Burning the Reichstag (29 page)

Although in his closing address Werner dropped the charges against the Bulgarians, he asked for treason convictions against van der Lubbe and Torgler, even though by his own admission the evidence did not show how Torgler had been involved in the fire.
⁵⁹

Diels's young subordinate Hans Bernd Gisevius, sent to observe the closing phase of the trial, returned with a scathing memo on Werner's speech. There was no question, Gisevius wrote, that the court was going to acquit Torgler as well as the Bulgarians. The chief prosecutor had not only failed to make his case, he had failed even to “awaken understanding for the indictment.” The effects on the foreign press would be especially negative. Gisevius's conclusion seems, given what subsequently happened, particularly significant. The only way something could be retrieved from the situation would be for Sack to give a closing address that went after the chief prosecutor and his arguments. At least this would save face abroad and show that the prosecution's failure was purely the prosecution's own fault.
⁶⁰

Sack's closing address became the subject of keen interest at the Gestapo. Ten days before Gisevius's memo, Paul Hinkler, who had temporarily replaced Diels in an internal intrigue, summoned Sack to Berlin with the warning that “it was in his own interest.” Hinkler opened the conversation by telling Sack that his life was hanging by a thread. Sack had been too openly critical of Göring and too persistent in his cross-examination of Heller. Sack defended himself indignantly, pointing out that representatives of Göring, Justice Minister Gürtner, and Hans Frank had all approved of his conduct. Hinkler ended the conversation by taking away Sack's notes and tearing them up. He imposed an obligation of silence on Sack with the remark, again, that his life was hanging by a thread. Sack pointed out that Heisig and a junior lawyer had arranged the meeting. Hinkler told Sack to say that the meeting had been about his recent trip to Amsterdam and further steps in the Leipzig trial.

Diels learned of this whole business when he returned to the Gestapo a few days later. In a memo to Göring Diels noted that “Dr. Sack finds himself in a conflict of conscience as a result of this conversation.” He had taken on Torgler's defense at the request of the president of the German Bar Association, and thus with the blessing of Justice Minister Gürtner. Diels had the president's letter in front of him. “The letter states that Herr Dr. Sack has been designated to take over the defense of a defendant who would be acquitted.”
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Diels sent this memo to Göring with a note that Sack had requested a meeting with Göring to receive “guidelines” for his closing address. Diels added: “I ask, if possible, that you receive Sack for a few minutes.” Sack's closing address was, therefore, effectively an official Gestapo statement.
⁶²

Unsurprisingly Sack began with a rebuttal of the
Brown Book
and other propaganda from abroad, and piously stressed his belief in the objectivity of the judges. With this as cover, he launched into a critique of the evidence in the case, blaming both Magistrate Vogt and the police, whose work had been “incomplete” because when the fire broke out “the reconstruction of the police taken over from the old regime had just begun”—a criticism that Sack was careful to legitimize by pointing out that it came from Göring's own testimony. He closed by telegraphing that Göring had consented to Torgler's acquittal. When asked about Torgler's claim of innocence, Göring had responded, “I take note of it; the Supreme Court will decide whether it is true.”
⁶³

A Gestapo officer later recorded that Sack's speech would have been better if his attack on the prosecution have been given adequate official cover. Gisevius, said the officer, “can confirm that it was vainly attempted to get such cover in time.” This rather opaque comment gives a sense—along with Diels's confirmation that Sack was promised at the outset his client would be acquitted—of the extent of official manipulation of the trial. By this point, everyone recognized that the trial had been a disaster for the government and was running for cover.
⁶⁴

GIVEN THE EVIDENCE
the Fourth Senate of the Reich Supreme Court had to work with, its verdict, pronounced December 23rd, could only be flawed. The judgment was an odd mixture of different elements, and it has been the source of controversy ever since.

The court acquitted Dimitrov, Tanev, and Popov, as the prosecution had requested. Contrary to the prosecution argument (but given the evidence about how Sack came to represent Torgler, likely reflecting high-level machinations) the court acquitted Torgler also. To the surprise of no one, the court found van der Lubbe guilty of several counts of treason, “seditious arson,” and attempted simple arson, and sentenced him to death.

The testimony of Heisig and Zirpins contributed mightily to the verdict. The court found that Heisig's evidence showed that van der Lubbe's leaving the Communist Party in 1931 had “no influence at all” on his
Communist beliefs; the Leyden police had called van der Lubbe a “rabid Communist.” The judges emphasized van der Lubbe's intelligence and his sincere commitment to Marxism, again citing Heisig and Zirpins. The court also took seriously the evidence from the Neukölln Communists, which the thuggish Commissar Marowsky had gathered, to the effect that van der Lubbe had claimed he had been to the USSR, wanted to set off a revolution, was excited about setting public buildings on fire and pouring gasoline over SA men and setting them alight as well—“so musht coming.” The court concluded that it must have been in Neukölln that van der Lubbe made contact with his accomplices.
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The court had no doubt that van der Lubbe alone was responsible for the fires at the welfare office, the City Hall, and the palace. Certainly he had set some of the fires in the Reichstag. However, whatever he had done there, the judges did not think he was responsible for the fire in the plenary chamber, which was “prepared by another hand” with “large quantities” of kerosene or gasoline and a self-igniting solution, just as Schatz had explained it. At least one and “probably several” accomplices had set this fire. The court did not even believe that van der Lubbe had set foot in the plenary chamber at all.
⁶⁶

While the judges accepted the expert evidence, including Schatz's, some of their skepticism of van der Lubbe's claims rested on difficulties of timing. They did not believe—and the evidence had given good grounds for doubt—that van der Lubbe could have done everything he claimed between breaking into the Reichstag restaurant and being fired at by Buwert. It was “indicative” that van der Lubbe had “become uncertain” on this point during one of his interrogations by Magistrate Vogt. The judges also doubted that van der Lubbe had set fire to some curtains in the hallway outside of the plenary chamber, and thought it likely that the arsonists had used up the last of their gasoline or kerosene here and on the carpet of the Bismarck Room.
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All of this meant that van der Lubbe had known about his accomplices and acted willingly alongside them. In support of this contention the judges pointed to van der Lubbe's perfectly timed break-in—that hour-long window of opportunity between 9:00 p.m. and 10:00 p.m. with no scheduled rounds of employees inside the Reichstag. Van der Lubbe's role had clearly been to divert attention away from Communist culprits, and in standing by his story he had loyally complied with Communist instructions for legal defenses.
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Naturally the court refuted the idea that the accomplices could have been Nazis. It was probably for this reason that it found these accomplices had
not
escaped through the tunnel to Göring's residence. Rather, at least one of them had gotten out through Portal II, the south entrance, shortly after 9:00, and someone else had then locked the door. This finding rested on testimony by a witness named Bogun, which, according to most observers, had been thoroughly undermined at the trial. The allegation that a troop of SA men had used the tunnel to get in and out of the Reichstag was “fully untenable.” The court was certain—in light of the political pressure it had no choice but to be certain—that the goal of van der Lubbe's arson had been to spark a Communist uprising.
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Along with acquitting Torgler and the Bulgarians, the judges made other findings that, in the context of late 1933, showed integrity, even courage. They did not believe that Dimitrov's Berlin guidebook with its suspicious pencil marks proved anything, although naturally they rejected the idea that the police had supplied the marks. They did not believe a word of the testimony of the waiter Helmer from the Bayernhof restaurant.
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However, one issue more than any other has shaped the memory of the verdict. Nothing for which the court convicted van der Lubbe, not even the high treason charges, carried the death penalty on February 27th, 1933. The Reichstag Fire Decree had extended the death penalty to arson and treason. But an ancient and universally honored principle of criminal law—
nulla poena sine lege
(no criminal punishment without a prior law)—meant that a court could not apply criminal punishments retroactively. In violation of this principle, Hitler's government had passed a special law, known informally as “Van der Lubbe's Law” (
Lex van der Lubbe
) on March 29th, extending the death penalty provisions in the Reichstag Fire Decree to crimes committed between January 31st and February 28th, 1933. Seuffert tried to argue that the court could not follow Van der Lubbe's Law. The judges nonetheless ruled that the Enabling Law of March 24th, by which the Reichstag had granted extraordinary powers to Hitler's government for a period of four years, had authorized that government to pass van der Lubbe's Law. In any case the law had not created
new
offenses of arson and treason, only changed the penalties for them, which the court claimed did not violate the principle of
nulla poena
.
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Van der Lubbe listened impassively as the judges sentenced him to death, standing as he had throughout the trial, his head hanging down
and his mouth open. When the judges had finished “he lowered himself, slowly and clumsily, as ever, into his seat.”
⁷²

The trial had taken a heavy toll on the judges of the Fourth Senate. In early February 1934 Judge Bünger submitted a request for leave. He asked for a longer leave that summer, supplying a doctor's note that stressed his unsteady heartbeat and high blood pressure. Bünger never recovered his health. He retired in April 1936, and died the following March. Even the obituaries in Germany's thoroughly Nazified newspapers said that it was the Reichstag fire trial that had ruined his health.
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His supporting judge Hermann Coenders was much blunter. Coenders wrote to the president of the Reich Supreme Court, Erwin Bumke, on December 22nd, just as the trial was ending, to say “I am so physically run down from the Reichstag fire trial that at the moment I am completely unable to work.” He asked for a month's leave. The real bombshell came in February. Coenders faced a number of debt and tax issues that were worrying the court's administrators, and he was about to turn sixty. He wanted to take the opportunity to retire, and he submitted a letter of twelve closely typed pages explaining the reasons that had made this decision “easier” for him. He had never wanted to be assigned to the Supreme Court, Coenders complained. He did not like the way it handled cases; the judges were too bound to the documents, while Coenders prided himself on being an investigator who got to the bottom of cases and believed, he said, in an “unpolitical” rule of law. This brought him to the Reichstag fire trial.
⁷⁴

The judgment, he said, had been roundly criticized in the National Socialist press as a “miscarriage of justice (
Fehlurteil
),” and, said Coenders, “purely objectively,” it was. Yet it was not a miscarriage for which the judges should be blamed. In his view, the verdict had been “a necessary consequence” of the whole proceeding, which had been characterized by “disastrous mistakes” since the beginning of the investigations. Coenders had initially wanted to present this argument in detail in writing, but on further consideration had decided that “a further discussion of the trial at the present time of national upswing is not consistent with the interest of the state,” and so he felt it was “a command of duty to stay silent.”
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Why did Coenders consider the verdict a miscarriage of justice? The Fourth Senate had convicted van der Lubbe, acquitted the other defendants, and found that there had been other culprits, unidentified but certainly Communists. The possible objections to this verdict, therefore,
were that (1) the court should have found van der Lubbe had acted alone; (2) the court should have acquitted van der Lubbe; (3) the court should have convicted Torgler and the Bulgarians, or (4) the court should have found that the unidentified co-conspirators were not Communists. The investigation, though not the Fourth Senate, could be criticized for not having produced the real culprits, if indeed there had been other culprits.

Had Coenders believed that van der Lubbe was the sole culprit, he could hardly call a verdict that convicted only van der Lubbe from among five defendants a miscarriage of justice; and since the investigations had from the first moment at least produced van der Lubbe, he would be unlikely to say that the
investigations
had gone wrong from that time. Similarly, had Coenders thought the court should have convicted Torgler and the Bulgarians, why would he criticize the investigations that had brought them to the courtroom? He must, then, have believed that there had been other culprits, whom the police and the magistrate had failed to discover. These culprits might have been Nazis or Communists, of course, or indeed anyone else. The verdict had explicitly said that there had been other, unidentified, Communist culprits, and Coenders thought that verdict was wrong. The only logical inference from Coenders's words, then, was that he thought unidentified persons who were
not
Communists had burned the Reichstag. Little wonder that Coenders expressed the desire to “stay silent” about his opinion “in the interest of the state.”