Burning the Reichstag (25 page)

THE FOURTH CRIMINAL SENATE
of the Reich Supreme Court in Leipzig would be the next authority with a chance to clear up the mystery of the Reichstag fire.

The opening of the trial presented a scene of “no little elegance,” in the words of
Times
reporter Douglas Reed, its “sober dignity” all the more striking for its contrast with “the drastic methods of unofficial justice in Germany beyond the courtroom.” The German government, as the
Neue Zürcher Zeitung
(New Zurich newspaper) reporter Ernst Lemmer noted, wanted to use the trial to get its own message out to the world. Goebbels's Propaganda Ministry had sent many of its officials to manage the flow of information to the foreign correspondents. There were no fewer than eighty such correspondents in the courtroom, along with forty German colleagues, as van der Lubbe, Torgler, and the three Bulgarians were led in, two policemen to each prisoner. The five judges came next, dressed in the imposing red robes and caps of their office, as were the two prosecutors, Chief Reich Prosecutor Karl Werner and his assistant Felix Parrisius. The presiding judge, Wilhelm Bünger, was, said Reed, a “pickwickian” man of “stern but yet benevolent mien,” while the American lawyer and
trial observer Arthur Garfield Hays described Parrisius as “the picture of Nazi intolerance.” As the judges entered they raised their right arms in the Hitler salute. Everyone in the courtroom except the defendants and the foreign correspondents returned it.
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The Reich Supreme Court had been founded in 1879, one of many legal institutions created in the wake of Bismarck's unification of Germany in 1871. The court's judges were divided into senates specializing in either criminal or civil cases; by the 1930s there were nine civil and five criminal senates. Like supreme courts in most countries, the Reich Supreme Court generally heard appeals from the judgments of lower courts, which meant that its hearings were usually matters of arcane legal argument in which the facts had to be taken as the lower court had found them. Cases of high treason, however, were different: Germany's Judicial Code gave the Reich Supreme Court first instance jurisdiction in such cases, which meant that the trials—with all the witnesses and other evidence—were conducted at Leipzig and there was no appeal from the verdict.

The conduct of a German trial could, and often did, look odd to someone familiar with Anglo-American courts. The five judges in their imposing red robes were all entitled to ask questions of the witnesses, although the presiding judge was expected to carry out most of the questioning. The prosecutors and defense lawyers, on the other hand, played only a secondary role in asking questions and bringing out evidence. The defendants also had the right to question witnesses, and in the Reichstag fire trial several of them made extensive use of this right. German law required a defendant in a criminal case to have a lawyer, and the court would provide a “duty defender” (
Pflichtverteidiger
) for a defendant who could not afford his own. In the Reichstag fire case this rule produced some odd results. Van der Lubbe wanted nothing to do with any lawyer; a veteran Reich Supreme Court lawyer named Philipp Seuffert, a DNVP member but sympathetic to the Nazis, was nonetheless assigned to him. German courts could permit foreign lawyers to conduct defenses, and a number of prominent European and American lawyers sought briefs in this case, but the Fourth Senate refused them all. Another veteran lawyer named Paul Teichert was assigned as duty defender to Dimitrov, Tanev, and Popov, but Dimitrov never voiced anything but contempt for Teichert and defended himself with more aplomb than any German lawyer was likely to manage in 1933. Remarkably enough, the seasoned Nazi lawyer Alfons Sack acted for Ernst Torgler—and not as a duty defender, but as Torgler's choice.
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Although the trial began and ended in Leipzig, the court actually spent more time at the scene of the crime itself. The proceedings moved to the Reichstag's budget committee room after the first twelve days, the better to question the police and fire department witnesses, Reichstag employees, and prominent government members. For the last month, from November 23rd to the reading of the verdict on December 23rd, the court returned to Leipzig. The nature of the evidence shifted over time. As is typical in a German trial, the focus of the first days was on the questioning of the defendants by the presiding judge. Then the prosecution presented its witnesses. The last segment of the trial featured the prosecution's efforts to link van der Lubbe to a Communist conspiracy by presenting “evidence” of Communist plans for an uprising in February or March of 1933.

Despite the large numbers of lawyers, judges, and defendants, and an army of witnesses, two men dominated the proceedings in different ways and for different reasons: Marinus van der Lubbe and Georgi Dimitrov.

The van der Lubbe who appeared in Leipzig was hardly the energetic young man who had hiked across Europe, roused many rabbles in Leyden, and clambered up the scaffolding of Berlin's Royal Palace to set a fire on its roof. Almost everyone who saw van der Lubbe in court described him the same way. His behavior suggested “a subnormal mentality,” said the
Manchester Guardian
, which wondered if he was “a crazy half-wit” or if, as the German press reported, he was merely “simulating imbecility.” The Swiss correspondent Ferdinand Kugler wrote that van der Lubbe made an “apathetic, brutish impression.” To Martha Dodd, daughter of the U.S. ambassador, van der Lubbe was “[b]ig, bulky, [with] sub-human face and body,” “so repulsive and degenerate that I could scarcely bear to look at him.” Ernst Fraenkel, who witnessed one day of the proceedings, during which he did nothing but stare at van der Lubbe, recalled later that anyone who saw van der Lubbe would ever after have difficulty believing he could have burned the Reichstag by himself. On all but two of the trial's fifty-seven days van der Lubbe appeared with his head bent down over his chest, often drooling or with his nose running so that his police attendants had continually to wipe his face. He spoke in monosyllables or not at all, and on those two days on which be suddenly became talkative, he spoke an idiosyncratic, guttural mixture of German and Dutch, which few in the courtroom could clearly understand. He struck observers as incapable of action, let alone a coherent thought. President Bünger could
extract no clear version of his past life, nor even get him to speak loudly enough to be heard. He repeatedly answered “yes” and then “no” to the same question. At best he answered questions only after a long pause. Sometimes he did not answer at all. Sometimes he giggled.
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Many foreign observers at the time, and some later writers, suspected that the authorities kept van der Lubbe drugged. Fritz Tobias on the other hand later argued that the energetic and articulate van der Lubbe of February 27th had fallen victim to a prison psychosis. The Swedish criminologist Harry Söderman examined van der Lubbe and said he found no sign that the prisoner had been drugged, but his examination was purely visual, limited to noting an absence of marks on the arms. After his release in 1934 Georgi Dimitrov told an interviewer from the right-wing French paper
l'Intransigeant
that it was “thoroughly possible” van der Lubbe had been drugged: he was the only one of the prisoners who received separate, specially prepared meals, wrapped in paper with “van der Lubbe” written on the package.
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Ernst Lemmer described Georgi Dimitrov as a man in a handsome grey suit who “in a casual pose, with a kind of Balkan
grandezza
, leaned his elbows on the rails, looking younger than his fifty-one years.” Douglas Reed wrote that Dimitrov's “remarkable courage and intelligence almost immediately became apparent,” and that with his looks he would have made a good film actor. Judging by his performance in the courtroom he would have made a good trial lawyer, too. Even Tobias wrote that “One need be no friend of the Communists”—and no one ever accused Tobias of
that
—to acknowledge, even to admire the conduct of Dimitrov before the Reich Supreme Court.”
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Dimitrov proved to be the court's and the prosecution's most effective adversary, yet Reed had the impression that by the end of the trial the judges had come to feel a certain “rueful affection” for the man. Dimitrov's witty defiance provided many of the trial's highlights. He told the police that only mindless individuals or Communism's worst enemies could have set fire to the Reichstag, and there was little doubt whom he meant. With typical puckishness, he added, “I am, however, neither mindless nor an enemy of Communism.” When Bünger reminded him that Bulgarian authorities had accused him of attempting to blow up a cathedral in Sofia (the allegation was untrue, as even the court finally conceded), Dimitrov dryly replied that ministers said that sort of thing in Germany too. He had a great deal of fun with the Berlin guidebook
with maps with which the police sought to link him to van der Lubbe. “I cannot say if this is my map. It is the one laid before me by the police—but I undertake no guarantee for the police.” As he said this, Dimitrov made what Reed called an “eloquent gesture” toward the police witness standing before the bench, which produced a roar of laughter from everyone, with the exception of the justices and the impassive van der Lubbe. Ernst Lemmer recorded Bünger's sardonic response: “We can also get by without your guarantee.” In any case, after Dimitrov had fired off several more stinging rebukes at the incompetence and dishonesty of the police, the judges expelled him from the courtroom for the first of five times.
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THE NEW NAZI REGIME
was eager to show the world that Germany remained a country under the independent rule of law. So eager, in fact, that its officials manipulated the trial at every turn.

A few days before the trial began, Helmut Heisig noted that a trusted source had claimed that the bar association had asked Alfons Sack to represent one of the defendants, with the assurance that this defendant “would definitely come away with an acquittal.” Sack's client, Ernst Torgler, remembered later that Sack “virtually imposed himself on me” and assured Torgler from the beginning—before examining the evidence—that he would be acquitted. Torgler thought that the SA—“Röhm, Ernst, and Heines”—had “sent” Dr. Sack to him, and that Sack also had the assignment of making sure that traces of “real culprits” would stay hidden. Diels's subordinate Heinrich Schnitzler remembered the same detail after the war, reminding his former boss of the rumors about how “the SA (Ernst) took over the costs of Torgler's defense.” The point was important to Tobias. In a 1961 letter he fumed that it was “nonsense” that the SA had paid Torgler's defense costs, adding that if it could be proven they had done so, they might also have set the fire.
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Sack's role revealed the regime's tactics. Ernst Lemmer, whom even Tobias considered the most judicious of reporters at the trial, diagnosed the motivation behind Sack's defense strategy for Torgler: Sack, a Nazi handed the defense of Torgler at official urging, sought to “present the heavily compromised van der Lubbe as a sole culprit” and thereby “fight against all rumors of National Socialist involvement.” This was naturally also the best way of establishing Torgler's innocence. To underline van der Lubbe's sole guilt, Sack tried repeatedly to find evidence that a strong
draft in the plenary chamber could have spread the insignificant fires that were all that van der Lubbe could have set.

Lemmer ultimately concluded that Sack failed to make this case. But Sack's semi-official status in the trial gave his argument importance. Nazi authorities, all too aware of one of the possible alternatives to a solitary van der Lubbe, flirted from the beginning with the idea that he had in fact done it himself. By the second week of the trial, as we have seen, Martin Sommerfeldt was writing that only van der Lubbe's conviction was certain and therefore reporters should stress that “Communism” itself sat in the dock with him. After seeing the weakness of the case against Torgler and the Bulgarians, some elements of the regime—notably those associated with Göring, such as the Gestapo—seemed more than ready to present van der Lubbe as a sole culprit on these modified terms. American lawyer Arthur Garfield Hays even claimed credit for feeding this argument to Sack: Hays told Sack bluntly that the Nazis' tactics were stupid, and that by insisting that van der Lubbe alone could not have set the Reichstag on fire they had invited their opponents to accuse them of a conspiracy. If van der Lubbe had had accomplices at all, it was almost certain that they had been Nazis. Hays sweetened his words slightly by suggesting that it had been reasonable at the beginning to suspect the Communists. But the evidence did not support this suspicion, so why did the government not simply argue that van der Lubbe had had no accomplices? A few days later, Hays wrote, Hitler's friend and court jester Ernst “Putzi” Hanfstaengl had adopted this line, and Hitler himself made a reference to “
an
incendiary” in a speech. The idea was launched, and would eventually become doctrine in the Third Reich: the 1937 official history of the Berlin SA, for instance, recorded that on February 27th “a Dutch Communist set fire to the Reichstag” as “the signal” for a “great armed uprising by the commies.” The memory of this strategy would endure into the postwar years, especially among ex-Gestapo men—whose single-culprit theory thus had a very different origin from the self-flattering one they later claimed for it.
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Political influence showed itself in other ways as well. Foreign Office records imply Diels knew what the verdict of the trial would be at least five days before it was announced. Leipzig mayor Carl Goerdeler told fellow anti-Nazi Fabian von Schlabrendorff that Judge Bünger complained he had been unable to “collar” the real arsonists. Goerdeler believed the trial caused Bünger a crisis of conscience that ultimately ruined his
health. Years later Bünger's widow wrote that he had been under strong political pressure during the trial, always surrounded by police officers. Although he often discussed his cases with her, he never talked about this one.
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