Chapter 58

September – December 1933

Monday, four days before the proceedings were to start, key members of the Hitler inner circle—Wilhelm Frick, minister of the Interior; Hans Frank, Wolf’s personal lawyer; Franz Gürtner, minister of Justice; Herman Göring, Joseph Goebbels, and me—met in the Chancellery to organize the trial.

Once we settled around the conference table, Göring began. “The trial begins Thursday. We all know that there is no evidence against the Bulgarians. Torgler doesn’t matter. He’s a German Communist, so he will be found guilty.”

“The Bulgarians are just as guilty,” said Goebbels. “I don’t understand why we can’t have the trial before the Sondergericht—the Special Courts—that we set up in March. Those judges are reliable.”

“We can’t,” said Gürtner, who clung to the fashion of the late 1800s, with his starched wing collars and pince-nez glasses. “The jurisdiction for all treason cases is exclusive to the Fourth Criminal Panel of the Supreme Court in Leipzig. This cannot be changed before the trial.”

“Herr Minister,” Göring broke in, “all that matters is who the judge is, and if that judge is reliable.”

“Hermann,” Gürtner replied, “you must believe that if we handpick and talk to the judges before the trial, the convictions would be worthless.”

“Nonsense,” Goebbels scoffed. “I will make sure the propaganda goes our way. As long as public opinion is with us, the public will not care how the judges reach their conclusion—only the conclusion matters.”

Gürtner threw up his hands. “The German judiciary has a tradition of independence. It will not—”

“Come now, Franz,” Hans Frank—Wolf’s lawyer—interrupted. “When you were minister of Justice in Bavaria, you helped us with the judge in the Putsch Trial.”

“I sought leniency for Hitler, yes. But I could not get him acquitted,” answered Gürtner. “I didn’t even try. The same goes for this trial. Nobody can influence our Supreme Court judges.”

None of us would admit, even in the privacy of this room, that the party needed a guilty verdict to justify the Reichstag Fire Decree. If the trial demonstrated that there was no imminent Communist threat, our party would be discredited, and Hindenburg could reverse the laws that suspended civil liberties in Germany.

Göring brought his fist down on the table so hard it startled us. He glared at Gürtner. “Don’t you understand that Goebbels and I are listed as witnesses?”

“This has been your show all along, Hermann. If you feel your testimony won’t hold up, don’t take the stand.”

“That is not the answer I expected from you, Franz. We need to control the judges.”

“Let’s all calm down,” said Frick. “We know that no matter the verdict, Joseph will make it favor us.” Everybody rapped the table in agreement. Frick held out his hands. “As soon as this trial is over, we will create a new court called the Peoples Court—Volksgerichtshof. The judges will be vetted ahead of time for their beliefs and moral compasses. This will ensure their reliability.” Before anybody could ask, he added, “This already has Hitler’s approval.”

I sat there in disbelief. Would we really do this? What kind of justice system picked judges in order to reach predetermined judgments?

September 21, 1933

I occupied a reserved seat for the opening of the trial. A feeling of déjà vu came over me when I found myself seated next to Hans Frank. Fourteen years earlier, he was the first man I encountered at the Thule Society. Now we sat in the privileged seats reserved for Germany’s leaders.

Frank leaned over and whispered, “It’s a good thing we tapped Wilhelm Pieck’s phone.”

“The head of the KPD?”

“The same. He instructed Ernst Torgler to claim that Göring and Goebbels used van der Lubbe to set the Reichstag on fire.”

“That’s ridiculous! Van der Lubbe will deny that. He hates us!”

Frank shrugged. “Half the world is convinced we used a mental defective to gain the advantage so we could issue the Fire Decree.” Frank pointed at van der Lubbe. “Look at the way his head droops. He has the squint of a dullard.”

“That couldn’t be further from the truth. That’s not why he keeps his head down.”

Frank turned wide-eyed. “What do you know that no one else knows?”

“The man is anything but stupid, Hans. Van der Lubbe’s problem is that he can’t see. It’s a long story.”

“Whatever his problem, no one doubts that van der Lubbe set the fire. He has confessed to that. For our purposes, he was part of a Communist conspiracy. We can’t let it play any other way.”

I started to tell him there was no conspiracy, that it was only van der Lubbe, but I was cut short when a hush fell over the court: Dr. William Bünger, the president of the Court, led his colleague judges—five men in red robes—into the room. Would they be unbiased as Franz Gürtner insisted they would? We received a partial answer when they opened the proceedings with the Nazi salute.

The trial lasted two months. It started in Leipzig, moved to Berlin to observe the ruins firsthand where it was held in the only undamaged room left standing in the Reichstag—the Budget Committee Room—and then returned to Leipzig for its conclusion.

October 19, 1933

Max called late Wednesday afternoon. He was in a celebratory mood and wanted company.

“You’re lucky you caught me. I’ve been jumping back and forth to the Fire Trial. I’ve been buried catching up on work now that it has moved to Berlin. I could use a break. What are we celebrating?”

“Come to the club for dinner. I’m opening my last bottle of Chateau Margaux.”

“What year?”

“The greatest: 1900. It’s the most amazing wine. With what’s going on these days, who knows when I’ll get another reason to enjoy it?”

“I’m honored that you want to share it with me. But aren’t you being too much the pessimist?”

“When is it ever the right time to open a great bottle of wine?”

“Still, it’s the middle of the week. What can be so special?”

“Come and find out,” he said before hanging up.

*

We sat in a dark corner of the club. It was too early for most, and only a few patrons were scattered about. With a surgeon’s care, Max removed the seal and cork from his precious bottle. He studied the cork before taking in a long whiff, appreciating is bouquet, and then passed it to me so I could do the same. He poured the wine, as if it were liquid gold, into a cut crystal decanter. He caught me staring at the ornate vessel.

“It was my mother’s. She got it in Weimar thirty years ago. Maybe longer. Theodore Muller crafted it. As beautiful as it is, I assure you the wine is better.”

I was about to savor its bouquet when Max made a toast. “To Longie Zwillman.”

I whipped my head toward him. “I didn’t see that coming, Max. Why are we toasting Longie?”

“Because he made me proud last night. Actually, it was early morning, our time. He, along with a first-rate boxer, Nat Arno, whose real name is Sidney Nathan Abramowitz, started a Jewish defense organization called the Minutemen. The group includes boxers, Jewish mobsters, and local thugs.”

“To what end?”

“Are you kidding? There was no way he was going to let Nazi supporters hold a meeting in his town.”

“Why are you telling me this?”

“I thought you would be interested because you know Longie. He did my people proud last night.”

“The way Bernhard Weiss did when he was in charge of the police?”

Max left that hanging. He had a pretty good idea that I helped Bernhard escape, but never asked me straight out.

“Unlike Weiss, the Minutemen are anything but law abiding. They are more like your Brownshirts. Last night a group called the Friends of the New Germany held a meeting in the Schwabenhalle. It’s a large German hall in Newark. Longie, Arno, and the rest of them would have none of it. There would be no Nazi meeting in their town. They used stones, rubber-covered pipes, and stink bombs to break it up. Does any of this sound familiar?” He didn’t wait for me to answer. “Apparently this has happened in other cities in America. The difference was that last night’s rally was the largest the Minutemen broke up. It’s good to know that some of us don’t just sit around . . . we fight back.” Again, he raised his glass. “To Longie.”

I tasted the wine to honor Max, not Longie.

Hearing that Longie and his Minutemen were fighting back in the United States came as a shock. But when I thought about it, I wondered why the same thing had not happened here? It came to me that perhaps most German Jews believed they would be immune from Hitler’s anti-Semitic rants and promises. Isn’t that what Oser-Braun and Kaufmann thought that New Year’s Eve? But they were wrong. Hitler immediately passed laws expelling Jews from the civil service. Had they gone into the streets before he came to power, would it have made a difference? Maybe . . . and maybe not. After all, in the early twenties, we all thought Hitler’s extreme anti-Semitic comments were more rhetoric than substance. I myself never thought he would carry through with his threats.

Consider what the New York Times wrote in its first coverage of Hitler on May 20, 1922:

He is credited with being actuated by lofty, unselfish patriotism. He probably does not know himself just what he wants to accomplish. The keynote of his propaganda is speaking and writing violent anti-Semitism.

But several reliable, well-informed sources confirmed the idea that Hitler’s anti-Semitism was not so genuine or violent as it sounded, and that he was merely using anti-Semitic propaganda as a bait to catch masses of followers and keep them aroused, enthusiastic and in line for the time when his organization is perfected and sufficiently powerful to be employed effectively for political purposes.

A sophisticated politician credited Hitler with peculiar political cleverness for laying emphasis and over-emphasis on anti-Semitism, saying: “You can’t expect the masses to understand or appreciate your finer real aims. You must feed the masses with cruder morsels and ideas like anti-Semitism. It would be politically wrong to tell them the truth about where you really are leading them.”

Now, of course, it was too late. And then it came to me: I cannot disparage the victims, certainly not me—who was so close to it all and did so little. I raised my glass again, and this time toasted Longie Zwillman and his Minutemen.

*

As I sat through sessions of the Fire Trial, I became an admirer of the Bulgarian defendant, Georgi Dimitrov. The man had the heart of a lion. Friendless and alone, surrounded by enemies, he attacked the court and its apparatus, with blistering speeches and lethal examinations of witnesses.

Dimitrov rejected his court-appointed lawyer and lobbied to defend himself. When the presiding judge, Bünger, refused to permit it, Dimitrov convinced him to reverse his decision. Bünger, who came to regret that permission, would periodically eject Dimitrov to stop the carnage.

I made certain to be in court November 4 when Dimitrov cross-examined Herman Göring. Göring kept the court waiting an hour. When he finally made his entrance, he was dressed in his formal SA uniform. Seeing this, the judges jumped to their feet and gave the Hitler salute.

When Dimitrov rose to cross-examine, he was far from physically imposing. Short and squat, his once black hair was now streaked with silver, but his bushy eyebrows were still jet-black, and his eyes vibrant, alive, and penetrating.

Dimitrov challenged Göring from the outset. “You announced on the night of the fire that van der Lubbe had a German Communist membership card in his pocket. Based on this card, you stated that the fire was the first step in a Communist takeover of the country. As a result of this, the next morning a law suspending civil liberties was enacted. My question for you, Herr Göring, is how did you know van der Lubbe had a Communist membership card in his pocket?”

Göring simpered. “Let me tell you: the police examine all great criminals and inform me of their findings.” Göring thought his answer clever, more so as the party members in the audience laughed with him.

Dimitrov laughed, too, and then delivered a crushing blow. “But each of the three arresting officers have testified in this court, under oath, that no membership card was found on van der Lubbe. So, please, Herr Göring, tell us where did you get this information about the non-existent party card?”

Göring’s face ripened by the second. He jumped to his feet. He stepped away from his seat. Standing, hands on hips, veins bulging in his neck, he shouted, “Your party is a party of criminals which must be destroyed . . . I will not allow you to question me like a judge or to reprimand me! You are a scoundrel who should be hanged!”

Judge Bünger banged on his gavel for order. He did not admonish Göring for threatening Dimitrov; instead he threw Dimitrov out of court for disrespecting the witness. In time, Dimitrov was permitted to rejoin his trial whereupon he continued to attack the proceedings. As the trial progressed, Dimitrov earned the reluctant—and well-deserved—admiration of even Dr. Bünger.

Goebbels was the next witness. Though extra chairs were brought into the court, the overflow was such that spectators were forced to stand in the back.

It was time for the cross-examination. Dimitrov marched in front of Goebbels. “Is the witness aware that the Reichstag Fire was used by the government and the Propaganda Ministry—which you head—as the basis to quash the opposition parties in the election that was less than a week away?”

“We did not need propaganda,” answered Goebbels. “The Reichstag Fire was a confirmation of our struggle against the violence of the Communist party.”

“But you agree with violence when it is against the left? What about the murders of Rosa Luxemburg and Karl Liebknecht?” Dimitrov asked.

Goebbels’s answer was lost in the spectators’ protests. But I would not have heard it, in any case. My mind was drawn back to that day in Berlin, fourteen years before. I saw Rosa Luxemburg clubbed to the ground, shot, and then dumped into the canal.

The judge banged his gavel for quiet; I snapped out of my trance.

Dimitrov next asked, “Is it true that the National Socialist Government has granted a pardon to all terrorist acts that carry out the aims of the National Socialist movement?”

Goebbels spread his arms in a gesture of compassion. “We could not leave people in prisons who risked their lives and health to fight the Communist peril.”

Goebbels was no ham-fisted Göring. He was clever and made glib answers, but all in the court that day knew the questioner was the only one who spoke for truth.

The trial dragged on for weeks. While journalists around the world described van der Lubbe as slow, retarded, lacking intelligence, and in a perpetual stupor with his head down, I knew different. On December 6, without warning, van der Lubbe sprang to his feet. “I have had enough! This trial has moved back and forth from Leipzig to Berlin, and now back to Leipzig. I burned down the Reichstag. I want my sentence! How long is it going to take to get a verdict?”

The chief prosecutor called out. “It has lasted so long because you will not reveal your accomplices.”

Van der Lubbe shouted back at him, “I set the fire. None of these other defendants had anything to do with it!”

*

As the air grew frigid and winter snows arrived, the lengthy trial drew to a close. Dimitrov was irrepressible in his summation. He flagellated the government without mercy. His oration touched on events I personally knew. He accused the Nazis of suppressing the Communist Party on behalf of the industrialists.

“You have the Krupp-Thyssen Circle—the war industry—which has supported the National Socialists for years. Thyssen and Krupp wished to establish a political dictatorship under their own personal direction to depress the living standards of the working class.”

Sitting in the gallery, I recalled my efforts to raise funds from these very people. I knew Dimitrov did not have that quite right—it was not our intention to repress the workers’ standard of living—we simply were after power. But, all in all, his speech stung.

Dr. Bünger, as president of the Court, read the verdict on the last day of the trial. As expected, Marinus van der Lubbe was found guilty of setting the Reichstag fire and condemned to death by guillotine. It was also no surprise that the court, bowing to pressure, found the Communist Party responsible for the fire, “for the purpose of overthrowing the government . . . and seizing power.”

What surprised many, but not me, was that Dimitrov, Popov, Tanev, and Torgler were all acquitted. It was still possible, in those early days of Hitler’s chancellorship, for a court to exercise some modicum of independence.

This court drew the line at convicting four innocent men.

*

While the Nazi party should have been delighted with a result that validated the Reichstag Fire Decree, it wasn’t. The judges, who, without any evidence in support, went to great lengths to condemn the outlawed Communist Party, were themselves condemned by the party’s press for acquitting the four Communists.

True to form, Goebbels put his thumbprint on the Reichstag Fire Trial. The Nazi Party news bureau called it a “Downright Judicial Blunder.” The editorial cried out: “We demand reform of our judicial system. To avert another such decision, German justice must be purged of outworn, alien, and liberal conceptions.”

Shortly thereafter, the Volksgerichtshof, the Peoples Court, was inaugurated for that exact purpose. The Peoples Court was staffed only with judges who could be relied upon to render the “right” verdict. To make this a certainty, all prospective judges were vetted well in advance of their appointment.

Everything considered, I had learned a great deal about courts and the judges who sit on them. This proved useful because soon after the Reichstag Fire verdict, I made my own court appearance.