Eher and Lehmann, was even greater.”* As a result, all aspects of the Nazi legal organizations’ work—initiating proceedings, finances, lawyer allocation, coordination with the party press and so on—depended on circumstances and individual leaders to a much greater extent than in the Communist case. Moreover, Frank’s success with the Association of NS German Lawyers sparked

rival organizations. In 1931, Gregor Strasser attempted to subordinate the Gau branches of the BNSDJ to the political Gau leadership. Shortly afterwards, Ernst Réhm appointed Walter Luetgebrune to head the SA legal division (Rechtsabteilung), thwarting Frank’s explicit opposition. The division of labour between these organizations was contentious, to put it mildly. Overlapping responsibilities and unclear areas of competence occasioned spiteful competition. National Socialist legal aid, in other words, fits well into the paradigm of polycratic rule and cumulative radicalization, for each legal organization was not only a tool in the National Socialist struggle for power but also a vehicle for the personal ambitions of its protagonists. Some prominent Nazis, most notably the Berlin party boss Goebbels, were wary of employing the BNSDJ lest Hans Frank be strengthened. Such predilections made ‘independent’ National Socialist lawyers working outside the pale of the various party legal organizations another force for which there was no Communist equivalent. Unfortunately, only a fraction of the party’s own records about its legal organiza-

tions survive.”? Their activities can be reconstructed, however, from the private papers and professional correspondence of individual lawyers. Especially the files of Hans Frank’s Munich law firm contain a wealth of material relating to the BNSDJ and, after Frank’s promotion to the Reich leadership in September 1930, to the legal division of the party executive (Rechtsabteilung Reichsleitung).°* Frank’s office correspondence also throws some light on the SA legal division and the NS Rechtschutz insurance scheme. Likewise, Walter Luetgebrune’s private papers give

insights into the mode of operation of the SA Rechtsabteilung he presided over. Finally, the diary of Joseph Goebbels and the unpublished memoirs of ‘independent’ National Socialist lawyer Riidiger Graf von der Goltz provide an inimical perspective upon the Association of NS German Lawyers. Nazi legal aid was a tangled web of central and branch offices, individual law firms, interlocking and overlapping responsibilities and guarantees. Complex ** In October, 1931, e.g. Frank sent the publisher a bill detailing fourteen lawsuits, BA(K) NL 1110 Frank 40-14 Frank to Amann (Verlag Franz Eher), Miinchen 28.10.31, ibid., typewritten receipt over 1,400 RM, signed Frank [no place given], 20.5.32, ibid., “Kontoauszug fir Herrn Dr Hans Frank H, Miinchen, Dachauerstr 19/i’, Miinchen 30.9.30. °° BA(B) NS16 Band 112. ** BA(K) NL 1110 Frank. Frank’s papers fill over 40 volumes, many of which are subdivided into sections lacking formal numbers. I have cited these subsections according to the physical arrangement in the files. ‘Frank 40-14’ thus refers to volume 40, 14° subsection. Unfortunately, the convolute is not ordered systematically, so that material relating to the same case or issue is often spread across various volumes and subsections.

The Rise of National-Socialist Legal Organizations 153 and constantly evolving though this web was, the NS Lawyers Association provided the main thread. ‘This part of the chapter will therefore concentrate on the BNSDJ and discuss its organizational rivalry with the SA legal division in a con-

cluding section. Infighting and fragmentation notwithstanding, NS legal aid organizations shared one characteristic with one another as well as with their KPD counterpart: political considerations trumped legal concerns, and the interest of the individual accused was promoted only insofar as it was compatible with the party's own.

Hans Frank and National Socialist legal aid The BNSDJ was Hans Frank’s brainchild, and his leadership shaped the organization. Successful pleas for party treasurer Schwarz and Joseph Goebbels in 1927 and 1928 had put the young lawyer on the party's map. Rather than as a legal problem, Frank saw trials as a political struggle and an opportunity for publicity. Never shy

to trumpet his successes—'the Epp trial, in which at last I could play the state prosecutor for our movement, has shaken those brothers to the bone’, is a representative boast—Frank worked hard to impress upon Hitler the benefits of this approach and his own value for the party.”? The NSDAP’s poor showing in the 1928 elections boosted Frank’s project of a Nazi legal organization. Convincing Hitler that the movement ought to embrace the middle classes, it resulted in ‘the build-up of a whole spectrum of associated sub-organizations’ addressing ‘specific interests of middle-class groups’, Ian Kershaw argues.”° That same summer, the ‘Italian Gold’ trial gave Frank a chance to argue for an organizational base from which to play ‘state prosecutor for the movement’.”” Hitler probably signed off on Frank’s draft of the Volkischer Beobachter ad after Frank sent him an ‘very urgent letter dated 7 September 1928, six days before its publication. In the letter, Frank reports on a politically advantageous libel indictment he had prepared, intimating that only Hef$ was holding him back, a clear indication that he wished for a personal meeting with Hitler.”*®

Organizationally, the BNSDJ faithfully implemented the Fihrerprinzip. Although it was avowedly a ‘free association of NS Lawyers [...] and determines its own statutes’, in practice Hans Frank kept the reigns firmly in his hands.”” Membership applications had to be addressed to him personally. No reasons were given for rejections, against which there was no appeal.'” At all junctures, Frank stressed his personal mandate from the Fuhrer. To cement his control (and to discourage Jews from applying, a policy which for legal reasons he dared not state openly), °° BA(K) NL 1110 Frank 28-1, Frank to Hitler, Miinchen 21.6.28. °° Kershaw, I., Hitler 1889-1936, 2.ed., Stuttgart 1998, pp.386-8. *”7 Hitler vs. Osterhuber, Warmuth et al. are filed under BA(K) NL 1110 Frank Band 28—1, Band

40-17 and Band 40-19. °8 Hef$ appears to have resented this manoeuvre and curbed Frank’s access to Hitler subsequently (BA(K) NL 1110 Frank Band 28-1, Frank to Hitler 7.9.28). 9 ‘Aufruf’, Volkischer Beobachter 13.9.28.

‘°° BA(B) NS16 Band 112 [non-foliated], “Dienstanweisung’ [seven typed pages, numbered 2-7], 1.3.32.

154 Courtroom to Revolutionary Stage Frank even mooted a two-year trial membership.'”' In the event, the threat of a rival lawyers’ organization pre-empting Frank’s cut such deliberations short. The ‘Berlin Schutzbund’, wrote Frank’s associate Hugo Bruckmann, made it eminently advisable that the ‘birth’ of the NS Lawyers Association take place before Christmas, 1928. It is unclear what he was referring to, but to claim seniority over the perceived rival, the BNSDJ had to formalize its existence as quickly as possible.'*’ The statutes made Frank’s control unassailable. All directives required his signature. Even clerical posts at BNSDJ Gau offices were staffed according to fixed cri-

teria and submitted to the central office for approval. “Proven track record as a party member’ was the key criterion for employment. In order of descending importance, the others were ‘lower membership number, family circumstances, age, unemployment and prior training’.'!°? Competence and experience, it should be noted, came at the very end. Both in organizational structure and procedural rules the NS Jurists Association thus reflected the Nazis’ political priorities. The Nazi legal organization grew quickly, and barristers accounted for just over two thirds of members. Schudnagies estimates that the first 60 to 70 members were all lawyers who had already defended National Socialists.'°* Of 216 members at the end of 1930, 29 were Referendare, i.e. not yet fully qualified jurists. Only 62 of the remaining 187, less than a third, were not barristers.'°? Growth accelerated dur-

ing 1931/2, with membership nearly doubling during 1932 alone, according to Frank’s annual report.'”° The 1932 figure does not distinguish different branches of the legal profession but, if anything, the trial lawyers’ dominant position within the Association likely became even more pronounced. In 1931, barristers occupied 29 of the 32 regional leadership posts.'°”

At the end of 1930, with around 150 trial lawyers, the BNSDJ comprised roughly one per cent of the German bar. Given that some prominent right-wing trial lawyers such as Riidiger Graf von der Goltz, Friedrich Grimm and Paul Bloch refused to join, it is likely that even more barristers sympathised with the BNSDJ’s

ideological goals and methods than the numbers indicate. According to Frank’s memoirs, the BNSDJ administered some 40,000 cases, with himself making 2,400 court appearances on the party’s behalf. These figures are almost certainly bloated— Frank, not exactly a workaholic, would have averaged two court cases every working day for five years—but probably not by orders of magnitude.

At any rate, BNSDJ recruitment reveals a sizeable reservoir of motivated and radicalized Nazi lawyers. In 1930, when the membership of the National Socialist '! Tt is hard to see why a Jewish trial lawyer would wish to join the Nazi lawyers’ organisation, Prank may have been thinking of Paul Bloch (BA(K) NL 1110 Frank Band 45, Hugo Bruckmann to Frank, Miinchen 9.12.28). '? BA(K) NL 1110 Frank Band 45, Hugo Bruckmann to Frank, Miinchen 9.12.28. '° BA(B) NS16 Band 112 [non-foliated], “Dienstanweisung’, 1.3.32 [seven typed pages, numbered 2—7], p.4.

'04 Schudnagies, C., Hans Frank, p.19. '> BA(B) NS16 Band 112 [non-foliated], ‘Mitgliederverzeichnis BNSDJ 1.1.31. 06 BA(K) NL 1110 Frank Band 36II ‘BNSDJ Jahresbericht 1932’.

"7 BA(B) NS16 Band 112 [non-foliated], ‘Juristische Gauobleute der Rechtsabteilung der Reichsleitung der NSDAP’, 1.1.31.

The Rise of National-Socialist Legal Organizations 155 Party as a whole was roughly 100,000, less than 0.5 per cent of the working-age population, lawyer activism was significantly above average. Moreover, there were hardly any women lawyers and the activist mien of the BNSDJ made joining it more taxing than a mere party membership. It is likely, in other words, that more lawyers than just Riidiger von der Goltz joined the Nazi Party, but not the Frank’s Association. ‘The reasons for Nazi success among the professions are well rehearsed in scholarship. What this study adds is to distinguish between those lawyers who, as Jarausch, Siegrist, and Ledford argue, joined the party to bolster their economic standing and professional prestige and the early BNSDJ

members, who fervently identified with furthering the party’s agenda in the courtroom. Lawyers who were also Nazis, as opposed to Nazi lawyers, if you will, or under-pressure professionals as opposed to legal stormtroopers. Presum-

ably for the same reason, BNSD membership in the NS Jurists Association, while growing, did not keep pace with the party’s after the economic disruptions of the Great Depression. ‘The real significance of the NS party lawyers, however, was not so much strength in numbers but the impact of their courtroom style. The prominence of barristers in the NS Lawyers Association reflected its primary concern with courtroom work. The BNSDJ gave legal aid, helped exploit it propagandistically, and advised the party leadership. In various tactical permutations, these three interrelated aims recur in the mission statements which Frank had his lieutenants draft. A document prepared by Roland Freisler in November 1931, for example, put the emphasis on legal aid and advice. Party lawyers were

granted in all cases of ‘judicial persecution of SA- and SS-comrades and the NSDAP’s political organs [...] because of deeds undertaken in the line of duty or in connection with such deeds’. “Competent advice’ would ‘safeguard the legality of the party organs’ actions’. SA and SS in particular would be given practical ‘legal instructions’ on ‘interrogations through the police, by the court, behaviour during arrests’. Freisler’s enumeration touched on exactly the same points as Felix Halle’s best-selling Communist legal guidebooks. In fact it regurgitated their titles almost verbatim.'’* The BNSDJ ‘instructions for duty’ (Dien-

stanweisung), an internal memorandum authorised by Frank in March 1932, listed the same functions but placed greater emphasis on propaganda. To contribute to the public’s ‘enlightenment’, BNSDJ lawyers were tasked with ‘controlling the enemy press’, writing articles, and speaking in public. Contributing to the BNSDJ organ Deutsches Recht and the legal supplement of the Volkischer Beobachter, Kampf um deutsches Recht (one of Frank’s pet projects) was especially

important.”

8 BA(K) NL 1110 Frank Band 24, Freisler to Frank, Hagen 25.11.31, attached memo ‘Dr Freissler [sic] an die Rechtsabteilung der NSDAP Reichsleitung’ Hagen 25.11.31 [five typewritten, numbered pages].

' BA(B) NS16 Band 112 [non-foliated], “Dienstanweisung’, 1.3.32 [seven typed pages, numbered 2—7], p.5, p.6. For the VB supplement, see BA(K) NL 1110 Frank Band 45, Redaktion VB (Rosenberg) to Frank, Miinchen 3.12.29.

156 Courtroom to Revolutionary Stage National Socialist legal aid in practice How did Nazi legal aid function in practice? Its non-systematic nature complicates an account of its mode of operations. Given institutional rivalry and the personalized and dynamic distribution of power in the Nazi party, and despite its aspirations, the BNSDJ could not function as the central clearing house for all political trials involving National Socialists. Even within its ambit, lawyer appointment and the selection of cases for large-scale campaigns depended on personal

connections and non-systematic local initiatives by Ortsgruppen or individual Nazi grandees, as a few examples from Hans Frank’s office can convey. In May 1930, Palatinate Gau leader Josef Biirckel retained Frank in a libel suit brought by

the mayor of Neustadt, apparently spontaneously after the two had met at a National Socialist leaders’ convention. In formalizing the brief, neither mentioned

the NS Lawyers Association.'!? Biirckel lost, and was fined 3,000 RM in July 1930.'"! An October 1930 brief by NS parliamentarian Wilhelm Kube resulted from a chance meeting in the Reichstag.''* Kube had alleged that Prussia’s Social

Democrat Minister of the Interior, Albert Grzsinski, had vomited all over the guests of state at a gala dinner he hosted. Unfortunately for Kube, it turned out during the libel proceedings in January 1931 that his informant had confused Grzsinski with a guest. Frank failed to appear at the trial, cabling that he was busy defending a party comrade in Plauen. In June 1931, Kube asked Frank to fight a

court order compelling him to pay the statutory fees of Otto Landsberg, the opposition lawyer, only to be told that he had better pay up or else risk a visit from the bailiff.

In contrast to the /Juristische Zentralstelle, the Association of NS German Lawyer failed to monopolise party legal aid. Biirckel and Kube contacted Hans Frank directly without going through the BNSDJ (both, despite losing their cases, put Frank in touch with other clients). In November 1930, the Brandenburg NSDAP approached the Reich leadership, not the Lawyers Association for routine legal assistance in a contract dispute with a publishing company. In October that year, the ‘legal department of the Essen NSDAP’ asked Kube, not Frank or the BNSDJ for help in claiming a party comrade’s inheritance.'' Obviously, neither the Gau Brandenburg nor the Essen NSDAP ‘legal department were aware of the Nazi Lawyers Association. Personal connections, not organizational clout drove NS legal aid. In late 1930, the BNSDJ had already

10 BA(K) NL 1110 Frank Band 33-3, Frank to Biirckel, Miinchen 31.5.30.

" BA(K) NL 1110 Frank Band 33-3, ‘Urteil’, Schwurgericht beim Landgericht Frankenthal, ee BACK) NL 1110 Frank Band 37—4, Kube to Frank, Berlin 21.10.30 and 24.10.30, ibid., Frank to Kube, Miinchen 27.10.30. '® BA(K) NL 1110 Frank Band 24 Verlag Der Beobachter (Herausgeber NSDAP Gau Brandenburg) to NSDAP Reichsleitung, Neustadt-Dosse 5.11.30., ibid., Rechtsabteilung der NSDAP Essen to Kube, Essen 28.10.30, ibid., Kube to Hitler, Berlin 5.11.30, ibid. Band 45 Hans Frank to Brigitte Frank, Miinchen 12.3.1930, for Kube see Kershaw, I., Hitler 1889-1936, p.380.

The Rise of National-Socialist Legal Organizations 157 been operational for two years. Although both the party leadership and peripheral party branches employed the Lawyers Association, it was evidently not

perceived as the only point of contact for legal matters.''* In practice, this probably mattered little, as legal submissions eventually made their way to Frank’s desk regardless of the addressee. In a sense, it even suited the BNSDJ leader to keep his organization’s profile lower than his own. Frank was reluc-

tant, for example, to grant other NS lawyers mandates from Hitler. In May 1932, he refused a request by Hamburg barrister Walter Raeke to plead a Hitler brief point blank, even though Raeke was one of his most trusted lieutenants.'!? Such a personal identification of the legal organization with its head was unthinkable in the Communist Party, as the controversy around Ernst Hegewisch and the dismissal of Felix Halle showed. With Frank’s promotion to the NSDAP Reich leadership in September 1930 and the creation of the ‘legal division of the Reich leadership’ (Rechtsabteilung Reichsleitung, RR), regular mechanisms increased in importance. By 1932, the RR had instituted a system of cataloguing cases, and was using standard appointment letters.''® Aiming ‘for the co-ordination of all legal concerns of the movement’, the Rechtsabteilung provided legal advice and appointed lawyers.''’ From small cases like the July 1932 action the Heidelberg NSDAP brought against the local

SPD paper to Hitler's ‘Kaiserhof trial’ (a libel action against the liberal weekly Welt am Montag over a forged bill from the eponymous hotel), the RR advised, supported and directed local Nazi lawyers.''® It provided press cuttings, suggestions for witnesses, verdicts from a reference library the NS Lawyers Association was building, and at times even sample writs BNSDJ members had successfully

submitted to local courts.'” Still, the professionalization of the NS legal aid should not to be overstated. Hans Frank led both the BNSDJ and the Rechtsabteilung Reichsleitung. Intriguingly, it was only around the time of the ‘seizure

4 See e.g. BA(K) NL 1110 Frank Band 29-6, Kanzlei Hitler to Frank, Miinchen 5.10.28, ibid., Band 36], barrister Richter to NSDAP Reichsleitung, Berlin 7.3.30, ibid., barrister Josef Domenig to

Reichsleitung NSDAP, Feldkirchen [Austria] 7.3.30, ibid., Frank to Gauleitung NSDAP Berlin, Miinchen 28.3.30, ibid., NSDAP Ortsgruppe Metzingen to Frank, Metzingen 1.6.30, ibid., NSDAP Gau Hessen to Frank, Offenbach 16.8.30. "> BA(K) NL 1110 Frank Band 40-7, barrister Walter Raeke to Frank, Hamburg 31.5.32.

"6 ‘The case against Dirr and associates, for example, was catalogued as “Iagebuch Nr.8147’. Attached to the letter appointing Frank was a printed form which required only the addition of the name of the trial and the amount granted in legal aid (BA(K) NL 1110 Frank Band 35-11, RR to Frank, Tagebuch No.8147, Akte No.1036, 30.8.32). "7 Schudnagies, C., Hans Frank, p.20. 8 BA(K) NL 1110 Frank 40-6, telegram NSDAP Ortsgruppe Heidelberg to RR, Heidelberg 12.7.32, ibid., Frank to Amtsgericht Heidelberg, Miinchen 13.7.32, ibid., Band 40-2, RR Haupt-

abteilung I Rechtsverwaltung to Frank, Miinchen 18.1.33, ibid., Band 31-9 barrister Helmut Rebitzki (Leiter Gaurechtsstelle Schlesien) to RR, Breslau 1.12.32, for Kaiserhof trial see ibid., Band

29-16. '® BA(K) NL 1110 Frank Band 29-8, barristers Braess and Leupolt to RR, Dresden 16.7.32, ibid., Band 29-9, Gauleitung Berlin, Rechtsschutzabteilung to RR, Berlin 23.2.32, “Einstweilige Verftgung’ [Abschrift, attached as a circular mailing to all Gau leaders], BA(B) NS16 Band 112 [non-foliated], “‘Dienstanweisung’ [seven typed pages, numbered 2—7], 1.3.32, p.6.

158 Courtroom to Revolutionary Stage of power that the RR began to show any real independence from Frank, refusing for example to make legal aid payments to him if formal requirements were not met.!”° In essence, the founding of the RR reflected Hans Frank’s heightened prestige and changed little about the way legal aid functioned. Personal relations continued to outweigh institutionalization.

A case in point is the financing of NS legal aid. In the absence of a central funding mechanism, a wide variety of individual deals seem to have been struck. Some Nazi politicians, notably Géring, usually paid lawyers themselves.'*! Others relied on the party. To Palatinate Gau leader Biirckel, for example, his personal feud with Neustadt mayor Forthuber was a ‘prestige matter of the party’.!’”

Local and regional party branches, the Eher Verlag, the Lehmann Verlag, and individual sympathisers appear to have contributed funds on a case-by-case basis.'*° Often, legal bills passed from hand to hand, each organization declaring the next in line responsible. After a spectacular representation of a group of peasants accused of breach of the peace near Karlsruhe, for example, the Rechtsabteilung Reichsleitung retused to reimburse Frank because the Gau Baden had not been part of the NS legal insurance scheme. Frank turned to the Gau leadership, on whose ‘urgent wish’ he had pleaded, but the regional leaders passed the buck to the Ortsgruppe Pforzheim. In the end, Frank recouped only a fraction of his ‘immense outlay’.'*4 After 1930 the Rechtsabteilung Reichsleitung became the first port of call for party lawyers seeking compensation, but it was far from the only funding source.'” Through Gregor Strasser’s secretary Vollmuth, the Organisationsabteilung, for example, made payments directly to Frank on behalf of individual clients, most notably Paul Schulz.'”° Local party branches, the party central office in Munich, and Hitler’s chancellery continued to bypass the official legal aid channels when it suited them, if they were aware of their existence in the first place.'*’ Since early '° Tbid., Band 29—9 RR to Frank, Miinchen 16.2.33, ibid., 31-11 RR Hauptabteilung I Rechtsverwaltung to Frank, Miinchen 3.1.33.

7! BA(K) NL 1110 Prank Band 30-9, RR to Frank, Miinchen 8.4.32, [pencilled marginalial, BA(K) KLE 653 von der Goltz Band 3, [107]. '* BA(K) NL 1110 Frank Band 33-3 Biirckel to Klug, Mussbach/Pfalz 12.6.30, ibid., Frank to Biirckel [carbon copy], Miinchen [undated].

3 E.g. BA(K) NL 1110 Frank Band 38-3, NSDAP Gau Schlesien to Frank, Schweidnitz 16.5.30.

'4 BA(K) NL 1110 Frank Band 31-11, Frank to Gauleitung NSDAP Baden, Miinchen 19.9.32 and [no place given], 30.9.32, ibid., NSDAP Pforzheim [signed Ortsgruppen- and Bezirksleiter Pritz Rilling] to RR zu Handen Frank, Pforzheim [undated] [Eingangsstempel 5.8./8.8.]. 9 Por the increasingly important role of the RR, see BA(K) NL 1110 Frank Band 31-3, Frank to

RR, Miinchen 13.1.33, ibid., Band 29-16, Frank to RR, Miinchen 15.12.32, ibid., [attached] ‘Kostenrechnung’ RA Zarnack, Berlin [undated], ibid., Band 40-7, Frank to RR, Miinchen 25.6.32, ibid., Band 40-8, Prank to RR, Miinchen 13.1.33, Band 28—4, Frank to RR, Miinchen 10.1.33, ibid., Frank to Freisler, Miinchen 1.2.33, ibid., Band 40-2, Frank to RR, Miinchen 18.1.33. 26 See BA(K) Band 37—1 Schulz to Frank, Miinchen 10.10.32, ibid., Band 30—7, Kanzlei Frank (Dr Kuglstatter) to RR, Miinchen 22.12.32, ibid. [attached] “Kostenaufstellung Paul Schulz’. 7 In the Pforzheim case, e.g., Frank received money from Hitler’s chancellery (BA(K) NL 1110 Frank, Band 31-11 Frank to Kanzlei Hitler, Miinchen 8.9.32). In the so-called ‘Kudamm Prozefs’ Alfons Sack received payments from the Berlin Gau for the stenotypist he had hired (ibid., Band 40-13, Frank to Sack, Miinchen 29.1.32, ibid., Frank to Gauleitung Grofs-Berlin, Miinchen 7.12.31).

The Rise of National-Socialist Legal Organizations 159 1932, regional party organizations could opt into a legal insurance scheme, the NS Rechtschutz. However, the source situation makes it difficult to reconstruct its fee structure, as well as what rules, if any, governed the allocation of legal aid costs to the RR, the NS Rechtschutz and other party offices. In any case, individual party leaders continued to override what regulations there were. Both Paul Schulz and Coburg mayor Franz Schwede, later Gau leader in Pommern, are cases in point.

Initially refused reimbursement, their interventions with the party leadership secured financial indemnity.'”*

Under these circumstances, collecting fees could be tricky. Even Hans Frank was so uSed to the recalcitrance of party comrades that he used a standard collection letter.'” Trying to coax his clients into paying up, Frank varied the general template, adding for example the formula that he conducted ‘60 per cent’ of his representations ‘free of charge for party comrades without means’. Only National Socialists staffed his practice, he added occasionally, and unfortunately they could not feed off the air circulating through the office.’’? In case of success, statutory fees and costs could be charged to the opposing party, a revenue source whose maximization Frank had developed into an art form.'’' In addition, he often charged his fees twice, once to the defeated opposition, and another time to the Rechtsabteilung Reichsleitung. Early in January 1933, for example, the RR appointed Frank to pursue a cigar company which had copyrighted the name ‘Adolf Hitler’ and the slogan “Germany Awaken’ (‘Deutschland Erwache). Under the proviso of appointing him ‘corresponding counsel’, Frank delegated the matter to a pair of local BNSDJ lawyers, who found a ‘100 per cent’ analogous case. Confident of victory, they proposed raising the valuation of the litigation, and thereby the lawyers’ statutory fee. The ploy worked, Frank received 150 RM without lifting a finger, and charged an additional 80 RM to the RR.'”

‘Pamphlet gymnastics according to the system Frank IT’ Given the weakness of formal procedures, the initiative of local Nazi lawyers was crucial for identifying trials that offered opportunities for propagandistic exploitation. Because local activists (correctly) believed their personal success to depend on Frank, the BNSDJ leader received scores of offers to plead jointly, and could take

28 BA(K) NL 1110 Frank Band 30-7, Schulz to Frank, Solln bei Miinchen 20.12.32 [handwritten], ibid., Band 35—7, RR to Frank, Miinchen 19.2.32, ibid., Frank to Schwede, Miinchen 6.2.33, ibid., Schwede to Frank, Coburg 14.3.33. 29 BA(K) NL 1110 Frank Band 35-7, Frank to Schwede, Miinchen 6.2.33. Often, such letters also contained a phrase offering a rebate if only the payment was made promptly (e.g. ibid., Band 30-8 Frank to Strencioch, [carbon copy], [no place given]14.4.30, ibid., Band 30-5, Frank to Litzmann, [no place given] 23.5.32). 159 BA(K) NL 1110 Frank Band 30-3, Frank to Esser, Miinchen 29.10.29. 'S! BA(K) NL 1110 Frank Band 29-7, “Beschluss der Amtsgericht Nordhausen a.d. Saale’ (signed Justizobersekretar Milsch), Nordhausen 14.11.30, ibid., Band 38-3 Frank to Amtsgericht Miinchen, Miinchen 25.11.32. '? BA(K) NL Frank Band 40-2, see also ibid., Band 29-2 ‘Einstellungsbechluss des Amtsgericht Miincher’ [signed Amtgerichtsrat Frank], Miinchen 18.1.33, ibid., Frank to RR, Miinchen 23.2.33.

160 Courtroom to Revolutionary Stage his pick of proceedings all over the Reich. The terms of these offers and Frank’s choices allow us to make inferences about his political agenda and the priorities governing Nazi legal aid. Generating publicity, enhancing his influence within the movement, and maximising his income, in that order, governed Frank’s case selection.

In September 1930, Magdeburg National Socialist barrister Kuhlmey invited Frank to accede to his libel suit against the Magdeburger Volksstimme. The local Social Democrat paper had branded Kuhlmey’s pleading as thinly disguised and legally vapid electioneering, a style it memorably phrased ‘pamphlet-gymnastics according to the system Frank II’. ‘Since you have also been attacked’, Kuhlmey suggested that Frank join his efforts ‘to put these little people out of business once and for all’.'°? Since the incriminated article, by Karl Illgener, throws light on both the local impact of second-string National Socialist lawyers and on Frank’s importance for NS legal aid, it is worth quoting at length.

Accused in the Magdeburg court of appeal was Otto Stucken, the city’s SA chief and a convicted accessory to murder. In the summer of 1930, against the backdrop of the unfolding economic crisis, the dominant political issue was the campaign for a plebiscite against the Young plan jointly sponsored by the parties of the political right. Stucken had publicly attacked the administrative order banning state employees from agitating for the plebiscite as a ‘secret espionage system’ (Spitzelsystem), and alleged that the Prussian government was breaking the constitution.'** Stucken had been found guilty in Schénebeck district court in April, on 28 August his appeal was heard. On Saturday, 30 August, the Volksstimme devoted most of its weekend pull-out section to the case. Under the head-

ing “Nazi in court—nonsensical motions by the lawyer’, the paper ridiculed Stucken and his counsel.'*? Stucken had ‘had himself represented by the little Nazi brother of Frank H, Magdeburg barrister Kuhlmey’. Wearing their party insignia to court—'the swastika adorns its man just like the feathers identify their bird’—they had come not so much to overturn the verdict as to overturn the “Weimar system’, at least rhetorically. Stucken twisted his own words into a hairsplitting half-denial—he denied libel, but maintained that the administrative gagging order had been issued ‘fully aware of its noxiousness for the state (Staatswidrigkeit)’. Under the subheading ‘Dr Kuhlmey engages in pamphlet-gymnastics according to the system Frank Hf (Munich)’, most of the Volksstimme article focused on the lawyer and his style of pleading. “The system’, according to Illgener, has the advantage of unique impertinence and loutishness, just the way street brats like it. And why not? One is a National Socialist, and as such it is naturally necessary to behave ‘National Socialistically’. For those who are ignorant of what that means—

'3 Tbid., Band 24, barrister Kuhlmey to Frank, Magdeburg 4.9.30. '34 Mitteldeutsche Presse (Staf&furt), 30.10.29 “Hilferdings Finanzkatastrophe’.

' Volksstimme, 1.Beilage (Samstag), p.1 30.8.30’ Nazi vor Gericht—Stucken zu 200 Mark Geldstrafe verurteilt—Unsinnige Antrage des Verteidigers’.

The Rise of National-Socialist Legal Organizations 161 attend a Nazi rally or roam the lands with their hordes. Dr. Kuhlmey is an avid student—in any case as far as the gymnastics are concerned [...].

In the trial, the Nazis’ political agenda completely overshadowed the legal, accord-

ing to Illgener. More important even than the chance to boost the anti-Young agitation was conveying the National Socialist mien, what we might with Bourdieu term the habitus of National Socialism. Apart from the ‘pamphlet gymnastics’, i.e.

the excitable, high-octane self-presentation, this habitus called for a confronta-

tional attitude towards the court, and for a demonstration of anti-Semitism. Kuhlmey ‘inquires about the ethnic descent [Volksstamm] of a lay magistrate. The man happens actually to be Jewish, but the court rejects his request. Now, he calls

for the lay magistrate’s removal [Beseitigung]. He fails to secure it. The usual theatre.’

Kuhlmey and Stucken drew out proceedings as long as they could, on the one hand to grandstand in court, on the other to delay the start of the subsequent trials, which also featured Otto Stucken in the dock: Even though not a single witness was heard, the trial lasted more than seven long hours, in the course of which the barrister filed a motion to call [Prussian Prime Minister] Dr. Braun and Dr. Grzsinski as witnesses. They were to testify that they had deliberately broken the state constitution. The court rejected the motion as ‘nonsensical’ [set in bold type as a subheading]—truly a word well chosen by the judge. But no, Dr. Kuhlmey’s hubris was not yet sated. He filed a motion for the submission of evidence, an expert witness was to be heard and should determine whether Prussia and the Reich were engaged in a ‘policy of bankruptcy’ (Pleitepolitik). Those were the very words in the Nazi motion. This motion, too, was rejected to the gallery’s great merriment. Next he recounted the old fairy tale of the red government of Prussia, and at last pleaded for throwing out the trial.

The article exposes the strategy and tactics of Nazi legal aid, while ridiculing its style. It also highlights that barrister Kuhlmey and ambitious NS lawyers generally aspired to emulate Hans Frank. But in its sneer it risked underestimating the propagandistic potential of ‘pamphlet gymnastics’ 4 la Frank II. Even though in this instance the court rejected Kuhlmey’s politically motivated motions, sometimes out of hand, it is easy to imagine how the National Socialist press presented the trial to its supporters. Just like the civil servants had been silenced by the gagging order, so the courageous freedom fighters who pointed this out were now silenced by courts complicit in the conspiracy against the ‘national opposition’. In that sense, the court’s verdict was grist on the propaganda mill either way it fell. If it was

an acquittal, ‘even the courts of the Republic’ had been forced to concede innocence. If, as in this case, the judges found that the Nazis’ arguments were frivolous and that the only motivation of the libel had been ‘to put one over on a political opponent’, this only proved the slanderers’ purity of motivation and underlined the accuracy of their charges.'*° The hermetic beauty of anti-judicial propaganda '°6 Both Stucken’s and the state prosecutors appeals were rejected, Stucken’s fine was reduced from

300 to 200 RM, but he was burdened with all costs and ordered to pay for the publication of the verdict in three newspapers.

162 Courtroom to Revolutionary Stage was precisely that it was in good measure independent of the verdicts that have so dominated the debate on Weimar justice. Through the stage-management of Kuhlmey, Frank, and company, legal procedure became a corollary to ideological conflict, not a remedy for it. It was a continuation of the struggle by different means, in a different arena, and in a slightly different key. IIlgener ridiculed this trend, but was his dismissiveness warranted? So what if “National Socialist stupidity and insolence’ and the ‘emptying of dirtbuckets’ were the Nazis ‘favorite fighting methods’? So what if ‘the Nazis are no more inclined towards objective criticism than their friends of the red fist’? True, legally Kuhlmey’s motions were irrelevant at best and—literally—tlaughable at worst. But precisely for that reason they negated and eroded the distinctiveness of the sphere of law that its ability to arbitrate and mediate rests on. Illgener was right when he wrote that libel and insinuation, mis-

representation and agitation ‘are the grilled sausages and the bread by which [the National Socialists] keep alive their party's bloated body’. In the legally perhaps incompetent, but propagandistically adept hands of Nazi barristers like Frank and Kuhlmey, the same grilled sausages that had been at issue in the first place were served up again in the courtroom, only more copiously and under much less restraint. After all, on trial defendants and lawyers spoke ‘in defence of legitimate interests—their interest in an

acquittal—and courtroom rhetoric was generally exempt from being prosecuted in turn. Small wonder that Paul Levi refused as a matter of principle to fight libel and slander suits. As Bruno Weil put it, the verdict is nothing, the echo is everything.

Barrister Kuhlmey had internalized the primacy of politics to such an extent that he never stopped to consider what kind of light the Stucken trial threw on him as a lawyer. That the trial was an embarrassment, and that another trial would be another opportunity for the Volksstimme to rehearse his legal incompetency seems

never to have occurred to him. In fact, when he wrote to Frank he had already asked the public prosecutor to accede to the law suit because he had been slandered ‘in the discharge of my professional duties’.'°” For the purposes of attracting Frank to Magdeburg, the references to the ‘system Frank IP must have appeared as a godsend to Kuhlmey. But even without such triggers, NS barristers routinely approached Frank. Legal motives played a subordinate role in their offers, or were absent altogether. The main idea was to make trials more visible and to give the chief Nazi lawyer a chance to shine. Attempting to lure Frank, local BNSDJ

functionaries like Heinrich Diichting from Dortmund, and Hermann LinfSler from Halle highlighted existing media interest, the involvement of large numbers of stormtroopers, or the spectacular nature of the indicted acts. Rather than going into details, they stressed the big picture. To shine a spotlight on ‘rigorous and one-sided police repression’, to indict local authorities authorities of ‘abuse of office’, to overturn the ban on SA uniforms—these were the goals local lawyers cited in approaching Frank.'* '7 BA (K) NL 1110 Hans Frank Band 24, RA Kuhlmey to RA Frank, Magdeburg 4.9.30, [Abschrift] ‘Strafantrag’ vs. Karl Illgener and executive editor Meisterfeld, 2.9.30.

8 BA(K) NL 1110 Prank Band 24, NSDAP Ortsgruppe Dortmund [signed Heinrich Diichting ‘als Obmann der nationalsozialistischen Notwehr’] to NSDAP Reichsleitung, Dortmund 23.11.30, ibid., NSDAP Gau Halle Merseburg (Juristische Abteilung signed Dr Linfler) to Frank, Halle 5.11.30.

The Rise of National-Socialist Legal Organizations 163 The ambition of local BNSDJ barristers were the grease in Frank’s acquisition network. In April 1930, Upper Silesian BNSDJ leader Walter Kiewitz invited Frank to Kreuzburg. Frank’s acceptance delighted Kiewitz. “We must not leave Upper Silesia in the lurch, the task here is tough, but not in vain, and has, through me, already scored many a victory’.!’ The Kreuzburg barrister included not one syllable about the accused, the offences committed or any other legal aspect of the case, or cases. Instead, after reminding the NS Lawyers Association leader of a previous ‘enjoyable’ joint representation, Kiewitz added that he and Frank ‘must also discuss questions of legal organization’.'“° Like many colleagues, he hoped to utilize the joint defence to strengthen his position within the organization. In vain: Frank kept the money Kiewitz had cabled to cover journey costs without ever bothering to appear in Kreuzburg.'*! The sidelining of legal motives is even more glaring in the joint representation Hamburg BNSDJ leader Walter Raeke proposed in January, 1933.'” ‘Legally’, Raeke felt confident of winning the case, but ‘precisely for that reason on political grounds’ he entreated Frank to take part. In other words, he guaranteed his superior a propagandistic success with no risk of legal failure. Frank’s personal participation (‘your famous “some remarks”’, as Raeke put it, glibly echoing one of Frank’s stock introductory phrases) would create ‘the greatest possible resonance in the entire German press’. Raeke asked for permission to set the press campaign in motion and proposed that Frank ‘attend as the guest of honour’ the Gau BNSDJ meeting which he would reschedule to coincide with the trial. Obviously, Raeke himself stood to profit most from Frank’s participation. His name would be mentioned in the local and national press. Moreover, presenting Frank as the ‘guest of honour’ at the Hamburg BNSDJ meeting after having just pleaded jointly with him at the city supreme court could not fail to boost Raeke’s standing within the organization. Pandering to Frank’s taste for the good life, Raeke pointed out that the absence of his pregnant wife left ‘two eager servants [dienstbare Geister] (of which one is an excellent cook)’ at his disposal. Whether Raeke counted himself among the two ‘eager servants’ is unclear, but his is not the only sycophantic letter from a subordinate to the Lawyers Association leader.'* Presumably, Frank doted on this style and encouraged its use. In any case Raeke’s ostentatious subordination paid dividends. The 1932 report on the BNSDJ hailed his contribution to the organization.'** After the ‘seizure of power’, when the

' BA(K) NL 1110 Frank Band 36I Kiewitz to Frank, Kreuzburg 22.4.30., ibid., Kiewitz to Frank, Oppeln 23.4.30. ‘40 Kiewitz was referring to the scandalous trial in autumn 1929 of a group of Nazis who had beaten up Polish actors appearing in a joint German-Polish theatre production (BA(K) NL 1110 Frank Band 30-8). ‘41 Thid., Kanzlei Frank to wife of barrister Kiewitz, Miinchen 21.6.30. '2 In July 1932, Raeke had obtained a court order against the ‘election special’ of the SPD weekly Echo der Woche (“Wahl-Sonderausgabe Nr.2’, 24.7.32) against which the paper had successfully appealed (BA(K) NL 1110 Frank Band 27-2, Raeke to Frank, Hamburg 5.1.33). “3 BA(K) NL 1110 Frank Band 27-2, Raeke to Frank, Hamburg 5.1.33. ‘4 ‘Three regional BNSDJ leaders were mentioned by name ‘above all’ Walter Raeke (BA(K) NL 1110 Frank Band 36II ‘BNSDJ Jahresbericht’ 1932).

164 Courtroom to Revolutionary Stage BNSDJ served as the vehicle for the ‘Gleichschaltung of the entire legal profession, Raeke became chief of its barrister section.'” Joint defences not only raised Frank’s profile and bolstered his authority, but also padded his pockets. Even if he did not appear in person, the Munich lawyer could act as ‘corresponding counsel’, an external specialist advising the local barrister. When lesser known party lawyers approached him, often tentatively, Frank’s first

reply was to send out a blank appointment letter to be signed by the defendant. What looked like enthusiasm for the case was really a measure enabling Frank to charge a statutory fee.'*° More experienced defendants and lawyers declined such offers more or less politely. Munich publisher Lehmann, for example, rejected Frank’s professional advances when a court order threatened against Gefesselte Justiz,

the best-selling anti-judicial polemic by right-wing journalist Ewald Moritz. ‘Dr Frank II [...] cabled that he wanted a special letter of appointment, Dr Christ [Lehmann’s barrister] stopped me, because this demand had only been made so that Herr Frank, who cannot do anything in this matter, may present a bill’.'*” In most cases, however, the ploy appears to have worked.'** Given his influence in the party and his power over the NS Lawyers Association, few could afford to ignore Frank’s request for a ‘special appointment letter’. The cases which local barristers presented to Frank illustrate that political imper-

atives governed the BNSDJ’s activities. Their pitches for joint court appearances reveal what they believed his selection criteria to be. Invariably, they highlighted the cases’ propaganda potential and stressed the political damage that could be done to opponents, or averted from the party. Media attention, already focused on the trial and/or to be enhanced through Frank’s presence was another important incentive. By contrast, the legal aspects of cases seldom featured prominently, and often not at all. * OK OK

Just like KPD barristers, NS lawyers struggled with inner-party resentment, as conflicts over legal fees indicate. Karlsruhe Gau leader Wagner, for example, warned Frank about the ‘disadvantageous consequences’ of his bills. Inside the party, ‘where today one has to look after every penny’, emotions would run high should Frank’s demands become known.'*? Encouraged by the Lawyers Association’s intimation

that criminal acts undertaken ‘in the line of duty’ were covered by the party, “ BA(K) NL 1110 Frank Band 36I], BNSDJ Reichsfachgruppe Rechtsanwilte [signed Raeke] to ‘Reichsjuristenftthrer und Reichsleiter Rechtsabteilung NSDAP, Reichsjustizkommissar Staatsminister Dr Frank’, [no place given] 10.2.34.

46 BA(K) NL 1110 Frank Band 28-4 barrister Leupolt to Frank, Dresden7.1.33, ibid., Frank to Freisler, Miinchen 25.1.33.

47 BA(K) NL 1205 Zarnow Band 6 [215]f. Lehmann to Zarnow, Miinchen 7.2.31, Moritz, E. (pseud Zarnow, G.), Gefesselte Justiz: Politische Bilder aus deutscher Gegenwart, Miinchen, several edi-

tions from 1930.

48 BA(K) NL 1110 Frank Band 29-8, identically worded letters Frank to barristers Glauning (Plauen), Braess/Leupolt (Dresden), and Schroer (Diisseldorf) 6.2.33, ibid., Braess to Frank, Dresden 13.2.33, ibid., Schroer to Frank, Diisseldorf 14.2.33, Glauning to Frank, Plauen [undated].

“9 BA(K) NL 1110 Frank Band 31-11, NSDAP Gauleitung Baden to Frank, Karlsruhe 3.10.32 and 23.12.32.

The Rise of National-Socialist Legal Organizations 165 National Socialist offenders expected to be bailed out for free. As in the Communist Party’s case, conflicts over lawyers’ pay thus point to a contradiction. The value of legal aid consisted partly in reinforcing the feeling that the party ‘stuck up’ for its members when the going got tough. But while party members expected to be defended free of charge, Nazi lawyers expected to be paid. The case of Munich stormtrooper Helmut Gruner illustrates this quandary. Hans Frank had defended Gruner in a trial for breach of the peace in May 1930. Despite prior guarantees, the Gau refused to pay Frank. The barrister was forced to charge each SA member the moderate sum of 15 RM. Explaining his refusal to pay, Gruner wrote that ‘even before the [1928] Reichstag elections’, he had heard of an order of our admirable Fiihrer Adolf Hitler, which stipulates, that every payment which arises for the SS or SA out of defences in court are [sic] to be made by the party leadership respectively the Gau. What about this order of the supreme SA leader now? [...] I want to remark respectively ask — who petitioned for a defence in the first place???? It wasn’t me to be sure! [...] I wouldn't have had the money then to aftord a defence for myself and I don’t have it today neither. In any case I would never have agreed to this, that for me a defence on the part of Herr Dr. Frank is provided, if it hadn't been explained to me on the parts of [his co-defendants] Herr Zoberlein and Kloeber: “What! But the whole thing is for free, the party pays for it!’

Gruner’s letter shows that party legal aid could contribute to a cohesive National Socialist milieu. ‘As a simple SA, later SS man’, Gruner held it at all times to be my goddamn duty and obligation to engage myself on behalf of the idea of our movement, if need be, to throw myself around a little [mich herumzubalgen], that is why I held it to be quite self-evident, for an entirely natural thing, that the Gau respectively the party leadership would then pay in the case of an accusation-matter.'”°

SA men ‘threw themselves around a little’, i.e. brawled with the police and the Communists, and in return the party looked after them in court. Straight from the horse’s mouth, as it were, Gruner here expresses how the NS Lawyers Association served to shore up the party milieu. His indignation highlights both the attraction of this strategy and the importance of fulfilling (or seeming to fulfil at least) expectations once they had been awakened. In practice, the gap between the party's promises and the actual extent of legal aid was often considerable. Fortunately for the party leadership, the rank and file appears to have blamed the lawyers’ ‘greed’ rather than its stinginess or mismanagement. Gruner’s attitude mirrors the resentment KPD lawyers faced from their comrades: “Today he is the brilliant defender, but tomorrow he will be the “advocate”, the old song of Hossianah and nail him to the cross’.'”! Ernst Hegewisch’s dejected summary of life as a KPD lawyer could have been echoed by his Nazi colleagues with only slight modifications. Like Communist legal aid, the Association of NS German Lawyers attracted offenders whose calls for help had not the slightest connection to politics, party 9 BA(K) NL 1110 Frank Band 31-1, Helmut Gruner to Frank, Miinchen 28.11.30. '! BA(B) RY1/12/711 Juristische Zentralstelle (JZ) Band 8, [110]-[165] Ernst Hegewisch to KPD central office, Celle 8.5.22, here [113].

166 Courtroom to Revolutionary Stage membership aside. The Junghans brothers, “SA men aged nineteen and twentythree’ from Geringswalde in Saxony, for example, requested help in an inheritance quarrel with their mother. Should Frank himself be unavailable, they asked for an

‘extremely able party comrade and colleague who will grasp the matter by the throat with a strong fist [der die Sache mit ganzer Faust beim Kopf nimmt]’.* Other supplicants only hinted at the offences that had given rise to judicial persecution— a ‘land dispute’, ‘trouble with local authorities —and sometimes failed to identify them at all.’”? Applicants evidently assumed that ideological allegiance was the key factor for the disbursement of NS legal aid, and therefore highlighted party or SA membership. One hopeful, Carl Weber from Michelau, petitioned for help in his divorce proceedings. He was especially agitated about the suggestion that since he funded ‘the children of whores’, he might as well provide for his own: ‘I don't have to fund any whore’s children, as my only wrongful step was in 1924 and the child died that same year’.'!** Weber was not even a party member, but approached the ‘NSDAP Justiz-Ausschuf’ in February 1931 anyway, on the grounds that he had at least ‘always since its inception’ voted for the Nazi Party. Economic distress partly motivated such appeals, of course. In recommending one application for legal aid, the leader of the NSDAP Ortsgruppe Sievershausen, Bohm, pointed out that his protégé Af{mann’s (unspecified) offences ‘dated from the needy times of inflation, a period in which the laws were generally not adhered to very strictly, when the distress was great and food was scarce’.!” Nonetheless, that even non party-members like Carl Weber felt they had reason to hope for support shows that the visibility of NS legal aid transcended the party. It offered a way of translating essentially apolitical personal grievances into fundamental opposition to the Republic. ‘The petitions’ reasoning reflects, moreover, the effectiveness of the nationalists’ anti-judicial rhetoric as a framework for this translation. One applicant, Franz Xaver Kemmeter, styled himself the victim of ‘a great injustice, just like it was played out in the Feme trial verdicts’. Viewed through the lens of the Feme trials, Kemmeter’s personal legal grievance—which he characterized only as ‘a matter of private law—was transformed into another instance of systemic injus-

tice.'°° His vignette also illustrates how in anti-judicial propaganda, the Nazis reaped what the Patriotic Prisoners Aid had sown.

Institutional rivalry: the SA legal organization and the Potempa murder Fears about Frank’s increasing power prompted attempts to curb the NS Lawyers Association's independence. Mutual apprehensions accompanied Gregor Strasser’s '? BA(K) NL 1110 Frank Band 24, Junghans brothers to Frank, Geringswalde, 12.11.30. See also ibid., C.M. Tamaschke to Frank, Herzberg/Harz 19.12.30, ibid., AfSsmann to Frank, Sievershausen bei Liibeck [undated, Eingangsstempel 4.2.31]. ibid., Lutz to Frank, Freinsheim 5.12.1930.

'3 ibid., C.M. Tamaschke to Frank, Herzberg/Harz 19.12.30, ibid., AfSmann to Frank, Sievershausen bei Litbeck [undated, Eingangsstempel 4.2.31]. ibid., Lutz to Frank, Freinsheim 5.12.1930. 54 BA(K) NL 1110 Frank Band 35—10, Carl Weber to ‘NSDAP Justiz-Ausschu’, Michelau 6.2.31. 5 BA(K) NL 1110 Frank Band 24, AfSmann to Frank, Sievershausen bei Liibeck [undated, Eingangsstempel 4.2.31], pencilled marginalia. 6 BA(K) NL 1110 Frank Band 24, EX. Kemmeter to Frank, Hallein (Salzburg) 8.12.30.

The Rise of National-Socialist Legal Organizations 167 attempt to absorb the regional BNSDJ into the structures of the local political leadership in late 1931. Roland Freisler drafted a memo defending the BNSDJ’s independence, a document that studiously downplays the Association’s ambitions.'” Six months later, however, Frank launched an initiative to unify all branches of the party organization remotely connected with law under is command. ‘The new ‘division of judicial politics’ (Rechtspolitische Abteilung) of the Reich leadership was to comprise the division of domestic politics, the BNSDJ, and ‘all other divisions primarily concerned with forming the law [rechtsgestaltend]’. The proposals were an open challenge to Gregor Strasser, whom Frank invited to either sanction the proposed Rechtspolitische Abteilung or agree to the integration of all relevant leadership divisions into the existing Rechtsabteilung Reichsleitung. Either way, ‘the entire area of judicial politics [Rechtspolitik] and, connected to it, of legal aid’ was to be ‘removed from the framework of the Reichsorganisationsleitung.”’* Although the reforms were not put into effect, Frank’s ambitions, his power over the NS Lawyers Association and the purchase it gave him on Hitler had not escaped his rivals’ notice. The first sign of opposition to “Dr I?’—the nickname Frank’s idiosyncratic addition of the Roman numeral to his signature had earned him among top Nazis'””—was the

refusal of a group of Berlin nationalist and National Socialist lawyers to join the BNSDJ. At the end of 1930, the organization counted 16 members in Berlin, of which a paltry six were barristers. Moreover, precisely the best-known nationalist lawyers were missing from its ranks, Willy Hahn and Riidiger von der Goltz being cases in point. Their refusal to submit to Frank abetted that of top Berlin Nazis like Goebbels and Goring to employ him or his organization. Goebbels preferred to say ‘what the party had to say’ himself, while Goring told von der Goltz ‘explicitly that he did not wish to be represented by their party lawyer from Munich’.'©

Whereas von der Goltz and the others ‘only’ refused to join the BNSDJ, the SA legal organization proffered an institutional alternative. In April 1932, SA chief Ernst R6hm persuaded Hitler to hire Walter Luetgebrune as full-time legal counsel to the SA leadership.'®' Rohm and Luetgebrune proceeded to build up a network of ‘Gaurechtsstellen’, SA legal advice offices. Its leaders, among them Reinhard Heydrich’s successor as chief of the Reichssicherheitshauptamt, Ernst Kaltenbrunner, were subordinated directly to Luetgebrune.'®’ Despite Frank’s opposition, the SA

Rechtsabteilung flourished. In its first four months, Luetgebrune alone took on "7 BA(K) NL 1110 Frank Band 24, Freisler to Frank, Hagen 25.11.31, attached memo ‘Dr Freissler [sic] an die Rechtsabteilung der NSDAP Reichsleitung’, Hagen 25.11.31 [five typewritten, numbered pages]. 8 BA(B) NS16 Band 112 [non-foliated], Frank to Gregor Strasser “Betreff: Umfang und Gliederung der Rechtspolitischen Abteilung der Reichsleitung der NSDAP’ [according to the marginalia to be discussed by Frank and his deputy], [no place given] 2.7.1932. ' BA(K) NL 1150 Luetgebrune Band 115, ‘folder no.35’ [non-foliated], Himmler to Luetgebrune, Miinchen 13.12.32. 1600 BA(K) KLE 653 von der Goltz Band 2, [212].

'e! According to Heydeloff, Luetgebrune and Réhm showing him around the Nazi headquarters in Munich met Hitler ‘quite by chance’ (Heydeloff, R., “Staranwalt der Rechtsextremisten’, V{/Z 32 (1984), pp.373-421, p.402£). '© Heydeloff, R., ‘Staranwalt der Rechtsextremisten’, V/Z 32 (1984), pp.373-421, p.409, Black, P., Ernst Kaltenbrunner. Ideological Soldier of the Third Reich, Princeton 1984.

168 Courtroom to Revolutionary Stage more than 100 cases. Early in 1933, he was promoted to the rank of Gruppenfihrer.'°? Réhm brushed off all Frank’s criticism. The ‘organizational build-up of legal advisers inside the SA under the direction of a legal adviser at my disposal at all times’ was ‘absolutely necessary’. “Especially the events of recent times’ underlined this necessity, R6hm argued, tacitly referring to the proceedings triggered by revelations about his homosexuality. The SA legal advice bureaux, he continued, should be a ‘relief’ to Frank, and the financing was none of his business. Presumably tongue firmly in cheek, Rohm closed his letter by expressing his hopes for the ‘considerate co-operation and support’ of Frank’s organization.'“ Hans Frank had no intention of supporting the SA. On the contrary, as the jealous wrangling over the Potempa case illustrates, he was bent on defending his turf. In August 1932, a group of National Socialists brutally murdered a Communist in the Silesian village of Potempa. Timing gave the case special significance. The crime was committed in the early hours of 10 August, mere hours after an emergency decree (Notverordnung) making the death penalty mandatory for political manslaughter had come into force. Under the NSDAP’s sharp protest, a special court instituted by the same Notverordnung, the Sondergericht beim Landgericht Beuthen, tried the case. On 22 August 1932, the Potempa killers Kottisch, Wollnitza, Miller,

Graupner, and Lachmann were sentenced to death. Although Reich President Hindenburg commuted the sentences to life imprisonment, Hitler declared the ‘freedom of the ‘Potempa Five’ a matter of the party’s ‘honour’.'® His highly public telegraphic pledge of the party’s ‘utmost support’ signalled the beginning of a sustained politico-judicial campaign for the killers’ pardon. In a veritable beauty contest, SA Rechtsabteilung and NS Lawyers Association vied for this case which Hitler’s personal endorsement had given top priority. Luetgebrune had defended the SA members in the first trials, but Frank, undeterred, attempted to muscle in on the efforts for a retrial. His cause received a boost when

two additional perpetrators were apprehended in December 1932. Through the local BNSDJ leader, Frank, not Luetgebrune, was put in contact with the newly arrested men first. Grotesque scenes at the office of barrister Braun, the local Nazi lawyer, followed as a string of colleagues showed up to convince him that their respective organization was in charge of the case. First Roland Freisler as Hans Frank’s emissary, then Munich lawyer Franzl Mayr on Luetgebrune’s behalf, then Freisler again, and finally Luetgebrune himself called upon their puzzled party comrade in the weeks following the arrest. Afraid to put a foot in the wrong camp, and quite possibly with ambitions for himself, Braun turned directly to Hitler in January 1933. ‘[T]otal confusion’ reigned as to ‘who is to be in charge of the

defence’, ‘party comrade Frank II, party comrade Dr Luetgebrune or party comrade Dr Freisler [...] or whether I myself am to be assigned to the matter.’!® ' BA(K) NL 1150 Luetgebrune Band 115 ‘folder no.1’ [non-foliated] ‘Aufstellung der ProzefSsachen ftir SA und SS’, Heydeloff, R., ‘Staranwalt der Rechtsextremisten’, V/Z 32 (1984), pp.373-421, p.403.

'4 BA(K) NL 1150 Luetgebrune Band 115 ‘folder no.24 [non-foliated], R6hm to Frank, Miinchen 16.9.32 [carbon copy]. '©> Kershaw, I., Hitler 1889-1936, p.476-8. 16 BA(K) NL 1110 Frank Band 31-9, barrister Braun to Hitler, Gleiwitz 16.1.33.

The Rise of National-Socialist Legal Organizations 169 Unfortunately for him, the letter never reached the Fuhrer. Instead, it landed on Frank’s desk. The BNSDJ leader was alarmed by the realization that Freisler’s previous visit had not sufhiced to convince the local lawyer to accept Frank’s leadership of the defence team.'®’ He immediately cabled Braun (with a reprimand) as well as Freisler, alerting him that another meeting was necessary.'®

Meanwhile, Braun’s letter to Hitler had also come to Walter Luetgebrune’s attention. In his turn, the leader of the SA Rechtsabteilung now cabled Braun that he was ‘outraged at the non-legitimate interference of FRANK [W.L.’s emphasis]’, and had ‘immediately lodged the sharpest protest’.'®? A few days later, he announced that his envoy, barrister Franz! Mayr, would shortly arrive from Munich ‘in preparation of the trial’. The local SA refused to accept Frank’s appointment, insisting that Luetgebrune was in charge.'”” Freisler finally managed to persuade barrister Braun of Frank’s seniority at a meeting arranged in Berlin early in February 1933. Freisler argued that since Braun's letter to Hitler had been forwarded to Frank, there could be ‘no doubt’ about Frank’s authority: ‘Party comrade Braun was swayed by this deduction and has now also adopted the point of view that regardless of whether or not a co-representation by party comrade Liitgebrune |sic, R.E’s emphasis] may be a possibility or not, you are in any case and on the Fihrer’s orders leading the defense. With that, the formal side of this affair is taken care of’.'”! The rivalry between the two NS legal organizations made a smooth and effective provision of legal aid virtually impossible. In the Potempa case, SA Rechtsabteilung and NS Lawyers Association not only failed to co-operate, but did what they could to hamper each others’ efforts. Barrister Braun was ‘totally confused’ and wished for ‘cover’ against the SA’s indignation. Walter Luetgebrune refused to return key

legal documents to Silesian BNSDJ leader Rebitzki. Rebitzki in turn attacked Luetgebrune as untrustworthy and counselled against even communicating with him.'” The local NS Reichstag deputy, Emil Russek, also sharply criticized the SA lawyer. Luetgebrune’s exaggerated promises, he wrote to Hitler, had led to unreasonably high expectations on the part of the accused, who now threatened a hunger strike.'”? Russek was referring to opulent gifts Luetgebrune had presented to '7 On 5.12.32, Freisler reported on his preparations for this first meeting with Braun. Frank, who had sent two telegrams to Freisler with instructions, was very anxious that the meeting should take place as soon as possible (ibid., Freisler to Frank, Kassel 5.12.32). '68 ibid., telegram RR to Freisler 26.1.33 [Abschrift], ibid., telegram RR to barrister Braun [Abschrift], [undated]. '° Braun quoted the telegram in his letter to Frank on 30.1.33 (ibid., Braun to Frank, Gleiwitz 30.1.33). '70 Silesian SA leader Edmund Heines and Breslau SA lawyer Engels invoked Hitler's authority to bolster Luetgebrune’s case. Braun ‘had no inclination to have these curious altercations between the SA and the political leadership about who is in charge carried out on my backside’ and asked for a ‘very

short order’ signed by Hitler, in order to be ‘covered’ against SA protests. (BA(K) NL 1110 Frank Band 31-9, Braun to Frank, Gleiwitz 30.1.33). “Il ibid., Freisler to Frank, Berlin 3.2.33. ' BA(K) NL 1110 Frank Band 31-9, ‘Rechtsstelle Oberschlesien der NSDAP’ [signed barrister Rebitzki] to Frank, Gleiwitz 2.12.32. '? BA(K) NL 1150 Luetgebrune Band 115 ‘folder no.25’ [non-foliated], Russek to Hess, Breslau 5.11.32.

170 Courtroom to Revolutionary Stage the defendants to ensure their personal loyalty. Just like Braun’s, Russek’s letter failed to reach Hitler and was channelled directly to Luetgebrune. The SA lawyer denounced Russek’s challenge and ordered him to ‘report directly to me in the future’.'’* Defiantly, Russek replied that if Luetgebrune was too busy with ‘important trials’ elsewhere, he was certain that Freisler would be happy to replace him in Beuthen.'” Amidst the wrangling over their representation, the defendants themselves were relegated to the status of a footnote. In the voluminous correspondence about who should be in charge of their defence, not one line referred to their preferences. Not even the formal requirement of their signature under the appointment letter was mentioned. Such was the extent to which the party's priorities and power politics permeated the lawyers’ thinking. True, G6ring had sent the defendants’ families money, and Luetgebrune had spoilt them with fine food and clothes.'”° But these gifts only emphasized that their interest would be unequivocally subordinated to the party’s. It was imperative to avoid any claims by the defendants in court to have acted under orders, a scenario made likely by certain aspects of the crime.'”” ‘Obliged to protect his true clients, that is to say Hitler and Rohm, Luetgebrune could not employ the potentially most effective argument in court, that the accused had only obeyed orders from Munich. Naturally, Luetgebrune’s biographer Heydeloff concluded, ‘this complicated the defence.’'’* The same goes for all other NS lawyers involved.'””

Personal rivalries compounded the heterogenous institutional framework of Nazi legal aid. As the Potempa case illustrates, neither was conducive to an efficient resource allocation. All personal and institutional rivalries aside, however, NS legal aid reflected the primacy of the party’s concerns over those of individual defendants. In this respect at least, the NS Lawyers Association and the SA Rechtsabteilung found common ground. '4 ibid., ‘Rechtsberater der Obersten SA Fiihrung’ [Luetgebrune] to ‘Abteilungsleiter Emil RUSSEK’ [cc. Hess, Heines, Jenke], Schweidnitz 7.11.32.

'® ibid., Russek to Luetgebrune, Oppeln 26.1.33. '° Heydeloff, R., “Staranwalt der Rechtsextremisten’, V/Z 32 (1984), pp.373-421, p.406, Kershaw, I., Hitler 1889-1936, p.476. '’7 Bessel, R., “Ihe Potempa Murder’, Central European History, vol.10 (1977), No.3, pp.241—54, here p.243, {n.9, though Bessel also emphasizes non-political motives, p.245f. '8 Heydeloff, R., “Staranwalt der Rechtsextremisten’, V/Z 32 (1984), pp.373-421, p.406. ‘” ‘The delay in proceedings Prank and Freisler agreed to seek without consulting the defendants in February 1933, for example, was pure electioneering (BACK) NL 1110 Frank Band 31-9, Freisler to Frank, Berlin 3.2.33, ibid., Freisler to Frank, Luckau, 24.2.33).

Performing Ideology: Rethinking Weimar Political Justice The play really is the production of a new spectator, an actor who starts where the performance ends, who only starts so as to complete it, but in real life. —Louis Althusser!

‘Parteigericht —party court’ was the headline advertising Zhe Measures Taken, Bertolt Brecht’s controversial 1930 play in the Rote Fahne.’ This most notorious of Brecht’s ‘instruction plays’ (Lehrstiicke) has a simple plot. Four revolutionaries are

tried for their handling of a mission to foment revolution in the Chinese city of Mukden by a ‘control chorus’ of party members. Crossing the border, the four revolutionaries shed their identities, donning Chinese masks. ‘The clandestine mission is disrupted, however, by their young local guide. Overcome with sympathy for the oppressed and unable to heed tactical orders, the young comrade’s lack of

discipline finally leads to his unmasking. His mere presence now endangers his comrades and compromises the task. In a chilling scene, the four persuade the young fighter that he has failed as a revolutionary and that his death is the only way to make amends. He asks to be shot and for his remains to be dissolved in a lime pit. Although ultimately accomplished, the mission thus exacts a steep price: the young comrade’s life. This fatality is what the four revolutionaries stand accused of, the ‘measure taken’ that they proceed to account for in a series of skits and songs. The play finishes on a sombre, but defiant note as the ‘control chorus’ of workers acquits the four. Being a revolutionary is an all-consuming and at times bewildering task where commitment and discipline are the sole guiding lights, and the costs of changing the world for the better are high: At the same time your report shows how much Is needed if our world is to be altered.

I have argued that in order to understand the salience of Weimar political justice for the erosion and collapse of Weimar political culture, we must look beyond judges and verdicts to the nexus of politics, law, and culture. Party lawyers were able to make trials such vibrant sites of resistance and ideological self-stylization

' Althusser, L., For Marx, New York 1996, p.152. * Rote Fahne, 21.1.1931, reproduced in Bodek, R., Proletarian Performance in Weimar Berlin. Agitprop, Weimar and Brecht, Columbia 1997, p.152.

172 Courtroom to Revolutionary Stage partly because of their resonance with Weimar theatrical innovation, for which The Measures Taken provide a good starting point. Effectively, the play operates not just as a courtroom drama—a Parteigericht, as the Red Flag ad put it—but as a courtroom drama within a courtroom drama. For in pleading their own case at the party court, the four seasoned fighters recreate, scene by scene, their earlier instruction/ prosecution of the well-meaning but misguided young comrade. At once highly deliberative and emotionally charged, trials are an ideal substrate

for Brecht’s instruction plays. Not by coincidence, Brecht and contemporaries regarded The Measures Taken as the quintessential Lehrstzick, and it certainly caused most controversy.’ In 1940, the FBI had it translated as an example of Communist

incitement to violence, and Brecht’s hearing before the House Committee for Un-American Activities centred on the play’s message.* Just like epic theatre, the instruction plays privilege reason over emotion, and opt for the alienation effect over indentification and catharsis. But Brecht goes even further. His other plays, Saint Joan of the Stockyards, Baal or the Three Penny Opera, never allow the audience to forget that it is in a theatre, so that it may respond critically rather than emotionally. In the instruction plays, there is no audience—or rather, players and audience are one. 3,000 Berlin workers formed the ‘control chorus’ in the premiere on 13 December 1930. According to Brecht’s theory of the Lehrstiick, also translated as ‘didactic play’ or ‘learning play’, the actor-spectators hone perceptions, sample stances, form opinions and are galvanized into action through performing. As Joy Calico puts it, the Le/rstiicke aim at nothing less than a ‘renegotiation of the audience’s contract with the theatre-going experience’.’ In that sense, not just the boundary between actors and audience, but between theatre and life is torn down. Another reason why The Measures Taken provoked controversy was, of course, that it related to the reality of Weimar courtrooms as described in the three preceding chapters. Here, too, a double drama unfolded. On the one hand, the judgement by the court, on the other, the judgement by the public at large, and especially by the partisans of the defendants’ cause, of the court, and of the ‘posture’ and performance of those in the dock. Revolution and progress—but at what cost? Some critics paint Brecht as an apologist for Stalinism. They dismiss the playwright’s insistence that the Le/rstiick poses rather than answers the question. While this criticism is both overdrawn and anachronistic, Die Mafsnahme certainly reads like an exhortation to obey the party. Amidst the uncertainties of the revolutionary struggle and given the paramount need for secrecy, party discipline is the one reliable guiding light: The Communist fighter must be able to fight and not to fight, to speak the truth and

not to speak the truth, to perform services and not to perform services, to keep promises and not to keep promises, to go into danger and to keep out of danger, to be > Calico, J., Brecht at the Opera, California studies in 20th century music 9, Berkeley 2008, pp. 16-18, Doe, A, ‘Brecht’s Lehrstiicke: Propaganda Failures’, Educational Theatre Journal, vol.14 (1962) No.4, pp. 289-96, Horsman, Y., Theaters of Justice. Judging, Staging, and Working Through in Arendt, Brecht and Delbo, Stanford 2011, pp.92-4. * Horsman, Y., Theaters of Justice, pp.94-8. > Calico, J., Brecht at the Opera, p.6.

Rethinking Weimar Political Justice 173 recognizable and not to be recognizable. The Communist fighter has of all the virtues only one: that he fights for Communism.°

For the committed revolutionary, single-minded pursuit of the ultimate goal required total submission to party discipline, and if necessary self-sacrifice. The Lehrstticke go beyond illuminating or advertising the revolutionary struggle: they seek to elicit it in the actor/spectator. Like political trials, Brecht’s experimental theatre is not just about the revolutionary struggle, it zs the revolutionary struggle, albeit in a discursive key. That is why it is difficult not to see Brecht’s Measures Taken in the light of Josef

Gartner's conviction, or for that matter, in the light of Max Holz’s, Rudolf Margies’, Leo Schlageter’s, and the Rathenau killers-—and vice versa. In literature and life, the willing sacrifice of the accused/hero/revolutionary facilitates and brings into being the community that is poised to remake society in its own image. Like Weimar political trials as conducted by party lawyers, the Measures Taken blurs the boundaries between audience and players, between high and low culture and between aesthetics and politics. Thus the play is not just a lens through which we can better understand courtroom as revolutionary stage, but part of an answer to the question of which frameworks, conditions, movements and perceptions facilitated the politicization and dramatization of justice in the first place. This chapter has three parts. The first asks what performance is, and discusses the implications of the ‘performative turn’ for the study of German legal culture. It sets the methodological frame for the chapter’s more empirical sections. In order to fulfil the high hopes Weimar parties pinned on them, trials required public exposure, discussed in part two. Publicity for court cases was forthcoming thanks both to long-term structural changes in the supply and demand of news media and to specific media innovations. ‘The third part frames political trials as part of the aestheticization of politics in interwar Europe. It seeks to contextualize courtroom performances of ideology on a number of levels: sacrifice and community, the construction of martyrdom, the resonances between political justice and theatrical innovation such as agitprop and Piscator's politisches Theater, and finally cross-over forms combining theatre and trials.

THE PERFORMATIVITY OF JUSTICE AND GERMAN LEGAL CULTURE The insouciance with which the theatre metaphor is applied to trials can grate, yet no doubt there is something particularly ‘performative’ about trials—but what? And how should historical scholarship reflect this performativity of law? Before addressing these questions we must first define ‘performance’ and ‘performativity. Colloquially the term ‘performance’ is used in a variety of contexts, this study’s use derives from theatre and performance studies. Performance involves the

° Brecht, B., Die Mafsnahme, Scene 2 (author’s translation).

174 Courtroom to Revolutionary Stage bodily co-presence of a spectator and a performer (which can be one and the same,

as in our daily routines in front of the mirror, or in moments when we become, often acutely, aware of our appearance to others).’ Invoking a multitude of reference systems, the performer's actions under the spectator’s gaze generate meaning, contesting or affirming values, traditions, identities etc. Crucial for this process is

the co-presence of audience and performer(s)—their link and interaction is the performance, they produce it in unison.°® In the wake of J.L. Austin’s work on speech acts and Searle’s subsequent philoso-

phy of language Erving Goffmann, Victor Turner, Richard Schechner, and Erika Fischer-Lichte have made the notion of ‘performance’ operational as a heuristic tool and a framework for analysis of social orders and social action.’ Part of the power of performance is to obscure and abate logical contradictions and social divisions. In the hushed dark of a theatre auditorium captivated by a play, but also in moments of religious rapture, in the mud of a rock festival, or during moments of sporting elation, social distinctions are largely extinct. De-individuated, spectators fuse into a community, albeit a limited, transitory, or even illusionary one. Phenomena as varied as flaneurs in Parisian streets and North Korean mass choreographies, medieval carnivals and modern sports, gender identity and early modern practical jokes in Parisian printing houses have been studied as ‘performances’."° By definition, a performance is transitory, unique, and immediate: the performance of Hofmannsthal’s Elektra on Friday 30 October 1903 as opposed to that on the following day, Hélzs closing speech in the Moabit courtroom on 22 June 1921 rather than a newspaper's evocation of it. Which is not to say that the effect of performances is limited to those physically present. Large as sports arenas, theatres, and houses of worship are, media can serve to extend the reach of manifold performances. Some of the impact is lost in translation, but witnessing a performance at second hand is still different from merely being informed of actions and outcomes, as anyone will testify who has watched a football game with the volume switched off and the roar of the crowd subdued. For the same reason, newscasts feature live dispatches from on-site correspondents, and court reporters report from the courtroom, with dialogues, atmospheric descriptions of the locality, portraits of the principal actors and so forth.

e e e e e e e 11

” Butler, J., Gender Trouble, New York 1999, p.179, Gumbrecht, H.-U. ‘Small Crises’, pp.267—76 in Grunwald, H,/Pfister, M. (eds.), Kvisis!, Miinchen 2007, here p.271. ® Fischer-Lichte, E., ‘Performance as Event—Reception as Transformation’, pp.29—42 in Hall, E., Harrop. S. (eds.), Theorising Performance. Greek Drama, Cultural History and Critical Practice, London

2010, p.33, p.37-9. ° Fischer-Lichte, E., The Semiotics of Theater, Bloomington 1992, pp.1—17, 129-31, 139-41, Goffmann, E., The Presentation of Self in Everyday Life, Garden City 1959, pp.18—27, Geertz, C., Local Knowledge. Further essays in interpretive anthropology, New York 1983, pp.25—31, Turner, V., Ritual process: structure and anti-structure, Chicago 1969, pp.94-101. '° Butler, J., Gender Trouble. Feminism and the limits of sex’, 10th anniversary ed., New York 1999, pp.177—9, Gumbrecht, H.-U. ‘Small Crises. Aesthetic Experience in Everyday Worlds’, pp.267-—76 in

Grunwald, H,/Pfister, M. (eds.), Krisis! Krisenszenarien, Diagnosen und Diskursstrategien, Miinchen 2007, Darnton, R., “Workers Revolt: The Great Cat Massacre of the Rue Saint-Séverin in idem., The Great Cat Massacre and Other Episodes in French Cultural History, New York 1999, Fitzpatrick, S., “How the Mice Buried the Cat: Scenes from the Great Purges of 1937 in the Russian Provinces’, Russian Review, vol.52, No.3, pp.299-320. 't Siemens, D., A Popular Expression of Individuality, pp.109-14.

Rethinking Weimar Political Justice 175 ‘Performativity’ refers to the inherent and ongoing potential of specific cultural, discursive, or political configurations to generate social, aesthetic, or transcenden-

tal realities. Unlike performance, performativity is not unique and transient. In fact, its force derives partly from repetition and custom. To an even higher degree than performance, performativity depends on framing and presupposes the existence of a symbolic order in which the social and political context is represented. Anyone can utter the words ‘I pronounce thee husband and wife’ or ‘in the name of the people’. For these words to make something happen, however, to constitute or alter reality, the setting, the participants, and a host of other conditions must accord. As Jaques Derrida puts it, for performative speech-acts to succeed they must ‘repeat a “coded” or iterable utterance’.'* Performativity therefore draws on and reafhrms, but potentially and over time also challenges and modifies shared perceptions and orders of representation. Philosophers, cultural theorists, and lawyers have recently sought to bring the concept of performativity to bear on the analysis of legal procedure.'? Martha Merrill Umphrey argues that ‘trials are law-making (not just law-applying or lawinterpreting) events because of their performativity’. Still, her survey of legal philosophy suggests that most schools place very little weight on the performativity of law, or none at all.'* However, ‘conceiving of law as “performative” suggests that we can forward an expansive understanding of law’. Rather than‘just as the application of formal legal rules or past precedent’, law appears as ‘a set of contingent enunciations made across a number of legal locations: the street corner, the interrogation room, the district attorney's office, a lynching scene and, of course, the trial’. Further, it follows that not just the content of the law is in play (and in contention) but the way in which the legal subject is conceived: “How is law discursively constituted such that it produces particular renderings of both law itself and legal subjectivity?” In probing this ‘how’, scholars disagree, for example about the question whether legal procedure is essentially reiterative or non-reiterative, or about the importance of subjective agency.'° These insights and debates have made their way into historiography. Thus Jiirgen Martschukat stresses that ‘a history inspired by performance theory does not search

'? Derrida, J., “Signature, Event, Context’, pp.1—24 in idem. (Graff, G., ed.), Limited, Inc., Evanston 1988, p.18. Derrida's essay was first published in 1972. 'S Apart from the authors discussed in the text see also Shklar, J., Legalism. Law, Morals, and Political Trials, Boston 1986, pp.142—46 on the ostentative qualities of legal procedure, and her argument

that liberal Western justice systems are not intended to deal with fundamental political dissent, pp.216-18; Burns, R., A Theory of the Trial, Princeton 1999, chs. 5—7; Allo, A., “The “Show” in the Show Trials: Contextualizing the Politicization of the Courtroom’, Barry Law Review, Vol.15 (2010) No.1, pp.41—72, especially pp.46—-51.

‘4 Umphrey, M., ‘Law in drag: Trials and Legal Performativity, Columbia Journal of Gender and Law Vol.21, pp.516-31, p.522-3. '° Umphrey, M., “Law in drag: Trials and Legal Performativity’, Columbia Journal of Gender and Law Vol.21, pp.516—31, p.524. '© Munro, A., “The Descriptive Purchase of Performativity’, Culture, Theory and Critique, Vol.53

(2012), No.1, pp.83—98, p.84, see also Peters, J., “Legal Performance Good and Bad’, Law, Culture and the Humanities 2008; No.4, pp.179-200, p.184,Umphrey, M., “Law in drag: Trials and Legal Performativity’, Columbia Journal of Gender and Law Vol.21, pp.516-31, p.522.

176 Courtroom to Revolutionary Stage for individual human intentions behind historical events or processes’. My study's take is much more traditional, in that I see no contradiction between an interest

in performativity on the one hand and in individual intent and agency on the other. In fact, it is hard to make sense of the history of Weimar political justice as told here without both. This Martschukat seems to acknowledge when he writes that such historical scholarship ‘strives to describe historically specific cultural configurations that make certain thoughts, intentions, and actions possible and appear logical, positive, self-evident—and others illogical and false. To put it differently, these configurations form the conditions of possibility for human actions and intentions.’’” Ariela Gross has demonstrated how fruitful a research agenda informed by these questions can be in her account of race determination litigation and its purchase on ascriptions of racial identity.'* To Donald Korobkin, such an ‘approach to performativity exemplifies the ‘cultural criticism of law’ that perceives its subject as ‘as an arena for the performance and contestation of representations of self’ and critical for defining ‘the roles and identities available to groups and individuals in portraying themselves’ .”” It is a misconception (entertained mostly by its critics and detractors) that the ‘performative turn’ has led to a consensus. Scholars disagree on subjects and periods to study, but also on methodology, i.e. precisely how social phenomena should be studied as performances. My own notion of performativity, for example, is obviously indebted to Judith Butler, who occasionally describes the performativity of gender in legal metaphors. The incommensurability of bodies and the discourses governing their emergence, e.g. she describes as ‘instabilities’ marking ‘one domain in which the force of the regulatory law can be turned against itself to spawn rearticulations that call into question the hegemonic force of that very regulatory law’. As Andrew Munro puts it, Butler locates ‘contestatory possibilities for nonsovereign subjects in the very structures of normative citation by means of which these subjects are partially formed.’ Nevertheless, Butler's philosophical take on performativity deals with language and subjectivization, whereas mine is concerned with collective identity and political representation.” It is thus safe to say that we disagree on the performativity of the legal process, even though we (hopefully) agree on the legitimacy of using it as an analytical framework in the humanities. As this example was meant to show, if there really was a ‘performative turn’, then around the corner lay a wide-open field, not a narrow path.

Maximizing theoretical rigour and adding to the conceptual canon of perform-

ance studies is not the intention of this study, much less ‘remedying’ what is '7 Martschukat, J., “Nineteenth-Century Executions as Performances of Law, Death, and Civilization’, pp.49-68 in Sarat, A. (ed.), Cultural Lives of Capital Punishment: Comparative Perspectives, Palo Alto 2005 p.50—1. (Munro, A., “The Descriptive Purchase of Performativity’, Culture, Theory and Critique, Vol.53 (2012), No.1, pp.83—98). Stripped of jargon, a historian as unsuspicious of faddish-

ness as E.P. Thompson could have endorsed this statement, at least according to Suzanne Desan’s reading (Desan, S., ‘Crowds, Community and Ritual in the work of E.P Thompson and Natalie Davis’, pp.47—71 in Hunt, L., Zhe New Cultural History, Berkeley 1989, p.53-4. 'S Gross, A., ‘Litigating Whiteness: Trials of Racial Determination in the Nineteenth Century South’, Yale Law Journal, Vol.108 (1998) No.1, pp.156-76. Korobkin, D., “Bankruptcy Law, Ritual, and Performance’, Columbia Law Review, Vol.103 (2003), No.8, pp. 2124-2159, p.2128. °° Butler, J., Bodies that Matter. On the discursive limits of ‘sex, New York 1993, p.x, pp.2-3, pp. 13-15. Munro, A., “The Descriptive Purchase of Performativity’,, Culture, Theory and Critique, Vol.53 (2012), No.1, pp.83—98, p.85.

Rethinking Weimar Political Justice 177 clearly a productive multitude of perspectives and approaches. Rather, my notion of ‘performance’ takes the concept’s most recognizable and consensual features in

order to highlight the effectiveness of Weimar trials as sites of ideological self-stylization and community generation. It is helpful in thinking about ‘performance’ in a more theoretically rigorous sense, for example, to distinguish it from ‘representation’. However, I have often used ‘represent’—as in ‘H6lz’s defance in court represented his party’s radical opposition to the existing order-— where a purist would have insisted on ‘perform’.*’ The point of performance in the narrower sense is precisely that it is mot representation. The co-presence of actors and spectators, and the merging of signifier and signified in the body of the performer create an immediacy forging actors and spectators into a community. Though transitory, it transcends ‘mere’ representation. This helps explain why, as I have claimed, Weimar trials were not merely representations of or ‘play-acting’ at class struggle (or the struggle for national liberation), but in a sense were themselves that struggle, albeit for the time being in the clench-your-fist, grit-yourteeth mode of the theatrical ‘as if’. Still, in keeping with its focus on empirical data—trials, biographies, organizations—this study does not distinguish sharply between the two concepts. While the nexus of law and performance has come into greater focus in recent years, the field is clearly still in its infancy. “Despite the persistence of the trope likening law to theatre’, Julie Peters notes, and ‘despite the vast body of critical writing on “law and literature,” the rise of “Performance Studies” and the more general proliferation of the term “performance” in critical studies, there has been

no sustained theoretical articulation of the nature of legal performance or the meaning of legal theatricality in the critical literature.’** Nevertheless, studying the dramatization and politicization of legal procedure in Weimar Germany bolsters the case for taking seriously the usefulness of performance and performativity in the historical analysis of law and legal procedure.

Given the performativity of law, and the power of performance to influence identities and perceptions, characterizing political trials as performances of ideology offers more than a comment on the structural similarities between stage and courtroom. Obviously, proceedings ‘follow a script’ and the different protagonists ‘play parts’, some in ‘costume’. There is an auditorium and an audience, which, though bound by rules (written in one case, implied in the other) of silence and non-intervention, is nonetheless crucial to both types of performance. But more importantly, the participants in a trial play out a conflict and in so doing negotiate, reaffirm or challenge the rules of engagement governing the administration of justice and the symbolic order represented and protected by it.** The participants *! Fischer-Lichte, E., “Performance, Inszenierung, Ritual. Zur Klarung kulturwissenschaftlicher Schliisselbegriffe’, pp.33-54 in Martschukat, J., Patzold, S. (eds.), Geschichtswissenschaft und performative turn. Ritual, Inszenierung und Performanz vom Mittelalter bis zur Neuzeit, K6ln 2003.

* Peters, J., “Legal Performance Good and Bad’, Law, Culture and the Humanities 2008, No.4, pp.179-200, p.181. *> Steinmetz, W., “Towards a comparative history of legal cultures’, pp.1—41 in idem. (ed.), Private Law and Social Inequality in the Industrial Age. Comparing Legal Cultures in Britain, France, Germany,

and the United States, Oxford 2000, pp.8-11.

178 Courtroom to Revolutionary Stage espouse or reject values, social hierarchies, and modes of interaction not just in their words, but also in their dress, posture, tone of voice, gestures, and actions, in their entire habitus. As we have seen, the manifestations of such performances can be as subtle as a sneer and as drastic as leading the defendants out of the courtroom to join a brawl with the police outside the magistrates’ house.” Subtle or crass, the effectiveness of trials as performances of revolutionary ideology turns on the fact that every trial is a performance. Whether private conflicts of interest are resolved or violations of the legal order expiated, the dominant social and symbolical order is re-afhrmed. Hence the manifold rituals and symbols of the state authority in the courtroom: the elevated position of the judges, the rising of the audience upon their entrance, the gavel, etc. What is more, the judicial process also displays, and its participants perform, its credentials as an impartial, evidencebased and public reconciliation process. Hence the symbolizations of ‘blind justice’, the de-individualization of the stewards of the trial with robes, wigs, hats, and other special attire, but also the haloed rules of evidence and legal principles such as audiatur et altera pars, in dubio pro reo, etc. A recent and original attempt to apply the insights of the performative turn to

the cross-legitimization of National Socialist and Communist self-stylization is Tim Brown’s Weimar Radicals. Taking his cue from Conan Fisher and recent students of Weimar social history in a cultural key (such as Sven Reichardt and Pamela Swett), Brown argues that locating Communists and National Socialists on opposite ends of a political ‘spectrum’ is misleading. The dynamic between the two unfolded in an in-between zone (National Bolshevism and defectors form the study's primary empirical base), Brown argues, and ‘performance’ is a key to unlocking it. This approach has much to commend it, but—as the juxtaposition of ‘performance’ and ‘authenticity’ in the subtitle signals—trisks misapprehending the basic relationship between these two concepts. Performance in its substantive sense (i.e. apart from the “all the world’s a stage’ phraseology of undergraduate

writing) has little to do with make-believe, and nothing at all with ‘fakeness’.” Authenticity zs a performance, and the fusion of stylized behaviour and hardedged compulsion is precisely what made political trials so compelling as performances of ideology. Trials everywhere and at all times put the fairness and objectivity of the judi-

cial process and the state authority underpinning it on display. To the extent that this aspect of justice is intrinsic to the process, however, it is also open to challenges. Precisely because of the state’s role in the judicial process, and precisely because of its ostensibly worn impartiality and fairness, subversive performances of defiance cut it to the quick. Contesting the legitimacy of the *4 ‘This approach already informs the work of some historians of law and culture, e.g. Cassiday, J., ‘Marble Columns and Jupiter Lights: Theatrical and Cinematic Modeling of Soviet Show Trials in the 1920s’, The Slavic and East European Journal vol.42, No.4, pp.640—60, Schulz, D., ‘Redressing Oscar:

Performance and the Trials of Oscar Wilde’, TDR vol.40, No.2, pp.37-59, Wood, E., Performing Justice. Agitation Trials in Early Soviet Russia, Ithaca 2005.

© Brown, T., Weimar Radicals. Nazis and Communists between Authenticity and Performance, Monographs in German History 28, New York 2009, pp.1—13, esp. p.11-13.

Rethinking Weimar Political Justice 179 process and ridiculing the very foundations upon which ‘fairness’ was offered made trials such rousing vehicles of dissent. Their attraction resulted partly from brushing this crucial, yet scarcely acknowledged aspect of creating acceptance for legal decision-making against the grain. Underscored by the willing-

ness of their protagonists to sacrifice themselves in the unmasking of the ‘charade’, trials as performances of ideology laid a powerful charge against the legitimacy not just of Weimar justice, but of the hated ‘system’ as a whole. Not one, but two performances were thus in play, and in contest, in Weimar courtrooms. On the one hand, the performance of the reliability, impartiality and authority of the judicial process (and by extension of the political order) was ingrained in every trial, spectacular or mundane, big or small, political or not. On the other hand, in the trials this book is concerned with, a subversive and aggressive counter-performance asserted the very opposite, while afhrming the superiority of its own ideological position. Andreas Wirsching, Roger Griffin, Hans Maier, and Emilio Gentile have recently

placed renewed emphasis on the study of the early stages of totalitarian movements. In these quasi-embryonic phases, they argue, attitudes and practices of community are rehearsed which subsequently shape and inform the movement's regime in power. As Daniel Schonpflug summarizes: The movement offers its members a collective way of life, a place in society, an experiential space and an aesthetic. ‘Ihe promise of the future characteristic of totalitarian-

ism is translated into language, visual images, and symbols. On a small scale, the ideologically constructed group prefigures what is in store for the state, society, and economy once the totalitarian movement, with its claims to fundamental renewal and a complete domination of all aspects of life, takes power [...].7°

The notion of performance underpinning this study is intended to unlock a particularly salient context—the judicial—in which practices, language, images, and symbols could create and affirm such a community of ideologues. To speak of performance does not to suggest that the trials were in some sense ‘just’ theatre, or that the values and ideas informing them were insincere or ‘merely pretended’. Much less is it to distract from the fate of the many thousands of victims of judicial bias, overwhelmingly of the left, or to render harmless the suffering of prisoners, regardless of culpability and political stripe. Instead, labelling trials as performances of ideology is to suggest that they offered extremist parties a means of creating meaning and identity that was intuitive, emotive, interactive, and powerful. The heroic community of defendants, lawyers, and the party forged in political trials offered just the kind of aesthetic and experiential space Schénpflug evokes. It

was a vital component in sustaining the—often highly unrealistic—pathos and self-view of extremist parties as genuinely revolutionary forces. Thomas Mergel’s study of Weimar’s parliamentary culture has shown that the practice of politics was

*° Schénpflug, D., “Histoires croisées: Francois Furet, Ernst Nolte and a Comparative History of Totalitarian Movements’, European History Quarterly, 37 (2007), No.2, pp.265—90, p.267.

180 Courtroom to Revolutionary Stage complex and immersive, and cannot be reduced to a polarized field of hermetically sealed, monolithic entities without overlaps or points of convergence. Manifold interactions and interconnections cut across even the starkest ideological divides. In March 1926, for example, the KPD chief whip Emil Héllein reached a gentleman’s agreement with Heinrich Briining, then the Centre Party’s finance expert. H6llein’s KPD would suspend a parliamentary obstruction long enough to allow

Briining to attend the funeral of his friend and party comrade, the former Reich Chancellor Constantin Fehrenbach. Regional and generational connections, shared experiences (from the trenches to having held the ofhice of mayor), ad-hoc gestures like Hollein’s, and even friendships mitigated the acerbic partisan rhetoric. For the extremist parties during the stability phase, judicial procedure therefore provided a

crucial counterpoint to the relatively conciliatory practice of parliamentarism.” Political trials as spectacles of ideological conviction and defiance helped keep alive

an aura of revolutionary potency even while the Communist and far-right parties immersed themselves in the practice of Weimar politics, economic life, and at times even government.

‘BETTER PROPAGANDA OF THE DEED THAN THE OFFENCE ITSELF’: POLITICAL TRIALS IN THE PUBLIC SPHERE Stressing the performativity of justice makes visible the potential of trials as vehicles of fundamental dissent. The growth of popular mass media, the aestheticization of politics, and the fascination with notions of authenticity and sacrifice help explain the spectacular realization of this potential in the Weimar Republic. While all were European phenomena, each had particular salience in Germany.

Press and political justice Cost reductions, increased literacy and leisure time drove the proliferation of newspapers even before World War One. As governments discovered the importance of

popular opinion in a war of attrition, the media received a further boost. By the time of the Paris Peace Conference, mass media had begun to directly influence the

conduct of politics. Innovations such as illustrated weeklies drove circulation figures ever higher during the interwar years, and created an urgent demand for content that was topical and stimulating, content that would generate sales.** In Germany, courtroom drama answered to these criteria. High-profile trials were key drivers of the triumph of the Weimar yellow press, as Bernhard Fulda has recently argued. ‘The murder trials of the Rathenau and Erzberger conspirators, but

*’ Mergel, T., Parlamentarische Kultur in der Weimarer Republik, Diisseldorf 2002, p.135-6. °8 Ross, C., “Mass Politics and the Techniques of Leadership: The Promise and Perils of Propaganda in Weimar Germany’, German History, vol. 24, no. 2 (2006), pp.184—211, here pp.184—8., Fulda, B., Press and Politics in the Weimar Republic, Oxford 2009.

Rethinking Weimar Political Justice 181 also non-political trials like that of Peter Kiirten (the ‘“Diisseldorf Vampire’, one of the inspirations of Fritz Lang’s celebrated movie ‘M’) or the ‘Berlin High School Students Tragedy’ (the Krantz trial of 1928) were widely reported.” Although not particular to Germany, the court reportage experienced its most exhilarating bloom here, as Daniel Siemens’ comparative cultural history of the genre makes clear. In Berlin, trial coverage provided daily updates from the city’s courthouses, and every major paper had at least one court reporter. The Vossische Zeitung had five, the Berliner Tageblatt four. Erich Eyck, himself a trial lawyer, edited Recht und Leben [Law and Life], a well-regarded weekly supplement to the Vossische Zeitung. An

Association of Court Reporters in Berlin’ was founded in 1931, evidence of a ‘professionalization’ of court reporting, according to Siemens.”” Gabriele Tergit, Rudolf Olden, and Paul Schlesinger (using the pseudonym ‘Sling’) were among the Republic’s most visible journalists. Conversely, all Weimar’s most prominent cultural and political commentators—Kurt Tucholsky, Carl von Ossietzky, Egon Erwin Kisch to name only a few—wrote frequently and passionately on trials and the justice system.”! Many judges mistrusted the growth of courtroom journalism, perceiving it as a threat to independent judicial decision-making. It is a measure both of the genre’s growing importance and of the capital’s pre-eminence as the site for political trials that the Berlin lawyers’ chamber pioneered guidelines for court reporting in the summer of 1929. Wolfgang Heine, who also sat on the Reichstag press commission, chaired the chamber’s exploratory commission, which counted two further Social Democrats among its six members. On its recommendation, the Berlin court of appeal opened a press liaison office, the first of its kind, charged with enhancing the transparency of proceedings.*’ In part a concession to judges’ apprehensions, it answered to sheer popular demand and embodied the hopes democratic barristers pinned on augmenting the courts’ visibility. During the 1927 annual Reichstag debate on the administration of justice, Paul Levi had hailed the press as ‘the new court of the last instance’. He welcomed that the press is filling its court reporter posts with well-qualified writers, recognising that a new and important task has grown for it here [...] frequent appeals [to the press] have certainly done no damage to the cause of justice [applause] [...]. The judges perceive this highest instance as an inconvenience, but the press will have to make sure it retains this high calling, bringing sacrifices of its own.*?

* Evans, R.J., Rituals of Retribution. Capital Punishment in Germany 1600-1987, London 1997, pp.536-42, 591-604, Fulda, B., Press and Politics in the Weimar Republic, Oxford 2009, pp.46-74, Siemens, D., A Popular Expression of Individuality, p.330. °° Siemens, D., A Popular Expression of Individuality, p.50. *! Tbid., pp.41—65, on Sling pp.45—7 with further references.

°** Apart from Heine, SPD barristers Leo Davidsohn and Siegfried Lowenstein (BA(B) NL 2111 Heine Band 141, [1] Vorstand der Anwaltskammer Berlin to Heine, Berlin 20.6.29, ibid., [7]—[8b], draft of Heine’s position, Berlin 24.6.29, ibid., [18]—[20] draft of commission’s recommendations, ‘Entwurf’, Berlin 27.6.29). °5 BA(B) NL 2111 Heine Band 138, [15] VZ 23.2.27.

182 Courtroom to Revolutionary Stage However, intensified press scrutiny of trials was by no means as unambiguously

positive for democratic political culture as Levi's optimism would suggest. In Weimar’s strongly polarized public sphere, there was no ideologically neutral ‘court of the highest instance’.

Turning political trials into bestsellers: Tribunal and Justice Enchained The ‘Illustrated Justice-Journal’ Tribunal epitomizes the link between the public’s appetite for trials and the politicization and dramatization of justice. Founded in 1929, the monthly Tribunal covered trials, prisons, police high-handedness and related topics, with an emphasis on images. Its forerunners had been more staid publications in the mould of association newsletters. Even so, Der Rote Helfer— Mitteilungsblatt der Roten Hilfe (The Red Helper—Newsletter of the Red Aid) had evolved from an entirely member-focused forum into something more general and accessible. With more editorial content, poems, caricatures, and prose texts, it had increased circulation from 40,000 to 150,000 between August 1925 and October 1928.°* However, the re-launch as Tribunal early in 1929 brought a step change. Internal Red Aid communications were delegated back to a simple newsletter. 7ribunal took its cue from the successful Arbeiter IMustrierte-Zeitung (Workers Illustrated Newspaper, AIZ), the popular brainchild of Willi Miinzenberg.” More than 150,000 copies of Tribunal left the printing press each month in 1929, five to six times more than the—admittedly daily—Rote Fahne with its considerably drabber fare.°° Print-runs dropped during the depression, but ‘grey’ hand-to hand circulation increased, and Tribunal appeared fortnightly from mid-1930 onwards. The journal was of sufficient importance to the Red Aid leadership that a special campaign was mounted in 1932 to increase subscription rates. Given the virtual bankruptcy of Communist Party and Red Aid its success, in the teeth of the prolonged downturn, was remarkable. Banned twice, in July 1931 and again after June 1932 (at which point, /ustiz und Recht was hastily put up asa successor), Tribunal adapted in presentation and production technique to leaner times. However, even on the eve of the Nazi ‘seizure’ of power, close to 100,000 copies of Tribunal circulated. Tribunal owed its success to the mixture of politicized and emotive trial cover-

age, other popular and accessible content, and an attractive presentation. Over time, articles became shorter while the use of images increased—photographs, but also drawings and caricatures by star draughtsmen such as Otto Bittner, Werner Eggert and Peter Walter Schulz. ‘Du und das Recht (You and the Law), a popular column, answered questions about law in everyday life. Priced at 10-15 Pfennigs, the equivalent of a few bread rolls, it was within reach of most worker households and certainly of the associations, pubs, and meeting places that ensured that the journal’s ‘grey’ circulation was a high multiple of the print-runs. * Brauns, N., Schafft Rote Hilfe! Geschichte und Aktivitaten der proletarischen Hilfsorganisation fiir politische Gefangene in Deutschland (1919-1938), Bonn 2003, p.65. °° McMeekin, S., The Red Millionaire: A Political Biography of Willy Miinzenberg, Moscows Secret Propaganda Tsar in the West, 1917-1940, New Haven 2003, p.212. °° Fulda, B., Press And Politics, Oxford 2009, p.24.

Rethinking Weimar Political Justice 183 Assessing how important this form of propaganda-cum-human-interest publication was for the propagation of the KPD line is notoriously tricky. But even Tribunal’s considerably less attractively laid-out (and named) precursors, the Bu/letin of the Executive Committee of the International Red Aid and The Red Helper impressed and intimidated the Republic’s political police. A classified February 1926 report from Bremen declared that One has to read these two journals [...] for oneself sometime in order to gauge how these narratives, images, and articles covering the misery of prisoners, the “White Terror in Italy, Hungary, and Bulgaria, the suffering of the Syrians and the desperate hardship of the children of revolutionaries must affect the readers. One has to see the thank-you letters of the recipients of gifts or the images of collections-in-kind from the Soviet Union in order to form an idea of just how strong a backing this idea and its practical execution provides for the attitude and activism of the masses.

One might, with Klaus-Michael Mallmann, object that such reports tell us more about the fantasies and projections of the writer than about the mindset of the workers.*’ However, even allowing for the policeman’s motivation in exaggerating the very threat upon whose containment his livelihood depended, this was fulsome praise, from a source with privileged insight. Triangulating the report with sources like the letters it quotes and the miscellaneous statements of party officials paints a picture of court reporting as a highly attractive medium for the dissemination of the party line. As James Miller, Susan Pennybacker and Eve Rosenhaft note, ‘survey after survey showed that even activists hardly ever read the carefully composed journals of the [Communist International’s] mass organizations’.** Ideologized court reporting offered a way out of this quandary. Unlike the endless sermonizing in the columns of the party press, the content of Tribunal held a human interest and an ideological lesson. Rather than just exhorting revolutionary implacability and self-sacrifice, the activists in the dock actually seemed to live them. Strikingly, the success of Tribunal came after the peak of the first wave of political persecution had passed. In fact, an earlier attempt at creating an illustrated monthly anti-judicial journal had failed utterly. Despite lavish presentation and illustrations by renowned graphic artist Kathe Kollwitz, ZRH— Weisse Klassenjustiz, Gefdngnisschmach, Rote Hilfe folded almost immediately. Appearing just after the

glut of cases in 1923/4 had not saved JRH.°’ The success of anti-judicial propaganda, this would seem to suggest, depended not only on the facts of persecution but equally on skillful framing.

On the right, anti-judicial propaganda is less easily localized, but no less significant. Ihe Hugenberg and Scherrl presses covered political trials like the Ebert-Rothardt litigation, the Erzberger and Rathenau trials, or the prosecution of °” Mallmann, K.-M., Kommunisten in der Weimarer Republik. Sozialgeschichte einer revolutionaren Bewegung, Darmstadt 1996, pp.5—9.

°8 Miller, J., Pennybacker, S., Rosenhaft, E., “Mother Ada Wright and the International Campaign to Free the Scottsboro Boys, 1931-1934’, The American Historical Review, vol.106 (2001) No.2, pp.387—430, here p.399.

Red ke [the German acronym for “International Red Aid”]|—White class justice, prison ignominy,

184 Courtroom to Revolutionary Stage Reichswehr officer Richard Scheringer. The National Socialist Angriff similarly exploited lawsuits, especially the countless libel actions Bernhard Weiss, the Jewish vice-president of the Berlin Police, brought against Goebbels.” If not in formal innovation, then at least in contempt for the Republican middle ground, such coverage matched Tribunal. But nationalist vitriol flowed from a variety of pens and filled the columns of very different publications. In the absence of a right-wing Tribunal, in many ways the closest counterpart was anti-judicial pamphlet literature. Riidiger von der Goltz’s and Walter Luetgebrune’s books on the Feme trials and the collection of essays by Hartmut Plaas have already been cited. The most successful specimen of this literature by far was, however, the court-bashing Gefesselte Justiz. Politische Bilder aus Deutscher Gegenwart (Justice Enchained. Political Tableaux from Contemporary Germany). First published in 1930, Justice Enchained was written by Ewald Moritz, a diseruntled civil service retiree, under the pseudonym Gottfried Zarnow. In a series of trial write-ups, it purported to expose the corruption, brutality and political bias of Weimar's justice system, and extrapolated these qualities from the courts to the Republic. A coterie of Jewish Social Democrats was using its pervasive political influence to line its pockets and ruin the country. The courts were not only prevented from checking this abuse but forced to persecute nationalists. Moritz’s antiSemitic diatribe thus mirrored and distorted the Communists’ judicial criticism. Despite its obscure and ruminating style, shaky facts, and reliance on hearsay and innuendo, the book went through several editions. It was expanded into two volumes in 1932, and sold almost 100,000 copies, a success that reflects the contemporary fascination with political justice.*’

Party lawyers as facilitators of trial coverage Keenly aware of its importance, party lawyers pushed for greater media coverage. In the second edition of his bestselling How does the proletarian defend himself? published in 1924, Felix Halle demanded that ‘even more than hitherto, the attention of the fighting proletariat must turn to matters of justice’. In the coming years ‘a significant part of the class struggle will take place in the courtrooms. [...] Ata time where the military authorities suppress political gatherings, every political trial offers proletarians [...] the opportunity to enhance their knowledge on the field of the class struggle’. Desirable as attending trials in person (which Halle recommended especially for ‘our unemployed’, but also for ‘women and youths’) was, this placed a particular onus on the press. ‘Above all’, Halle admonished, it was ‘necessary that, insofar as a class-conscious proletarian press exists, it reports on arrests, political trials, convictions in greater detail and length than hitherto.’”

* Bering, D., Kampfum Namen. Bernhard Weif gegen Joseph Goebbels, Stuttgart 1991. “ Stéckel, S, Die ‘rechte Nation’ und ihr Verleger. Politik und Popularisierung im JE. Lehmanns Verlag

1890-1979, Heidelberg 2002. © Halle, R, Wie verteidigt sich der Proletarier in politischen Strafsachen vor Polizei, Staatsanwaltschaft und Gericht?, 2.ed., Berlin 1924, p.xii.

Rethinking Weimar Political Justice 185 Party lawyers in the field echoed this sentiment. Ernst Hegewisch saw lawyers as ‘above all others’ called upon to create a counterweight to ‘the demagogy of the capitalist newspapers and the Social Democrats’.** The best party lawyers ‘are always aware of our obligation towards the Communist movement to not just get something out of it for our accused, but to turn the courtroom into a revolutionary stage.’ To broaden access to this revolutionary stage, press coverage was crucial: ‘If, conscious of our obligation towards the Communist movement, we transform the courtroom into a revolutionary stage each and every time, then our efforts are naturally pretty inconsequential when the Communist press service fails.’ A ‘good piece about a truly revolutionary trial or about a trial that makes the essence of class justice clearly visible for the eyes of the proletariat’ was more important than ‘the reporting of many a deputy’s speech.’ As far as he was concerned, the party press should include at least a page worth of court reporting every day. Frustrated about internal ‘disputes about revolutionary legal aid and the propagandistic utilization of class justice’, Hegewisch demanded personal control of trial-based publicity campaigns. ‘The selection of cases, of subordinate lawyers, and even of clerical staff ought to be put in his hands. Above all, however, the ‘party press’ was to be ‘instructed to print my articles on legal matters, especially about the “crimes” of political prisoners, without further ado’.“* What Hegewisch only aspired to, Hans Frank managed to institutionalize in a fortnightly supplement to the Volkische Beobachter, ‘Kampf um Deutsches Recht’.

Not content with demanding press coverage, party lawyers commented on trials, even ones they appeared in themselves, in the daily press—unthinkable for a prior generation of German barristers. Riidiger von der Goltz, for example, attacked the Reichswehr leadership while representing the Feme killer August Fahlbusch. In ‘Flare Beuthen’ (Fanal Beuthen), an article syndicated throughout the Hugenberg press, Walter Luetgebrune used his representation of the Potempa killers to argue for ‘the freedom of the administration of justice in the interest of the wellbeing of a new Germany’.” One of the most influential and amusing examples of political lawyers taking on the role of courtroom commentators is the series of articles the Communist Artur Samter published about the trial of justice Bernhard Jiirgens in the Red Flag. The Jiirgens trial, a fraud case, was not political in legal substance, but was made eminently so by its protagonist and the extraordinary coverage the trial received, not least courtesy of barrister Samter.

Barrister Artur Samter and the ‘bourgeois film-drama of the Jurgens trial Bernhard Jiirgens was investigating magistrate at the State Court for the Protection of the Republic, the extraordinary court instituted by the Law for the Protection 8 BA(B) RY1/12/711 Juristische Zentralstelle (JZ) Band 9, [45]-[72] Hegewisch to Amtsgericht Celle, Celle 27.11.22, [56].

“ BA(B) RY1/I2/711 Juristische Zentralstelle (JZ), Band 8, [110]-[165] Hegewisch to KPD central office, Celle 8.5.22, [141]f., ibid., [5]-[19], Hegewisch to Radek, Celle 7.8.23, [14]-[16]. * BA(K) NL 1150 Luetgebrune Band 115 ‘folder no.25’ [non-foliated], “Fanal Beuthen’ [manuscript draft].

186 Courtroom to Revolutionary Stage of the Republic in the wake of the Rathenau murder in 1922. In 1927, when Jiirgens and his wife faced accusations of insurance fraud, the controversial statute was intensely debated. Along with State Court presiding judge Niedner, Jiirgens was a béte noire of the KPD. He had been instrumental, e.g. in the conviction of Josef Gartner and the Communists accused in the so-called Tscheka trial. There was, understandably, a note of glee as news of his arrest spread. Jiirgens’ insurance company had cried foul when, only a week after insuring them, his wife’s costly jewellery was—allegedly—stolen. Glee turned to delight when Jiirgens maintained that the theft had been carried out by a special KPD squad targeting top judges, and that the precious stones were now at the disposal of the Red Aid. The truth was much simpler: Jiirgens’ wife Marie had faked the robbery to stave off bankruptcy. That Bernhard Jiirgens knew nothing of this plan verges on the absurd, but nevertheless the Berlin Landgericht maintained that—in dubio pro reo—Jiirgens was innocent. Mrs Jiirgens was sentenced to three months in prison, that is to say released on the eve of the verdict as she had been held in investigative custody for more than three months already. The trial caused a pleasurable frisson in Berlin’s high society, but more importantly, it gave the Red Aid and Artur Samter extraordinary purchase on public opinion. Samter argued that the trial of judge Jiirgens revealed the corruption, hypocrisy, and class-bias of the justice system, and that the justice system’s rot heralded the Republic’s doom.*° He made this argument eloquently, spinning many a memorable turn of phrase. At various times, he likened the trial to a bourgeois dinner party, a farce, and a motion picture. The film metaphor was a particular favourite: ‘For eight days now, the Cinema Turmstrasse 91 [the address of the famous Moabit courthouse] has been showing “The Perjured Judge and the Beautiful Sinner. A Bourgeois Film-drama”. Director Bombe also doubles as chief projectionist and turns the reels.’ It insinuated that a conspiracy to protect Jiirgens was afoot. ‘[H]ighly placed protectors take an interest in this case’ while ‘(t]he bourgeois press also turns a blind eye towards everything that incriminates Jiirgens. It is fairly crying out to be duped. Herr Jiirgens has performed such services for the ruling class that he has to be pardoned.’ The involvement of Social Democrat barrister Werthauer was, to Samter, ultimate proof for this conspiracy. “The mask drops. The scandal of the judicial criminal Jiirgens is to be turned into an

anti-Communist witch-hunt [...] the consequence of an impudent intrigue of the directors pulling the strings behind the scenes of this trial. This becomes immediately obvious as barrister WERTHAUER [A.S.’s emphasis] rises from the defenders’ bench’.*”

“6 BA(B) RY1/12/711 JZ Band 11, [278]—[317], here [304] “Landgerichtsdirektor Jiirgens vor dem Klassengericht der Bourgeoisie’ [undated, 5.3.27], see also [303] “Der meineidige Landgerichtsdirek-

tor und die schéne Siinderin. Ein biirgerliches Filmdrama’ (draft version of [304]) and the other articles by Samter on the trial, e.g. [281] 26.2., [283] 27.2., [285] 1.3., [288] “Die politische und geschichtliche Bedeutung des Jiirgens-Prozef’, [undated], [314] “Die Maske fallt. Der Skandal des Justizverbrechers Jiirgens soll in eine Kommunistenhetze umgebogen werden’, [undated], et al. “7 Thid., [278], 25.2.27, [295] 2.3.27, [314] ‘Sonnabendsitzung’.

Rethinking Weimar Political Justice 187 The court’s sympathy for Jiirgens was, according to Artur Samter, the flipside of the anti-Communist bias of the justice system. To bolster this charge, the barrister-

turned-court reporter contrasted Jiirgens’ courtroom conduct with that of the upright proletarians he formerly persecuted. Whereas ‘the victims of bourgeois class justice have selflessly risked their livelihoods in order to deliver their class from its intolerable economic oppression’, Jiirgens had been inspired by a bourgeois hankering for luxury as well as a craving ‘to rule and oppress the property-less classes’. Cowardly, Jiirgens was now letting his wife take a fall. Not that Frau Jiir-

gens deserved sympathy: ‘[t]his woman, who led a life of idle squandering while her husband tortured and strong-armed mortally ill proletarians in their prison cells’ was simulating an affliction in order to curry favour. Samter delighted in presenting the long inventory of the Jiirgens’ ‘stolen’ possessions, commenting on a particular jewelled gift that ‘proletarian women must do without their men whispering such “sweet nothings” into their ears when they become pregnant’. The judge’s well-stocked wine cellar provided Samter with further ammunition: ‘heavybodied burgundies, white Bordeaux, nine marks a pop—such are the requirements of a Spartan civil servant household’. Marie Jiirgens’ loss of consciousness in court—feigned, according to Samter—and her ‘disgustingly sentimental whimpering’ over a canary allegedly ‘murdered by “blunt proletarians”’ marked the Jiirgens bourgeois decadence. While justice Niedner had ‘tried proletarians delirious with fever’, Mrs Jiirgens had herself carried into court in a curtained stretcher (or ‘Eulenburesdnfte , as Samter called it in allusion to the scandalous 1907 trial of a leading counselor to the Kaiser). Samter also mused about the precise relationship between Mrs Jiirgens and the family surgeon. The doctor, who had performed a ‘serious abdominal operation’ on her, now testified that she could not possibly have toppled off its pedestal the heavy bust of Cicero that fell victim to the raid on Jiirgens home, whoever perpetrated it.** Evidently, barrister Samter heeded Sling’s advice, namely that entertainment was key to the success of court reporting.” In a longer piece, “The political and historical significance of the Jiirgens trial’, barrister Samter argued that the trial heralded a systemic crisis. The Weimar Republic was an ‘over-aged regime’ entering its agony. Typical for this stage, the ruling class became so blatantly criminal that trials could not be avoided: ‘as though under a flashlight, such trials expose the rot and the advanced decay which are otherwise carefully hidden away’. He likened the Jiirgens trial to the scandal of Kaiser Wilhelm’s intimate Count Eulenburg, outed and disgraced as a homosexual in 1907, to the affairs of Marie-Antoinette, and to the 1905 revolution in Russia. Lenin, Samter claimed, had recognized the abortive revolution’s judicial fallout as crucial to the Bolsheviks’ success in 1917: it had made the repressive character of the Russian ancien régime plain for all to see. In the same way, the insight into the life of a justice of the ‘highest political court in Germany’ was ‘highly instructive’. “8 Ibid. [288]-[294] “Die politische und geschichtliche Bedeutung des Jiirgens-Prozesses’, ibid., [278] 25.2.27 and [283] 27.2.27. ® Sling (i.e. Schlesinger, P.), ‘Und der Geist des Hauses. Betrachtungen eines Unverantwortlicher’,, pp.385—94 in Ullstein GmbH (ed.), 50 Jahre Ullstein 1877-1927, Berlin 1927, p.385.

188 Courtroom to Revolutionary Stage It helped dispel ‘particularly far-reaching illusions about political justice’ held by the proletariat and the petty bourgeoisie, ‘illusions carefully nurtured by Democrats and Social Democrats’. In Artur Samter’s skillful framing the trial became an object lesson in revolutionary politics—although the Jiirgens’ extraordinary hubris and contempt for justice admittedly eased his task. The proceedings boosted the Communist Party’s anti-judicial propaganda, corroborating the charges laid against Weimar justice and, by extension, the Weimar ‘system’. Jurgens’ acquittal was the icing on the cake, much like Gartner’s conviction had been three years earlier. Barrister Samter drafted the Communist Party's subsequent interpellation in the Reichstag. Parliament learned that Jiirgens had been indicted on counts of perjury, credit and insurance fraud, and the sale of stolen goods. The state prosecutor had asked for two and half years’ imprisonment. By

appointing him to the State Court, the Justice Ministry had paved the way for Jurgens ‘blackmailing defendants into making incriminating statements, working with agents provocateurs (Lockspitzel), and swearing false testimony under oath’. In other words, Jiirgens’ presence at the State Court invalidated its every verdict. In Samter’s draft, the interpellation ended by asking: ‘Is the Reich government prepared to initiate disciplinary proceedings against the civil servants responsible [for Jirgens’ appointment], and against Reich chief prosecutor Neumann in particular? Is it prepared to free without delay the victims of Jiirgens’ criminal conduct

in office??? The Communist barrister had turned a fraud persecution into an indictment of Republican politics.

Targeting the judges Barrister Samter’s treatment of the Jiirgens trial draws on a topos of Weimar judicial criticism: the unfeeling, haughty, and aloof judge, unable and unwilling to empathize with the common man before him. Formalistic in style and conservative, if not outright reactionary in politics, judges appeared as guard dogs of a repressive, intolerant, and bigoted bourgeois order. On this, if not on the implications of this diagnosis for political action, Communists and Social Democrats could agree. ‘It is an intolerable state of affairs that in many cases the judge’s outlook is guided, consciously or unconsciously, by a spirit that is not the spirit of today’s law [...] by artful technique, the letter and the forms of the law are used to worship injustice’, as the Social Democrat legal philosopher Hugo Sinzheimer put it in 1925.’ Erich Kuttner, a leading Social Democrat parliamentarian wrote in 1926 that reactionaries ‘took cover behind the independence of the administration of justice and the fiction of the judge’s absolute objectivity’. The impression ‘that the German judiciary, as a privileged institution occupying an exceptional position within the state is about to confront the state, intending to destabilize today’s constitutional order’ was hard to avoid.” °° BA(B) RY1/12/711 JZ Band 11, [275]f. >! Sinzheimer, H., “Was wir wollen’, Die Justiz vol.1 (1925) No.1, p.1. °° Anon., ‘Vertrauenskrise der Justiz’, Vorwarts No.169, 11.4.1926, for Kuttner’s authorship see Kuhn, R., Die ‘Vertrauenskrise der Justiz (1926-1928). Der Kampf um die Republikanisierung der Rechtspflege in der Weimarer Zeit, Koln 1983, p.57.

Rethinking Weimar Political Justice 189 Social Democratic criticism of the judges had clearly defined, limited goals—

ending the independence (or rather ‘non-accountability’) of the judges, for example—whereas the radical left-wing discourse attacked, by way of the judges, the Weimar ‘system’ itself. Nowhere is this more evident that in the passionate

eloquence of Kurt Tucholsky, himself a barrister by training. Class plays into Tucholsky’s contempt for the judges. The judiciary remained the exclusive preserve of the upper class and the bourgeoisie, especially of their most ‘inflexible, wooden, narrow-minded’ sons. Up there: Iustitia. Come closer, prod the statue, rap your knuckles against it: hollow. Touch the sword, it is cardboard, with a coat of bronze paint. Her scales clatter to the eround, her blindfold, formerly white, dissolves, and behold: a monocle glistens, reddish cuts meander through a plumb cheek, and before your disbelieving eyes a face appears you know so well, one you have seen a hundred times in the officers’ mess and in the offices of local government: the Prussian face.”

But the principal reason for Tucholsky’s enmity towards the judges as a professional type was their psychological and cultural remoteness from the people. His repudia-

tion transcends by far the positions of Sinzheimer and Kuttner. Literally everything about the judges is to be rejected: His pathos and his attempts at moralizing: rejected. His mores and his humor: rejected, his reaction to pain, joy, suffering, and authority: rejected. The pictures on his walls, his

spouse, his holiday pursuits: rejected, the air he breathes, the beer he drinks, the children he brings up: rejected. Rejected his mindset, rejected his caste, rejected his world.

The inversion of values, the radical ‘us and them’ underpinning Tucholsky’s diagnosis is thus not at all limited to political and legal categories. Cultural and aesthetic values inform and even determine his rejection. By its entire bearing and habitus, the judiciary embodies a rotten political system. Whatever it espouses is the opposite of what should be upheld: The moral appraisal the German judge bestows upon his victims even in ostensibly apolitical trials is in fact political. What he calls noxious may be noxious. As a rule, it is commendable. What he mistakes for aggravating we remain indifferent too, in most cases, it is extenuating [...] The cold harshness the Reichsgericht exhibits in all questions of mores, its utter lack of empathy for the demands of life, its apparent objectivity, which in actual fact never existed, give us the right to categorically deny that this judges’ caste has any qualification whatsoever to morally educate the people.

Demoting and replacing anti-Republican judges was a logical consequence for Tucholsky, but it was only a first step. Granted, there might be other ‘little measures, suggestions, pills and tonic mixtures to treat this incurable disease’ besides dismissals, namely supervision by the press and the destruction of ‘that little bit of trust [...] which the justice system of the dictatorship [Diktaturjustiz] still enjoys’. But all this was palliative. The solution was not piecemeal reform, but ‘only the °> Wrobel, I., (i.e. Tucholsky, K.,) ‘Richter’, Fretheit 1.6.1920.

190 Courtroom to Revolutionary Stage “ied ——————— ee ————— — 2 |

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va fv} ¢ ’ mth i, | | .NON _—\|\.. (CED Br! ~ Re ae Grosz, G., Abrechnung Folgt! 57 politische Zeichnungen, Berlin 1923.1 am grateful to the Estate of George Grosz, Princeton, NJ for permission to use these images.

Rethinking Weimar Political Justice 191 listless hand, and a right-wing newspaper pokes out of Noske’s pocket. Eduard Bernstein and Molkenbuhr, the reformist masterminds of the 1921 Gérlitz program endorsing SPD-bourgeois coalitions look on, somewhat taken aback. At the drunken couple's feet, a gramophone blares patriotic tunes. On the right hand side of this double page, the sordid scene is juxtaposed with a man—clearly identified as Max Hélz by his moustache and the shape of his massive, closely cropped head—in his prison cell. The two images are linked not just visually and through the diametrically opposed themes—merriment and company vs. isolation, plentiful drink and plush surroundings vs. the sparse cell with a jug

of water and a simple bowl—but also through their spatial arrangement and the titles: Das Gérlitzer Programm—und seine Folgen (“The Gorlitz program—and its consequences’). The implication is clear: though paying lip service to ‘class strug-

gle’, the Social Democrats are abandoning genuine revolutionaries like Hélz to their fate in selling out to the forces of reaction.

Party lawyers and courtroom reporters Where party lawyers did not themselves comment on proceedings, they made sure to cultivate good relations with the journalists who did, partly out of self-interest. It will be recalled that Ernst Hegewisch likened press coverage to cash payments. National Socialist barrister Dietrich Giistrow recalled that Berlin barristers ‘usually made their name thanks to the court reporting of the popular press’.*° Despite the efforts of the organs of professional self-government to curb interaction between lawyers and journalists, the mutual benefits were thus compelling. Because of the basic strategy of extremist legal aid—to shift emphasis from minimizing sentencing to maximizing visibility and echo—extremist lawyers had an added interest in supplying court reporters with information. In 1922, Walter Luetgebrune lobbied the B.S. Korrespondenz, a budding press agency specializing in courtroom journalism, to cover the Rathenau trial, and offered to act as its inside contact. Enthusiastically, the bureau replied that ‘naturally’ and ‘as always’, it would take up the offer: We would be exceptionally grateful to you if from now on you were to keep us informed continuously about the progress of the trial. Given the very extensive coverage, namely by the Ullstein publishing house in Leipzig and given the close relations certain newspapers enjoy with the supreme court, it is doubly desirable for us to get “the latest news” five minutes ahead of others and in addition from a competent source.

The ‘star attorney of the right’ evidently had an ongoing professional relationship with the proprietor of the B.S. Korrespondenz, Martin Sochaczewski. Moreover, the response indicates that customer demand as well as competition between press agencies was driving an expansion of courtroom reporting. Pointing out that it was ageressively growing its business, the B.S. Korrespondenz assured Luetgebrune of its standing interest in ‘news about political and interesting criminal trials in which °6 Giistrow’s memoirs obscure the author's own membership of the National Socialist Party, Gistrow, D., Tédlicher Alltag. Strafverteidiger im Dritten Reich, Berlin 1981, p.10.

192 Courtroom to Revolutionary Stage you have taken over the defence, regardless of where it is’.”” It is telling that only ‘interesting’ non-political trials appealed to the press bureau (and, presumably, its customers) in a way comparable to ‘political’ trials. At times, lawyers attuned trial strategy to the needs of reporters in return for

coverage. An example from the practice of Riidiger von der Goltz, the Stettin Feme trial of April 1928, can help illustrate this relationship. The main defendant, lieutenant Edmund Heines—appointed Breslau police chief upon the Nazi seizure of power and killed during the 1934 SA purge—was represented by Paul Bloch, a senior nationalist trial lawyer from Berlin. Despite Bloch’s close connections to the DNVP leadership, his Jewish origins caused many of his clients

and right-wing colleagues, including von der Goltz, to view him with suspicion. Von der Goltz, who defended Heines’ second in command, sergeant Ottow, presents Bloch as a mentor in manipulating the press. “Bloch knew this kind of player [i.e. the press] opposite court, prosecution, and defence, and knew how to utilise them in the interest of the cause. Scratch my back, and I'll scratch yours [Eine Hand wascht die andere|.’ Goltz relates a remarkable interchange between the Berlin barrister and the representative of the B.S. Korrespondenz, a certain Lehnhardt.’® One day, ‘just before proceedings commenced’, the journalist approached Bloch with an urgent request: “The B.Z. [a large Berlin daily] needs a headline immediately, for today! Wouldn't you

have an interesting petition for the submission of evidence, right at the start of proceedings?” Bloch, after a few seconds’ swift deliberation: “Yes, I will call for the court to hear the testimony of captain Ehrhardt [a prominent militia leader] regarding the Feme murders in Upper Silesia.” Lehnhardt got on the phone, Bloch made his submission, the court refused it, the B.Z. wrote about it — and everyone was better off, the accused, too, incidentally.”

Well aware that the court would refuse to call Ehrhardt as a witness, Bloch according to von der Goltz acted solely in order to create a stir and thereby do his press contact a favour. In contrast to Bloch, Goltz unconvincingly presents himself as ‘naive’ in handling the press. Nonetheless, or rather ‘precisely because I was so completely naive’, he relates that his conduct of sergeant Ottow’s defence was popular with the media

representatives. In fact, Goltz had lots of journalistic experience. He had edited the front newspaper Offene Worte (roughly Plain Talk) during his time as a staff

>” BA(K) NL 1150 Luetgebrune Band 11 [non-foliated], “Berliner Korrespondenz-Bureau’ [a conglomerate of news agencies owned by Martin Sochaczewski, including the ‘B.S. Korrespondenz’] to Luetgebrune, Berlin 31.8.22. 8 Klaus Werneke stresses the influence of such news agencies, who used the newspapers’ dependency upon them to give their bulletins a political bend (Wernecke, K., “Nachrichtenagenturen und Provinzpresse in der Weimarer Republik’, Zeitschrift ftir Geschichtswissenschaft vol.48 (2000) No.4, pp.326—46).

»? BA(K) KLE 653 von der Goltz Band 2, [100]. © Ibid. [101].

Rethinking Weimar Political Justice 193 officer at the army group Deutscher Kronprinz.®' At that time, he had also made the acquaintance of Wilhelm Scheuermann, a publicist who introduced von der Goltz

to all the major journalists covering the Stettin trial: ‘Rudolf Olden,® Walter Kiaulehn, Berthold Jacob, Dreyfuss of the Berliner Tageblatt, respectively of the Liga ftir Menschenrechte .° Goltz was no less adroit, in other words, at exploiting his press contacts than Bloch. As counsel for a Mecklenburg landowners’ association in 1923, for example, he had sabotaged a farmhands’ strike by orchestrating press coverage suggesting that the strike was collapsing.™ The difference was simply that while Goltz presented Bloch’s acts as cynically calculated (a view obviously coloured by his anti-Semitism), he painted his own rapport with the journalists as

spontaneous: ‘I [...] just saw the press as a possibility for paving an avenue of human understanding to the defendants, to “my” defendants.’ Either way, von der Goltz was proud of the press coverage he received, and quotes it at length in his reminiscences: ‘long-haired, one-legged, awkward, but with fire in his large eyes [... ] he terrorises even the senior state prosecutor, who timidly shrinks backwards whenever Goltz gets up’. The high profile of court reporting and the party lawyers’ efforts to boost and utilize this interest were mutually reinforcing. They were both a prerequisite for and a consequence of the shift in legal culture that party lawyers helped effect. Extremist parties recognized and appreciated this interdependence. While selling like hot cakes, the nationalist pamphlet Justice Enchained had spawned more than a dozen libel trials. Dismayed by the mounting legal fees, the nationalist publisher

J.E. Lehmann cautioned his author, Ewald Moritz, to be more careful in the upcoming new editions. Nevertheless, while ‘this kind of publicity—meaning trials—was ‘very dearly purchased’, in view of the sales figures ‘it has, at least so far, been worth its price’. Even more revealingly, a few lines later the publisher shared with his author that ‘each new sensational development is immediately discernible

in the orders. When there aren't any, demand drops from one day to the next’. When Ferdinand Timpe of the KPD’s Juristische Zentralstelle hailed the playwright

Gartner's sentencing as a ‘great corrosive success (‘Zersetzungserfolg’), his triumphalism was similarly predicated on the case’s public echo. Not only had ‘the press box in Leipzig been packed’, but all liberal dailies of national importance had covered the trial with ‘extraordinary dismay’.®’ Press coverage greatly magnified the impact of Gartner's scripted martyrdom. It gave the KPD’s message of revolutionary

°! Bernhard Fulda underlines the importance of military networks in constituting the milieu of nationalist journalism, Fulda, B., Press and Politics in the Weimar Republic, Oxford 2009, p.216-8. °° According to von der Goltz, Olden admired his defending and tried to persuade him to change sides—‘We have so few characters [Kopfe]’, Goltz has Olden exclaim, somewhat unconvincingly. 63 BA(K) KLE 653 von der Goltz Band 1, [113].

Tbid., Band 2, [29]. ° Tbid., [103]. °° BA (K) NL 1205 Zarnow, Band 6, [194] Lehman to Zarnow (i.e. Moritz), Miinchen 24.2.31, see also ibid., [220] Lehman to Zarnow (i.e. Moritz), Miinchen 4.2.31. °”? Bundeasarchiv (Berlin) (BA[B]) RY1/I2/711 Juristische Zentralstelle (JZ) der KPD Band 3, [5], Timpe to Pieck, Berlin 8.8.25, ibid., [101]—[103] Timpe to Hegewisch, Berlin 11.9.25.

194 Courtroom to Revolutionary Stage defiance a reach and resonance out of all proportion to the scale of the ‘revolutionary memorial celebration’ in the Stuttgart beer cellar which had given rise to pro-

ceedings in the first place. Here indeed was a ‘great corrosive success’, and, as Timpe also pointed out, one achieved with ‘comparatively small means’. As Ernst Hegewisch put it, a political trial well conducted was ‘better propaganda of the deed than the offence itself’ .°°

POLITICAL TRIALS AND THE AESTHETICIZATION OF POLITICS As well as in the media spotlight, the dramatization and politicization of justice unfolded against the backdrop of the aestheticization of politics in interwar Europe.

This secular trend informed courtroom performances of ideology in ways both abstract—the fascination with sacrifice, and the dissolution of the boundaries of art, politics, and life—and concrete—agitprop troupes, the Soviet ‘agitation trials’, and early show trials.

The performance of sacrifice Scholars have assigned sacrifice a key role in the constitution of political community. In Sir James Frazer’s memorable phrase, in sacrifice divinities ‘take themselves apart to put a world together’. Marcel Mauss and Rene Girard have shown how this basic structure of sacrifice, displaced and sublimated, informs community creation not only in ritual and oral, ‘primitive’ cultures but in modern society as well. As John Bornemann put it, sacrifice is a universal human ritual ‘whose social and institutional form can be displaced but which can be eliminated only at the risk of dissolving the social’.””

Strikingly, both cultural historian Modris Eksteins and performance scholar

Erika Fischer-Lichte place the performance of sacrifice at the heart of their accounts of the transformation of European politics before and after World War

One. What is more, not just the content, but the structure of their inquiries is informed by such performances. Fischer-Lichte uses Gertrud Eysoldt acting in Gerhart Hauptmann’s 1903 adaptation of Electra as the touchstone of her analysis of political mass spectacles. Modris Eksteins’ heuristic model is the 1913 Paris run of the Sacre du Printemps.” The trance-like and ecstatic states of de-personalization actors like Eysoldt and Vaslav Nijinsky could induce indicates the power of

°8 BA (B) RY1/I2/711 JZ der KPD Band 8 [110]—[165] Hegewisch an Zentrale der KPD, 8.5.22, 130].

| ® Franer J., The Golden Bough. A Study in Magic and Religion, vol.9, London 1890, p.69. ” Bornemann, J., ‘German Sacrifice Today’, pp.3—25 in Eghigian, G./ Funck., M./ Berg, M. (eds.), Sacrifice and national belonging in twentieth century Germany, Arlington 2002, p.5. ”' Fischer-Lichte, E., Theater, sacrifice, ritual. Exploring forms of political theatre, Oxford 2005, pp.3—8. Eksteins, M., Rites of Spring. The Great War and the birth of the Modern Age, Boston 1989.

Rethinking Weimar Political Justice 195 performance. It was this transformative power that extremist parties sought to harness. Courtroom sacrifice, too, aimed at the generation and transformation of community. Defeat lent the rhetoric of sacrifice a special poignancy in Germany after World War One. Its impact can be traced on a number of levels, from the ‘Stab-in-theBack’ myth of an army supposedly ‘undefeated in the field’ falling to betrayal by

revolution on the home front to the iconization of ‘fallen heroes’ such as Leo Schlageter and Horst Wessel. “Ex ossibus ultor —‘trom the bones, an avenger-—was a popular motto encapsulating militarist aspirations to reverse defeat in World War

One.” It found lively expression in popular culture, for example in Richard Euringer’s Deutsche Passion 1933 (1932). The radio play, adapted into hugely popular mass pageant under National Socialism, features a fallen soldier rising up from the grave to heal Germany’s bitter internal divisions and ensure that the wartime sacrifices were not in vain.” Opfer—the German word means both ‘sacrifice’ and ‘victim’. As Marcus Funck and Greg Eghigian have pointed out, this linguistic conflation indicates the notion’s special potency in German political discourse. Tracing this potency, scholars have concentrated almost exclusively on the political right.” Opfer rhetoric, however, informed discourses of community and entitlement across the political spectrum. ‘Wir waren, wir sind, wir werden sein —we were, we are and we shall be—ran the popular slogan adorning Rosa Luxemburg’s and Karl Liebknecht’s tomb, a shrine for the workers movement. It was the socialist equivalent of ‘ex ossibus ultor. Both

mottos invoked past sacrifice in anticipation of future triumph while afhrming present community. “The social’ which sacrifice in Weimar political trials constituted so defiantly was the idealized community of the future. It was imagined as a fighting elite and germ cell for society’s regeneration and renewal. Nothing illustrates this better than the exaltation of ‘the’ political prisoners of left and right, Max Holz and Paul Schulz. Under the heading “Stop the chicanery! Stop judicial crime! Out with Max Holz’, deputy KPD leader Ernst Schneller wrote that ‘the proletarian political prisoners are tormented and tortured with all chicanes [...] a classic example [Schu/fall] is the conviction of comrade Hélz.’ Police exhibitions pandered to the ‘arrogant sated

curiosity of the bourgeoisie: ‘they all pass by these images [of the imprisoned H6lz], exhibited to mock the proletariat: the bankers, speculators, lords of the business conglomerates, the class judges, the high and mighty of the army and the police, the royalty, and the Feme murderers.’” Schneller thus evoked the proletarian ” Reichardt, S., Faschistische Kampfbiinde. Gewalt und Gemeinschaft im italienischen Squadrismus und in der deutschen SA, Industrielle Welt vol.63, Kéln 2002, pp.555-8. > Fischer-Lichte, E., Theater, sacrifice, ritual. Exploring forms of political theatre, Oxford 2005, p.8, pp.122—7. For the politicized notion of sacrifice that informed German discourses of community and identity after World War One generally see Eghigian, G./ Funck., M./ Berg, M. (eds.), Sacrifice and national belonging in twentieth century Germany, Arlington 2002. ™* See e.g. Behrenbeck, S., “The Transformation of Sacrifice. German Identity Between Heroic Narrative and Economic Success’, pp.110—36 in Betts, P, Eghigian, G. (eds.), Pain and Prosperity. Reconsidering twentieth century German history, Palo Alto 2003, p.122.

” Rote Fahne 2.10.26.

196 Courtroom to Revolutionary Stage community by juxtaposing its antithesis, the gawking bourgeois mob, with the martyred Holz. Under the heading “Dedicated to Max Hélz, the first Soldier’, Wilhelm Stolzenburg rhymed: O body amidst bodies, hand amongst hands O shimmer in these nightly lands O wave, of light born O breath, to life sworn Lift us up into a day Which dark clouds cannot sway Call awake, o voice, the hearts So that long night take flight at last.

Given the religious overtones of such eulogies, it is small wonder that an enthused admirer wrote: ‘H6lz, o you our brother, our blood, I kiss your hands, your wounds, which they inflict upon you for all our sakes [...]. Poets

and bards will rise up for you, brother, because you are life and the future’.”°

What makes the Holz campaign so remarkable is the stark contrast between Holz the symbol of Communist victimhood, sacrifice, and defiance and Hélz the man. His image played particularly on the themes of personal modesty and selflessness. Egon Kisch wrote, for example, that Hélz ‘insists on not being treated more favourably than his fellow inmates’. H6lz even refused a smoke while it was denied other prisoners, according to Kisch.’” While the party press féted H6lz’s asceticism, privately Red Aid officials were bemoaning his sense of entitlement. In fact, Hélz had been granted even unusual and costly requests such as branded chocolate (Reinhart, Sarrotti, Riiger’), honey, ‘nerve nourish-

ment (Promonte)’ or a supply of his favourite mouthwash (‘Bergmann’).” H6lz’s distrust towards the prison dentist also cost the party dear. In total, 1,300

RM, or six times the total allocation of ‘parcel money’ an ordinary political prisoner received from the Red Aid per year, were accorded to Hélz over the space of only a few weeks in early 1922.” Given his sweet tooth, it is fitting that

his election in absentia to the Petrograd Soviet in 1923 came courtesy of the Second State Pastry Works.*°

As to Holz’s popularity with fellow inmates, a secret report by Karl Radek declared Hélz and his lawyer Hegewisch victims of ‘delusions of grandeur’ and

7° Quoted following Gebhardt, M., Max Holz. Wege und Irrwege eines Revolutionars, Berlin (Ost)

1 , p.60.

“4 ee M. (Kisch, E., ed.), Briefe aus dem Zuchthaus. Herausgegeben von Egon Erwin Kisch, Berlin 1927, quoted following Gebhardt, M., Max Holz, p.243. ’® BA(B) NY 4051 NL Holz Band 14, [75] KPD Bezirksleitung Schlesien to KPD central office, Breslau 19.9.22, penciled marginalia ‘granted Orburo’.

” See correspondence between HOlz, the KPD leadership and the prison administration in

December 1921 and January 1922 (BA(B) NY 4051 NL Hélz Band 14, [10], [11], [16], 23)). | © hid. Band 15, [144] [Abschrift] Hélz to Betriebsrat der II. Staatskonditorei Moskau, Breslau 1.5.23.

Rethinking Weimar Political Justice 197 ‘most doubtful Communists’. Astonishingly, the Russian Communist Party's special envoy to Germany was smuggled in and out of Sonnenburg prison in Thiiringen in September 1923. Holz, Radek wrote, liked being addressed as ‘you lion of the revolution’, was arrogant and commandeering towards his fellow Communist prisoners, and ‘very unpopular’ with them as a result. Whenever rival figures threatened his position as the face of left-wing political prisoners, H6lz showed an almost childlike petulance. The exaltation of Rudolf Margies, a member of a Communist ‘self-protection’ squad tried for assassinating alleged ‘informers’ in 1926, for example, irked Hélz. The notion that ‘our best revolutionary Margis [sic] costs us not a penny was misleading the rank and file, H6lz wrote to the Central Committee, before outlining his own economic and propagandistic usefulness. It was a ‘shame’ to ‘trump’ him, Holz, with ‘the surely very brave comrade Margis [sic]’. Sarcastically, he invited the party to make Margies its new figurehead, hoping ‘that the Margis-campaign [sic] brings the Red Aid and the party successes as great as those of the Hélz-campaign.’*' Six years earlier, in 1922, Red Aid leader Wilhelm Pieck had already accused Holz of ‘shabby ideological lapses’ and a lack of ‘inner cleanliness’. Unnerved and at the end of his tether, he wrote to Hélz that ‘[y]our whole talk of love of the party is nothing but mouldy humbug’. It is a measure of H6lz’ importance as a symbol of the anti-judicial struggle that the letter was never sent, ‘on the advice of the Communist legal office’.** Neither the public nor the Communist rank and file

had much opportunity to contrast Hélz’s actual behaviour with the upstanding revolutionary hailed in myriad songs and poems. Together with Hdlz’s lawyers, Pieck kept a tight lid on everything (his own rage included) that could sully Hélz’s reputation. kk Ok

Demands for self-sacrifice in political trials were formulated bluntly. In his bestselling legal advice book, Communist lawyer-in-chief Felix Halle reminded defendants that ‘a proletarian who has joined a revolutionary movement [...] must under certain circumstances fight out the struggle with the bourgeois courts with all acridity, without paying heed to the consequences for his personal fate’. Regardless of ‘whether it is a trial of great or small importance, his trial represents a part of the great revolutionary struggle in its entirety [...] and as a fighter he owes an obligation to the great community of his class with each of his words and acts.’ Above all, Halle admonished his comrades, implicating others was absolutely off-limits, as was showing any kind of remorse: ‘[T]he accused revolutionary ought to say as little as possible about his personal actions and nothing at all about the actions of other comrades. He ought to say as much as possible about the distress of his class and of its will to put an end to capitalist exploitation.’ To ‘beg for the court’s

$! BA(B) NY 4051 Holz Band 20, [21] Hélz to ZK KPD, Sonnenburg 5.3.28. For Margies’ utilization as a symbolic figure, see BA(B) R1507 RKO Band 261, [175] ‘Heraus mit unserem Genossen Margies!’, Klassenjustiz Nr.2, 6.2.26.

8? BA(B) NY 4051 NL HGlz Band 14 Pieck to Hélz, Berlin 27.12.22.

198 Courtroom to Revolutionary Stage benevolence through lamentations of remorse or similar miserable weaknesses’ was ‘unworthy’ of revolutionary fighters. On the contrary it was required ‘in all proceedings of import’ to ‘issue in the main court session a pledge of allegiance to the revolutionary Communist movement [E.H.’s emphasis]’.*° In practice as well as theory, sacrifice was at the heart of performing the ideological community on trial. Ernst von Salomon, having served five years for his

part in the Rathenau assassination, voiced the expectation that in political trials ‘the verdict could not be a source of fear for anyone, as it should really be a pleasure to become a martyr for the good cause’.™* It was only logical that defendants willing (or even eager) to sacrifice themselves accepted that the party determined every aspect of their defence. From July 1924 onwards, the Communist Party encouraged fugitive party members to give themselves up to the state authorities: ‘Better go to prison for a year or two than live illegally for years on end, and in this way become completely demoralized, be lost to the party, and in the end still get caught and end up doing time’.*’ Many followed the party’s call. In 1928, for example, a group of fugitive KPD members, accused of high treason in absentia since 1924, declared their willingness to surrender themselves. ‘Their self-sacrifice,

they wrote, would give party propaganda ‘a revolutionary note’ with ‘repercussions far beyond the [1928] elections’. ‘Naturally’, they added, ‘we are prepared to conduct the trial according to the directives of the Communist International and the KPD.’®°

Staging spectacles of courtroom self-sacrifice: the Landvolk trial For the right, the Landvolk (roughly, ‘country people’) movement presented opportunities to turn trials into afhrmations of ideological community. After 1928, the

credit squeeze forced many farms into insolvency, provoking a political protest movement known as the “Black Dozens’ or the Landvolk. In it, rural social cohesion and traditions of civil disobedience meshed with radical nationalism. A series of bombings of public buildings and spontaneous outbursts of violence against administrative dispossession were the most visible signs of peasant unrest.*” One of the most spectacular proceedings was the Neumiinster Landvolk trial of 1929. In November 1928, 200 peasants from the small village of Beidenfleth had violently resisted the requisitioning of two oxen from a local tax delinquent. Fifty-

two of the rebels now stood trial. Proceedings were covered with extraordinary °° Halle, R, Wie verteidigt sich der Proletarier in politischen Strafsachen vor Polizei, Staatsanwaltschaft und Gericht?, 2.ed, Berlin 1924, p.xif., p.32, p.35. The book’s title recalls August Bebel’s series of articles “Wie verhalten wir uns vor Polizei und Gericht?’ in Der Sozialdemokrat, Ziirich, Nos.45-—7, 2., 9.

and 16.11.1882. 8 ‘Von Salomon, E., Der Fragebogen, Stuttgart 1961, p.279. ®° Quoted following Brauns, N., Schafft Rote Hilfe!, p.206.

8° BA(B) RY1/I2/711 Juristische Zentralstelle Band 3, [124] anon., typed manuscript, [no place given] 9.5.28. *” Stoltenberg, G., Politische Strémungen im schleswig-holsteinischen Landvolk 1918-1933. Ein Beitrag zur politischen Meinungsbildung in der Weimarer Republik, Beitrage zur Geschichte des Parlamentarismus und der politischen Parteien vol.24, Diisseldorf 1962.

Rethinking Weimar Political Justice 199 interest, not least because the local peasantry boycotted the town. The Rathenau conspirator Ernst von Salomon and his brother Bruno, who together edited Das Landvolk moved their headquarters to Neumiinster. “Better dead than enslaved’, ran their paper’s byline, in local dialect. Another observer was Rudolf Ditzen, a journalist with literary ambitions better known under his nom de plume Hans Fallada.*° Bauern, Bonzen, und Bomben (1931), a fictional account of the trial, launched his career as a novelist. Ernst von Salomon’s autobiographical novel Die Stadt (1932) recounts the trial’s extraordinary purchase on public opinion. One of the principal defendants, while refusing to utter even a single word in court, spends his time in the dock frantically penning articles for the Landvolk. Ferried to the printing press by eager local volunteers, the trial paper is made available as soon as proceedings close for the day: the peasants on the streets and squares and in the pubs held the paper in their hands, and the accused could not just read exactly what they had said in court, they could also learn what else they were to say tomorrow. [...] political and legal commentary, each sentence a fleabite for the presiding judge, sympathy telegrams from all agrarian provinces of the Reich, a sharp rebuke for the judge [...] the trial dominated the newspaper and the newspaper dominated the trial.®’

Both the nationalist von Salomon and the Social Democrat Fallada paint the trial as a dramatic celebration of civil disobedience and local solidarity. Von Salomon relates how barrister Walter Luetgebrune arranged for the marching band of the local artillery regiment to pass by the courthouse during his closing remarks. Timed to perfection, Luetgebrune’s evocation of the ‘old Prussian spirit’ the peasants’ bombing campaign allegedly breathed was punctuated by the strains of Preufsens Gloria drifting in through the wide-open courtroom windows. While the fifty-two accused peasants shuffled their feet in time to the beat, the court reporters began frantically scribbling notes. The state prosecutor, a reserve officer, allegedly had to fight for his composure.”” National Socialism reaped the electoral benefits of Landvolk agitation, as Ger-

hard Stoltenberg has demonstrated. (Not that the Communist Party was blind to the opportunity—in February 1926, the Red Flag had published the manifesto “Turn towards the village!’)’’ Although the Landvolk had been bankrupted not least by legal fees, trials continued to play an important role in unlocking rural electoral potential. In Gobrichen close to Karlsruhe, for example, a case of civil disobedience closely resembling the Beidenfleth episode gave Hans Frank the opportunity to cast himself as the defender of the oppressed peasantry in the summer of 1932. Despite sentences of up to two years, fourteen farmers wrote to Frank offering their ‘most heartfelt thanks’ for his ‘most selfless’ support: “We the accused

88 Fallada, H., Bauern, Bonzen und Bomben, Berlin 1931; von Salomon, E., Die Stadt, Berlin 1932, see also (4.3.2011, 4 p.m.) for a concise summary. *° Von Salomon, E., Die Stadt, Berlin 1932, p.24. °° Von Salomon, E., Der Fragebogen, Stuttgart 1961, pp.269-89, p.278, p.280F. °! Rote Fahne 14.2.1926.

200 Courtroom to Revolutionary Stage regard it as an honour to join the National-Socialist movement.” Pars pro toto, the Holz and Schulz campaigns and the Beidenfleth and Gébrichen trials show how legal proceedings could bring to life abstract notions of sacrifice and victimhood. They created not just electoral gains but, in legal defeat, put on display an emotive community of resisters anticipating the movement's eventual victory.

Theatrical innovation and courtroom drama Soviet theatrical innovation like so-called ‘agitation trials’ and agitprop performance influenced the dramatization of political trials in Germany. Agitation trials were interactive hybrids of amateur theatre, ideological instruction, and legal procedure. The basic principle was simple—using the pull of legal drama to attract an audience, and the power of improvization and interaction to keep its interest in the

political message. Sloth, drunkenness, domestic violence, gossiping, and poor hygiene were typical targets of agitation trials, often personified by a carefully cho-

sen, well-known local figure. As a rule, posters and newspaper advertisements deliberately eschewed any mention of the fact that the trial in question was not ‘real’. Props, costumes and procedures, while basic, aimed to recreate courtroom decorum, with a jury selected from the audience and elaborately sworn in, a presiding judge with gavel and authority to call for order, defence lawyers and prosecutors. Playful, entertaining, and accessible regardless of literacy, agitation trials played

a key role in the dissemination of Bolshevik ideas in the early Soviet Union, as Elizabeth Wood has shown.” By the late 1920s, they had been phased out. The time for cultural experimentation and openness had passed, and the Bolshevik state had developed more direct means of indoctrination. Cynics might point out, too, that by then didactic trials of an entirely different kind had taken over at the nexus of legal procedure, dramatic appeal and political indoctrination. Like political trials under the auspices of party lawyers, ‘agitation trials’ dissolved the boundaries of politics and entertainment, life and art. But they had no direct equivalent in the Weimar Republic, the closest analogies being Brecht’s learning plays, Red Aid rallies for famous defendants and the mock trials of the Republic's final years.

Agitprop performance, by contrast, inspired admiration and imitation as soon as it was introduced to Germany by the Soviet “Blue Blouses’ famous 1927 tour. Combining choral forms, acrobatics, and song, their skits left ample room for local improvisation and transported ideology in entertaining and accessible ways. In 22 cities all over Germany, more than 150,000 people watched the show, whose run had to be extended twice. ‘The growth of agitprop troupes in Germany was explosive. From two in 1926, the count went to 42 in 1928 and to 182 groups afhliated with the Communist Party or the Communist Youth League in 1930. This latter 92 BA(K) NL 1110 Frank Band 31-11, Wilhelm Hofsass, Artur Sauter, Karl Pfeiffer et al to Frank, Gobrichen 29.8.32. °> Wood, E., Performing Justice. Agitation Trials in Early Soviet Russia, Ithaca 2005.

Rethinking Weimar Political Justice 201 figure is a police estimate, the Rote Fahne wrote of 300 groups, with Berlin alone boasting 28 by early 1931. Young workers flocked to the troupes, but the attraction of agitprop went beyond the working class. Critics celebrated the troupes. Dismissing gripes that the Blouses lacked artistic merit, Herbert [hering and Alfred Kerr instead celebrated the Soviet troupe’s amateurism and sparse theatrical means as conduits of authenticity and energy. Here, they felt, were lessons for high art. As Richard Bodek has demonstrated, echoes of agitprop did reverberate in the work of ‘high culture’ authors like Brecht and Piscator. Hanns Eisler and Erich Weinert even joined agitprop groups themselves. Others, such as Berta Lask, wrote for them or helped adapt their writing for the agitprop format. Ironically, agitprop flourished in Germany just as the troupes’ spontaneity and irreverence was curbed in the Soviet Union.” There were many links between the agitprop troupes’ mixture of theatre/action/ agitation and political trials. Agitprop actors were young, around 23 on average, politically active, usually with union and/or party afhliation. Except for the fact that women frequently featured in the troupes, but almost never in court, the same people took to both kinds of revolutionary stage. Both forms moreover thrived in a polarized public sphere, and both appropriated and subverted bourgeois forms.

In each case, the protagonists’ avowed lack of professionalism guaranteed the authenticity of the performance. In court, the willingness of defendants to suffer for their beliefs was the ultimate stamp of authenticity. But in agitprop, too, artifice was scorned. The International Workers’ Theater Union explicitly excluded ‘reformist theatre circles sponsored by non-Communist organizations as well as the intervention of theatre professionals.”” By banning professionals, agitprop troupes sought to safeguard the identity of performance and working class life.”° Looking back on his Proletarisches Theater, founded in 1920 and one of the wellsprings of the agitprop movement, the trailblazing director Erwin Piscator reminisced that ‘[w]e banned the word art radically from our program, our “plays” were intended to have an effect on current events, to be a form of “political activ-

ity’ [...]. The Proletarian Theater performed in halls and assembly rooms. The masses were to be met on their own ground’.”’ There were also differences, of course. The street and backyard theatre of the agitprop groups drew its sustenance partly from its venues, the ‘rough world, [..] the Rummelplatze and the cliques’.”* Agitprop troupes, simply put, played with

* Willett, J., The new sobriety. Art and politics in the Weimar period 1917-1933, London 1982, pp. 156-8, Bodek, R., Proletarian Performance in Weimar Berlin. Agitprop, Weimar and Brecht, Colum-

bia 1997, p.100, p.81, p.103, Mally, L., “Exporting Soviet Culture: The Case of Agitprop Theater’, Slavic Review vol.62 (2003) No.2, pp.324—42, here pp.324ff., p.329. > Mally, L., “Exporting Soviet Culture’, Slavic Review vol.62 (2003) No.2, pp.324—42, citing letter from Margarete Lode to Wilhelm Pieck, 21.8.29, p.327. °° Brauns makes a similar point when he observes that the audience ‘recognized itself’ in the performances, and that there were ‘no boundaries in between the lived reality of the addressed, the extraction of the players, and the content represented in the pieces’ (Brauns. N., Schafft Rote Hilfe!, p.96). *” Bodek, R., Proletarian Performance in Weimar Berlin. Agitprop, Weimar and Brecht, Columbia 1997, p.4. °> Bodek, R., Proletarian Performance, p.80.

202 Courtroom to Revolutionary Stage home field advantage. Obviously the protagonists of performances of ideology in court lacked the freedom to choose their venue. Still, when Hitler announced in court that the National Socialists would one day have their own political court, ‘and then heads will roll’, when Ernst Hegewisch branded the audience in the galleries of the H6lz trial a bourgeois claque, or when Artur Samter ignored the judge’s orders to cede the floor until he was forcibly evicted, they turned the away game to their advantage. Also, trial-based propaganda relied to a far greater extent on media coverage than the hand-to-mouth, virtually prop-less and localized skits of agitprop. Nevertheless, both dramatized political trials and agitprop theatre sought to leave behind—or at least subvert—not just the physical space, but the bourgeois institution of the theatre respectively the courtroom. Neither form was satisfied with proffering new content, rather, both aimed to change the rules of engagement. In doing so, both instantiate the move towards a unity of art and life, and politics and art that was characteristic both for interwar artistic movements from Dada to the New Sobriety and for the totalizing ambitions of extremist political movements. As Herbert Ihering wrote in his review of the Blue Blouses, here was the true contemporary theatre for a new age. Just as agitprop was to [hering ‘not merely a representation of work, but work itself’, so the courtroom performance of lawyers, defendants and (at times) audiences were not merely a representation of the class struggle, but the class struggle itself.”

Trial plays Gerwin Strobl has recently called attention to the ‘proliferation’ of Zeitsticke, ‘dramatisation of current affairs’ that were ‘hugely popular’, in the Weimar Republic.'®° Trials inspired such (in the narrow sense) theatrical performances in a variety of media. In 1925, the Reich Commissariat for the Protection of Public Order moved to ban the propaganda film ‘MOPR’, whose main subject were the Red Aid’s children’s homes. While the censorship commission refused to ban the film outright, it singled out the courtroom scene: ‘Caricaturing the judicial process, especially the state prosecutor, the depiction of the aggressive police officer and the assemblage of the verdict statistics diminish the audience's esteem for the

German justice system and therefore endanger public order and safety’. Two other scenes were also cut, because they ‘affected the judgement of the justice system’ or ‘ridiculed’ it. “Nothing better illustrates the reactionary spirit of the Filmpriifstelle Berlin than viewing the images and captions cut from the film’, the Rote Fahne commented. Although divided about the film’s suitability as a means of political instruction, the Berlin board of film certification and the Communist newspaper evidently agreed that the scenes targeting the justice system were its most poignant.'°’

” Bodek, R., Proletarian Performance, p.103. ' Strobl, G., The Swastika and the Stage. German Theatre and Society, 1933-1945, Cambridge 2007, p.33. '' Brauns. N., Schafft Rote Hilfe!, p.99f.

Rethinking Weimar Political Justice 203 The most convivial medium for courtroom re-enactment was, however, theatrical performance. Remarkably, the Red Aid inspired Communist agitprop three years before the Blue Blouses toured Germany. An ‘advertising troupe of the Red Aid’ from Oderan near Chemnitz performed pieces entitled ‘15 years in prison’, or ‘Noske’s dream’. In Red Aid agitprop, courtroom confrontation followed class struggle and revolution, and was followed in turn by prison misery and the prisoners families’ plight. The entrance of the Red Aid, often impersonated by a woman or a child brought alleviation and hope. A call for solidarity and a collection, during which audience and players sang the International or Brecht/Eisler’s Sol/idaritatslied from Kuhle Wampe concluded the performance.'”

How popular trial skits were and how large they loomed in the repertory of workers’ theatre is difficult to judge. According to Brauns, “Red Aid meetings saw above-average attendance if well-known agitprop artists performed’. The head of the stage actors union, Rickelt, was so incensed by the verdict in the Gartner trial

(and the fact that the court had declined hearing his expert testimony) that he penned a skit based on his Leipzig experience. Miinzenberg’s MOPR Verlag published a “Red Aid Revue’ entitled “Die Mauer’ as part of its series “Die Rote Buhne’, suggesting that the piece, which could be adapted to accommodate local activists and events, was popular. On the other hand, political justice was the subject of only a small minority of pieces published in Das Rote Sprachrohr (The Red Mega-

phone).'” The Sprachrohr—not to be confused with the eponymous agitprop troupe—was a forum for reflecting on theory, celebrating the Soviet role models, and exchanging hints and tips. Its editors compiled a table of plays published in 1929 and 1930, grouped by subject matter, the closest thing we have to an agitprop repertory. Overall, six performance transcripts dealt with police (four) and proletarian legal aid (two). This compares unfavourably to the 29 plays on ‘Youth’ or the 16 focusing on “Women’. On the other hand, the categories of compilation are sometimes oddly defined (‘Soviet Union, socialist construction, the Five-YearPlan, the Red Army, Western military intelligence, etc.’, drawing 18 plays). Moreover, ‘National Fascism, NSDAP’, also saw just three entries, neck and neck with ‘Sport’. Nothing suggests that performances grouped here (or under ‘youth’ or struggle’) did not feature trial skits—as the vast majority of agitprop was never

written down, it is impossible to tell. Given that the Red Aid’s own agitprop troupes—like the Oderan group—did not participate in the the Sprachrohr, it is remarkable that the organization features as a separate category at all. None of this is to suggest that agitprop troupes simply transmitted a centrally decreed message. Relations between agitprop troupes, the Association of German Workers Theatre (Arbeiter-Theater-Bund Deutschlands, AYBD) and the Communist Party were often fraught. However, by 1928 the Communist Party had tightened the reigns. Arthur Pieck, who had made an inauspicious start to his party career as an organizer of youth and sports associations, was put in charge.' Arthur was the ' Brauns. N., Schafft Rote Hilfe!, p.98. '3 Bodek, R., Proletarian Performance, p.108, Brauns. N., Schafft Rote Hilfe!, p.96. 104 Mally, L., ‘Exporting Soviet Culture’, Slavic Review Vol.62 (2003), No.2, pp.32442, here p.330.

204 Courtroom to Revolutionary Stage son of Red Aid leader Wilhelm Pieck, hardly a coincidence. Anyway, even before the younger Pieck’s leadership, agitprop troupes had closed ranks with the party during election time. Both on trial and in agitprop, Communists asserted, reafhrmed, and celebrated— in short, performed—the ideological community. Of course, Communist defendants and agitators were not alone in this. With their uniforms and rituals, party sports clubs, youth groups, and paramilitary formations also embodied this com-

munity. But because of the special status of justice—its centrality to claims of legitimacy, its performativity, and the prominence of sacrifice—the performance of ideology was especially powerful in court.

Performing the ideological community As economic hardship fuelled political radicalization in the Republic’s final years, the resonances between political trials and agitprop became more pronounced. In 1929, the Red Aid inaugurated the strategy of ‘mass defence’. Assisted by local legal aid committees—mostly laymen—defendants would now as a rule represent themselves. The mobilization of the ‘masses’ was supposed to balance the absence of lawyers. Obviously, this made a virtue out of the necessity of economizing, but given the defence priorities of party lawyers before 1928, the caesura appears less marked than the label would suggest. De facto, the Communist Party continued to deploy both lawyers and ‘mass defence’ tactics. Nevertheless, the change brought the performance of ideology even more clearly to the fore. “Trial newspapers’ were

printed and distributed in large factories and among the unemployed to entice them to the courtroom. Communist lawyer Hermann Horstmann recalls a trial in Leipzig accompanied by daily demonstrations. Defendants and audience members exchanged shouts of encouragement, culminating in an episode when ‘the entire auditorium rose up to sing the International, fists raised’. His colleague Rolf Helm experienced a similar to-and-fro of closing statements and applause from the ranks in the Zwickau trial of 54 Communists accused of breach of the peace in autumn

1930. The triumphal march through the city after 11 of them were acquitted closely parallels the experience of Joseph Goebbels in a series of libel trials in Hannover in October of that same year. “Yesterday: Hannover with Goltz. [...] the state prosecutor demands nine months. I yell at him, it’s true theatre. Goltz leaves the building in protest. For a moment it looks as though a brawl will ensue.’ Goebbels was cleared of all charges: “Outside the masses heave. Flowers, Hail chants. The SA carries me down the street. Up the banners! Goltz has pleaded brilliantly.” While participating in agitprop was voluntary, appearing on trial was very much compulsory. Even this distinction, however, blurred as party lawyers actively pur-

sued opportunities for litigation. In November 1925, Frankfurt KPD barrister Hugo Seckel proposed campaigning against an extradition case. During the Ruhr ' BA(K) KLE 653 von der Goltz Band 2, [157f.], Goebbels, J., Die Tagebticher: Sémtliche Fragmente, herausgegeben von Elke Frohlich im Auftrag des Instituts fiir Zeitgeschichte in Verbindung mit dem

Bundesarchiv, Teil I: Aufzeichnungen 1924-1941, vol.1, Miinchen 1987, p.588f. (13.8.30), p.590 (15.8.30), Brauns, N., Schafft Rote Hilfe!, p.268.

Rethinking Weimar Political Justice 205 occupation, a group of young Communists had been handed over to the French authorities, ‘an extremely important business, which [...] has already commanded public attention’. Seckel had initiated both criminal and disciplinary proceedings against

the responsible police officers. He argued that they had violated the ‘constitutional provision that no German may be handed over to a foreign police, military or judicial authority’. In other words, Seckel hoped to tap nationalist anti-French sentiments for the KPD’s benefit.'°° In 1927, Joseph Goebbels was fined for illegally soliciting donations for the NSDAP. By refusing to pay, Goebbels provoked judicial persecution— deliberately. ‘Even in the case of defeat’, Goebbels believed, the proceedings ‘could be of the greatest propagandistic effect’. The strategy was vindicated by the passage of the political amnesty of July, 1928. Had Goebbels paid the fine, he would have lost not just the money, but the opportunity for a courtroom show of defiance.'°” Max Holz’s rehabilitation provides further blatant examples of this active utilization of judicial procedure. One is Alfred Apfel’s ‘defence’ of Erich Friehe, the would be ‘killer’ of the farmer Hess, discussed above. Another is the plan for revisiting the

case of a certain Giinther, hatched in 1927. Convicted on the same testimony as Holz, Giinther had died in prison. Re-opening his case would weaken the one against Hélz, too. Felix Halle proposed accusing Mrs Hess, the widow of the farmer killed during Max H6lz’s occupation of his land, of false testimony under oath. Although thanks to the ‘presently existing class courts’, her conviction was out of the question, political considerations overrode any legal misgivings: the bourgeois class justice will naturally come to the rescue of its indicted friends and attempt to save them a / Jiirgens trial. This, however, will no doubt provide the occasion for a press-campaign, for parliamentary attacks and interpellations. At the same time, it will be possible to conduct an energetic press- and public meetings-campaign [...] By proceeding in this way, the authorities will be manoeuvred into a very difficult position vis-a-vis public opinion.

Halle’s strategy for the Giinther case turned on the orchestrated propagandistic exploitation of judicial procedure. In itself, the legal action was pointless. Halle selected Giinther’s case solely for its potential to discredit the Republic. For the same reason, Hélz had to stay in the background: “Brought forward by the father [of Giinther], who is around seventy, the accusation that Mrs Hess gave false testimony against his deceased son has a completely different effect as an accusation

by Max Holz’. The ‘old guy fighting for his dead son’, Halle explicated, would be perceived far more favourably. For that reason, a ‘trustworthy lawyer ought to be sent to the Gtinther family as soon as possible.'°® Presumably he needed to be '6 BA(B) RY1/I2/711 JZ Band 3, [115] JZ (Korbmacher) to Zentrale Abteilung Sekretariat, Berlin 21.11.25. Korbmacher summarized Seckel’s letter of 15.11.25. For a similar proposal see ibid. JZ (Timpe) to Politburo, Berlin 17.6.25 (no folio number, located just behind [58]), ibid., [70] JZ (Timpe) to Politburo/Orburo, Berlin 29.6.25. 107 BA(K) NL 1110 Frank Band 40-9, Goebbels to Frank, Berlin 28.9.27, ibid., Frank to Eher Verlag, Miinchen 4.7.28, ibid., “Einstellungsbeschluf?’ Amtsgericht Miinchen, Miinchen 22.8.28. At this point, Goebbels still used Frank as counsel. 108 BA(B) NY 4051 NL Holz Band 18, [169]-[171], memo ‘Bei Durchsicht des Wiederaufnahmeantrags fur MH’, [undated].

206 Courtroom to Revolutionary Stage ‘trustworthy in order not to let slip that the exercise was legally pointless. Although the Giinther trial did not come to pass, Ernst Hegewisch represented the father of Max Reichpietsch, a sailor court-martialled and shot for his part in the 1917 Kiel mutiny, in a similar case.!” Provocative self-indictments approximated even more closely to political theatre. Avowedly to generate publicity for the ‘Feme judges’, Nationale Nothilfe founder Wilhelm von Oppen accused their jailors of ‘brutish beastliness’. As instructed,

Riidiger von der Goltz brought von Oppen’s attack to the attention of the state prosecutor, who duly indicted the defaming article. In court, von Oppen openly admitted his provocation, and tried to turn the tables on the prosecution.''® Unfortunately for him, von der Goltz’s ‘compelling’ applications for the submission of evidence were ‘denied without exception’, as the Kreuz-Zeitung bemoaned. Still, the right-wing press took von Oppen’s conviction to prove the courts’ ‘political bias’, and called for a parliamentary inquiry."

A double courtroom drama: Kampf um den Reigen In reconstructing the offence, the judicial process is inherently theatrical. At their most creative, party lawyers played on the resulting registers of re-presentation and

performance with great virtuosity. In 1923, the conservative industrialist and former parliamentarian Max Wildgrube attacked the Weimar Constitution in an address before the Federation of German Officers (Deutscher Offiziersbund), a conservative association. The printed version of the speech was incriminated under the Law for the Protection of the Republic, and a district court sentenced Wildgrube to a month in prison and a fine. Friedrich Grimm managed to persuade the Kassel

court of appeal to let his client read out in court the very address for which he stood trial, verbatim and in full. The defendant was handed the manuscript, a rostrum was produced and Wildgrube held his speech again, only this time in front of the assembled press and an audience of sympathetic ex-ofhicers whose attendance Grimm had arranged. The monarchist was acquitted, the reach of his thought multiplied by orders of magnitude.'” The controversy about Arthur Schnitzler’s play Der Reigen illustrates this particular dimension of the performativity of justice most vividly. The indictment of the play, translated as “Hands Around’, also provides a rare example of pro-Republican dexterity in the use of judicial procedure. In ten scenes, Der Reigen charts adulterous

109 BA(B) R1507 RKO Band 261, [188] Rote Fahne 15.2.26.

0 BA(B) R1507 RKO Band 328, [135] ‘Der schimpfende Mérderfreund. Viehische Gemeinheit und Fememdérder’, Vorwarts No.453 [Eingangsstempel 27.9.29].

'' (BA(B) R1507 RKO Band 328, [136] ‘600 Mark Geldstrafe fir Herrn von Oppen’, Kreuzzeitung [Eingangsstempel 28.8.29]). See also similar articles in Deutsche Zeitung No.217 and Deutsche Nachrichten No.34, ibid., [134]f. In a similar case, KPD barrister Samter challenged the Stuttgart district court to indict him (BA(B) RY1/I2/711 JZ der KPD Band 11 [222]ff. Samter to Amtsgericht Stuttgart, 25.9.26).

' BA(K) NL 1120 Grimm Band 13, pp.ii-iv, compare also the shorter account of the trial in Grimm, EF, Politische Justiz, p.62f.

Rethinking Weimar Political Justice 207 relations between various strata of society, and the lies and deceit facilitating them. Each scene features two characters, a man and a woman, with one character familiar from the previous scene. Five men (a soldier, a young gentleman, a husband, a poet, and a count) and five women (a whore, a maid, a young woman, a ‘Viennese sweetie’ and an actress) enter into dialogues and, eventually, carnal

relations. In the final scene, the count meets the whore, whose encounter with the soldier started the daisy chain, closing the ring. Writing in 1897, Schnitzler not only eschewed any depiction of the act, but also expressly forbade any staging of his play. Nevertheless, on publication in 1903, the piece was attacked as lewd, base and sensationalist. In fact, many newspapers refused to review it altogether, bemoaning its publication, ostensibly out of respect and sympa-

thy for its author. Others did not mince their words, expressing disgust at Schnitzler’s “canine horniness’ and the ‘foetor judaicus’ (sic) his work allegedly

breathed.'' The first performance of the Reigen took place, against Schnitzler’s wishes, in Budapest, in the Uj Szinbad cabaret, and was closed down by the vice squad after two days. In August 1917, the Neues Wiener Journal reported that the play was performed ‘nightly’ in Moscow, and the Berliner Zeitung am Mittag echoed these reports in late November for St. Petersburg.''* Whether the liberal revolutionaries in Kerensky’s Moscow or the Bolsheviks in Lenin’s Petrograd really found such sustenance in Schnitzler’s parable of bourgeois hypocrisy is doubtful. Significantly, though, the Austrian and German press associated the play’s sexual licence and exposure of bourgeois double standards with revolutionary upheaval. The eagerness of conservative cultural commentators to make this link explains the uproar that Der Reigen caused in Berlin in 1920 and 1921. Max Reinhardt had persuaded Schnitzler that a staging was desirable as well as unavoidable, and that in view of the risqué subject matter, it was preferable that bona fide artists should be in charge. Under the direction of Hubert Reusch, the Reigen was first

performed on 23 December 1920. By going ahead with the performance, the proprietors of the Kleines Schauspiel, Maximilian Sladek and Gertrud Eysoldt (of

Electra fame) defied a last-minute court injunction (rescinded on 3 January 1921). The next seven weeks passed in relative quiet, but a renewed controversy triggered by the play’s staging in Vienna re-ignited an orchestrated campaign against the Kleines Schauspiel. From 5-18 November 1921, the director, producers, and cast of the play were prosecuted for ‘inciting public nuisance’ (Erregung offentlichen Argernisses).

Wolfgang Heine masterminded the defence. He demonstrated that the witnesses whose moral sentiments the performance had so offended had known full well what the play was about. Many had attended solely in order to agitate against

the play. One of the protagonists of the anti-Schnitzler protests was the police "' Schinnerer, O., “The History of Schnitzler’s Reigen’, Proceedings of the Modern Languages Associa-

tion, vol.46 (1931) No.3, pp.839-59, p.841. 14 Tbid., p.845.

208 Courtroom to Revolutionary Stage theatre expert Karl Brunner. In cross-examination, Brunner had great difficulty recalling the last time he went to the theatre for his own regalement, rather than to castigate a debasement of public morals. On the judge's explicit admonition to answer the question, Brunner finally offered “Hamlet’ in the Deutsches Theater. ‘But that was in 1916, in the midst of the great Patriotic War’, Eysoldt exclaimed, understandably exasperated. Moral outrage and a certain adventurist voyeurism thus went hand in glove. By contrast, the youthful thugs who had stormed the theatre on 22 February and brawled with audience, casts, and crew, had no idea of the play’s content, as Heine also showed. Pressed by the barrister, the play’s detrac-

tors were forced to concede that the production went to extraordinary lengths precisely to avoid any hint of indecency, let alone pornography. In his desperation, one critic alleged that the music that accompanied the scene changes ‘mimicked the sexual act’. Heine’s greatest coup, however, was to convince the court to see the production for itself. For this unprecedented Beweisaufnahme, the court held session in the Kleines Schauspiel on Kurftirstendamm. Long removed from the repertory, the play thus had a one-performance revival in front of an audience of jurists, clerks and police officers, with most of the accused in costume and on stage. ‘The trial was a triumph for Eysoldt, Sladek, and Reusch, not only because they were acquitted. Heine’s astute cross-examination showed how cynically the supposedly heartfelt

‘indignation had been manufactured and how little facts and artistic merit factored into the conservatives’ political calculus.'’? Heine published the transcript of the trial, including the play-within-the-trial, and a broad consensus in published opinion hailed the victory of artistic freedom it documented. ‘The salutary lesson was not universally appreciated, however. In 1967, Roger Vadim was prosecuted in Italy for his 1964 film adaptation of Schnitzler’s play, based on a script by Jean Anouilh.

Holding up a mirror to the justice system: public tribunals The crossover between theatrical and judicial forms during the Republic’s final years

is epitomized by the ‘independent inquiries’ that Hans Litten pioneered for the KPD. As Benjamin Hett has recently demonstrated, the young lawyer was a master of using the courtroom to influence political discourse. In the so-called Edenpalast trial, Litten’s cross-examination forced Hitler to reveal the mendacity of the Nazis’ renunciation of violence. By the end of the trial, furious, the Nazi leader had to all but concede that he was either unable to curb the SA’s violence or that the ‘legality tactics’ had been a deception all along. Though called as a witness, Hitler became the accused in the public’s eye. Subsequently Litten developed an ever more confrontational style, reaching its apogee in the Felseneck trial. The moniker referred to

the site of a pitched battle between the SA and the predominantly proletarian

' ibid, pp.847—50 and Heine, W., Der Kampfum den Reigen. Vollstdndiger Bericht tiber die sechstagige Verhandlung gegen Direktion und Darsteller des Kleinen Schauspielhauses Berlin, Berlin 1922.

Rethinking Weimar Political Justice 209 residents of the eponymous Laubenkolonie which left two dead. Journalist Jochen von Lang likened the trial to a wrestling match 4 la ‘catch as catch can’: Time and again, judges and lawyers, and lawyers and prosecutors scrapped noisily, time and again, the defendants cried in protest and the police hauled obstinate men from the room on the presiding judge’s say-so, time and again the accused, lawyers and spectators saluted with a loud ‘Red Front!’, fists raised, and from time to time, the International was intoned as well.!'°

Controversially, Litten was excluded from proceedings, for influencing witnesses and ‘fomenting unrestrained party-political propaganda in court’. The lawyer, the judges ruled, had ‘made the courtroom a fairground of political passions’. A storm of protest greeted the decision—even one of the Nazi lawyers opposing Litten, a certain Plettenberg, deplored the ruling, though he was swiftly whistled back by the NS leadership. In any case the court of appeal rescinded the decision, whereupon the Felseneck judges ruled themselves unfit. The trial had to start over, and this time Litten was barred from defending as a witness suspect of aiding and abetting several defendants. Litten’s appeal was rejected by the Berlin Kammergericht in November 1932, shortly before the December 1932 amnesty closed the case.'"” Parallel to the police investigations, Litten had conducted his own, ferreting out witnesses and commissioning an independent ballistics expert. While the actual trial was suspended, Litten held hearings and cross-examinations, presentations of evidence and public debates in the Turkish Tent, a performance space on Nollendorfplatz. This mock trial drew on forms of judicial protest meetings developed in Berlin in the wake of the violence on Mayday, 1929. In Berlin, Goebbels’ strategy of violent provocation had made clashes between stormtroopers, the police, and the Red Front Fighters Association an almost daily occurrence by the spring of 1929. To deprive the extremists of an excuse for escalating their clashes, the Social Democrat Commissioner of Police, Zérgiebel, had banned all outdoor demonstrations. Both the General Trade Union Association and the SPD had agreed to hold their May celebrations indoors, while the Communist Party called on its members to defy the ban. ‘In cold blood, [Zérgiebel] is preparing his murder of the workers on Mayday’, a KPD pamphlet asserted, calling on all workers to ‘down tools and demonstrate under all circumstances’. During the day, and despite a massive police presence facing off with thousands of demonstrators and hundreds of uniformed Red Front Fighters, things remained relatively calm. In the evening, however, the police used massive force including machine

guns and armoured cars to disband protesters and clear the armed barricades erected in the workers’ quarters of Wedding and Neukdélln. Thirty-three people died in street fighting that lasted several days. Whether the out-and-out ban was a wise tactic, or the curb on the freedoms of association and expression justified is an open question. However, there can be no

"© Quoted following Brauns, Schafft Rote Hilfe!, p.271 (translation by author). "'” Konig, S., Vom Dienst am Recht. Rechtsanwalte als Strafverteidiger im Nationalsozialismus, Berlin

1987, pp.18-21.

210 Courtroom to Revolutionary Stage doubt as to the formal legality of Zérgiebel’s step, which was backed not just by judicial review and the executive of the democratically elected Reich and Prussian governments, but also by the Social Democratic Party. There can equally be no doubt that in its massive use of lethal force, the police reaction was out of proportion to the threat posed by the stones, bottles and clubs wielded by the workers on the barricades. Despite this grave police failure, it is remarkable that even the most recent literature on Weimar political justice all but omits the KPD’s calculated defiance of the ban. This was 1929, not 1932, there is no doubt that the government was democratically legitimated. Moreover, as the language of the call to demonstrations makes clear, the Communist Party knew full well what risks were involved. Given its appetite for martyrs, and the extensive propaganda use it made of the victims it seems clear that the fatal escalation benefitted the party, and may well have been one of the outcomes envisioned. Zérgiebel and his trigger-happy machine gunners not only spilled blood gratuitously. They also did grave harm to the cause of democracy—but so did the Communist Party, whose ends the confrontation served so well. The ‘Blutmaz’, as the episode was soon dubbed, epitomized the Manichean politics the KPD was desperately seeking to conjure. Five days after the Mayday violence, the left-liberal German League for Human Rights put together an investigative committee. Inviting all parties except the German Nationalists, the National Socialists, and the Communists to participate, the idea of the committee was to pave the way for a parliamentary inquiry. The Red Aid initiated its own ‘Committee for the Public Investigation of the May Events’. The participation of non-Communists in this body reflected the outrage over the killing—the president, Zagebuch editor Stefan GrofSmann is a case in point—as well as careful planning. For example, barrister Alfred Apfel, well connected with the Red Aid through the Holz campaign though nominally independent, served on the committee's presidium. In any case, the KPD made sure to control key

posts. Red Aid functionaries Ottomar Geschke, Ferdinand Timpe, and Artur Golke sat on the committee, Geschke also in the presidium. Egon Erwin Kisch, though not a party member one of the stalwarts of the Hélz campaign, was responsible for press liaison, while a Communist metal workers’ union leader, Wilhelm Hein, co-ordinated with labour.''® On 6 July, the Red Aid investigative committee conducted a ‘tribunal’ in the Grosses Schauspielhaus on Gendarmenmarkt, attended by more than 3,000 people. The journalist Alfons Goldschmidt, another member of the committee presidium, questioned selected witnesses. While he did not join the KPD, Goldschmidt’s sympathies towards the council system and the Soviet Union were pronounced (his book ‘Moscow 1920’ was recently described as ‘a paen to the Bolsheviks written with an almost childish smitten-ness and naivete’).''’ Although purporting to draw

"8 Brauns, N., Schafft rote Hilfe!, pp.262—7

' Schlimper, J., ‘Praktiker an der Universitat. Zur Einbeziehung praktisch tatiger Journalisten in den Ausbildungsbetrieb des Leipziger Instituts fir Zeitungskunde’, Miinchener Beitraige zur Kommu-

nikationswissenschaft, No.7, (Juni 2007), p.9 (http://epub.ub.uni-muenchen.de/1978/1/mbk_7.pdf, 4.2.2011, 2 p.m.).

Rethinking Weimar Political Justice 211 on a pool of some 300 witnesses allegedly interviewed by Alfred Apfel in the runup to the mock trial, in the public session the key witnesses were Wilhelm Pieck and the Communist Richard Schmincke, a public health official in the Berlin district of Neukélln. Schmincke testified that in all post-mortems he had performed on gunshot victims, the fatal wounds had been caused by ‘police ammunition’. Similar well-attended mass meetings were held in the following days in Wedding and Friedrichshain. The Blutmai mock trials mimicked the forms of the judicial process but replaced and adapted key components. In the ‘stand’, witnesses had to declare their willingness to repeat their testimony under oath. Instead of judges, there was a collective of interviewers and experts. No formal verdict was declared, but each day a resolution was debated and passed by the auditorium. Upon reading it out, the meeting

leader had the audience rise, just like a judge upon delivering the verdict. The mock trials were a cross of courtroom, revolutionary council and theatre: the first mass meeting of the Blutmai committee, in fact, concluded with a film documenting the Mayday fighting, shot by Miinzenberg’s Prometheus film company, live and on location.'”° Hans Litten adapted the successful formula of the Blutmai tribunals. Aside from

the Edenpalast tribunal in Berlin, Litten led a trial-like public inquiry into the death of a worker in police custody in January 1931 in Salzwedel (Altmark). When the final resolution indicting the municipal police department was passed, even the two officers sent to observe the gathering voted in favour. So at least the local paper

reported under the heading ‘A mass meeting has turned into a public court session—a people’s tribunal of the Salzwedel population against their thuggish police’.'*! After the Nazi seizure of power, Willi Miinzenberg took a page out of Litten’s book in organizing a mock tribunal of Marinus van der Lubbe, the Reichstag arsonist, in London. Intended as a direct counterweight to the trial in Leipzig, the London event was no more than a modest success. Without a committed lawyer—the senior advocate in London spent most of his time discussing the aesthetic merits of Miinzenberg’s female assistants—and without the context of livewire ideological confrontation, however, the mock trial format foundered.'”

CONCLUSION Playing on judicial forms and rituals, mock trials harnessed the recognisability of legal procedure to generate interest and emotion. Implying the corruption of the regular administration of justice, they held a mirror up to the courts. Trial per-

formances both reflected and drove the stark polarization of the late Weimar Republic. Beyond merely asserting, they embodied and put on display the irreconcilable gulf between detractors and defenders of liberal democracy. Even while 0 Thid., p.264. '*! Konig, S., Vom Dienst am Recht, Berlin 1987, pp.18—21, Brauns, N., Schafft Rote Hilfe!, p.266.

2 McMeekin, S., The red millionaire. A political biography of Willi Miinzenberg, Moscow’ secret propaganda tsar in the West, New Haven 2003, p.267.

212 Courtroom to Revolutionary Stage tapping the cultural template of legal procedure, they ridiculed the idea that judicial neutrality might be attainable under the Weimar ‘system’. At the same time, they—like agitprop, agitation trials, Lehrstiicke, and most clearly the ideologically charged trials themselves—epitomize the transformative and motivational potential of performance. As Louis Althusser put it (with regard to theatrical innovation): “The play really is the production of a new spectator, an actor who starts

where the performance ends, who only starts so as to complete it, but in real life’.!’°

Denying the very possibility of neutral arbitration is a logical, if extreme consequence of razing the distinctions between the administration of justice and other arenas and modes of political struggle. In the final analysis, it underpinned and was in turn affirmed by the dramatization of justice that this chapter has charted. In his essay ‘Klassenjustiz , Martin Bormann wrote: “We hate this system [...] We have forgotten how to be “just”. The “just” is always a weakling, trying to hide his weakness beneath the mantle of justice.’!’* The extremes’ diametrically opposed claims to be the victims of justice reinforced one another. Objectively, left-wing claims were incomparably more justified. For the effectiveness of anti-judicial propa-

ganda, however, this hardly mattered. As Bormann’s equation of ‘justice’ and ‘weakness’ highlights, such propaganda insisted that amy claim to neutrality, objectivity, and mediation was a lie. Riidiger von der Goltz declared that ‘no law and no application of the law exists in a vacuum. And within the German sphere, the air is these days called Versailles. Only taking this into account makes the notion of objectivity complete.” Kurt Tucholsky rejected, as we have seen, everything about the judges (“The air he breathes, the beer he drinks, the children he brings up [...] his mindset, [...] his caste, [...] his world’).'*° Opposing the judges’ reasoning was the yardstick of moral probity. This left no room for compromise: only the ‘antidemocratic, sneering, unjust class struggle, deliberately scorning the idea of justice’ promised to cure a broken system.'*” Hans Frank’s sentiments mirrored this stance. Rejecting an invitation to share a podium with barrister Brodnitz, the leader of the Centralverein, a Republican lobby group and advocate against anti-Semitic discrimination, he wrote: At this moment the 145 dead National Socialists, casualties of the movement's struggle against Jewry, stand before me. In the struggle against the brittle system of today each and every one of us has the ambition to sacrifice himself in the service of the idea of the future, in the service of our leader. How can I then seek to exchange my thoughts with a Herr Brodnitz by way of a debate?

'25 Althusser, L., For Marx, New York 1996, p.152. '4 Bormann, M., ‘Klassenjustiz’,, pp.60—5 in Plaas, H., Wir klagen an! Nationalisten in den Kerkern der Bourgeoisie, Berlin 1928, p.65. '3 Von der Goltz, R., Tribut-Justiz. Ein Buch um die deutsche Freiheit, Berlin 1932, p.8. 126 Wrobel, I., (i.e. Tucholsky, K.,), ‘Deutsche Richter’, Weltbtihne Nos. 15-7, 12./19./26.4.1927, quoted from (slightly abridged) reprint in Tucholsky, K., Deutschland, Deutschland uber Alles, Berlin

1929, pp.158-65, here p.157, p.159. 7 Tbid., pp.156-68.

Rethinking Weimar Political Justice 213 As leader of the Association of National Socialist German Lawyers and ‘Adolf Hitler’s barrister’, such a debate was ‘impossible’ for him: The basis of our powerfully ascending movement is the ideology of race [Rassegedanke], and it is therefore absolutely impossible that I should ‘debate’ in any form with representatives of the same Jewry which we combat [...] While the struggle is fought, there

is no neutral platform on which the combatants could be brought together.'”*

Coming from a barrister, this categorical rejection was ominous. For what is the administration of justice if not a ‘neutral platform’? 8 BA(K) NL 1110 Frank Band 361, Frank to von Schwerin, [no place given] 29.1.30. See also BA(K) NL 1110 Frank Band 36], barrister Philip Loewenfeld to Vorstand Anwaltskammer Miinchen [Abschrift], Miinchen, 24.4.30. For Brodnitz see Beer, U, Die Juden, das Recht und die Republik. Verbandswesen und Rechtsschutz 1919-1933, Rechtshistorische Reihe 50, Frankfurt a.M. 1986.

Conclusion Berlin was in a state of civil war. [...] The newspapers were full of deathbed photographs of rival martyrs, Nazi, Reichsbanner and Communist. [...] The

murder reporters and the jazz-writers had inflated the German language beyond recall. The vocabulary of newspaper invective (traitor, Versailles-lackey,

murder-swine, Marx-crook, Hitler-swamp, Red-pest) had come to resemble, through excessive use, the formal phraseology of politeness employed by the Chinese. The word Liebe, soaring from the Goethe standard, was no longer worth a whores kiss.

—Christopher Isherwood, Mr. Norris Changes Trains (1935)!

So it was with the word justice. Trials drove the language inflation Christopher Isherwood deplored in his celebrated epitaph of Weimar Berlin. ‘/ustizmord (judicial murder’), for example, became a touchstone of both left- and right-wing judicial criticism. At first the term meant the wrongful execution of the death penalty.’ Soon, however, by the logic of equating captivity with being ‘buried alive’, it came to designate imprisonment or even lesser punishments. The nationalist Arnold

Ruge once decried a fine as a ‘typical example [Musterbeispiel] of a judicial murder—and he was serious.° The wide currency of Justizmord suggests deep disaffection with the justice system. Even moderates used the term freely. Erich Schairer, a member of the Demo-

cratic Party and editor of the left-liberal Stuttgart Sonntagszeitung, published ‘Justizmord: Max HGlz’ in the summer of 1926. “The friends of this man, whose punishment is as harsh as it is unjust, will not rest’, the article closed, ‘until they have forced the reopening of proceedings and succeeded in replacing the shameful verdict by one commensurate with the actions of the Red General. We will not permit this German administration of justice to bury a human being alive.’ Quite apart from the success of the KPD legal office in projecting its interpretation of the HGlz case far into the bourgeois camp, Schairer’s disdain for the justice system per se—'this German administration of justice —deserves notice. Anti-judicial propaganda created a climate in which right- and left-wing extremists found common ground as victims of judicial bias. The celebrated court reporter Sling drew atten' Isherwood, C., The Berlin Novels, London 1999, p.108f. * For the popularity of the concept of ‘judicial murder’, see Evans, R.J., Rituals of Retribution. Capi-

tal Punishment in Germany 1600-1987, London 1997, pp.548-61, especially pp.558-61. 500 jf folmann, U., ‘Verriter verfallen der Feme!’ Fememorde in Bayern in den Zwanziger Jahren, Koln , p.163.

Conclusion 215 tion to an ostentatious courtroom handshake between Carl von Ossietzky and Paul Schulz. The left-liberal publicist and the nationalist frondeur and convicted murderer shaking hands, an unusual sight emblematic for this coming together of the extremes.’ By the end of the ‘stability phase’, the administration of justice was one of the Republic’s greatest liabilities.

‘LOSING WITH A SPLASH’ My argument has been that we cannot understand the noxious influence of the administration of justice on Weimar political culture solely with reference to the political bias of the judges. On the contrary, this perspective obscures as much as it reveals, because it is tinged with, and at its worst steeped in, precisely the same ideological disputes it purports to shed light on. Take for example Brauns’ book on

the Red Aid. A caption identifies National Socialist poster-boy ‘Horst Wessel (standing) with his band of SA-thugs [Schiégertrupp]’. Inclined as I am to agree with this characterization of the stormtroopers, it begs the question why the SA are identified as ‘thugs’, whereas members of the Red Front-fighters Association are referred to as ‘brothers in arms |[Kampfgenossen] of incarcerated revolutionaries’, ‘revolutionary cadres’ etc.” Even more problematically, certain aspects of the Red Aid’s work—the limits party discipline placed on defendants’ self-exoneration, for example, or the instrumentalization of perks like family support and placement on

electoral lists to discipline defendants—are given short shrift or omitted altogether. Schlagertrupp and Kampfgenossen? We cannot explain the collapse of Weimar’s

political culture if we perpetuate the intense ideological divisions of the interwar

period, rather than try to understand what made them possible and how they were exacerbated. Of course, no scholarship is free of ideological commitments, and this study may, to some, be naive in its regret that liberal and social democracy did not receive more credit from contemporaries for the sometimes odious compromises their representatives felt compelled to make. But co-opting the language of contemporary ideological polemics is not conducive to scholarly dispassion and even-handedness. From the Hannovers via Udo Reifner and Ingo Miiller to Nikolaus Brauns, students of Weimar justice have operated with a dichotomy of moral disdain for the extreme nationalists and moral approbation for their Communist opponents. This perspective is not just hind-sighted in projecting backwards value judgements derived from a contemplation (albeit accurate) of the roles of the respective camps under the National Socialist dictatorship. More importantly, it is also wide of the mark in ignoring the manifold overlaps in style and outlook, the similarities in technique, the outright imitation, and at times even collusion that linked extremist lawyers from opposite ends of the ideological spectrum. That is not to say that my * Hannover, H./Hannover-Driick, E., Politische Justiz 1918-1933, Frankfurt a.M., pp.171-2. > Brauns, N., Schafft Rote Hilfe!, Bonn 2003, pp.10-1, p.210.

216 Courtroom to Revolutionary Stage argument disputes the judges’ privileged social provenance, their anti-Socialist bias or their at times openly worn enmity to the Republican order. Nor yet is my position that these facts were irrelevant to the outcomes of Weimar political trials or the impact those trials had on political culture. Rather, I argue that the stance of the judges is one of many factors that contributed to the almost universal distrust towards the administration of justice.° For explaining how and why extremist detractors of Weimar democracy found so much political capital in amplifying and exploiting this distrust, however, referring to the judges and their verdicts alone is insufficient.

My argument has focused on the lawyers, rather than the judges, and on the entirety of proceedings, rather than solely on the verdicts. Doing so has yielded a narrative in which the extremist parties appear interested not in the legal outcome of proceedings so much as in the forceful representation of their ideology in court. The point, as one of my anonymous reviewers put it, was not legal victory so much as ‘losing with a splash—the right kind of splash. Producing a rousing display of implacable enmity towards the Republican order was more important than avoiding or reducing individual sentences. On the contrary, the sacrifice of the defendants underpinned the performance of ideology in court, and amplified the impact of the party comrades’ practical solidarity, be they spectators in court, readers of the party press, or contributors to legal insurance schemes like the Red Aid, the Patriotic Prisoners Relief or the NS Rechtschutz. In placing these emphases, my argument emancipates the nationalists and radical socialists from the roles they are customarily assigned in historiography, the roles, respectively, of passive beneficiar-

ies and more or less helpless victims of judicial bias. Reframing the debate on Weimar political justice in this way restores the extremists’ initiative and creativity

in the courtroom. Weimar extremist parties turned judicial persecution from a legal liability into a propagandistic asset. Trials and trial-based publicity campaigns like those on behalf of Josef Gartner, Max Holz and Paul Schulz allowed nationalists and Communists to strike poses of fundamental ideological opposition. Quite apart from its concrete benefits—e.g. controlling potentially disgruntled defendants, attracting new recruits like the Gébrichen villagers, or eliciting the public sympathy of intellectuals from Schairer to Einstein—there was the great symbolic value of courtroom drama. As a privileged site of ideological confrontation, the courtroom complemented and in many ways eclipsed the traditional loci of political combat: parliament, the ballot box, the streets and factory floors. This was especially true during the so-called stability phase. It is no coincidence that Schairer’s /ustizmord article quoted above dates from 1926, nor that the Gartner, Schulz, and Hélz campaigns as well as the

solidarity movement with Sacco and Vanzetti all reached their apogee in the years 1924-1929. During this time, actual revolution was out of the question. As ‘Thomas Mergel has recently demonstrated, even the German Nationalist and Communist deputies in the Reichstag began a de-facto assimilation into the customs, sites, and ° Grunwald, H., “Die “Vertrauenskrise der Justiz” in der Weimarer Republik. Justizkritik als Krisendiagnostik’, pp.177—99 in Grunwald, H./Pfister, M. (eds.), Krisis! Krisenszenarien, Diagnosen, Diskursstrategien, Paderborn 2007.

Conclusion 217 social networks of parliamentarism.’ In this constellation, trials provided a unique opportunity for forensic grandstanding underpinned by carefully choreographed and publicized acts of self-sacrifice in court. On trial, Weimar extremists could perform the

revolutionary commitment and uncompromising, total rejection of the democratic order that was absolutely unrealistic outside the sphere of anti-judicial propaganda. Moreover, courtroom drama resonated with Weimar cultural and aesthetic trends.*® It

was authentic, gripping, and highly publicized, but at the same time conveniently limited in its impact. This made political trials a uniquely suitable site for staging fundamental dissent, and therefore crucial to Communist and radical nationalist efforts to maintain ‘genuinely revolutionary credentials in the stability phase. As Andreas Wirsching put it, ‘under the surface of relative stability’ of the bourgeois Europe of the Twenties Charles Maier evoked, ‘its radical questioning by the extremist forces of the epoch was already taking shape’.’

What is more, frequent political amnesties tempered the threat of verdicts. As Jirgen Christoph has shown, in the Weimar years the average interval between political amnesties was a mere two and a half years—and that covers only Reich, not state amnesties. With obstinacy, luck, petitions for clemency, and suspended imprisonment etc. party lawyers could play for time in the realistic hope that their clients, even if sentenced, might never have to do time in prison by the time the next amnesty was enacted. In 1930 and again in 1932, Communists and National Socialists voted together to pass the last and most far-reaching of these parliamentary measures.'? Obviously, amnesties qualified and often annulled the consequences of sentencing, making the courtroom a less risky and consequently even more attractive venue for performing ideology."! Right- and left-wing radicals chipped away jointly at the discursive, symbolic and practical foundations of democratic politics. This anti-Republican collusion is epitomized, not invalidated, by the dramatic confrontations between Nazis and Communists in Weimar courtrooms. Regardless of the unquestionable nationalist bias of the courts, the most important victim of the politicization of justice was democratic political culture. Even whilst ostentatiously opposing one another, the extremes colluded in de-legitimizing the Republic, not exclusively, but certainly prominently in the courtroom and through their lawyers. In denying the very possibility of a neutral arbiter between conflicting interests, in ignoring or denigrating as liberal wish-

ful thinking the rules of judicial engagement, left-wing and right-wing lawyers together helped create a discursive framework sidelining and ultimately destroying

’ Mergel, T., Parlamentarische Kultur in der Weimarer Republik. Politische Kommunikation, symbol-

ische Politik und Offentlichkeit im Reichstag, Beitrage zur Geschichte des Parlamentarismus und der politischen Parteien, Band 135, Diisseldorf 2002. ° Strobl, G., The Swastika and the Stage. German Theatre and Society, 1933-1945, Cambridge

2007, p.16, pp.27-8. > Wirsching, A., Vom Weltkrieg zum Biirgerkrieg? Politischer Extremismus in Deutschland und Frankreich 1918—-1933/39. Berlin und Paris im Vergleich, Miinchen 1999, p.5. '° Christoph, J., Die Politischen Reichsamnestien 1918-1933, Rechtshistorische Reihe 57 Frankfurt

.M. 1988. mn CE Reichard, S., Faschistische Kampfbiinde. Gewalt und Gemeinschaft im italienischen Squadrismus und in der deutschen SA, Industrielle Welt 63, K6ln 2002, pp.252-3.

218 Courtroom to Revolutionary Stage the possibility of democratic politics. Which is why, while allowing for important differences between the groups, this study considers radical socialist and nationalist lawyers side by side. Scholars of totalitarian movements have, in Daniel Schénpflug’s words, recently

placed more emphasis on these movements’ ‘utopian content, offers of “positive” identification, myths, and secular-religious promises of salvation as explanations for their mass appeal’. One has only to recall the poetic eulogies to Max Hélz (O Wave, of light born/o breath, to life sworn’) and Paul Schulz (‘you sacrificed ten years/to spare Germania’s tears’) to see how such offers of positive identification were constructed in the courtroom. Recent work in this field takes a more nuanced and interesting view on judicial procedure, taking in both its failure to curb violent radicalism and its role in the production of ideological martyrs.'* If, as Hans Maier put it, the renewed currency of Voegelin’s concept of political religion is really due to its aptitude in explaining the ‘tremendum et fascinosum’ of totalitarian regimes, then I hope to have provided some glimpses of a similar process in the field of law. Schénpflug argues that the ‘promise of the future characteristic of totalitarianism is translated into language, visual images, and symbols. On a small scale, the ideologically constructed group prefigures what is in store [...] once the totalitarian movement [...] takes power’. Martyred heroes produced by the justice system, men like the Feme killers August Fahlbusch and Paul Schulz, like the saboteur Leo Schlageter as well as the ‘red Robin Hood’, Max H6lz, or the Communist brigand Karl Plattner, were such symbols and offered such a language.'° Trials sustained a mien of revolutionary purity unsullied by parliamentary compromise. Political justice thus helped extremist parties preserve through the stability phase an asset that would prove crucial in the Republic’s agony: their image. The dramatization and politicization of justice my argument has sketched was the project of a small but conspicuous and highly influential group of barristers. Strikingly and self-consciously different from their non-political peers, these lawyers specialized in representing the members of anti-democratic parties in court. Fashioning a niche for political defenders was an undertaking that party lawyers of all stripes undertook jointly, for a complex web of interconnected motives. The professionalization and differentiation of legal services, the perceived overcrowding of the profession together with restrictions on advertising and an older generations stranglehold on lucrative and powerful positions atop the hierarchy of professional self-government were all factors.'* So, too, was the public’s growing appetite for crime and courtroom drama and the popular press catering to it. Like the bias of the judges and like the rebellion against the ‘organ of the administration of justice’ doctrine, however, these developments created necessary, but not sufficient conditions for turning trials into courtroom performances of ideology. '? Reichardt, S., Faschistische Kampfbiinde, K6ln 2002, pp.243—-53, pp.548—59.

'S Hoffstadt, A.,/Kiihl, R., “Der lastige Widerginger und die toten “Helden”. Zur Ikonisierung Paul Schulz’ als Held und Martyrer der frithen nationalsozialistischen “Bewegung”’, pp.261—99 in Grofs, D./Schweikardt, C. (eds.), Die Realitat des Todes. Zum gegenwartigen Wandel von Totenbildern und Erinnerungskulturen, Frankfurt a.M. 2010. ‘4 Ledford, K., General Estate to Special Interest, pp.21-3.

Conclusion 219 Decisive for this performative turn in Weimar justice was the ideological identification of lawyers with their parties’ totalitarian project. As we have seen—most clearly in the operating principles of party legal organizations—this identification paved the way to a fundamental reorientation of defence practice. Lawyers accepted and shed briefs at the behest of their parties. They condoned and encouraged their clients’ self-sacrifice, at least in some cases by misrepresenting the likely consequences. They issued school reports on their clients’ bearing in court, knowing full well that such reports could and did lead to the rescinding of legal aid and family support payments, if not worse. Party lawyers devised elaborate justifications for their defence style, a strong indication that they were well aware of how radically they departed from accepted lawyerly conduct. Felix Halle’s guidebook, barrister Hainz’s ‘rigorously Leninist’ pleading, Hans Frank’s ‘juridical SA duty’, and Riidiger von der Goltz’s ‘tribute justice’ all asserted the political bias of the courts and the inevitability of convictions. By describing as unavoidable a set of consequences that objectively depended at least in part on their choices, the lawyers claimed indemnity for the outcome of proceedings. This was not only a self-fulfilling, but also a self-serving prophecy. The rise of Felix Halle, elected to the Reichstag in 1928, Ernst Hegewisch, generously remunerated and able to dictate his terms to the Communist Party, but also

of Walter Luetgebrune, head of the SA legal organization, and of Hans Frank, testify to the career advancement this strategy could bring. For the nationalist barristers, the ideological re-interpretation of the trial lawyer role paid richer rewards still after 1933. Even second tier party barristers rose to positions of influence, not to mention the spoils of reduced competition as Jewish colleagues were forcibly disbarred.

The lawyers’ unquestioning subordination to their parties entailed not just abandoning the legal profession’s ironclad loyalty to the individual client, but also giving up all claims to a distinctiveness of the sphere of law. Abrogating totally the possibility of a ‘neutral arbiter’ expressed a radically ideologized vision of the nexus of politics and the law, in which the power calculus and partisanship of the former must inevitably override the universalistic and rule-abiding principles of the latter. In Biichner’s Dantons Death, his fellow prisoners reproach the protagonist entering the dungeon: ‘Follow your own phrases to the point at which they become embodied. Look around, all that you see you have spoken; it is but a mimic translation of your words. These wretched creatures, their hangmen and the Guillotine are your words come alive’.'’ Echoing Biichner, Felix Halle’s fellow prisoners in the Lubyanka taunted him with the title of his best-selling legal guidebook after his arrest by the NKVD. How was the proletarian now to defend himself in political court cases, they demanded to know. Halle was shot in 1937.'° Whether or not the interchange actually happened, the story encapsulates the insight that the practice of '° Buchner, G., ‘Dantons Tod’, pp.5—81 in Biichner, G., Dichtungen, Reclams Universal Bibliothek vol.20, 9.ed., Leipzig 1990, p.55. '© Stascheit, U., ‘Felix Halle (1884-1937). Justitiar der Kommunistischen Partei’, pp.153-64 in Redaktion Kritische Justiz (eds.), Streitbare Juristen, p.163, Weber, H., ‘WeifSe Flecken in der Geschichte.’ Die KPD Opfer der Stalinschen Séuberungen und ihre Rehabilitierung, Frankfurt a.M. 1989, p.97f.

220 Courtroom to Revolutionary Stage party lawyers ultimately depended on the liberal principles of the Republican administration of justice, the very foundations of which they had attacked with such venom.

THE END OF THE STORY: PARTY LAWYERS AFTER 1933 The demise of the Republic along with its liberal procedural guarantees therefore explains why political lawyers found themselves increasingly sidelined after the Nazi triumph—even the National Socialists. True, Hans Frank became Bavarian Minister of Justice and Reich Minister without portfolio. Friedrich Grimm and

Riidiger von der Goltz both entered the puppet parliament and sat on various penal code reform commissions, jealously keeping tabs on one another.'” After the war, both men paraded the desperate pleas for help they received from Jewish colleagues as proof of their supposed philo-Semitism and their detachment from the Nazi régime.'* In fact, such supplications indicated the opposite, namely Grimm’s and Goltz’s close ideological alignment and excellent connections with the new regime.” The loyal party service of lesser lights was rewarded, too. Hans Frank’s sycophantic Hamburg lieutenant Walter Raeke was appointed to head the barristers’ section of the NS Lawyers Association, vastly expanded in membership and clout as the vehicle for the Gleichschaltung of the legal profession. Others, such as Reinhard Neubert, Hans Litten’s nemesis in the Edenpalast trial, and Wolfgang Zarnack came to head lawyers’ chambers and associations, in more or less openly rigged elections. But even as the erstwhile BNSDJ pioneers moved up the social and political hierarchy, the perks and decorous titles could hardly disguise that their work as political lawyers was over. Hitler despised lawyers in general—‘every jurist is either deficient by nature or rendered so over time’, he opined over dinner in the Wolf’s Lair—and trial lawyers in particular.” Luetgebrune, the Fihrer was fond of relat-

ing, could cry on demand, and generally barristers were the next best thing to criminals. Economic advance notwithstanding, gone were the days in the limelight

of media trial coverage, and gone the possibility of provoking public opinion through daring courtroom manoeuvres. ” (BA(K) KLE 653 NL von der Goltz Band 3, [10]-[12], [108], [115]f, [156], BA(K) NL 1120 Friedrich Grimm Band 18, pp.58—68 (a remarkable and probably almost entirely fictional account of an interrogation by Robert Kempner).

'S Grimm’s account of a meeting with Jewish barrister Rosenberg, a ‘militant [sic] pacifist’ and ‘publicistic opponent’ is unintentionally comic. Lecturing Rosenberg about the Jews’ ‘exaggerated’ influence in their “host people’, Grimm explained that ‘no-one wanted to give refuge’ to German Jews, while Germany sadly lacked colonies to absorb them. But even if the ‘excretion [Ausscheidung] of the Jews from the body of the German people [ Volkskérper|’ were possible, ‘could it be allowed that they take with them all the riches which they had accumulated over the last generations, partly by an indefensible exploitation of the German people’? Barrister Rosenberg, Grimm recalls with no discernible irony, ‘turned out to be remarkably amenable’ to these opinions (ibid., pp.28—9). For rationalizations of their high positions in Reichstag, lawyers’ chambers etc. see ibid., Band 14, p.70 and BA(K) KLE 653 NL von der Goltz Band 3, [10], [108], [115]f. °° Picker, H., Hitlers Tischgespriche im Fihrerhauptquartier, 3rd ed., Stuttgart 1976, p.158, p.161.

Conclusion 221 The Night of the Long Knives dented Hans Frank’s career, and nearly terminated Walter Luetgebrune’s. But for his absence on holiday, it might easily have terminated his life. As it was, he was permanently disbarred, able to maintain a modest law consultancy only with Frank’s special permission. Luetgebrune’s former charge Paul Schulz fared even worse. The head of the Feme escaped his executioners in transit to the designated killing site near Wannsee, barely alive. After 1945, both

Schulz and Luetgebrune portrayed themselves as victims of Nazi persecution. Friedrich Grimm retired to Lake Starnberg and wrote his memoirs, Political Justice, The Sickness of Our Time. Ridiger von der Goltz, too, lived to see a ripe old age, whereas Hans Frank was sentenced to death at Nuremberg and hanged. The National Socialist lawyers’ rise after 1933 mirrored the plight of their leftwing colleagues, whose persecution was swift and merciless. As Reich Commissar for the Gleichschaltung of the administration of justice, one of Hans Frank’s first executive orders instructed the SS to target opposition lawyers: ‘For the execution

of the law [for the restitution of the civil service], which is in the main directed against Jewish barristers, I immediately require further relevant material against those lawyers who have been active “in the Communist sense’.’”*! Frank here not only conflates ‘Jewish’ and ‘Communist’ lawyers, but reveals to what extent party barrister antagonism shaped his political imagination: even the notorious NS legislation of April 1933 he qualified as targeting ‘in the main’ opposition barristers. The exclusion of politically and racially undesirable lawyers relied on a mixture of top-down pressure of the kind exemplified by Frank’s letter and the initiative of local NS stalwarts. In Stettin, Riidiger von der Goltz ‘persuaded’ eight local judges

to enter the BNSDJ chapter, which he presided over just like the lawyers’ chamber.** In March, 1933, Berlin BNSDJ leader Wolfgang Zarnack had the city’s highest court, the venerable Kammergericht, taken over by an SA deputation. Herding all Jewish judges and barristers into the attorneys’ quarters, he informed them that their ‘continuous provocation’ had so agitated the ‘consciously German’ barristers that the ‘orderly conduct of business’ was in ‘serious danger’. In the future, ‘all provocation would be answered ‘rigorously and with the appropriate means.” In Breslau, the newly appointed chief of police and convicted Feme murderer, Edmund

Heines, had his minions storm the courtroom and drive out the Jewish lawyers (and those mistaken for Jews). The following day, the lawyers’ chamber was informed that henceforth only seventeen Jewish lawyers—a number supposedly corresponding to the ‘true’ proportion of Jews in the general population—would be allowed to access the palace of justice. The treatment of Jews and politically undesirable lawyers thus anticipated the piecemeal rescinding of the exceptions for

‘front fighters’ and others which Nazi racial legislation at first affected to guarantee.

*! BA(B) NS16 Band 112 [non-foliated], Frank to Kurt Daluege, Berlin 2.5.33. 22 BA(K) KLE 653 NL von der Goltz Band 3, [3], 176-7. > Krach, T., fiidische Rechtsanwiailte in Preuffen, p.176f. For the atmosphere in the Kammergericht subsequently see Sebastian Haffner’s eloquent account in Haffner, S., Geschichte eines Deutschen: die Erinnerungen 1914-1933, 7.ed. Stuttgart 2001, pp.144—8.

222 Courtroom to Revolutionary Stage Those who could went into exile. Max Hirschberg, the outspoken Munich Social

Democrat, was arrested in March 1933 and held for a month without charges. Although he was released relatively unscathed, and although ‘Jewish’ frontline war veterans could at first continue practising, Hirschberg left Germany in the summer of 1934. Later that year, Hirschberg was struck off the bar register, while Munich University rescinded his doctorate. Until 1979, the Munich lawyers’ chamber refused to rehabilitate their colleague, on the grounds that Hirschberg had not been forcibly evicted from the profession but had ‘absented’ himself without leaving a forwarding address. Hirschberg qualified as a lawyer in the United States, specializing in restitution claims for NS victims after 1945.*4 Exile was a fate Hirschberg shared with many colleagues, such as the SPD barristers Ludwig Bendix, Rudolf Olden, and Robert Kempner.” Their party comrade Johannes Werthauer and Alfred Apfel, whose citizenship the Nazis rescinded, had no choice but to leave the country. Not all who emigrated fared as ‘well’, relatively speaking, as Hirschberg. In par-

ticular, those KPD lawyers and Red Aid officials who emigrated to the Soviet Union met with a suspicious, if not downright hostile reception. Among the Red Aid lawyers and personnel killed, Hermann Weber lists, aside from Felix Halle, Arthur Golke (imprisoned 1937, murdered 1939), Hermann Horstmann (partner in Gerhard Obuch’s Diisseldorf law practice, imprisoned 1937, died in prisoners’

camp), Max Katzenellenbogen (vanished without a trace 1937), Willi Koska (arrested 1937 and probably shot), Hermann Kupferstein (arrested and shot 1936), and Herrmann Remmele (shot or died in lunatic asylum 1939). The self-styled Communist publishing mogul Willi Miinzenberg was expelled from the KPD in

1937. Having escaped French internment after the outbreak of the war he was murdered in October 1940, probably by the NKVD.°*° It is a tragic irony that Halle and the others fell victim to the Stalinist administration of justice whose operation they had so fervently defended. Not all opposition lawyers who stayed behind in Germany necessarily fared as badly as one might have expected. Wolfgang Heine's retirement, for example, was relatively tranquil. More surprisingly, KPD barrister Ernst Hegewisch was able

to continue practising the law after a brief hiatus in 1933. In 1936, he publicly disowned his former Communist beliefs and converted to National Socialism. *4 Hirschberg, M. (Weber, R. ed.), Jude und Demokrat. Erinnerungen eines Miinchener Rechtsanwalts, Miinchen 1998.

> Bendix, R., Von Berlin nach Berkeley, Frankfurt a.M. 1985. Olden and his wife died in 1940 when the steamer carrying them from their British exile to the United States was sunk by a German submarine (Miiller, I., “Rudolf Olden (1885-1940). Journalist und Anwalt der Republik’, pp.180—92 in Redaktion Kritische Justiz (eds.), Streitbare Juristen. Eine andere Tradition, Baden-Baden 1988). Robert Kempner (the inspiration for the two brothers in Len Deighton’s novel Winter) returned to Germany as assistant state prosecutor at the Nuremberg trials. For Olden, Kempner, Werthauer and Apfel see also Ladwig-Winters, S., Anwalt ohne Recht. Das Schicksal jiidischer Rechtsanwalte in Berlin

nach 1933, Berlin 1998. °° Weber, H., WeifSe Flecken, pp.96, 99-101, 103, 108, 113. Bernard Koenen was arrested and

imprisoned between 1937 and 1939, but survived (p.126). Weber documents the almost farcical inability of the leadership of the Deutsche Kommunistische Partei (DKP) to distance itself unambiguously from the Stalinist atrocities with two excerpts from the party newspaper Unsere Zeit (4.5.1988 and 29.6.1988, documents 7-9, pp.145—52).

Conclusion 223 During the war, he rose to the position of chief counsel of the Hamburg waterworks. After 1945, Hegewisch claimed that his conversion had only been a tactical

ploy to help him shield others from the National Socialists’ grasp, a version of events endorsed by the leader of the underground Hamburg KPD.” In general, however, exile was preferable to remaining in Germany for opposition barristers, particularly for those of Jewish descent. Paul Levi, the brilliant SPD

rhetorician and former KPD leader, died in 1930, at the height of his fame. The tone of the obituaries celebrating his death in right-wing papers was jubilant.** The Stirmer, for example, indulged in graphic descriptions of the effects upon Levi’s

spine produced by his fall from a fifth-floor window, suggesting that Levi had jumped, unable ‘to stand his own racial smell’.”” In conclusion, the author coneratulated Levi on escaping the much harsher torments the ‘National Socialist state court’ would otherwise have visited upon him. The verbal violence directed at the deceased Levi anticipated the torture Hans Litten suffered after 1933. Like Levi, Litten conformed to the Nazi stereotype of the ‘Jewish Communist’ lawyer even though in fact—baptized, atheist and member of no party—he was neither. Hitler never forgot his humiliation in Litten’s cross-examination, and refused all appeals for clemency.°’? Continually suffering all manner of abuse, Litten committed suicide in 1938. Though extreme, Litten’s was no isolated case. With ever increasing intensity, and erasing step-by-step the vari-

ous caveats and exceptions initially granted, Jewish barristers were pushed out of the profession.*!

Under National Socialism, racial prejudice eclipsed even the closest political affinities. The nationalist lawyer Paul Bloch had defended high-ranking Nazis with great success. Despite the ‘Jewish descent’ recorded in his disciplinary file, Bloch was initially able, as a former ‘front soldier’, to continue practising. In September 1934, he swore the oath of allegiance to Adolf Hitler required by law ‘of civil servants and Reichswehr soldiers’.*” Nevertheless, the ‘Jewish’ lawyer became a target of petty harassment, forced, for example, to make public his membership in a freemasons lodge.*? With the Nuremberg laws threatening his status as notary, Bloch *’ Knobloch, G./Reifner, U., “Der “kommunistische” Anwalt und die freie Advokatur—Zur Biographie von Ernst Hegewisch (1881—1952)’, pp.23-35 in Fabricius-Brand, M. (et al., eds.) Rechtspolitik mit aufrechtem Gang Werner Holtfort zum 70. Geburtstag, Baden-Baden 1990, p.25, p.33. *8 ‘Selbstmord eines Landesverraters’, Deutscher Vorwarts 16.2.30, “Paul Levi “einer der wiirdigsten Vertreter der Anwaltschaft”. Zur Steuer der Wahrheit’, Der Reichsbote 19.2.30 (AsD NL Paul Levi Box 11, [non-foliated]). *? Reported in the Welt am Montag (24.2.30, ‘Aus der vélkischen Kloake’, AsD NL Paul Levi Box 11, [non-foliated]).

°° Dix, H., “Hans Litten (1903-1938). Anwalt gegen Naziterror’, pp.193—203 in Redaktion K7itische Justiz (eds.), Streitbare Juristen.

*! Friedlander, S. Nazi Germany and the Jews. The Years of Persecution 1933-1939, vol.1, London 1997, p.18, Krach, T., Jidische Rechtsanwiilte in Preuffen, Minchen 1991.

°° Brandenburgisches Landeshauptarchiv (Potsdam) Repositur 4A Personalakten Rechtsanwalte Nr.7193 Paul Bloch, [6] “Bescheinigung gemafs §2 des Gesetzes vom 20.8.34’, dated 20.9.34, signed Justizsekretar Rohm. °° Tbid., [8] Bloch to Landgerichtsprasident, Berlin 28.8.35, ibid., [9b] Geschaftsstelle Amtsgericht Charlottenburg to Amtsgerichtsprasident, 31.12.35.

224 Courtroom to Revolutionary Stage petitioned for an exemption, citing his record of service to the nationalist cause. To no avail: on 2 September the Interior Ministry rejected his final appeal, as an internal memo recorded ‘on the explicit order of the Reich chancellor and Fiihrer’. His notary seal was destroyed.** The Berlin lawyers’ chamber, headed by Bloch’s former understudy, the ardent National Socialist Reinhard Neubert, reprimanded him on the grounds of unsubstantiated allegations of neglect. In June 1938, his wife sued for divorce, pre-empting by six months Bloch’s removal from the register of barristers. The subsequent fate of the ‘Jewish’ nationalist barrister is unknown, the stamp ‘rescinded’ upon his entry in the bar register, dated 1.12.1938, is the last item in his disciplinary file.°°

WEIMAR AS A STICK TO BEAT BONN: A PLEA TO RETIRE SOME HISTORIOGRAPHICAL CLICHES The trial strategy of the great majority of Communist lawyers was anti-Republican, their conduct towards individual clients deeply illiberal. For those exact reasons, and quite rightly, their Nazi peers have been roundly condemned by scholarship.

How then could the anti-liberal and anti-democratic practice of the Communist legal office escape scholarly notice? To answer this question, consider the historiographic treatment of Ernst Hegewisch. Gundula Knobloch and Udo Reifner por-

tray Hegewisch as an exponent of a critical and democratic judicial culture. According to the authors, he uncompromisingly stood up for the procedural guarantees protecting the rights of the accused and his counsel. The Communist barrister defended not only his clients, but, on a higher level and primarily, the legal order itself.°° This is surprising given that Hegewisch’s attitude to anti-Republican violence was ‘march separately, strike jointly’. Hegewisch deplored a government ‘pompously installed by parliamentary tricks—it is hard to capture in translation the belittling of Republicanism transported by ‘parlamentarische Matzchen’—and insisted that the only way to realize socialism’s goals was ‘of course through armed insurrection [E.H.’s emphasis].°” The latter quote dates from 1925, hardly the heat *4 BLH(P) Repositur 4A Personalakten Rechtsanwalte Nr.7193 Paul Bloch, [16b] Reich and Prussian Minister of the Interior to Bloch, Berlin 2.9.36 [Abschrift], ibid. [15] Geschaftsstelle (Notariat) des Amtsgerichts Berlin to Landgerichtsprasident Berlin I (signed Mumm Gerichtsassessor) [beglaubigte Abschrift], Berlin 16.6.36). Apart from the Interior Minister, Bloch had petitioned the Minister of Justice (28.10.35) and Field Marshal von Mackensen (14.12.35). For Hitler’s involvement, see handwritten marginalia by clerk Hering on the carbon copy of the Interior Ministry’s letter to Bloch dated 2.9.36.

°° Tbid., [18]f. Vorstand Anwaltskammer Berlin to Kammergerichtsprasident, Berlin 29.9.36 [Abschrift], signed Schulz, ibid., [29] ‘Ehescheidungsklage’, 15. Zivilkammer Landgericht Berlin, 10.6.38, ibid., [30] “Vermerk’ 1.12.38. °° Quoting well-known GDR lawyer Rolf Helm, Knobloch/Reifner endorse his opinion that Hegewisch defended “bourgeois justice’ itself against its ‘civil servant wardens’ (Knobloch, G./Reifner,

U., “Der “kommunistische” Anwalt und die freie Advokatur—Zur Biographie von Ernst Hegewisch (1881-1952)’, pp.23—35 in Fabricius-Brand, M. (et al., eds.) Rechtspolitik ‘mit aufrechtem Gang’ Werner Holtfort zum 70. Geburtstag, Baden-Baden 1990). *” BA(B) RY1/12/711 JZ Band 7, [138]—[149] Hegewisch to Politburo, Hamburg 17.6.25, [146], see also ibid., Band 8, [110]—-[165] Hegewisch to Politburo, Celle 8.5.22, [130]—[133].

Conclusion 225 of the revolutionary moment. Yet, it might be argued, that was politics, not law. Contrasting Hegewisch’s legal practice with his self-stylisation, however, reveals further flaws in Knobloch and Reifner’s argument. Contrary to Hegewisch’s portrayal as a steward of procedural rights, his disregard for his clients was practically total. As we have seen, Hegewisch imagined that proletarian defendants would rather be sentenced with him than acquitted with someone else, and prided himself on ‘strengthening the backbone’ of wavering comrades. In August, 1922, Max Hélz wrote an open letter bitterly denouncing the party's failure to free him. On the understanding that he would ensure its publication, Hélz entrusted the letter to his lawyer. Hegewisch, however, used the letter to blackmail the KPD into according him greater access to the party press, with startling success.** Wilhelm Pieck, for example, hastened to procure

a sworn afhdavit by Hélz’s wife Klara to defuse the revelations Hegewisch threatened.°” His purpose achieved, Hegewisch now agreed to supply the letter to the party press—with substantial edits. To appreciate the extent to which the lawyer betrayed his client’s intentions, it is worth comparing the original and the sanitized versions of his letter.“° H6lz had asked readers to support his hunger strike, through which he hoped to secure his premature release: #the-parey, the central ofee, [I]f the revolutionary German workers and party comrades cannot muster sufficient initiative to force my release, then, comrades, it is truly not to be regretted if I starve myself to death in here’, he opened. It is readily apparent how Hegewisch’s omission of the first two sub-clauses entirely changed the meaning of the sentence. In his cover letter, the lawyer commented that ‘naturally, the party cannot very well publish these attacks upon itself. In the attached copy I have struck out the assault upon the party’. True to his word, the lawyer deleted all criticism of the leadership. ‘The final sentence epitomized Hegewisch’s editorial work: ‘May the comrades do their, may the party do its duty, like I myself have always done it, atthough not abwaysin the way desired by the party. After using it to blackmail the KPD, Hegewisch turned Holz’s attack on the party leadership into a clarion call for action under its banner.*!

How did Ernst Hegewisch come to be portrayed as defender of justice and democracy? Firstly, Knobloch and Reifner explicitly linked their historical interest to a critique of contemporary judicial culture of the Federal Repub-

lic. Biased courts were the common denominator of Weimar and Bonn.”

°§ BA(B) NY 4051 Holz Band 14, [51]f. Hegewisch to KPD central office, Celle 30.8.22 [n.b. this letter is chronologically precedent to ibid., [48]f. under the same date]. Hegewisch mentioned ‘other clandestine letters’ which he had as yet refrained from publishing. Hdlz’s letter is attached. » Tbid., [58] ‘Erklarung’, 7.9.22. © Thid., [49]f Holz to Rote Fahne [copy-edited by Hegewisch], [no place given] 28.8.22, attach-

ment to ibid., [48], Hegewisch to Politburo, Celle 30.8.22. All quotations in the text refer to this document, Hegewisch’s cuts are represented by the strike-through typeface.

“| Tbid., [48], Hegewisch to Politburo, Celle 30.8.22, the sanitized version of Hélz’s letter is attached (ibid., [49]f.). © Knobloch, G./Reifner, U., ‘Der “kommunistische” Anwalt und die freie Advokatur—Zur Biographie von Ernst Hegewisch (1881—1952)’, pp.23—35 in Fabricius-Brand, M. (et al., eds.) Rechtspolitik ‘mit aufrechtem Gang’, p.23.

226 Courtroom to Revolutionary Stage Having labelled “West German justice’ a ‘failure’, it was important for the contemporary bar ‘to learn from history’. And this project called for role models of a kind Knobloch/Reifner presented in Ernst Hegewisch. The authors’ agenda brings out with particular clarity assumptions that also inform other scholarship on Weimar justice.** Under the impression of the anti-terrorist trials and concomitant discus-

sion on limiting constitutional liberties in the Federal Republic, historians of Weimar justice perceived state and judiciary as overbearing, when in historical reality both were continuously losing legitimacy and practical authority.** Moreover, the Communists were, ostensibly at least, the sworn enemies of the purveyors of the German catastrophe. For this reason and by dint of its members’ courageous resistance after 1933, scholars credit the Weimar Communist Party with impeding the rise of National Socialism. This, I hope to have demonstrated, is a logical short circuit. In fact, the extremisms of left and right reinforced and cross-legitimized one another.

Underpinning this misunderstanding and stymieing critical appraisal is a cavalier attitude to the sources. Assessing Hegewisch’s economic situation, for

example, Knobloch and Reifner regurgitate his rhetoric of the beleaguered helper in distress.*? Such nonchalance is by no means exceptional; for some scholars, it is programmatic. In the introduction to Politische Justiz, 1918-1933, Elisabeth Hannover-Driick and Heinrich Hannover state outright that they eschewed ‘old files’, and looked to recover the insights of contemporary Weimar judicial criticism instead. Writing in the mid-Sixties, the new orthodoxy understandably pounced on apologias like Schorn’s and Weinkauff’s. Justified as this assault was, nevertheless it went far beyond the mark in its uncritical resurrection of Weimar partisanship, dressed up as historical scholarship. It is hard to account for the acridity of this historiography’s verdict on Weimar unless we understand it as part of a political project bent on demonstrating continuities between Weimar, National Socialist, and West German justice. Within this lineage, and ‘terrible’ though Weimar’s administration of justice had been, it still stood above West German judicial practice. The problem with this foreshortened perspective is, of course, that in the Weimar Republic the Communists were at once the Nazis’ most zealous opponents and shovelling away at the Republic’s grave with them. “3 See for example Heinrich Hannover, ‘Max Hirschberg’, pp.163—78 in Redaktion Kritische Justiz (eds.), Streitbare Juristen, p.172, Kreiler, K., Traditionen deutscher Justiz. Politische Prozesse 1914-1932. Ein Lesebuch zur Geschichte der Weimarer Republik, Berlin (Ost) 1978, p.8. For a lucid recent discussion of this aspect of Weimar historiography see Ulrich, S., ‘Der Lange Schatten der ersten deutschen

Demokratie. Weimarer Pragungen der friihen Bundesrepublik’, pp. 35-50, in Gallus, A., Schildt, A. (eds.), Rickblickend in die Zukunft. Politische Offentlichkeit und intellektuelle Positionen in Deutschland

um 1950 und um 1930, Hamburger Beitrage zur Sozial- und Zeitgeschichte, Vol.48, Gottingen 2011. “* Even Dirk Blasius fine study is predicated on this basic assumption (Blasius, D., Geschichte der politischen Kriminalitat in Deutschland 1800-1980: Eine Studie zu Justiz und Staatsverbrechen, Frank-

furt a.M. 1983). ® In fact, Ernst Hegewisch had negotiated generous remuneration arrangements (see chapter three) and, as landlord, had sources of income besides his legal practice (BA(B) RY1/I2/711 JZ Band 7, [75] Bruno Kanich to KPD central office [Abschrift], Bad Salzelmen, 11.4.29).

Conclusion 227 PARTY LAWYERS ON THE SONDERWEG? Was the waxing visibility and impact of Weimar party lawyers a function of the weakness of German liberalism? If so, then my argument forms part of a longerterm narrative about patterns of elite reproduction and the failure of liberal conceptions of politics to create sufficient cohesion, emotional appeal, and material rewards. It would place my study broadly in line with Konrad Jarausch’s ‘unfree professions, Ralf Dahrendorf’s ‘lawyers of the monopoly’, and most recently Kenneth Ledford’s advocates of ‘special interest’. Party lawyers would constitute a special case, to be sure, but still form part of the Sonderweg paradigm. To the extent that economic pressures, status anxiety, and inter-generational conflict facilitated and accelerated political specialization in the bar, there is doubtless much explanatory power in this perspective. Party lawyers, however, rejected not just liberal politics, but traditional legal culture. In its radicalism, this abrogation transcends the ‘weakness of liberalism’ narrative. As a legal and propagandistic innovation, the movement from courtroom to revolutionary stage was largely sui generis. It was played out not just on a backdrop of overtly political conflict but as a tug of war between fundamentally opposed conceptions of justice and judicial procedure. With Weimar’s collapse, the extremists’ vision seemed to triumph. Arguably, National Socialist judicial practice bears this out. Instituted ad-hoc, the ‘people’s courts’ quickly became part of the statutory court system.

They tried an ever expanding array of newly created offences such as ‘treachery’ [Heimtticke|, ‘eroding military morale’ [Wehrkraftzersetzung|, or being a ‘people’s parasite’ [ Volksschddling]. Extraordinarily ill-defined, these ‘crimes’ were designed to allow for demonstrative litigation, and in fact the Volksgerichtshof made trials in the

mode of ostentatious retribution its hallmark. Even as ‘normal’ crime rates plummeted, this most theatrical area of National Socialist ‘justice’ expanded.” We can understand such ideological ‘crimes’ and the manner of their adjudication as a continuation of the practice of National Socialist (and Communist) lawyers in Weimar. Such an interpretation sits comfortably with recent work emphasizing that democratic interwar Europe had more in common with the ‘totalitarian’ dictatorships then we are accustomed to think.*” Perhaps not by coincidence, the sentencing practice of the Volksgerichtshof turned especially vicious under Hans

Frank’s former right-hand man. Roland Freisler was appointed chief justice of the regime’s highest political court in August 1942. In his two and a half years at the court, he presided over skyrocketing caseloads and conviction rates. Under Freisler, the first Senate alone sentenced 2,400 women and men, or almost

“6 Engert, K., ‘Stellung und Aufgaben des Volksgerichtshofes’, pp. 473-4 in Hirsch, M./Majer, D./ Meinck, J. (eds.), Recht, Verwaltung und Justiz im Nationalsozialismus, K6éln 1984, Gellately, R., “Situ-

ating the “SS-State” in a Social-Historical Context: Recent Histories of the SS, the Police, and the Courts in the Third Reich’, The Journal of Modern History, vol.64 (1992), No.2, pp.338-65, esp.

359-64.

PPP ieniwer M., Dark Continent. Europes Twetieth Century, New York 2000, for Germany see e.g. Rossol, N., Performing the Nation in Interwar Germany. Sport, Spectacle and Political Symbolism, 1926—

36, New York 2010.

228 Courtroom to Revolutionary Stage 90 per cent of defendants, to death. Draconian verdicts spelled doom for run-ofthe-mill offenders like BBC listeners or authors of throwaway remarks about Hitler’s military competence. As a former BNSDJ barrister, Freisler was aware not just of the deterrent power of verdicts, but also of the importance of nipping any grandstanding by defendants in the bud. Tellingly, Hitler entrusted Freisler’s court with the trial of the 20 July 1944 conspirators. It was vital that there be no opportunity for ‘long speeches’: “But Freisler will surely take care of that. He is our Vyshinsky’, Hitler reassured himself, alluding to Stalin’s notorious chief prosecutor.*

Still, the importance of performative modes of judicial procedure under Nazi rule should not be exaggerated. For one thing, the persuasive power of political trials in Weimar stemmed in part from challenging perceptions of judicial impartiality—a quality that few ascribed to Nazi courts in the first place. That left the performance of sacrifice, rendered almost meaningless by the Nazis’ control over the media representation of trials. Trials as subversive performances, rather than as regime-afhrming spectacles in the Stalinist mould required the very administration of justice whose ‘pale liberalism’ extremists had attacked with such devastating success. Add to that the overall decline of the legal process under National Socialism (where ‘protective custody’ at the whim of SS officers was the order of the day, and the Gestapo eventually gained the authority to execute offenders ad-hoc), and comparisons between Weimar and NS justice ultimately falter. Given the Volksgerichtshofs perversion of the legal process, the question of continuity posed itself with new urgency after 1945. It was answered very differently

on either side of the Iron Curtain. Whereas West Germany returned to a strict separation of the legal and political spheres reminiscent of the Kaiserreich, Communist East Germany ensconced the primacy of politics, though obviously under different auspices. The Western model championed (and champions) the ‘purity’ of the law. A lengthy legal education qualifying every graduate for the judiciary, the staid habitus of legal scholars, and even the resistance to grade inflation in tertiary education are among its hallmarks. By contrast, the East took the de-Nazification of the legal system more seriously. The resulting gaps in the ranks of legal specialists it filled with politically reliable laymen swiftly trained in the legal basics of the Peasants’ and Workers’ State. Six months’ instruction qualified candidates with no prior training as a People’s Judge. Others were recruited into the nascent Communist legal system. Ernst Hegewisch, who from 1947 served on the Dresden court of appeal, and Hilde Benjamin, Vice President of the GDR Supreme Court from 1949 to 1953 and subsequently Minister of Justice until 1967, epitomize the continuity in personnel between the Weimar Communist Party and East Germany’s juridical apparatus.” “8 Kershaw, I., Hitler. 1936-1945, Stuttgart 2000, p.901. ® Amos, H., ‘Kommunistische Personalpolitik in der Justizverwaltung der SBZ/DDR (1945-1953). Vom liberalen Justizfachmann Eugen Schiffer tiber den Parteifunktionar Max Fechner zur kommunis-

tischen Juristin Hilde Benjamin’, pp.109-45 in Bender, G., Recht im Sozialismus. Analysen zur Normdurchsetzung in osteuropdischen Nachkriegsgesellschaften (1944/45—1989), Frankfurt a.M. 1999, Wagner, H., Hilde Benjamin und die Stalinisierung der DDR-Justiz, Aachen 1999. On the importance of continuity in personnel between the Weimar KPD and the East German Socialist Unity Party generally see Epstein, C., Last Revolutionaries. German Communists and their century, Boston 2003.

Conclusion 229 The failure of the Eastern justice system to curb the abuses of state power owed much to this continuity. The self-view of West German jurists as essentially apolitical (or, worse, ‘above politics’) often masked a conservative disposition. Never-

theless, West German verdicts instantiated an independence from executive influence that was unattainable in the East.

ORESTES VS. THE FURIES OR HOW TO PERFORM JUDICIAL LEGITIMACY All justice is theatrical, and the performance of its own neutrality and fairness is constitutive of the legal process. This, however, is an aspect of judicial practice lawyers find hard to acknowledge. Law closes—and must close—its eyes to its

own imponderability and the precariousness of its decision-making. Max Alsberg addressed the issue in a 1927 talk at the Berlin Juridical Society. Laced

with subtle irony, he poured scorn on the notion that subjectivity could be eliminated from the legal process. On the contrary, the ‘systematic juxtaposition of reason and life’ was the very stuff of law. Even with infinitely finer tools of scientific analysis and psychological insight at his disposal, ‘the future legal chemist’ [Rechtschemiker der Zukunft] would have to weigh arguments and make judgements, Alsberg predicted.” If, however, legal decision-making is inescapably subjective and contingent, how can acceptance for the outcome of trials be generated? It may seem that this is a non-question. Court verdicts are accepted because they are backed by the power of the state. But if the story of Weimar political justice, the dissolution of the ‘neutral platform’ of mediation and con-

flict arbitration teaches us anything, then it is that this is precisely not the answer, but the beginning of the question. And it is here that performativity plays a crucial role. Rather than re-rehearsing Chapter Five’s argument about the legal process as a

performance of its own neutrality, openness, and authority, a reframing of the problem in ancient myth might prove enlightening. In the Eumenides, the third part of his Oresteia trilogy, Aeschylos recounts the story of Orestes’ trial for his mother Clytemnestra’s slaying.’’ Called forth by the abomination of matricide, the Furies hunt Orestes. They care as little for extenuating factors—Apollo’s orders, Orestes’ avenging his father Agamemnon’s murder—as they care about the never-ending spiral of offence, retribution, and counter-retribution inscribed into their ancient codex of justice. Athena, who Orestes turns to in his desperate flight, must balance the claims of the Furies and of Apollo, of old and new style conceptions of justice. Athena declares herself unable, for all her wisdom, to resolve the matter.

°° Alsberg, M., ‘Das Weltbild des Strafrichters’ (1930, first version of the lecture given in 1927), pp.340—57 in Taschke, J. (ed.), Max Alsbere—Ausgewahlte Schriften, Baden-Baden 1992, p.342f. *! Aeschylus, The Eumenides, pp.1—41 in Grene, D., Lattimore, R. (eds.), Greek Tragedies, 2. ed.,

vol.3, Chicago 1991.

230 Courtroom to Revolutionary Stage Her solution, and this is where the story becomes truly instructive, is to delegate the decision to a court. In the play, much fanfare accompanies its institution. Athens’ twelve best men are called, and the Goddess makes a long speech extolling the centrality of the newly established court for the future prosperity of her city. The arguments are heard, the votes are cast, the clay vessel is smashed—only to reveal six black and six white pebbles. The first jury in history: hung. Appraising the situation, Athena declares that she herself will now cast the deciding vote, and she finds in favour of Orestes. The Furies are beside themselves with anger, and threaten to bring pestilence upon Athens, but in the end Athena manages to assuage their venom, by promising that they, too, shall forever be honoured in the prospering city. The play can be read as a parable about the institution of formal and procedural justice. The Furies, literally baying for Orestes’ blood, stand for an ancient eye-foran-eye, tooth-for-a-tooth brand of retributive justice. The court, with its carefully

selected jury, its rules of evidence, and procedural sophistication stands for the establishment of a more differentiated, reasoned justice system. On the face of it, the play makes clear that the court is superior to the blind fury (as it were) of retributive justice—were it not for the hung jury. The fact that Athena first declares herself unable to resolve the conflict, only to do precisely that in the end, calls into question the very point of the court. Was it really only to deliberate, to hear both sides and weigh the arguments, to follow due process before taking a reasoned decision? Or does the play not suggest that this is a performance of justice, that the demonstrative deliberation and even-handedness underscores the thorniness of the issue and paves the way for the Furies’ acceptance of a decision they deplore? The point is that the smoke and mirrors of the court’s foundation, the jury selection, and legal arguments are not incidental, but crucial. Only these provisions secure the losing party’s acquiescence in the outcome of the legal process. Athena could have taken the same decision straight away, but she could hardly have hoped to assuage the Furies, too. Subtly, the play thus suggests that performance is essential

to the acceptance of juridical decision-making. At the same time, in Athena’s pledge to perennially honour the Furies, we may read that something of the visceral and personal ancient conception of justice as retribution persists, largely unacknowledged, in the institutions of modern procedural justice. Lifting the veil on the law’s unacknowledged contingency, and on the performative methods by which justice systems cloak it, therefore touches a nerve. Weimar party lawyers made the subjectivity and precariousness of judicial decision-making

visible. Moreover, they argued that neither operated randomly: the cards were stacked against their comrades. Party lawyers thereby helped destabilize one of the crucial loci of the Republic’s political legitimacy, namely trust in the fairness of its justice system. Supposing that their activities alone were sufhicient to do so would be naive, however. Not even the judges’ (well established) bias and the party lawyers dramatization of justice together can fully account for the breakdown of the authority of Weimar justice. In more general terms, if smoke and mirrors are part and parcel of creating acceptance for judicial decision-making, why is this acceptance assured at most times but liable to dissolve completely at others?

Conclusion 231 To account for this, we can refer to the general crisis of values in interwar Europe after World War One, exacerbated in Germany by hyperinflation, the ‘revaluation of all values’. We can refer to a public sphere that was rife with paranoia, expressed in popular culture from Robert Wiene’s ‘Cabinet of Dr Caligari’ to Fritz Lang’s ‘M’.”? In one, the director of a lunatic asylum turns out to be the deranged killer the whole town suspected amidst his patients. In the other, it takes organized crime

to hunt down a paedophile child murderer. In both, authority fails and turns out to be mendacious, while the criminal and the mentally ill provide the solution. The threat is really the cure and vice versa, a topsy-turvy world in which little is as it seems, and the most ardent professions of neutrality and disinterestedness deserve

the most critical scrutiny. “M’ culminates in a famous trial scene, in which the dice are cast long before a stammering Peter Lorre has the final word. The judge: a criminal.

Kurt Sontheimer called Weimar a ‘culture of contradictions’, and in fact the public sphere was deeply polarized along ideological lines. The innovation of party lawyers was to create a novel cultural interface between arcane legal practices and the public’s craving for information and entertainment. While party editors sought to indoctrinate their readership, subscribers were bored of political lecturing. Even activists, the editors of the Red Flag complained, hardly ever read the sermonizing in the party press.”’ Political trials were a way out of this quandary. A 1924 survey

of the Rote Fahne readership found that most wanted less politics. Instead, they wanted more entertainment: sports, cookery, advertisements—and court reporting.** Unlike match reports and recipes, trial coverage lent itself to political indoc-

trination. That it also made for compelling reading did not hurt. Following this logic, and long before Brecht penned the Measures Taken, party lawyers began turning the courtroom into a ‘revolutionary stage’. »* Kaes, A., M, London 2000, Kappelhoff, H., ‘Die Krise der Wahrnehmung und das kinematografische Bild.: Zur Poetologie des Weimarer Kinos’, pp.143—57 in in Grunwald, H./Pfister, M. (eds.), Krisis!, Paderborn 2007. °° Miller, J./ Pennybacker, S./ Rosenhaft, E., ‘Mother Ada Wright and the International Campaign to Free the Scottsboro Boys, 1931-1934’, The American Historical Review, vol.106 (2001) No.2, pp.387—430, p.399. * Fulda, B. Press and Politics in the Weimar Republic, Oxford 2009, pp.26-8.

APPENDIX A

Party Allegiance of 36 Prominent Political Lawyers in the Weimar Republic’! KPD SPD/USPD? Non-aligned DDP DVP DNVP NSDAP left

E.Alexander L.Bendix L.Barbasch A.Apfel EGrimm* PBloch — H.Frank*

O.Cohn E.Eyck

V. Frankl W. Heine* F Halle* M.Hirschberg*

O.Landsberg O.Kirch A.Kempkes W.Hahn R-Freisler heimer

P Levi** H.Litten* A.Sack? — R.v.d.Goltz*®

E.Hegewisch* T.Liebknecht W.Luetge

P. Lowenfeld brune*”

J.Herzfeld R.Olden K.Rosenfeld

G.Obuch J.Werthauer R.Neubert

H.Seckel W Racke A. Wolf W.Zarnack 8 11 2 3 2 3 7 total: 36

* Marks the 10 lawyers portrayed in chapter two: Felix Halle, Ernst Hegewisch, Hans Litten; Wolfgang Heine, Max Hirschberg, Paul Levi; Friedrich Grimm; Walter Luetgebrune, Riidiger von der Goltz and Hans Frank.

' The table is not meant to provide an exhaustive list, but merely to give an overview of some of the most prominent political lawyers. Although the group featured here is not representative, the sizes of the contingents broadly reflect the relative numerical importance of the various camps, insofar as this study has been able to determine them. * Cohn, Rosenfeld, Levi, Lowenfeld, and Hirschberg followed the bulk of the USPD into the SPD in 1921/2. Theodor Liebknecht remained in the USPD, heading its Reichstag electoral list. 3 NSDAP from 1933. * Levi was head of the KPD after the murders of Liebknecht, Luxemburg and Leo Jogiches. Ousted from the party after his criticism of the March insurrections of 1921, he joined the USPD and subsequently the SPD. > NSDAP from 1930. 6 DNVP before ca. 1930. 7 DNVP before 1931.

APPENDIX B

Occupation of 100 Lay Magistrates in Political Trials NOTE ON THE TABLE: This table was compiled from the files of the state prosecutor's office at the Berlin courts of appeal. It cannot give definitive answers to general questions about the selection of lay magistrates. But it can help ascertain whether anti-working class bias in selection procedures was as strong in these cases as some contemporary critics of the judiciary have alleged. The files on which this table is based are the ones I consulted in pursuit of my primary agenda. They have thus not been assembled specifically with a view to obtaining the job descriptions of lay magistrates. In that sense, the selection is genuinely random, although the ‘selection procedure’ would obviously not be fit to sustain empirical conclusions about lay magistrates in the Weimar administration of justice. The table is based on the job description as recorded in the protocol of proceedings. The occupation of lay magistrates was not always included in such documents. Moreover, the state prosecutors ofhce did not always receive a copy of the protocol. Where more than two lay magistrates are featured per file, the trial went to the court of appeal or a retrial was ordered, or both. Obviously, there are all sorts of problems with assigning job descriptions unambiguously to one class or another. Rather than attempt a theoretical justification for subsuming certain job description under one of the three main class rubrics, I have included the exact descriptions in the table. Where in doubt, I have tried to include job descriptions in the higher class.

Source Middle/upper class Small middle/working Working class class

Geheimes Staatsarchiv Berlin Dahlem

10547 2 Lehrerin, Ingenieur 2 Backermeister, 2 Tapezierer, Maurer Spediteur

10561 3 Fabrikdirektor 2 Tischlermeister, 1 Autoschlosser Figentiimer, Gastwirt Kolonialwarenhandler

10587 1 Revisor 2 ‘Fiihrer’ 10605 1 Schneider 1 Posthelfer 10607 1 Amtsvorsteher 1 Fuirsorgeschwester

10613 2 Dekorateur,

Mobelpolierer

234 Appendix B Source Middle/upper class Small middle/working class Working class LA(B) A.Rep

358-01

23 3 Studienrat, 1 Telegrapheninspektor Stadtamtsrat, Kaufmann

25* 1 Kaufmann 2 Postinspektor,...meister [first 2 Maurer,

part unreadable] Buchdrucker

26 2 Architekt, Kontorist 2 Lederarbeiter, Arbeiterin

27 2 Regierungsdirektor. Ingenieur

28 1 Korrespondentin 3 Buchdrucker, Setzer, Mechaniker 39 1 Bankbeamter 1 Topograph

51 1 Statistiker 1 Chauffeur 51 (Band 18) 1 Bildhauer 1 Bleiléter 116 1 Rektor 1 Gartnereibesitzer

138 2 Direktor, Bankbeamter 272 1 Kaufmann 2 Kartothekftihrer, Lagerverwalter 1 Buchdrucker 276 1 Stadtoberarchitekt 1 Fischhandler

295 2 Fischhandler, Gastwirt 358** 1 Bankangestellter 359 2 Kaufmann 365** 2 Turnlehrer, Drogist 1 Schlosser 366 1 Bankbeamter 2 Kassenangestellter, 1 Klempner Schlachtermeister

371 3 Kaufmann, Privatier, 1 Postschaffner Buchdruckereibesitzer

372 1 Bankinspektor 1 Arbeiter 374 1 Kaufmann 1 Handler 375 1 Fondsmakler 1 Milchhandler

376 2 Gemiisehandler, Milchhandler 377 2 Kaufmann,

Bauunternehmer

641 1 Kaufmann 1 Bildhauer 2 Glaser, Werkmeister

816 2 Prokurist, Malermeister 2 Schmied,

Werkmeister

2374 2 Kaufmann, Ingenieur 1 Schneider 1 Schmied

2375 1 Schuhmachermeister 1 Maler

2525 1 Kohlenhandler 1 Schmied

total: 100

6010 1 Amtmann 1 Schleifer

subtotals: 36 35 29 * One lay magistrate gave spouse as her occupation.

** Lay magistrate featuring in the protocol only as ‘Fraw or ‘Friulein’

APPENDIX C

The Hierarchy of the German Court System There were (and there are to this day) four basic levels of German courts. On the lowest level, the Amzésgericht (district court) dealt with petty offences and misdemeanours. From a certain level of seriousness, adjudicating offences and crimes fell directly into the compe-

tency of the higher courts (Landgerichte). The level was not fixed, and subject to much debate. When Reich Minister of Justice Emminger pushed through by means of government decree the reform of the legal process which carried his name in early 1924, the number and seriousness of offences dealt with at the Amisgericht was increased. The reform ostensibly aimed to cut costs and simplify the judicial process. Critics, among them many barristers, believed that the main intention of the reform was to push back the involvement

of lay magistrates in the administration of justice, who they argued were perceived as a threat to conservative interests. Above the Landgerichte, the Oberlandesgerichte were the courts of appeal for proceedings at the Landgerichte, which in turn fulfilled the same role vis-a-vis the Amtsgerichte. On top of the pyramid stood the supreme court, the Reichsgericht. The Reichsgericht tried certain offences, notably high treason (which it could, however, also choose to assign to an Oberlandesgericht of its choice), and otherwise acted as the court of the last instance for all other matters. It considered submissions calling for a retrial (‘Revi-

sion’), a control function that concerned only the question whether the law had been applied incorrectly and did not extend to the facts of the case as determined by the original court. Usually, Revisionsantrige were rejected, only seldom deliberated and in only a handful of cases endorsed by the Reichsgericht (for a more detailed discussion of the court hierarchy, see Ledford, K., From General Estate, pp.74—-6). The supreme court was the final court of appeal for both penal and civil trials, and also for matters tried within the Verwaltungsgerichtsbarkeit, a separate, hierarchical system of courts which dealt with complaints against administrative measures and disciplinary action against civil servants. A further separate system of adjudication, with quite different procedural rules, was formed by the Arbeitsgerichte, or labour courts, adjudicating wage and employment disputes. Finally, at various times during the Weimar Republic, extraordinary courts were instituted. In the aftermath of the Bavarian Raterepublik, the ‘people's courts’ originally formed under the socialist government were turned into tools of repression. They continued to operate with procedural rules curtailing the defendants’ rights (with for example minimal time spans for disputing evidence and no right of appeal). Although the Volksgerichte were a bone of contention between the Reich and Bavaria, other special courts were set up elsewhere, too. In the last phase of the Republic, a string of emergency decrees curtailed procedural guarantees and set harsher punishments for politically motivated crime, including, in

August 1932, the death penalty for political manslaughter (see e.g. Riifler, K., Vom Miinchener Landfriedensbruch bis zum Mord von Potempa: der ‘Legalitatskurs der NSDAP, Europdische Hochschulschriften/02 vol.1564, Ea.M. 1994, pp.36-41). A special case was the State Court for the Protection of the Republic. The 1922 law for the protection of the Republic (Gesetz zum Schutz der Republik) envisaged the institution of a court for trying political offences. The Staatsgerichtshof zum Schutz der Republik was

236 Appendix C assigned the jurisdiction in high treason cases. Continually denounced as a political special court by the extreme right and especially the extreme left, the court under its chief justice Niedner became a synonym for the judiciary’s political bias (Niednerjustiz’ was a popular slogan). The sentencing of left-wing publishers and artists for high treason eroded the trust even of the democratic parties (SPD deputy Dittmann called Niedner ‘the chief propagandist of the KPD’ during a Reichstag debate). Weimar’s moderate parties had hoped to erect a bulwark against anti-Republican violence and abuse. In the aftermath of the Rathenau assassination, this bulwark had been intended especially as a check on the extreme right. By 1925, when SPD magistrate and trial lawyer Wolfgang Heine resigned from the court, these hopes had been dashed, the court’s mandate was not renewed and it ceased to operate in March 1926. ‘The high treason jurisdiction reverted to the Reichsgericht, which initially continued the controversial line of the Staatsgerichtshof by sentencing a number of mainly Communist, but also National Socialist, book-printers and -sellers for preparing high treason (Rifler, K., Legalitatskurs, pp.27—36). For the debates surrounding the state court see Hueck, I., Der Staatsgerichtshof zum Schutze der Republik, Tubingen 1996.

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SECONDARY LITERATURE Monographs, collections and reference works Abel, L., American Lawyers, New York 1989 Althusser, L., For Marx, New York 1996 Angermund, R., Deutsche Richterschaft 1919-1945, Frankfurt a.M. 1991 Beck, H., Fateful alliance. German conservatives and Nazis in 1933: the Machtergreifung in a new light, New York 2008 Beer, U, Die Juden, das Recht und die Republik. Verbandswesen und Rechtsschutz 1919-1933,

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2 (2002) [http://www.nwit.de/archiv/NWIR%202/anwaltliche%20werbung. pdf] Heath, N., ‘Max Holz, 1889-1933’ [http://libcom.org/history/H6lz-max-1889-1933] Kadi, K., “Biographie Prof. Dr. Hilde Benjamin’ [http://akj.rewi.hu-berlin.de/zeitung/04-1/ pdf/biogr. pdf] Krummeich Verlag, ‘Eine deutsche Bauernrevolte und ihre Chronister’ [http://www.wildeast.de/meckpom/usedom/firmen/krummeich-verlag/pdf/agrarrevolte.pdf]

Lénnecker, H, “Wenn Helden zu Problemen werden. Hindenburg und Ludendorff als Ehrenmitglieder akademischer Verbande’, [http://www.burschenschaftsgeschichte.de/ pdf/loennecker_hindenburg. pdf] Paech, N., ““Ich habe nur als proletarischer Anwalt meine Pflicht den angeklagten Proletari-

ern gegeniiber erftilt.” Hans Litten, Rechtsanwalt (1903-1938)’, (paper given at the Hans-Litten-prize ceremony of the Vereinigung Demokratischer Juristinnen und Juristen, Dachau 1.2.1988) [www.vdj.de/Litten/Litten%20Lebenslauf-html] Schlimper, J., ‘Praktiker an der Universitat. Zur Einbeziehung praktisch tatiger Journalisten in den Ausbildungsbetrieb des Leipziger Instituts fir Zeitungskunde’, Miinchener Beitrige zur Kommunikationswissenschaft, No.7, (Juni 2007) [http://epub.ub.unimuenchen.de/1978/1/mbk_7.pdf] Unpublished Dissertations Gangel, Petra, Die RHD und ‘thre Rechtsanwiilte im Kampf gegen die Justiz der Weimarer Republik, Berlin (Ost) 1985

Index agent provocateur (Spitzel) 125, 160, 188 Eyck, Erich 181 agitation trials 200

agitprop 16, 200-4, 212 Feme murders, Feme trials 59, 76, 84, 88,

Alsberg, Max 26-8, 31, 135-6, 138, 229 141-51, 166, 192-3

amnesty for political crimes 6-7, 59, 84, Feuchtwanger, Lion 46-7, 86

148-51, 217 Fischer, Ruth 127-8

anti-judicial rhetoric 77-8, 133, 141, 146-7, Frank, Hans 14, 60-71, 88, 118, 153-164,

161-2, 166, 183-4, 212, 214-15 168—70, 199, 221-2

anti-militarism 17, 43 Frankl, Victor 93, 101, 111, 117, 121-2, 126

anti-positivism 147 Freikorps 66, 142 129-31, 210-11, 222 167, 168-70, 227-8

Apfel, Alfred 26 n.28, 52, 104, 118, 120, Freisler, Roland 71—2, 81-3, 85, 87-8, 155,

Arbeiter-Ilustrierte Zeitung (AIZ) 106, 182 Frick, Wilhelm 85 Association of National Socialist German

Lawyers, see BNSDJ Gartner, Josef 1-3, 193, 203

authenticity 178, 180, 201 German Democratic Republic 96, 228-9 German Judges Association (Deutscher

Barbasch, Ludwig 55 Richterbund) 2, 23

Benjamin, Hilde 53, 83, 96 German People’s Party (Deutsche Volkspartei,

Benn, Theodor 145-6 DVP) 52,59, 62

Bloch, Paul 53, 84, 88, 192—3, 223-4 German Nationalist People’s Party BNSDJ 51, 70-1, 133-4, 151-64, 167-70, (DNVP) 64—5, 88, 135—40

220-1 implicated in Rathenau assassination 137

decisive role of Hans Frank in 153-4, 159-64 Gestapo 228

financing 158 Geyer, Siegbert 45-6

in historiography 134 Gleichschaltung 133, 164, 220-1

sources 152 Goebbels, Joseph 59, 64-6, 72-4, 153, 167,

Braun, Otto 46-7, 161 204-5

Brecht, Bertolt 171—3, 200, 201 Goring, Hermann 64-5, 167

Briining, Heinrich 180 Grimm, Friedrich 58, 61—2, 76, 84, 88, 145-6, 149, 154, 206, 220-1 central legal office (Juristische Zentralstelle) of Grosz, George 52 n.16, 190

the KPD 2-4, 54, 98-106, 124-8 Grzesinski, Albert 156, 161 challenge by barrister Hainz 115-17 Gumbel, Emil Julius 1, 141 n.37 controls lawyer appointments 111-15

defendants judged by ideological rigor Halle, Felix 53-4, 68, 78, 100-3, 113, 120-4,

displayed in court 123-4 149, 184, 197-8, 205, 219 fee schedule 118-20 Hamburg insurrection (1923) 119, relationship to Red Aid 101-5 125, 128

see also KPD—legal aid, Red Aid Hegewisch, Ernst 54—5, 66, 68, 71, 82-6, Central-Verein deutscher Staatsbtirger juidischen 89-91, 93-4, 119, 125, 165, 185, 195,

Glaubens (Central Union of German 222-3

Citizens of the Jewish Faith) 212-13 Heine, Wolfgang 25, 31-3, 43 n.87, 81, 120,

Centre Party (Deutsche Zentrumspartei) 52, 181, 207-8

114, 121 Heines, Edmund 142, 147, 169 n.170,

‘class justice’ 49, 74-9, 128, 185, 205 192, 221

clemency appeals 6, 99-100, 118-19 high treason 1, 7, 127, 147, 235-6 Communist Party of Germany, see KPD ‘literary high treason’ 1, 56 Communist Workers’ Party 93, 110 ‘high-treasonable association’ 106, 114 courtroom reporters, reportage 180-2 Hirschberg, Max 57, 61, 63, 74-6, 79, 81, 87, 222

Deutsche Demokratische Partei (German Hitler, Adolf 60, 79-80, 144, 151, 153, 159,

Democratic Party, DDP) 52, 129-31 168—70, 202, 220, 223, 228

250 Index Holz, Max 52, 55, 82, 108, 110, 120, 144, legal system

191, 195-7, 205, 214, 225 in Wilhelmine Germany 18-24

attempt to force a retrial using Erich and publicity of trials 19, 29-30, 181, 191-4

Friehe 129-31 legal profession

biography 92-3 bylaws 20-1, 26, 80-1, 138

disavowed under Stalin 95 expansion and economic pressures 24

myth 195-7 generational conflicts within 24—6, 28-9

template for the Schulz campaign 148-51 in Germany 19-31, 48-50, 79-83, 218-21

trial 93-5 restrictions on advertising 25

Vogtland Hélz committee 110-11 self-administration, see Honor Courts; Honor Courts (disciplinary organs of the lawyers’ chambers German legal profession) 80-3 women admitted late and reluctantly 52-3 How does the proletarian defend himself? 54, Lehmann Verlag 88, 149, 164, 193

77-8, 113, 184, 197-8 Lehrsttick 171-3, 200

Levi, Paul 15, 17-18, 25, 33-43, 57, 63, 66,

Immunity 76, 124, 127 162, 181, 223

International Red Aid (MOPR) 101-2, 105, Liebknecht, Karl 31, 33, 43, 58

109-12 Litten, Hans 10, 55—6, 66, 79, 125, 208-9,

International Workers’ Aid 106 211, 223

International Workers’ Theater Union 201 Ludendorff, Erich 47, 60 Luetgebrune, Walter 31, 60, 62, 79, 84-5,

219-20, 223-4 220-1

Jewish lawyers 9, 30, 45—7, 61-2, 137-40, 149, 152, 168—70, 191, 199, attacks on 86-8, 121-2, 135-6; see also party

lawyers M — Eine Stadt sucht einen Morder 231 Jorns, Paul 58, 84 Marzaktion 93 judges 1-4, 21-4, 185-91, 215-16 Maslow, Arkady 119, 127-9 antagonists of defense lawyers 27-31 Mayday (1929) 209-11 majority over barristers on the Reich Honor The Measures Taken (Die Mafsnahme) 171-3

Court 80 Menzel, Gustav 100, 102, 113, 121-2

primary focus of historiography of Weimar Mommsen, Theodor 58

political justice 4-9, 12 MOPR, see International Red Aid

protagonists of ‘class justice’ 75—7 MOPR (film) 202

Juristische Zentralstelle, see central legal office of Miuhsam, Erich 95, 129

the KPD Miinzenberg, Willi 106, 182, 203, 211, 222

Justice Enchained (Gefesselte Justiz) 77, 82,

184, 193 National Socialism, see NSDAP Nationalist Party, see German Nationalist

Kaltenbrunner, Ernst 167 People’s Party Kammergericht (Berlin) 209, 221 Neubert, Reinhard 220, 224 Kapp Putsch 81, 92-3 Nibelungen saga 68 Kempner, Robert M. W. 220 n.17, 222 Noske, Gustav 190-1

Kirchheimer, Otto 3, 13-14 Notkriminalitat 108-9, 166

Kisch, Egon Erwin 196, 210 NSDAP

Kollwitz, Kathe 183 attraction for lawyers feeling threatened by KPD (Communist Party of Germany) ‘overcrowding’ 9

legal aid 99-100, 101-5, 109-11, 188, 200, barristers in the NSDAP 152, 154—5 203, 209-10; see also central legal office courtroom as platform for ideological (Juristische Zentralstelle); Red Aid (Rote Hilfe) self-stylization 160-2, 199-200 divisive influence within Patriotic Prisoners

Landsberg, Otto 46 n.4, 56, 120 Aid 144

Law for the Protection of the Republic (Gesetz in power 220-4, 227-8 zum Schutze der Republik, 1922) 6, 66, legal division of the Reich leadership

97, 133, 185-6, 235-6 (Rechtsabteilung Reichsleitung, RR) 152,

lawyers, see legal profession in Germany, 157-9, 167

political lawyers legal aid, see BNSDJ

lawyers chambers 21, 24-6, 80, 82, 181 radicalized concept of legal profession lay magistrates (Laienrichter, Schéffen) 8, 23, prevalent in 69-72, 82

75, 161, 233-4 NS Lawyers Association, see BNSDJ

Index 251 Obuch, Gerhard 35 n.64, 86, 98, 100, 105, Rathenau, Walther 136-7

114, 119, 122 trial of assassins 137-40, 198

Offizialverteidiger, see statutory barrister Rechtsanwaltsordnung (bylaws of the legal Olden, Rudolf 8, 10, 20, 55-6, 181, 193, 222 profession), see legal profession — bylaws

Oresteia 229-31 Red Aid (Rote Hilfe) 101-14, 117-19, 131-2,

‘organ of the administration of justice’ 21—4, 70 185-6, 203-4

as template for nationalist legal aid 142-6,

party lawyers 2—4, 12-15, 45-51, 68-72, 148, 151-2

89-91 corporate membership 101

amateur dramatics 62-3 falsely accused by justice Jiirgens 185-6 anti-Semitic attacks on 86-8, 121-2, in historiography 7, 10-11, 95-7

192-3 publications 182-4

confrontational tactics of Alsberg and public tribunal to investigate the May 1929 Friedmann prepare ground for them 30-1 Berlin shootings 210-11 differences between right- and left-wing party purge (1929) 104

lawyers 48-9 relationship to central legal office of the

ideal type forged in Rosa Luxemburg KPD 101-5

trial 34-44 role in Friehe case 127-31

in historiography 49-50 Red Guillotine, see Benjamin, Hilde loyalty to individual clients vs. loyalty to Reich justice laws 20-1

party 41-44, 123-7, 137-40, 170 Reichsgericht rivalries between 83-6, 115-17 Reichstag 18, 64, 110, 133, 187, 194, 217 subject to disciplinary action 80—3, 114 Der Reigen (Hands Around) 206-8 tensions with non-political colleagues 79-80 Rohm, Ernst 60, 83, 152, 167-8 party legal office, see BNSDJ; central legal office Rosenfeld, Kurt 33-6, 61, 86, 102 of the KPD

Patriotic Prisoners Aid (Vaterlindische SA, see stormtroopers

Gefangenenhilfe/Nationale Sack, Alfons 70, 84—5, 137, 140-1

Nothilfe) 141-51 Sacrifice 3—4, 13-16, 43-3, 64, 73-4, 115-17,

performance, performativity 173-80, 194-200 123-7, 138-9, 146-9, 173, 179,

and historiography 174—6, 179-80 194—200

helps dissolve distinctiveness of sphere of Samter, Artur 85, 114, 122, 185-8, 206 n.111

law 210-13 Schairer, Erich 214

trials as performances of ideology 200-13 Scheringer, Richard 60, 184 Pieck, Wilhelm 37—40, 100, 102—4, 110, 197, Schlesinger, Paul (“Sling”) 181

203-4 Schulz, Paul 84, 140-5

Piscator, Erwin 201 amnesty campaign modeled on Max Plattner, Karl 71, 104, 120-1 Holz’s 148-51 political culture 10-13, 47-8, 77-9, 89-91, Schwarze Reichswehr 59, 141-2; see also Feme 131-2, 151, 161-2, 166, 179-80, 186-8, SPD (Social Democratic Party of Germany)

215-20 31-3, 74-5, 86, 135, 188-91, political justice 209-10, 215 controversy within SPD over 37-44 conflict over use of trials 17—18, 37—44 definition 3, 13-14, 108—9 G6rlitz program 190-1

in Weimar historiography 2, 4-11, 104-5, SS (Schutzstaffel) 155, 165, 221

107, 210, 215-6, 224-6 State Court for the German Reich

in the Weimar Republic 1-4, 12-13, 50, (Staatsgerichtshof fur das deutsche

90—1,131—2, 171, 180-91, 215-20 Reich) 53,101

makes compromise look weak and State Court for the Protection of the Republic

misguided 212 (Staatsgerichtshof zum Schutz der

nationalist lawyers’ discomfort with the term Republik) 1, 3, 185-8, 235

48, 64 statutory barrister 21, 112-13

Potempa 166-70 stormtroopers (Sturmabteilungen, SA) 60, 65,

press 3, 34, 82-3, 100, 139, 145, 160-1, 70-2, 152-3, 155, 165, 167-70

180—5, 191-3, 199 legal division (Rechtsabteilung) 152-3, 167-8

liaison office of the Berlin Landgerichte 181 see also trials—Edenpalast, Felseneck, Potempa, Stucken

Radek, Karl 89, 93, 150, 196-7 Strasser, Gregor 152, 158, 166-7 Raeke, Walter 113 n.99, 157, 163-4, 220 ‘struggle for justice’ 68-72

252 Index trials tribunals 208, 210-11

individual trials: 20" of July 1944 plot theatrical innovation 16, 170—1, 200-2,

(1944) 228; ‘Edenpalast’ (1931) 208-9; 206-8, 211-13 Erzberger-Helfferich trial (1920) 135-6; Thuringian insurrection, see Marzaktion Frankfurt ad fraud (1911) 25, “Felseneck’ ‘Tributjustiz 72-4, 76

(1932) 208-9; Gartner (1925) 1-4; Tucholsky, Kurt 181, 189-90, 212 Glaser (1910) 27; Goébrichen

(1932) 199-200; Heines (1928) 192-3; USCHLA 70 Heinze (1891) 19; Hédlz (1921) 93-4;

‘Italian Gold’ (1928) 60, 153; Jiirgens Versailles Treaty 59, 72-4, 136, 121-2 (1927) 185-8; ‘Kaiserhof’ (1932) 157; violence 60, 66, 70-2, 172, 224

Kriiger (1921) 45; “Landvolk’ von der Goltz, Riidiger 28-9, 59, 63-6, 71-4,

(1928) 198-200; Luxemburg 76, 84-5, 120, 147, 154-5, 167, 192-3,

(1913/4) 17-19, 33-42; Maslow 219-21

(1925) 127-9; Metternich (1911) 27-8, von Salomon, Ernst 135-7, 198-9 Moabit strike (1911) 43-4;

Orestes 229-30; Potempa (1932) 168-70; Weinert, Erich 46, 201 Rathenau murder (1922) 136-40, 191; Weiss, Bernhard 184 ‘Reigen’ (1921) 206-8; Scheringer Werthauer, Johannes 87—8, 186, 222 (1930) 60-1; Schulz (1927) 142, see also Wessel, Horst 53, 195, 215 Feme trials; Schmialek (1926) 126; SR women in the German legal profession 52-3 (1922) 86; Stapel-Hirschberg (1932) 87; Women’s aid for political prisoners

Steiner (1924) 123; submarine officers (Frauenhilfe) 98-9 Boldt and Dittmar 73—4; Stucken

(1930) 160-2; ‘Tscheka (1925) 114-15, youth 63-6, 73-4, 184, 203 125; Urbahns (1925) 128-9; Von Oppen

(1929) 206; Wildgrube (1923) 206 Zarnack, Wolfgang 85, 221

press interest in 180—5 Zetkin, Clara 101

Tribunal (periodical) 182-3 Zérgiebel, Karl 209-10