Discovery
Deborah Lipstadt isn’t the only silent presence at the defense tables. While Irving gives his evidence, Richard Rampton can often be seen leaning to one side, his fingers massaging his wig back and forth over his scalp as he cocks his head toward a stocky, bespectacled man in a plain black robe and no wig. This is Deborah Lipstadt’s lawyer, Anthony Julius.
In Britain, as in America, the law is a hierarchal profession. Trials in Britain are not televised, so there are fewer chances for lawyers to become household names in the way that Johnny Cochran or Barry Scheck or Alan Dershowitz have in the United States. But for the newspaper-reading public, at least, the most flamboyant courtroom advocates in Britain, like Michael Mansfield, QC, or Geoffrey Robertson, QC, have attained a measure of celebrity. These men are barristers; as a more formal society, Britain until recently maintained a strict division between barristers and solicitors, who were not allowed to appear in court. That was reserved for barristers, who got higher fees as well (with Queen’s Counsels, the elite among barristers, at the top of the scale. A reasonably busy QC can depend on an income of hundreds of thousands of pounds.) What solicitors got was steady work. If you wanted to sell your house, or divorce your husband, or draw up a contract, then you needed a solicitor. Anthony Julius trained as a solicitor. When Princess Diana had to give up being Mrs. Charles Windsor she came to Anthony Julius to negotiate her settlement.
It is difficult for any foreigner to appreciate the armory of blandishments, threats, inducements, incentives, and wire-pulls available to the British royal family, even today. The Labour Party are pledged to reform the House of Lords, so faithful retainers can no longer expect that they—and their first-born sons, in perpetuity—will sit by right in the upper chamber. But no one has proposed taking away the Queen’s power to create dukes, earls, viscounts, and all the lesser titles. Then there are the grace-and-favor residences. Not to mention the literally thousands of perks, patronage jobs, and gifts which will some day be Charles’s to bestow—and which are already in the gift of his mother, whose disdain for her soon to be former daughter-in-law was notorious.
The Princess of Wales needed an outsider, someone who the British establishment would regard as “unclubbable,” someone who couldn’t be “gotten to.” A Jewish partner in a Jewish firm, Anthony Julius got Diana a divorce settlement worth £17 million ($25 million). By way of a thank you, Diana sent him a silver blotter from Asprey’s. Her patronage made him the most famous lawyer in Britain. She also made him executor of her will.
It was Alan Dershowitz who told Deborah Lipstadt she needed her own lawyer. When a newspaper or a magazine is sued for libel, the writer and the publication are often represented by the same person. The economics of book publishing, however, mean that the interests of writers and their publishers do not always coincide. A publisher may be tempted to cut its losses at the writer’s expense—not necessarily in terms of money, since as Michael Rubinstein has written, “publishers . . . normally bear the brunt of the claims,” but in terms of credibility or reputation.1 Though he later acted for David Irving, in the Exodus case Rubinstein was the publisher’s lawyer; Leon Uris used somebody else.
Penguin has a team of in-house lawyers, headed by Cecily Engle, a former libel lawyer, and Helena Peacock. They also had outside counsel: Kevin Bays, a litigation partner at Davenport Lyons, a big London media and entertainment firm, and Mark Bateman, an associate at the firm. Bays and Bateman were in court every day; Engle and Peacock were there most days. Penguin told Lipstadt they would be happy to represent her; she was also welcome to retain her own counsel, but in that case she would have to pay for it herself. Lipstadt approached the Board of Deputies of British Jews for advice. Lord Mishcon, the name partner of Julius’s firm, Mishcon de Reya, had represented the board for many years. Julius was asked if, at least initally, he’d be willing to represent Lipstadt on a pro bono basis and he said he would.
“I betrayed my vocation,” Anthony Julius says self-mockingly one morning a few weeks before the trial, “so I might as well be a lawyer.” Though the desk in his Bloomsbury office is a lawyerly clutter of files and documents, some belonging to his client Deborah Lipstadt, every other surface is covered by a blizzard of art books that fall from tables and chairs onto the carpet forming drifts around our feet. Julius is writing two books on modern art, but art was not his vocation. “English was my vocation; I thought I would like to teach. The only reason I ended up doing law is because I didn’t think I could get a good enough degree to stay on and do research.”
The oldest of four sons, Julius eventually graduated from Cambridge with first-class honors and could easily have done a Ph.D. But he’d already been accepted at law school. Then his father, a menswear retailer, suddenly died of a brain tumor, so after taking six months off to help in the family business, Julius says, “I stuck with law.” Though his rise in his unwanted profession has been meteoric, he remained wistful, and returned to literary studies on a part-time basis, completing his doctorate a few years ago.
His thesis on T.S. Eliot, Anti-Semitism, and Literary Form was published by Cambridge University Press. It begins:
Anti-Semites are not all the same. Some break Jewish bones, others wound Jewish sensibilities. Eliot falls into the second category. He was civil to Jews he knew, offensive to those who merely knew him through his work. He wounded his Jewish readers, if not the Jews of his acquaintance, to whom, apparently, he was “not disagreeable.” Though worth noting, this is not a distinction that yields a defence to the charge of anti-Semitism. If the work, or some notable part of it, is anti-Semitic, it is the work of an anti-Semite.2
Every culture has its own stereotypes. In America, Jews are variously supposed to be clever, grasping, clannish, or pushy, with sexual and political associations ringing the changes from Bolshevik bohemians to reactionary patriarchs. In Britain, Jews are supposed to be touchy. Touchy about having to sing hymns at school, touchy about innocent remarks—like when Harold Macmillan described Margaret Thatcher’s cabinet as containing “more old Estonians than old Etonians”—and touchy about little things like quotas or the assumption that to be English you have to be a white, Christian Anglo-Saxon. By taking on T.S. Eliot, an icon not only of English literature but (though he was actually a native of St. Louis) of the very idea of Englishness, it is as if Julius is saying, “You want touchy? I’ll give you touchy!”
To his detractors, Julius’s patient separation of the several strands of anti-Semitism found in poems such as “Gerontion” and “Sweeney Among the Nightingales” is just “oversensitivity.”3 But the touchiness, or, to put it more neutrally, the extraordinary attentiveness, of his reading is precisely the great strength of Julius’s approach. The history of anti-Semitism has been rehearsed many times; so has August Bebel’s dictum that, politically, anti-Semitism is the socialism of fools. What Julius does is attend to anti-Semitism as a language, a medium for communicating certain ideas, a discourse. This is important because, in a tolerant society like Britain (where, for example, mixed-race couples are far more common than in the United States), prejudice mainly shows itself at the level of speech rather than violence. It is also important because, particularly in Britain, literature has always played a significant role in repeating and elaborating on Jewish stereotypes.
From Christopher Marlowe’s Jew of Malta and Shakespeare’s Merchant of Venice to Hilaire Belloc, who wrote a whole book attacking Jews, and Rudyard Kipling, who wrote poems on a similar theme, to the novelist John Buchan (whose hero, Richard Hannay, learns in The Thirty-Nine Steps that “the man who is ruling the world just now” is “a little white-faced Jew in a bathchair with an eye like a rattlesnake”) there is what might be called a tradition of literary anti-Semitism. Most of the more recent practitioners have been Tories,* but then the party of Disraeli (and Thatcher) has long given its anti-Semites cause for complaint. Indeed it is this culture of complaint, whose most prominent representative in recent years was the late Alan Clark, Tory MP and latter-day advocate of a negotiated peace with Hitler, that constitutes David Irving’s intellectual hinterland.
In his scrupulous dissection of the way in which anti-Semitism not only influenced Eliot, but actually inspired some of his most powerful verse, Julius’s manner is critical, not prosecutorial. But in his mapping of the mechanisms behind other scholars’ blindness to Eliot’s offensiveness, as in his approach to Irving’s anti-Semitism, the professionalism of Julius’s approach masks a cold fury that is entirely personal.
There was a “Jewish quota” at City of London, the private secondary school that enabled Julius to become the first member of his family to go to university. “I know there was a quota,” he told me, “because the school wrote to my father and said: Your son passed the [entrance] exam. We’ve given him a reserve place, and we’ll see if any other Jewish boys drop out.”
With his large, close-cropped head, ambling gait, and slightly stooped posture, Julius looks a bit like a bear in a pinstripe suit—that is if you can imagine a bear who, though capable of tearing you apart, would much rather simply persuade you of the error of your views. When I ask him, with my tape recorder running, why this case matters, his response is guarded, deliberately offhand: “Does this case matter? To who? It matters to Deborah Lipstadt because she’s being sued.” When I turn the tape recorder off his words are equally careful, but there is a flash of anger in his manner that is actually frightening in a man otherwise so perfectly contained.
Something of a polymath, Julius recently stepped down after nearly a decade as his firm’s managing partner in order to pursue his interests in writing and art. He has written a study of poet Philip Larkin, and recently gave the Neurath Lecture at the National Gallery. An essay responding to critics of his book on Eliot is dedicated to the painter R.B. Kitaj. But his fame has come at a price: though Julius donated his own time spent administering the Diana memorial fund, that didn’t stop the tabloids from attacking Mishcon de Reya’s fees for the firm’s work on the fund. More unwelcome attention came when Julius left his wife after he fell in love with a woman whose father Julius represented in a libel action. She and Julius later married.
When Deborah Lipstadt came to see him, Julius’s life was still in turmoil. So was the case. Irving had filed libel claims against the Observer and writer Gitta Sereny at the same time as suing Lipstadt and Penguin. Ironically, Sereny’s article, “Spin Time for Hitler,” spent nearly as much space attacking Daniel Goldhagen’s “hymn of hate to the Germans” as it did warning readers away from Irving, “a man of talent, both as a researcher and a writer,” but a master of “deliberate falsehood.”4 Since the cases seemed to overlap, Penguin’s outside counsel had begun meeting with lawyers from Lovell White Durrant, another firm with a big media practice who represented Sereny and the Observer. When Julius and James Libson, a Mishcon partner, joined them, they might have noticed three things: None of the other participants were Jewish. None of them seemed in a hurry to go to trial. And none of them had any experience with David Irving.
The first reply to Irving’s claim had been drafted before Mishcon came on board, and was essentially identical to the reply in the Observer case. It quoted from Irving’s books and published interviews, and gave the Goebbels diaries episode considerable attention. Though hardly a surrender document, it seemed drafted in the hope that Irving, once he realized the other side was willing to go to trial, would simply give up. It was defensive, in every sense of the word.
Anthony Julius knew that David Irving wouldn’t go away. In 1992 Irving was expelled from Canada, and one of the documents he later obtained under Canada’s Access to Information Law was a dossier on his activities compiled, Irving claimed, by the Board of Deputies of British Jews and sent to the Canadian authorities. Irving wanted to sue for libel, but Julius, who acted for the Board, says that Irving was “sadly too late” in filing the proper papers. Julius doesn’t look too broken up by this. Indeed when Irving went to court to seek permission to file “out of time,” Julius not only opposed him, he convinced the judge that Irving should pay the Board’s £10,000 costs, and then, when Irving failed to pay, moved to have him declared bankrupt. Irving came up with the money.
Deborah Lipstadt will not be saved by the bell. Her case would have to be fought, and fought hard. Julius immediately took steps to prepare for litigation, applying to become one of the first solicitor-advocates under new rules that allow properly qualified solicitors to argue cases before the courts. There was no guarantee that Penguin’s lawyers would support the more aggressive—and more expensive—strategy he and Libson had in mind. As a solicitor-advocate, Julius could, if he had to, argue the case himself. He also took over “Discovery,” the pre-trial stage where, under the rules of procedure, both sides are obliged to make available any relevant evidence or documents to the other side’s lawyers. The burden of proof was against him, and if Julius had to go to court on the basis of the documents he had so far—Irving’s books and the other material cited in the first reply to Irving’s claim—he’d probably lose.
Discovery is the nastiest stage you get into in a High Court action because it’s when you are required by law to open your innermost secrets, your innermost files and documents: I had to provide copies of all my telephone logs and private letters and diaries, and nobody can—I don’t mind, because I’ve got an open conscience.
David Irving, speech to the Clarendon Club,
September 19, 1992
As he’d reminded the judge in his opening speech, David Irving was an experienced litigant. In 1992 he’d sued the Sunday Times after the paper refused to pay him the balance of his fee in the Goebbels diaries episode. Though that case never went to trial, Irving, as he told his supporters at the Clarendon Club, knew all about discovery. Or so he thought. To Irving, discovery was about documents, and as one of the world’s great document hounds, he had nothing to fear. “As a researcher,” wrote Gitta Sereny, “he is good enough to make it difficult for anyone to fault him who doesn’t know the material he uses as well as he does—and let us face it, few do.”
Lipstadt’s lawyers wanted—needed—access to Irving’s material. “We decided that in order to win this case we needed to see what Irving had in his study,” said James Libson. But they also needed to get inside Irving’s head, and documents alone wouldn’t get them there. To Mishcon de Reya, discovery wasn’t just—or even primarily—about documents. Discovery was about control.
“We wanted to control the course the proceedings took,” said Julius. “First of all because when you are defending it’s very easy to be reactive.” Reactive was the strategy he’d discarded. Irving’s complaint made it clear he intended to put the Holocaust on trial. Instead, Julius would use discovery to put Irving on trial, to “take the initiative. Run it as if it was a history seminar and Irving was a rather unintelligent student.” The aim throughout was to make the trial about David Irving’s methods, rather than Deborah Lipstadt’s book.
To lead his seminar Julius needed a QC who could master the material as well as the part. In the summer of 1997 he and Libson went to see Richard Rampton. They took with them a single sheet of paper on which they’d outlined their new strategy: to use academic experts to investigate Irving’s historiography and the evidence upon which it purported to rest, and to use Irving’s own words—in speeches, interviews, and diary entries—to show he was an extremist.
Barristers operate under the cab-rank principle, meaning they are supposed to take whatever comes up. But they have ways of making themselves unavailable. Rampton had written a textbook on libel. Known for his ability to master detailed briefs, he had an unfulfilled ambition to write a biography of Mozart, but no pretense to being an intellectual, and, for a barrister, a notable lack of flamboyance. In his seminar, the attention would be on Lipstadt’s experts. Might he be available? Rampton, intrigued, told them to come back if the case went to trial.
Now they needed an expert. Sereny’s lawyers had recommended Eberhard Jaeckel. A leading authority on Hitler, Jaeckel was Professor of Modern History at the University of Stuttgart, and the author of Hitler’s Weltanschauung. But in 1981 he’d been duped by Konrad Kujau, who forged the “Hitler diaries,” into putting bogus poems into a collection of Hitler’s early writings.5 Though Jaeckel had publicly admitted his error, Irving could have used the incident in cross-examination. Besides, Jaeckel had already written an attack on Irving.6 The proposal that Jaeckel serve as point-man for the defense case was one reason Julius decided to run the discovery.
“I had the sense,” said Julius, “that we had to engage with Irving three ways: historical, historiographical, and the political. So I had already separated out those categories. I also had the sense that they represented a hierarchy, and that the historical and the political were the bases of a pyramid, and that the apex was the historiographical. So it was important to get a historian who was at home in the historiographical, but who was also a Germanist.”
Since the trial would take place in London, they wanted someone reasonably local. And they needed someone who could start work as soon as possible. “We needed experts before discovery, to advise on discovery,” said Libson, who studied English and Arabic at Leeds University. “We didn’t want generalists,” Libson added. He and Julius needed someone who not only knew how to interpret wartime German documents, but also knew where to look for them. Ian Kershaw, author of a monumental biography of Hitler, was too busy; he was also rumored to be advising Sereny. Similar considerations ruled out Jeremy Noakes, editor of a massive edition of source documents on Nazism.
Ideally they also wanted someone who couldn’t be seen as Irving’s rival. As Julius quickly realized, they wanted Richard Evans. “I’d read his book In Defence of History which I very much liked. And I’d also read bits of Rituals of Retribution (a study of capital punishment in Germany).” Professor of Modern History at Cambridge, Evans is a Fellow of the British Academy and of the Royal Historical Society. He is, as they say, familiar with the literature—hardly surprising considering he wrote much of it, including standard works on German feminism and the German underworld and two books on German historiography: Rereading German History: From Unification to Reunification, 1800–1996 and In Hitler’s Shadow: West German Historians and the Attempt to Escape from the Nazi Past.
In the fall of 1997 Julius and Libson met with Evans, whom they found to be “a person of intellectual confidence and composure.” Better still, though he’d worked on the Nazi period in several of his books, Evans had never come across David Irving personally and had no prior opinion of his work. On the stand, Evans’s intellectual confidence would get him into trouble, but as a guide to the deeps and shallows of Irving’s documents he was invaluable. Evans brought in two of his graduate students, Nicholas Wachsmann and Thomas Skelton-Robinson, to help with the task of reading through all of Irving’s books—in English and German—in order to draw up a “wish list” of documents to look for in discovery. Evans also recommended Hajo Funke, Professor at the Free University of Berlin and an expert on the contemporary German right.
“We mounted a gigantic disclosure* operation,” said Libson. Under the rules, both sides were required to make available to the opposing side any material either party had in its “possession, custody or power related to any matter in issue.”7 Discovery itself is automatic. But if either side feels the other is holding back, they can apply for a court order to enforce “fuller and better” discovery; penalties for failure to comply can include dismissal of the entire case, striking off one of the parties (at one point Irving applied to have Lipstadt excluded, leaving Penguin to defend the case on its own), even imprisonment for contempt.
The first stage, the exchange of lists, took place in the late winter and early spring of 1998. “Irving’s first discovery was just a list of his books, plus commendations of his work by other historians and some historical documents,” said Libson. “There was no record of his contacts with right-wing extremists, and there were no diaries.” Julius made an application for a court order to force Irving to produce more material. He would have to persuade a special judge, called a Master, that Irving had held back documents, and that these were relevant to the case.
“I wanted to make the applications myself,” said Julius. “But I also wanted to make them conservatively because it was very important we should win every application. We didn’t want to give him [Irving] any morale victories. That’s . . . the psychological battle.” Mishcon’s strategy of going on the attack depended on ammunition they could only get through discovery. Without it, what they had was the legal equivalent of sticks and stones. Lipstadt’s case now hinged on whether Julius could get the right order on discovery. Irving’s first list had given them little more than a tiny lever, but Julius would use it to pry open Irving’s citadel.
Before they faced the Master, there was one other question that Libson and Julius had to decide.
Like the Exodus trial, Irving v. Lipstadt was in part an argument about what had or had not happened at Auschwitz. In order for the jury to have vividly before them the horrors committed by Dr. Dering, the Exodus lawyers called a succession of his victims to testify. These men and women told of the terror of having testicles or ovaries removed, often without adequate anesthesia, amid the generally unsanitary and chaotic conditions of the camp. The women spoke of the pain of childlessness. That many of them were unable to say with certainty it had been Dering behind the surgeon’s mask was unfortunate for the defense, but the witnesses were credible and their stories were generally believed by the jury. How better to underline the absurdity of Holocaust denial than by calling survivors, eyewitnesses who could say: “I am the man. I saw! I suffered!” Hadn’t Elie Wiesel said that “any survivor has more to say than all the historians combined about what happened”?8
Though fewer in number, and nearly half a century older, there were still Auschwitz survivors who would have been willing and able to testify if asked. Julius decided not to ask. One reason was forensic: “We’re not out to prove the parameters of the Holocaust. To an extent we had to do some of that—particularly with Auschwitz,” said Libson. “Survivor testimony would have pulled the case further in that direction.” Excluding survivors helped keep the focus on Irving, and on his evidence.
Then there was what Julius described as a “moral reason: Why should we expose survivors to cross-examination by a belligerent anti-Semite?” In the event, Irving conducted cross-examination with relative decorum (aside from asking Lipstadt’s experts if they were “in the pay of the Israeli government,” a gauche but not terribly incendiary way of referring to Yad Vashem or the Sassoon Center). But at the Zündel trial, attorney Doug Christie had subjected survivors to a sustained verbal assault, and Libson and Julius felt it would be “obscene” to risk that happening again.
There was an additional reason, though both Libson and Julius are too tactful to mention it. As every police reporter knows, just because a witness isn’t lying doesn’t mean they are telling the truth. Deborah Lipstadt told me: “Lots of survivors who arrived at Auschwitz will tell you they were examined by [the infamous Dr. Josef] Mengele. Then you ask them the date of their arrival, and you say, ‘Well, Mengele wasn’t in Auschwitz yet at that point.’ There were lots of doctors . . . [somehow] they all become Mengele.” One shaky witness, one survivor who, over half a century after Auschwitz, became confused about whether the crematoria at Birkenau had four ovens or five, whether the door to the gas chambers opened in or out, probably wouldn’t lose Lipstadt her case. But it wouldn’t help.
Besides, unlike Penguin, who simply wanted the case to go away, or their lawyers, who simply wanted to win, Julius, like his client, knew the case had to be won the right way. Convincingly. On the evidence. And in a way that would make the next person who wanted to rehabilitate the legacy of the Nazis have to work that much harder to get a hearing. In a few years—maybe 10, almost certainly 20—there won’t be any survivors left. Nor any perpetrators either. No witnesses. Perpetrator trials are probably already finished. Survivor testimony would have made Irving v. Lipstadt the last trial of its kind. Instead it is the first of a new generation: a trial about the Holocaust in history instead of a trial about the Holocaust.
The discovery hearings were scheduled to begin on September 10, 1998 before Master John Trench, in the judge’s chambers. Over the preceding spring and summer Libson and the two graduate students made regular visits to Irving’s flat to inspect the material that was in his first list.
“I went to Irving’s flat every day to look at documents,” said Libson. “Nick and Thomas came too. I looked for obvious stuff; they did the more difficult job. We spent a total of two months going through the list.”
Some of what they wanted was in plain sight. The existence of Irving’s diaries, for instance, was hardly a secret. Over the years he’d shown extracts to favored journalists, and would even publish portions on his website. Irving’s position on the diaries—like his position on many other items—was minimalist. If the lawyers let him know which dates they wanted, Irving promised to take a look and see if there was any relevant material. If he found any, he’d be happy to disclose it. Anything broader, he argued, would open his diaries to a fishing expedition by the defense.
In his affidavit before the hearing, Julius didn’t exactly deny this. Rather he argued that since Irving brought this case, and the law said his client had a right to defend herself, that gave him a fishing license. It would be up to Master Trench to decide who was right.
But most of what the defense needed was, if not concealed, far from obvious. Irving’s first list made reference to his “Action Reports”—an irregular publication circulated among his supporters. He hadn’t actually listed the whole set, but some of them were on his website, and it would have been foolish to ignore them. Among the “Action Reports” he did mention were scattered references to the Institute for Historical Review (IHR), a pseudo-academic think-tank in California that, along with the Committee for Open Debate on the Holocaust, was one of the main channels for the distribution of literature contending that the Holocaust was a hoax. Libson knew that Irving had spoken at IHR conferences, and been an invited guest at IHR events, but there was no correspondence to or from IHR officials on Irving’s list.
Irving denied having any correspondence with Robert Faurisson, the French author of articles on “The Problem of the Gas Chambers” and “The Rumor of Auschwitz” and Irving’s fellow witness at the Zündel trial. Though he kept detailed phone logs, Irving’s list made no mention of telephone conversations with Zündel. In court papers Irving denied having extremist views; he implied his relations with Faurisson and Zündel were distant and claimed he had “taken issue” with their views.9
Evidence of Irving’s unsavory associations was only part of what Libson was looking for. The task of figuring out what source materials to ask for was much more complicated, involving a kind of documentary dead reckoning from the sources Irving had listed to those that were missing. Several of Irving’s books contained accounts of Kristallnacht—November 9–10, 1938, the “night of broken glass,” when Germany’s synagogues were set alight, Jewish homes and businesses vandalized, and Jews arrested, beaten, and killed. In part these accounts were based on interviews Irving had conducted with a number of Hitler’s adjutants. “He’d cited these in his books,” said Libson, “and since he’d interviewed them himself, there was no question about that, and he gave us transcripts or interview notes. But he’d also used other sources, and those he didn’t disclose.”
What Irving did instead was to produce a mass of documents having little or nothing to do with the suit, but which Libson and his assistants were forced to read in order to rule them out. Irving’s first discovery produced nothing, for example, regarding his relations with the National Alliance, an American white-supremacist organization under whose aegis he’d given a number of lectures. But there was a whole sheaf of material detailing his invitations from various school and university groups, including a letter to the secretary of the Durham Union Society, a university debating club, listing “female candidates with the necessary attributes to attract the male vote, if not intellect,” to speak in opposition to Irving on the motion “A woman’s place is in the home.” He also volunteered a videotape recording the birth of his daughter, and audiotapes relating to the Kennedy assassination.
By the time Irving found himself in front of Master Trench he’d been playing cat and mouse with Mishcon for months. Indeed the weekly, sometimes daily serve and volley of motions, summonses, and documents might well have come to seem like a game. When Irving told me the story of his brush with the Official Secrets Act, he described his interrogators as “Officers and gentlemen, the whole bunch. They play cricket with a straight bat.” Discovery, he was about to learn, was a whole different ball game.
The hearings before Master Trench take two days. Julius opens with a sketch of the issues in the case, quoting from the pre-trial pleadings and from Lipstadt’s book calling Irving “a dangerous spokesperson for Holocaust denial . . . a historian who . . . distorts historical evidence . . . an Adolf Hitler partisan.” This, Julius points out, “is happily one of those trials where there is no essential dispute between the parties on the meanings. And that allows everyone to be sensible and just concentrate on the issue of justification.”
There is no reason for Irving to disagree. Everything Julius has said so far is true. And as he continues to summarize his own affidavit, once again Irving has no reason to speak. But as Julius continues talking, outlining the six different classes of defect in Irving’s discovery, and Irving remains silent, control over the course of the hearing comes to rest firmly in Julius’s grasp. When Irving does finally speak up, on page 11 of the transcript, it is merely to confirm that he is indeed still looking for some photographs not yet produced. The next time Irving addresses the Master it is on a convivial note:
MASTER TRENCH: I see one of the letters was a letter to Leo Gradwell, the magistrate.
MR. IRVING: A charming man.
MASTER TRENCH: Yes, I have appeared in front of him previously. Have you had to?
MR. JULIUS: No, I have not, Master. (Laughter)
MASTER TRENCH: He has a V[ictoria] C[ross] I think, does he not?
MR. IRVING: Yes, sir, he is a real hero.
Irving’s affable manner may be intended to sustain the illusion that he and the Master are social equals, fellow Englishmen, and military history buffs. Irving’s diary for the day, posted on his website, describes Julius as having “the manners and delivery of a hod-carrier.” In any event, his pose of superiority has cost Irving his only chance to derail Julius’s game plan.
“When we got into court we were so well prepared,” said Julius. “We broke down the kinds of documents into categories, and we gave the Master a draft order we wanted him to make at the very beginning of the case.” In a way, from that point Irving lost it. With the Master already in “I’m making an order” mode, the rest of the hearing just became an argument about terms.
The argument about terms takes two days. On most items, the logic of Julius and Libson’s drafting is so compelling Irving offers only token resistance, asking that any order to disclose correspondence be limited to a fixed period of time (Julius proposes “his entire career”) and complaining that his diaries “occupy very many feet of shelf space, individual diaries, eight or nine hundred pages per year of single space typescript. If you look through twenty years of diaries for the name Zündel or something like that, it would be a major task.”
Julius is having none of this: “Professor Lipstadt is entitled to read all diary entries relating to the issues. It is not for her to have to request specific passages. There is no question of such an entitlement being oppressive. If Mr. Irving was not prepared to give discovery of those parts of his diaries that relate to the pleaded issues, he should not have brought the case. Oppression arises, in this instance, not in the obligation to disclose, but in not disclosing the entries.” Subject to suitable language restricting the order to relevant material—“We do not seek the irrelevant,” says Julius, volunteering to draft the required clause—the Master agrees.
On the question of his contacts with various figures on the far right, Irving puts up stiffer resistance. “You must be aware,” he tells the Master, “that if you make such an order this imposes on me an immensely onerous task, which will last many months.” He proposes instead limiting the order to a specific list of names, and objects specifically to Ewald Althans, a German skinhead activist, and Arthur Butz, author of The Hoax of the Twentieth Century, on the grounds that Lipstadt’s book does not connect him with Butz. Julius points out that Butz, like Althans, is mentioned in Lipstadt’s pleadings. “That seems sufficient to bring him in, does it not?” asks Trench. “If they are named people, I do not think you can possibly object.
They have barely returned from lunch on the first day when Julius begins a line-by-line presentation of the order he and Libson have prepared. Owing to the evident personal hostility between Irving and Julius, there are still some tense moments. Julius cites a “plan of Colditz Castle” as an example of the kind of irrelevant document Irving has produced. Irving says the plan isn’t irrelevant; it “has a gas chamber on it.” Julius asks him where this is. “In the caption at the bottom,” Irving replies, “it says: ‘Delousing shed.’ . . . Every prison camp had a delousing shed in it in which the clothing was treated with cyanide gas.” Trench asks: “Auschwitz was not a prison camp, was it?” Irving turns to Julius: “Mr. Julius? Auschwitz prison camp?” This is too much for Julius. “Look, I think your views are completely absurd,” he replies. When Irving attempts to continue, he interrupts: “You see, Master, this is where we penetrate beyond the fringes of madness.”
On the second day, Irving, perhaps seeking revenge, implies that Lipstadt’s lawyers can’t be trusted. They are discussing the Goebbels diaries, which Irving describes as his “stock in trade.” He tells Trench he is “reluctant to part with the content of these diaries . . . with valuable trade secrets which the opponents are now asking under legal pretext to have a look at.” It is, he says, as “if somebody wants to know the secret formula to Coca-Cola on some pretext.”
Generally, however, both sides manage to maintain civility, Julius keeping his contempt in check and Irving acting as if haggling over the precise terms of discovery really is somewhat beneath him. As it becomes more and more obvious that the hearing is going against him, Irving becomes more and more detached. Julius, drafting on his feet, proposes various forms of wording in response to Trench’s questions; Irving makes a few half-hearted sallies, then contents himself with either pedantic observations or the odd attempt at self-mocking humor. Asked the whereabouts of some wartime interrogation transcripts, he replies: “I had them at one time and. . . .”
“And sent them to the Bundesarchiv?” offers Master Trench.
“In my kind-hearted neo-Nazi way,” says Irving, “I gave all my records to the German government and that is where they are now.”
On the afternoon of the first day, when Julius complains about how much irrelevant material they have been saddled with—“Master, I think a jury will begin to tear its hair out if it has to look at this”—the judge asks: “Is there going to be a jury in this action?” Irving says he hasn’t decided yet. Later, outside the session, Julius approaches Irving. “Obviously it’s got to be a judge only because of the complexity of the case,” says Julius. To his amazement, Irving agrees. “Of course. Of course,” says Irving.
Julius had always wanted to dispense with a jury. Partly for financial reasons: “The trial would have been three times as long,” he said, which would place an even greater financial burden on his client. But the issue of control was never far from Julius’s mind. With a jury as his audience, Irving might be tempted to grandstanding, which would also have drawn out the trial. Finally, a judge has to spell out the reasons for his verdict. A “reasoned judgment” that went against him would be much harder for Irving to brush off. “The closest you get to a judgment in a jury trial is the judge’s summing up,” said Julius, “but that’s immediately lost in the jury verdict.”
Why did Irving agree so quickly? Given the class background of most high-court judges, perhaps he felt he had a better chance of getting a sympathetic hearing. As Irving frequently remarked, Mr. Justice Lawton, the judge in both Cassell v. Broome and the Exodus trial, had once been a follower of Oswald Mosley. Perhaps he felt that the average Briton—the proverbial man on the Clapham omnibus—was more likely to be anti-German (German domination of Europe being a popular theme on tabloid front pages) than an anti-Semite.
Gratified at having achieved another of his principal strategic objectives—without an argument—Julius was sufficiently surprised by Irving’s agreement to write asking him to confirm his position. “It is my belief,” Irving replied, “that the issues before the court, particularly in matters of semantics and the German language, are sufficiently complex to require the attention of a learned judge, and too complex to confront a jury with. I further believe that any attempt to prejudice a fair trial of this case by the introduction of emotional or colourful evidence about the Holocaust and other horrors of World War II would be better withstood by a judge than by a jury.”
His considerable capacity for self-delusion notwithstanding, David Irving is an intelligent man. He’d now gone two rounds with Anthony Julius, who bloodied his nose in the Board of Deputies suit and outboxed him in discovery. Time for a change in tactics. During the lunch break on the second day of discovery, Irving approached Penguin’s lawyers. He would be willing, he told them, to settle the case for £500. Were they interested? Later that evening, Irving sent his terms in writing to Mark Bateman, the young lawyer from Davenport Lyons, Penguin’s outside counsel: If Penguin would write him “an open letter withdrawing the allegations made” in Denying the Holocaust, would promise not to republish the book, and would “as a token of apology . . . pay the sum of £500 to the British Limbless ex-Servicemen’s Association in the name of my daughter (who lost her legs),” Irving would drop Penguin from his action.
“It is quite apparent to me,” he wrote, “that your client does not share the bitter hostility of Ms. Lipstadt and Mr. Julius.” Irving proposed keeping the terms of any settlement confidential, adding “I do not intend to settle with Ms. Lipstadt.”
Whatever his personal feelings about Irving, Kevin Bays, head of litigation at Davenport Lyons, and Bateman’s boss, had to take Irving’s offer seriously. The enormous expense of going to trial means that most libel actions settle out of court. The satirical magazine Private Eye, a Bays client, often runs tiny boxes apologizing to one or another of its many targets, frequently with the stipulation that “a substantial sum” has been paid to the offended party. Robert Maxwell threatened Private Eye many times, usually over stories that were true, but couldn’t be proved. Maxwell generally settled, and the one time he insisted on going to trial nearly bankrupted the magazine. For Bays, who had recently concluded a settlement between his client the Daily Mirror and singer Michael Jackson concerning articles about Jackson’s alleged plastic surgery, settlement was all in a day’s work.
Penguin, too, had to take the offer seriously. In May Penguin’s lawyers and Mishcon de Reya had concluded a formal agreement about how the case would be paid for. Penguin was already responsible for the cost of their solicitors at Davenport Lyons as well as a junior barrister, Heather Rogers, who would work with Rampton at the trial. Though Rampton would be representing both defendants, the publishers had agreed to cover all of his fees too. Penguin also agreed to pay all fees and expenses associated with the experts, who had grown in number over the past few months as discovery documents began to trickle in. That left only Mishcon de Reya’s fees to be paid by Lipstadt.
Letting the book go out of print was not a problem.* And at the rate of £150 an hour that Penguin was paying its many experts, the settlement would improve the company’s balance sheet within an hour of acceptance. The problem was the apology. If Penguin did walk away from the suit—and there were sound business reasons to at least consider doing so—that would be a serious blow to Lipstadt’s credibility. Which is what Irving hoped for. What he didn’t know (since he assumed “international Jewry” bankrolled his opponents) is that it would have also cut off the defense’s funding.
Irving’s offer came on a Friday. On Monday afternoon, Penguin turned him down. Three weeks later he made a formal “Part 36” offer to settle the case on the same terms, though this time, interestingly, the offer was addressed to both defendants. Once again the offer was refused.
How seriously had Penguin considered settlement? Helena Peacock, the company’s legal director, says Penguin never wavered in its resolve This now seems clear. But at the time Anthony Julius wasn’t taking any chances. He and Libson only found out about Irving’s offer via Irving’s web site, and when they phoned Bateman for an explanation he confirmed that Irving had approached him but said he was still awaiting instructions from Penguin. At a meeting after the initial offer had been turned down, Julius told Davenport Lyons that if Penguin had settled on Irving’s terms, he would haved moved to bind them back into the case—on Irving’s side. If St. Martin’s had made fools of themselves by first embracing Irving, then disavowing him, the consequences of reversing the process would have been a public relations nightmare for Penguin. Cricket or not, this was hardball.