Court Full
“Court rise!” With the clerk’s shout we stop talking and struggle to our feet. David Irving versus Penguin Books Ltd. and Deborah Lipstadt opens on a gray morning at the height of London’s flu season, and the packed courtroom is weighed down with soggy raincoats, mufflers, and sodden umbrellas. As the crowd quiets the clerk glances at an open doorway at the far end of the room and Mr. Justice Charles Gray enters, stage right, and walks briskly to the center of a raised dais with a long desk.
All trials are a kind of theater, but here the sense of costume drama is heightened by the judge’s outfit. On top of his black silk robes Gray wears a scarlet sash, called a tippet. A white tie, of the kind favored by eighteenth-century New England divines, hangs from either side of his collar, and on his head is a pewter-colored horsehair wig. A patrician in fact as well as appearance (he was educated at Winchester and Trinity College, Oxford), Gray’s handsome face, hound-dog eyes, and sash of office make him look like a leaner, more lugubrious version of Nigel Hawthorne, the actor who played the mad King George III.
The dramatic effect is also enhanced by the location. Court 37 is a crisp white modern chamber, with blond wood furniture and all the hi-tech paraphernalia of contemporary litigation: fluorescent lights and hanging microphones overhead, while a tangle of cables underfoot connect the laptops placed at regular intervals on the lawyers’ tables with the stenographer’s desk, allowing the transcript to be consulted instantaneously. As a set design Court 37 suggests a complex custody dispute or a protracted divorce (which is indeed what it is used for most of the time) rather than an argument about the writing of history or the fate of European Jewry. But the Royal Courts of Justice building—a Victorian Gothic pile with elaborate vaults, carved stonework, and towering spires—sits at the point where Fleet Street meets the Strand. We are, literally as well as figuratively, at the juncture of journalism and the theater district.
As if in recognition of this fact, most of the seats that are supposed to be available to members of the public have been taken by reporters, who overflow the press gallery on the left side of the room, filling up the back and right side as well, turning the normal proscenium arrangement into a thrust stage. The few spectators who do gain admission are crammed into the back rows, which in some cases results in elderly Holocaust survivors sitting cheek by jowl with skin-headed British neo-Nazis. Gray begins with an apology for the cramped conditions: “It is very desirable that everybody who wants to be here should be here and I am afraid they are not.”1
One person who very much wants to be there is David Irving. Irving is the claimant in this case—in American usage, the plaintiff.
Suing somebody for libel in Britain is expensive. A Queen’s Counsel (QC), the elite among barristers (trial lawyers), gets around £5,000 pounds a day. And just as most claimants consider it only prudent to hire a QC, most QCs require a junior barrister. Add in a complement of solicitors and the total once the trial gets underway can easily exceed £10,000 a day—a figure which makes libel the indoor equivalent of racing yachts or breeding thoroughbred horses as a rich man’s sport. Though he comes to court in a £2,000 made-to-measure Gieves and Hawkes chalk-stripe suit David Irving is not a wealthy man, and it is an indication of just how much he wants to be there that he appears in court as a litigant-in-person, representing himself.
When wearing his lawyer’s hat, Irving will sit alone at a long counsel’s table, as he does now, peering over half-spectacles at some papers. Irving is an inventive and energetic self-publicist, and from time to time his glance lifts to the press seats, where he mouths greetings to some of the reporters. However, he never looks at the Second Defendant’s table directly behind him, where Deborah Lipstadt sits glaring at the back of his neck. For her, this “day in court” has already meant a four-year interruption in her scholarly career. But if Lipstadt didn’t seek this confrontation, neither did she shrink from it. Nor has she come alone to the arena.
Anthony Forbes-Watson, the owlish, sandy-haired managing director of Penguin Books (the First Defendant) is practically surrounded by lawyers. Most of them are solicitors, and wear ordinary business suits. But barrister Richard Rampton, who wears a short gray-blond wig and the silk robes of a QC, and his black-robed junior Heather Rogers, whose wig partially covers her own gray hair, add yet a further note of mummery to the proceedings.
The Second Defendant’s bench is more modest, consisting of Lipstadt, a small, middle-aged woman in a sober, tan trouser suit set off by a colorful scarf knotted at the throat, seated between her two lawyers. James Libson, the younger of the two, also wears the solicitor’s standard dark suit. Anthony Julius wears a plain black “stuff” robe, but no wig.
Directly behind them are a contingent of Lipstadt’s supporters. There are friends from Atlanta, where she teaches at Emory University. There are also officials from the American Jewish Committee, the Board of Deputies of British Jews, the Anti-Defamation League of the B’nai Brith, and Steven Spielberg’s Shoah Foundation. Expert witnesses, reporters, interested parties, and one or two curious tourists fill the remaining seats, while several dozen disappointed spectators queue patiently in the hall outside.
All of these people—all of these interests—take up so much room that by the end of the week the trial, which has already been moved once to accommodate the anticipated crowds, will be transferred yet again to a still larger courtroom. Even so, on most mornings anyone turning up at the scheduled time of 10:30 will be greeted by a sign on the little vestibule leading into the court advising “Court Full.” Just how full only becomes apparent when, in the course of some brief preliminary questions, the judge (and the spectators) learn that it has been agreed to divide the case into two parts: Auschwitz and “basically all the rest.” There is some dispute about the ordering of this agenda, but when Irving remarks that “the most interesting part of the action in the light of history is, undoubtedly, the Holocaust and Auschwitz” the other side expresses no disagreement.
At that moment, history enters the courtroom. When it suits them, both sides will make energetic efforts to ignore it, to pretend that this trial is really about the interpretation of documents. Indeed the first of these attempts occurs just a few moments later, with Irving’s contention that “we have to avoid the temptations of raking over the history of what happened in Poland or in Russia 50 years ago. What is moot here is not what happened in those sites of atrocities, but what happened over the last 32 years on my writing desk in my apartment off Grosvenor Square.”
Irving’s words are contradicted even before he speaks by a set of his own exhibits resting on an easel to his right. Roughly a metre square, and mounted on board, these blown-up black-and-white photographs do not show the interior of Irving’s study or the papers on his desk. Nor do they show the books in Irving’s library, or even his notorious Adolf Hitler self-portrait, or the swastika-topped swizzle sticks he likes to use to lend a politically incorrect frisson to his publication parties. What the pictures show, in the grainy, flattened way of aerial photographs, is one of those “sites of atrocities,” in this case the camp known in Polish as Oswiecim, and whose German name, Auschwitz, has indeed come to serve as a synecdoche for the Nazis’ deliberate, systematic destruction of European Jews.
In his bid to keep history out of the courtroom, Irving has the full support of both Mr. Justice Gray and the defense team. In an interview conducted in the judge’s chambers before the trial Gray said he was determined to minimize that risk. “Judges,” he said, “aren’t historians.” Defense counsel were as one in their declaration: “This trial isn’t about the Holocaust.” Why, then, did they commission a 700-page report from the author of Auschwitz: 1270 to the Present? Or another expert report on Evidence for the Implementation of the Final Solution, not to mention further separate reports on the systematic nature of the Nazi genocide and on Adolf Hitler’s personal culpability?
Despite every determined attempt to usher it politely out the door of the courtroom, there will not be a single day in this trial when history is absent from the proceedings. And suddenly Court 37 is very crowded indeed. Here, in one of the dozens of boxes that line the room, are the records of the perpetrators: reports of the Einsatzgruppen, whose murderous record in Poland and behind the Russian front Irving does not deny. Here also are the documents recording a November 1941 shipment of a thousand Jews from Berlin to Riga, Latvia, where they were shot on arrival—men, women, and children. As it happens this particular transport and its fate are common ground to both sides—a small fraction of the hundreds of thousands of Jews whose deaths at the hands of the Nazis Irving also does not deny. Unable to speak for themselves, these silent witnesses will be invoked by both sides. Their presence fills the courtroom.
But they are the privileged minority, whose silence is not taken for complicity in their non-existence. At least for the sake of argument, Court 37 must also find space to accommodate the more than two million Jews whose end—in the gas chambers of Belzec, Sobibór, Treblinka, Majdanek, Chelmno, and Auschwitz—Irving does deny. It is mostly the argument over their traces that, before the trial has even started, already fills the bookshelves and file boxes piled along every inch of free wall space in the courtroom. By splitting the trial in half, even if only procedurally, the two sides have made the status of these disputed Jews as much a matter of the court’s concern as any of the questions of historiography which both sides would clearly prefer to debate. And as both sides know perfectly well, whatever Mr. Justice Gray decides about historiography, it is Auschwitz that will get the headlines in this case.
This poses a particular danger for the defense. Equivocation is a human impulse to which judges, notoriously, are not immune. If Irving loses on Auschwitz and wins on “everything else” that would still be a defeat for his opponents. In other words, if the judge finds that, though Irving was wrong about Auschwitz, his mistakes were honestly made, under the law he would be entitled to substantial damages. Lipstadt and Penguin would be forced pay Irving’s costs; worse still, they might well be subject to an injunction not to repeat what they’d said about Irving’s methods, on pain of imprisonment for contempt of court. But if a split decision goes the other way—if the judge finds that, despite Irving’s flawed scholarship, the evidence regarding what happened at Auschwitz is simply too ambiguous to interpret with legal certainty—that would be a disaster. For the defense to win this case, they have to win it all.
The defense has other burdens as well. The English law of libel has its origins in the medieval crime of scandalum magnatum. A man convicted of speaking ill of his rulers—the crime later known as seditious libel—might forfeit his right hand, or his ears (the better to prevent him hearing any more slanderous gossip). In the seventeenth century the task of protecting the reputations of the powerful fell to the Court of Star Chamber, and it was partly that court’s record of brutal repression—floggings and mutilation were common up to the eighteenth century—that sent American jurisprudence down a very different path. Under US law it is the plaintiff who must prove he or she has been falsely defamed.
This is not just a technical point. If Irving had sued Lipstadt in the United States (where her book was first published, and where he sells the bulk of his own books) the case would never have seen the inside of a courtroom. In an American court, Irving would either have to show that he’d never denied the Holocaust (a difficult task for a man who is on record claiming “more women died on the back seat of Edward Kennedy’s car . . . than ever died in a gas chamber in Auschwitz”), or it would be Irving who had to prove that the events he denied had never happened. Besides, as a well-known author and commentator, Irving easily met the terms set by New York Times v. Sullivan, where the Supreme Court held that for a public figure to prove libel the allegations must be shown not merely to be false, but to have been made “in reckless disregard” of the truth.
An English libel claimant, on the other hand, must prove just three things: that the “words complained of” were actually published, that they could be taken as referring to the claimant, and that they were defamatory, i.e. that they tended to expose the claimant to hatred, contempt, or ridicule. Once those conditions have been satisfied—and in Irving v. Lipstadt no one disputes them—the burden of proof passes to the defendant.
The structure of the trial itself reflects this: a claimant in libel always has the last word, the last chance to persuade the judge and jury of his case. And because English law assumes that claimants are entitled to a good reputation unless and until proved otherwise, his lawyer has the first word as well. The aim is to introduce the judge and jury to the person free of any taint or shadow—to show, in Irving’s case, an author of international reputation, the father of four daughters, a man whose books were prominently published and respectfully reviewed and whose company was eagerly sought by leading publishers in Britain and the United States.
Unusually for a libel trial, both sides have agreed to dispense with a jury. But as Irving opens his case it is obvious that, though the final decision will rest with Mr. Justice Gray, in Irving’s mind the jury of public opinion is just as important. From his very first words Irving sets out an argument that runs on two tracks: to the judge, through the evidence he presents, and to the general public, by way of the media, who are interested less in the evidence than in Irving’s manner. Though self-imposed, Irving’s burden—and it is a real one—is to keep both his tracks running in parallel. He begins with a digression:
“My Lord, it is almost 30 years to the day since I last set foot in these Law Courts. . . . The occasion of that visit to this building was an action heard before Mr. Justice Lawton, which became well-known to law students as Cassell v. Broome and Another. It, too, was a libel action and I am ashamed to admit that I was the ‘Another,’ having written a book on a naval operation, The Destruction of Convoy PQ17. That was the only actively fought libel action in which I became engaged in 30 years of writing. There were two reasons for this abstinence, my Lord: first, I became more prudent about how I wrote and, second, I was taught to turn the other cheek.
“The man who taught me the latter lesson was my first publisher . . . Mr. William Kimber. Your Lordship may remember that Mr. Kimber and his author, Mr. Leon Uris, had become involved through a book which Mr. Uris had written, entitled Exodus, in a libel action brought by a London doctor who had been obliged to serve at Auschwitz. That case was also heard before Mr. Justice Lawton. There was one other similarity that closes this particular circle of coincidence: like me now, Mr. Kimber was, in consequence, also obliged to spend two or three years of his life wading, as he put it, ‘knee deep’ through the most appalling stories of atrocities and human degradation.
“That day he advised me never, ever, to become involved in libel litigation. I might add that, with one exception that I shall later mention, I have heeded his advice.”
Irving leaves the moral of this little tale unspoken. For the judge, it is that he has learned his lesson since Cassell v. Broome, when a jury found that not only had Irving libeled the commander of the ill-fated Convoy PQ17, which had been mauled by German U-boats in 1942, but that he had done so on the basis of a cold-blooded calculation that a libel suit might actually help the sales of his book. The result—an award of punitive damages on top of the libel damages—lives on in libel textbooks. Like a prosecutor whose star witness has a criminal record, Irving wants the judge to hear about this episode from him. He also wants to make the point that, despite press reports painting him as a litigious character, he is a reluctant claimant.
His mention of the Exodus trial is aimed at an altogether more complex set of targets. Wladislaw Dering’s pursuit of Leon Uris ended up ruining Dering’s reputation, his finances, and eventually his health. Irving’s invocation of the most spectacular example of self-destruction through libel since Oscar Wilde sued the Marquis of Queensberry is a reminder that he, too, is running a considerable risk. But if his reference is partly a bid for sympathy—and partly, like his observation a few moments later that he and Uris had shared not only a publisher but also the lawyer Michael Rubinstein, a suggestion that he had once been on better terms with the Jews—it carries a harsher message as well. Uris’s lawyers filled the courtroom with men and women who were able to describe what happened at Auschwitz from first-hand experience. And it still hadn’t been enough to persuade the jury to find for their client.
This isn’t turning the other cheek—Irving’s unsubtle dig at his Jewish opponents—so much as throwing down the gauntlet. “To justify her allegations of manipulation and distortion,” Irving continues, “it will not suffice for Professor Lipstadt to show, if she can, that I misrepresented what happened, but that I knew what happened and that I perversely and deliberately, for whatever purpose, portrayed it differently from how I knew it to have happened.
“That is what manipulation and distortion mean, and the other, though fundamental, story of what actually happened is neither here nor there. In effect, this enquiry should not leave the four walls of my study.”
Irving goes on to sketch a portrait of the artist as a wronged man. At times melodramatic: “My Lord, if we were to seek a title for this libel action, I would venture to suggest ‘Pictures at an execution’—my execution!” At times grandiose: “My books have appeared between hard covers under the imprint of the finest publishing houses” (including Penguin Books, the First Defendant, which published Irving’s The War Between the Generals in 1981).* But the overall effect is compelling. His income, once in excess of £100,000 a year, has fallen sharply: “By virtue of the activities of the Defendants, in particular of the Second Defendant, and of those who funded her and guided her hand, I have since 1996 seen one fearful publisher after another falling away from me, declining to reprint my works, refusing to accept new commissions and turning their backs on me when I approach.
“In private, the senior editors at those publishing houses still welcome me warmly as a friend and they invite me to lunch in expensive New York restaurants, and then lament that if they were to sign a contract with me on a new book, there would always be somebody in their publishing house who would object.”
He has, in short, become a pariah, and though “I am not even denying that I may have been partly to blame for it myself” Irving hasn’t come to the high court seeking absolution. Nor has he come solely to defend his reputation. David Irving has a “case” of his own.
“The Defendants did not act alone in their determination to destroy my career and to vandalize my legitimacy as a historian. That is a phrase that I would ask your Lordship to bear in mind. They were part of an organized international endeavor aimed at achieving precisely that. I have seen the papers. I have copies of the documents. I shall show them to this court. I know they did it and I now know why.”
As he outlines it to the judge—and more importantly, to the press—Irving’s “case” has two parts. The first part concerns the Holocaust, “an artificial label commonly attached to one of the greatest and still most unexplained tragedies of this century.
“I have never held myself out to be a Holocaust expert,” he says. “If I am an expert in anything at all . . . it is in the role that Adolf Hitler played in the propagation of World War II, and in the decisions which he made and the knowledge on which he based those decisions.” Nonetheless, “I intend to show that far from being a ‘Holocaust denier’—the phrase in the title of the book—I have repeatedly drawn attention to major aspects of the Holocaust.”
His voice rising in fury, Irving says that calling him a “Holocaust denier” was “particularly evil because no person in full command of his mental faculties, and with even the slightest understanding of what happened in World War II, can deny that the tragedy actually happened, however much we dissident historians may wish to quibble about the means, the scale, the dates and the other minutiae.”
Baldly put, Irving’s “case” on the Holocaust is that when he writes that Hitler had no knowledge of the Final Solution, or says that there were no gas chambers at Auschwitz, and that fewer people died there in four years than were killed in one night by the Allied bombing of Dresden, what he is doing is no different from a historian who argues that Lee was a better general than Grant, or an archaeologist who doubts whether the Greeks and Trojans really went to war over Helen of Troy. We may quibble about minutiae, says Irving, echoing Jean-Marie Le Pen, the French neo-Fascist, who called the gas chambers “un détail,” but we are part of the conversation, and it is wrong to exclude us.
This is Irving at his most reasonable—quick to admit how much he doesn’t know, ready to make concessions when confronted with evidence. But he is also very angry, and as the focus of that anger becomes clear, so does the second part of Irving’s “case.”
The label “Holocaust denier,” he tells the court, “is a poison to which there is virtually no antidote, less lethal than a hypodermic with nerve gas jabbed in the neck, but deadly all the same. For the chosen victim, it is like being called a wife beater or a paedophile. It is enough for the label to be attached for the attachee to find himself designated as a pariah, an outcast from normal society. It is a verbal yellow star.” At this there is an audible gasp from several spectators. But Irving isn’t finished. “I shall invite the court to hear expert evidence on the relationship between the world’s Jewish communities and the rest of us,” he says. “The Jewish community, their fame and fortunes, play a central role in these proceedings.”
Irving’s “case” fits together to suggest that, in order to protect their fraudulent status as victims of genocide, which is threatened by “dissident historians” like himself, the Jews have fomented an international conspiracy aimed at silencing Irving and discrediting his views. Irving’s problem is that his “case” deals with motives, but the trial—his “suit” as opposed to his “case”—deals with facts. If Irving wins, the judge will consider the Defendants’ motives when awarding damages. Until then, Irving will have to argue his suit.
How he intends to do this—and vex his enemies at the same time—emerges in a neat little bit of misdirection about history. “This trial is not really about what happened in the Holocaust or how many Jews and other persecuted minorities were tortured and put to death,” says Irving. “It may be that I was totally ignorant on some aspects of World War II, and I hasten to say that I do not believe I was, but to be accused of deliberate manipulation, and distorting, and mistranslating, is perverse. The Defendants must show, in my humble submission, first that a particular thing happened or existed; second that I was aware of that particular thing as it happened or existed, at the time that I wrote about it from the records then before me; third, that I then wilfully manipulated the text or mistranslated or distorted it for the purposes that they imply.
“The Defendants must show . . . first that a particular thing happened.” Using the British libel laws for leverage, Irving’s legal jiu-jitsu means that, in effect, his opponents will indeed have to prove that the Holocaust happened.
With Irving still in full flow, the court breaks for lunch. When proceedings resume, he finishes reading out a document he calls the “Bruns report”—the transcript of an April 1945 conversation, secretly taped by British intelligence, between Major-General Walter Bruns and his fellow German prisoners of war. Bruns was in Riga on November 30, 1941 and witnessed the massacre of the thousand Berlin Jews: “When I arrived those pits were so full that the living had to lie down on top of the dead; then they were shot and, in order to save room, they had to lie down neatly in layers.” The hellish scenes Bruns describes are full of convincing visual detail, and as Irving points out not only does he not deny them, he has quoted them extensively in three of his books.
He then turns to the question of anti-Semitism. Ironically, in her book Deborah Lipstadt never accuses Irving of anti-Semitism. But the rules of procedure call for both sides in a civil action to disclose in advance not only which documents they want to cite, and which witnesses they are going to call, but what those witnesses are likely to say. Irving knows he’s going to be painted as a right-wing extremist, a bigot, and an anti-Semite, and he does his best to defuse such incendiary charges in advance. He cites his former lawyer, Rubinstein, “an enormously capable, energetic and likeable person,” first introduced to him by William Kimber, who described him as “very Jewish, but a very Christian kind of a Jew, rather like Jesus Christ.” He goes on to mention some Jewish friends, but stops short of claiming “some of my best friends are . . .” and lists instead the many Jews who have been happy to publish his books. Shifting to the attack, Irving describes various incidents of harassment over the years at the hands of Jewish groups.
Irving seems more comfortable on the attack, and after a lengthy recitation of how he came to acquire the original microfiche of Nazi propaganda minister Josef Goebbels’s diaries from the Russian State Archives—a minor incident in Lipstadt’s book, but one which evidently injured Irving’s pride—he returns to the offensive. “I mention these facts, my Lord, to show that it was not just one single action that has destroyed my career, but a cumulative, self-perpetuating, rolling onslaught from every side engineered by the same people [i.e. the Jews] who have propagated the book which is at the center of the dispute, which is the subject of this action, my Lord.” At 3:30 in the afternoon, David Irving sits down.
Before the defense can respond, Mr. Justice Gray has a question. Quoting with approval Irving’s remark that “This trial is not really about what happened in the Holocaust,” he adds: “Certainly as I see it, and I believe as the Defendants see it, that is right. This trial is not concerned with making findings of historical fact.” Gray wants to know if Irving is arguing that the defense have to prove not just that an event happened, but that he had “actual knowledge” of the event. Can’t they just show “you shut your eyes to it?”
Irving says no, and as he rises from his seat Richard Rampton agrees: “Your Lordship has it right. It is not that he is indolent. It is not that he falls into error. It is that he deliberately perverts the course of this particular episode in European history, including what happened at Auschwitz.”
With his creased cheeks, thinning white hair and big round gold wire-rims, Richard Rampton could be mistaken for somebody’s kindly uncle. Until he speaks. When he’s “on his feet,” as barristers say when they are addressing the court, Rampton’s manner is the opposite of avuncular. He seems rather to command a vast reservoir of irritability and disdain, which threaten at any moment to overflow the banks of tolerance, dissolving the object of his scorn in a flood of bile. As the trial progresses Rampton will wield his irritability like a weapon, snapping at his clerks and juniors, jumping impatiently from document to document. But as he opens his case, Rampton’s tone is one of measured contempt.
“My Lord, Mr. Irving calls himself a historian. The truth is, however, that he is not a historian at all but a falsifier of history. To put it bluntly, he is a liar.” Like the prosecutor in a murder case pointing to the accused, Rampton pauses and stares at Irving.
“Lies may take various forms,” he continues, “and may as often consist of suppression or omission as of direct falsehood or invention, but in the end all forms of lying converge into a single definition: wilful, deliberate misstatement of the facts.”
There are many ways to fight a libel trial. A defendant can claim that the words complained of have been misunderstood, in which case the trial becomes an argument about the meaning of words. Or a defendant can claim that the offending words were “fair comment”—not allegations of fact, but comments based on beliefs which are themselves substantially true, and which a fair-minded person might honestly believe. Deborah Lipstadt and Penguin, however, are pleading “justification”—that what she said about Irving in her book, though indeed defamatory, is also true.
As if to hammer home what this means, Rampton elaborates his description of Irving’s mendacity. “Mr. Irving has used many different means to falsify history: invention, misquotation, suppression, distortion, manipulation and not least mistranslation. But all these techniques have the same ultimate effect: falsification of the truth.” While Rampton defames him, Irving huddles in his seat, arms wrapped around his chest.
Whatever Rampton says about Irving, one thing he won’t do is underestimate him. As a litigant in person, Irving can appear outgunned, but any illusions Rampton might have had on that count were knocked out of him in the mid-1990s by a pair of penniless vegetarian anarchists who represented themselves in a libel suit brought by Rampton’s client, the McDonald’s burger chain. That trial began in April 1994 and lasted until June 1997, making it the longest trial in English history. When it finally ended the judge found that Dave Morris, an unemployed postman, and Helen Steel, a part-time gardener, failed to prove some of their allegations, and awarded McDonald’s £60,000 in damages the company had no hope of ever collecting. But the judge also found that some of the allegations made against Rampton’s clients had been proved, including the claim that McDonald’s was cruel to animals and exploited children in its advertising campaigns. This public-relations disaster cost the fast-food Goliath £10 million in legal fees and expenses.
The centerpiece of Rampton’s opening this afternoon deals with the same massacre in Riga mentioned by Irving a few minutes earlier. Slowly and methodically, Rampton takes the court through “one example of many to illustrate Mr. Irving’s disreputable methods. In late November 1941 a train load of about a thousand Jews was deported from Berlin to Riga in Latvia, as part of a process which had been initiated earlier that year in accordance with Hitler’s wishes to empty the Reich of its Jews.”
Rampton quotes Irving’s account of what happened next, from the 1977 edition of his book Hitler’s War: “On November 30th 1941 he [Heinrich Himmler] was summoned to the Wolf’s Lair* for a secret conference with Hitler, at which the fate of Berlin’s Jews was clearly raised. At 1.30 p.m. Himmler was obliged to telephone from Hitler’s bunker to [Reinhard] Heydrich the explicit order that Jews were not to be liquidated; and the next day Himmler telephoned SS overall General Oswald Pohl, overall chief of the concentration camp system, with the order: ‘Jews are to stay where they are.’ That is what Mr. Irving wrote.”
In the introduction to that volume, Rampton says, Irving claimed he had “incontrovertible evidence” from Himmler’s private files that Hitler had issued an order protecting the Jews. “Mr. Irving had evidently read Himmler’s notes, and Mr. Irving’s German was then, as it is now, very good. So what did the notes actually say?
“The relevant part of the note for 30th November 1941 reads as follows: ‘Judentransport aus Berlin. Keine Liquidierung.’ That is the German entry by Himmler. The unambiguous meaning of those words in English is: ‘Jew transport’—the word is singular—‘Jew transport from Berlin. No liquidation.’
“Thus so far from being a general prohibition against the liquidation of the Jews, it was merely an order from Himmler to Heydrich that the particular train load of Berlin Jews in question was not to be killed on arrival in Riga.
“The matter gets worse. What was the evidence that Himmler’s order to Heydrich was derived from instructions given to him by Hitler at a secret conference at which the fate of Berlin’s Jews was clearly raised? The answer is none. This was pure invention by Mr. Irving. Indeed, the fact is, as Mr. Irving later discovered, that Himmler did not meet Hitler until an hour after he telephoned this order to Heydrich.
“Thus the matter gets worse still. I repeat Mr. Irving’s words: ‘And the next day Himmler telephoned SS General Oswald Pohl, overall chief of the concentration camp system, with the order ‘Jews are to stay where they are.’
“What does Himmler’s note of his telephone call to General Pohl on 1st December 1941 actually say? It says this: ‘Verwaltungsführer des SS haben zu bleiben.’
“Does this mean, as Mr. Irving told his English readers, ‘Jews are to stay where they are’? No, it does not. It means ‘Administrative leaders of the SS are to stay where they are.’ Nor is there in this day’s entry in the Himmler log any reference to the Jews whatsoever.
“I repeat, Mr. Irving had, as he proudly announced, read the Himmler log and he has very good German.”
From the charge of falsifying history Rampton moves on to Holocaust denial, and as he progresses through his account of Irving’s 1988 “conversion” to the view that Auschwitz, described as “a monstrous killing machine” in the 1977 edition of Hitler’s War, was, as Irving writes in the 1991 edition, merely “a slave labor camp,” we begin to get some sense of what Rampton is up to. Though he represents the Defendants in this action, Rampton is not presenting a defense. In his entire opening, Rampton does not mention Deborah Lipstadt or Penguin Books once. He says not one word about his clients’ character, their reputation, their methods, or their principles. Instead he continues his relentless attack on Irving, who sits and plays with a broken rubber band, like a naughty boy fidgeting in the principal’s office, while Rampton demolishes the Leuchter report, the basis for Irving’s conversion.
After a brief glance at some of Irving’s more unsavory associates—“his audiences will often consist of radical right-wing neo-Fascist, neo-Nazi groups of people”—Rampton concludes his indictment: “My Lord, this is obviously an important case, but that is not however because it is primarily concerned with whether or not the Holocaust took place or the degree of Hitler’s responsibility for it. On the contrary, the essence of the case is Mr. Irving’s honesty and integrity as a chronicler—I shy away from the word ‘historian’—of these matters, for if it be right that Mr. Irving, driven by his extremist views and sympathies, has devoted his energies to the deliberate falsification of this tragic episode in history, then by exposing that dangerous fraud in this court the Defendants may properly be applauded for having performed a significant public service not just in this country, but in all those places in the world where anti-Semitism is waiting to be fed.”
When Rampton sits down, the judge makes one more valiant attempt to drag history out of the dock: “What is at the heart of the case is the manipulation allegation and that involves looking, to a degree anyway, at what the historical documents actually say and mean.” In the coming days and weeks he will try again and again to shift the trial from the messy domain of history—in Leopold von Ranke’s famous phrase, “Wie es eigentlich gewesen ist,” “how it really was”—to the tidier questions of historiography (how history is written) and interpretation (what the documents say and mean). But neither the judge, nor the defense, nor, perhaps surprisingly, Irving himself, make any serious effort to argue with the premise implicit in Rampton’s manner: that whether he is there alone or in company, David Irving himself has also been put on trial.