‘Nursing Revolutionary Fighters’ and ‘Legal SA-Duty’: Ten Political Lawyers
‘Nursing Revolutionary Fighters’ and ‘Legal SA-Duty’: Ten Political Lawyers
Abstract and Keywords
Based on ten political lawyers from across the ideological spectrum, the chapter introduces the protagonists of Weimar political defence work. As well as sketching their biographies, it considers the lawyers’ career patterns, their distinctive self-view and highly politicized conception of judicial procedure. Relations with non-political peers were often tense, as were interactions within the group of party lawyers, inside and between political camps. And yet, this chapter argues, carving out the niche of political specialists in the bar was their collective accomplishment. Their professional ethos, while contrasting starkly with received norms of lawyerly conduct, was in important ways shared across ideological boundaries. It rationalized their abrasive and at times flamboyant style of pleading as well as their subordination to party discipline. While highly individualistic, the barristers formed a distinctive group without whose contribution the politicization of Weimar justice is hard to account for.
Siegbert Geyer was one of interwar Munich's most controversial lawyers. A graduate of the prestigious Wilhelms-Gymnasium, he was politicized in World War One. As a lawyer, he made his mark after the liquidation of the Bavarian Soviet Republic in April 1919. Defending the deposed Socialist leaders, Geyer's cross-examination exposed the Bavarian government's links to the paramilitary Einwohnerwehren (citizens’ militias), to anti-Republican elements in the Reichswehr leadership and to radical anti-Semitic politicians. Depending on their ideological stance, contemporary newspapers celebrated or condemned Geyer. Press reports evoke a man driven by his mission, a pugnacious yet curiously nervous and fidgety advocate mercilessly hounding the powers that be.
In 1921, Geyer defended Martin Krüger, the controversial curator of the state-owned Munich Academy of Fine Arts. A champion of abstract, expressionist and overtly political art, the internationally acclaimed art historian Krüger had long been a thorn in the side of conservative Bavarian politicians such as Franz Flaucher, the peasant-party's beer-swigging Minister of Culture. Flaucher had Krüger framed for perjury. According to his biographer Reinhard Weber, barrister Geyer took on Krüger's ‘utterly hopeless’ case against ‘a state that did not want to do justice’ and ‘despite feeling no particular sympathy for the accused’. He did it because it ‘felt good to do something, to bear witness, to shine a bright light upon at least one well defined case’.1 Krüger was sentenced to three years in prison. During the struggle for a retrial, Nazi thugs assaulted Geyer (who was Jewish) and beat him within an inch of his life. But his strength and stomach for the fight were unbroken. They were vanquished only by the death of his ingrate, yet beloved son in a nationalist brawl a short time later. Dispirited, but elected to the Reichstag for the SPD, Geyer left Munich for Berlin, and the fate of Krüger in the balance, in early 1923.
Reviled by nationalist lawyers, Geyer was viewed with suspicion by judges, state-prosecutors and conservative politicians. A master of jurisprudence and courtroom rhetoric, he was also a mainstay of his party in parliament, first in the Bavarian Landtag, then in the Reichstag. Honest, vain, driven, courageous, and uncompromising (p.46) in his struggle for justice, Geyer epitomized the new ideal type of the political barrister. His place in the pantheon of Weimar party lawyers is not diminished, but arguably enhanced by the fact that he is a fictional character, the invention of novelist Lion Feuchtwanger.2 By 1930, the year Feuchtwanger published Erfolg, the story of the Krüger trial, the ideal type of the party lawyer had become not just recognizable, but hard to avoid. Hence we find the party lawyers’ courtroom struggles taken up by journalists, dramatists, novelists—and even poets.
The socialist Erich Weinert, for example, decried nationalist attacks on socialist defenders. ‘In the courtroom’, he rhymed with heavy irony in 1925,
- a higher law dictates;
- One waits ‘til the national nod is given
- The sheep from the goats he separates
- The sheep to the right, the goats to the left are driven
- All the left-wing litigators
- Are stigmatised as people's traitors.
- Damn every stubborn left-wing goat!
- It's a pig who defends a leftist sod
- The sheep on the right rejoice and gloat
- Like little lambs of almighty God.3
Nationalist writer Paul Warncke took the opposite view. Socialist lawyers were opportunists and turncoats, and the republican courts let them rule supreme. In Warncke's poem ‘Schmock’, the eponymous Jewish lawyer4 starts out by defending a slanderer of the king during the Wilhelmine Empire:
- But if a prosecutor dares deride
- The slanderer smarting in the dock
- Then woe betide! For at his side
- There stands defending hero Schmock!
- His cannons now inflict their shock;
- Down with tyranny, he sings.
- Manly pride before the thrones of kings!
- That was the battle-cry of Schmock.
After the revolution, ‘Schmock’ changes his tune and supports the state authority. The Jewish lawyer ends up representing the Social Democrat Prime Minister of (p.47) Prussia, Otto Braun, a sturdy and long-standing defender of the republican order and as such a thorn in the nationalists’ side:
- Hail and victory! Things are getting
- Better—now the world is safe and sound.
- But Schmock today his knife again is whetting
- For someone's slandered Mr. Braun.
- So smarten up and hold your fire
- For that is what good Schmock dictates.
- Besides, it's what good taste requires
- In this, the ‘freest of all states’.5
Conflating anti-Jewish stereotypes with prejudices about lawyers in general and the right-wing complaint of alleged Republican ‘corruption’ and nepotism, Warncke uses the figure of the turncoat Schmock to vent nationalist resentment against Weimar democracy (‘the freest of all states’). Both poems’ political venom is clad in ironic garb, and both not only attack their ideological opponent, but impute hypocrisy to the political middle ground and to the courts’ efforts at mediation. The poems, in short, echo the practice of Weimar party lawyers. Not just in content, but in tone, too, they insisted on the irreconcilability of ideological viewpoints. The malevolent connivance of the ‘system’, purporting neutrality while really in cahoots with the mortal enemy, forms the backdrop against which the courageous and selfless party advocates shine all the more brightly. At the same time, the bitterly ironic tone pre-emptively scorns any suggestion of compromise or moderation. With a contemptuous sneer, the notion of accepting the rules of liberal-democratic legal procedure are dismissed as naïve, even deluded.
Like Feuchtwanger's novel, the poems focus on the left—testimony to the pioneering role of socialist lawyers. By the end of the 1920s, however, right-wing lawyers had become recognizable figures in their own right. After leaving Max Alsberg's Berlin law firm, Walter Luetgebrune built a successful practice defending prominent nationalists after the war. He routinely represented Erich Ludendorff, most notoriously at the Beer Hall Putsch trial in 1924. But the ‘star attorney of the radical right’ (as his biographer Rudolf Heydeloff labelled him) was by no means an isolated figure.6 Hans Frank, Rüdiger von der Goltz, and Friedrich Grimm vied for pride of place among nationalist defenders. There were in reality at least half a dozen ‘star attorneys’ of the right, and many more aspiring to such prominence. The fame, and sometimes notoriety, of individual barristers is emblematic for the rise of the party lawyers, but the fashioning of the new ideal type transcended individuals. It was an enterprise in which all party lawyers partook, to a greater or lesser degree, a collective rather than an individual project whose overall impact exceeded the sum of its parts. Lawyers like Siegbert Geyer—highly visible, eloquent, inquisitive, aggressive, and ideologically committed—filled a niche in (p.48) contemporary legal and political culture that was readily recognizable to contemporaries.
Who were the Weimar party lawyers? What distinguished them from their non-political peers? How did they see themselves and their role in the administration of justice? How did their self-view and their conception of judicial procedure in turn impact political trials and political culture? And why were their services so crucial to Weimar extremist parties? In addressing these questions, the present chapter introduces the protagonists of my narrative, and aims to sketch an ideal type of the political lawyer of the Weimar years.7
In pursuing such an ideal type, we must give due weight to important differences. Right- and left-wing political lawyers differed in some respects, as did democrats and extremists. Is treating political lawyers en bloc then not tantamount to lumping together indiscriminately defenders and detractors of the Republican order? Yes and no. In contrast to Communists and nationalists, democratic lawyers attacked judgements and judges in defence of democratic values and practices, and often enough simply in defence of sound legal practice. Compared with nationalists, Communists and Social Democrats tended to be better lawyers (though not necessarily better party lawyers). Furthermore, Communists were much more ready to embrace the label ‘political’ (or ‘revolutionary’, ‘Communist’, ‘party’ etc.) lawyer, in fact, they coined the phrase. Many nationalists, on the contrary, imagined themselves fighting ‘political justice’, not practicing it—party lawyers in denial. Given that such lawyers deployed the same arsenal of politco-legal techniques as their left-wing peers, there is little need to pay such claims much heed. In any case, once the National Socialist legal organization began to dominate nationalist legal aid, touting rather than denying one's ideological commitment and political agenda became de rigueur on the right, too.
In their self-view and their conception of judicial procedure, however, and most importantly in their practice of the law, even the most antagonistic nationalist and Communist lawyers had much more in common with one another than with non-party lawyers. All party lawyers pursued activist, aggressive trial strategies that fused law and political propaganda in ways totally anathema to ‘old style’ lawyers, regardless of political persuasion. Clearly distinct from their non-political peers, political barristers shared traits and a legal style transcending ideological boundaries. Jointly (though of course not necessarily collaboratively), they remoulded the relationship between trials and politics. This project had profound implications for Weimar political culture, and tracing its effects hardly admits of differentiation according to the political orientation of individual lawyers. There (p.49) is, therefore, no more reason to distinguish between ‘progressives’ and ‘reactionaries’ than there is to take seriously the protestations of nationalist lawyers to be ‘apolitical’.
As noted in the introduction, Weimar barristers have only recently begun to attract scholarly interest in their own right. Beforehand, if they featured at all, trial lawyers appeared in one of three guises. When seen as part of the legal profession as a whole, lawyers appeared as toothless liberals. German jurists were so concerned with shoring up their socio-economic status that they unwittingly made far-reaching concessions to conservative politics generally and to advocates of restricting access to their own profession in particular. In so doing, they undermined the very principles of the free professions, universalism, meritocracy and freedom of competition. By censuring certain forms of political activism and embracing the ‘numerus clausus’ cap on the overall number of members of the bar, the lawyers themselves opened the door for the Nazis’ political and racial purge after 1933.8
Whereas the ‘weak liberals’ perspective has trial lawyers helplessly stand by the swelling brown tide (perhaps unwittingly opening a floodgate here and there), the ‘lawyers of the monopoly’ thesis charged barristers with ‘preparing the Third Reich’ in the same way as judges and state prosecutors.9 If trial lawyers appeared marginally less objectionable, it was because of their perceived powerlessness to influence the verdict. Even that, however, could be construed as militating against them. East German historian Petra Gängel argued that it was precisely the lawyers’ apparent political neutrality and their concern with the procedural rights of the accused that rendered their influence particularly noxious. By his very participation in proceedings, the average barrister ‘assisted bourgeois class justice’ by ‘obscuring and in a certain sense […] legitimizing’ it—a curse disguised as a blessing, as it were.10
Finally, individual barristers have been celebrated as courageous advocates of democracy, critics of judicial malpractice, and stewards not only of their clients’ individual rights, but of procedural guarantees in general.11 Often the accolades are (p.50) justified—the most recent example is Douglas Morris’ biography of Max Hirschberg—sometimes they are, as we will see, grossly misguided. But regardless of the historical accuracy of such individual portraits, the point of singling out individual achievement is almost invariably to condemn the legal profession's general inertia or complicity with the National Socialists. The more shining the exception, the darker the tint of the sheer black backdrop formed by German jurists in general.
Both general views on the profession and individual lawyers’ portraits tend to downplay or ignore outright the many similarities between political barristers, regardless of ideological conviction.12 This obscures the group's identity as well as its impact on judicial culture and political discourse. How decisively party barristers shaped contemporary perceptions of ‘political justice’ can only be understood in the context of the political redefinition of the role of the trial lawyer they themselves undertook. But this politicization of the defence lawyer was a project the barristers in this study pursued collectively, not individually. The emerging image of the political trial lawyer as distinct from his non-political colleague depended not on individual barristers but on the group as a whole.13 This group ought therefore to be the object of inquiry.
The argument this chapter offers is threefold. First, it establishes how party lawyers differed from ‘traditional’ German lawyers but resembled one another across ideological divisions. Secondly, it aims to show that they were key figures in—though of course not the only cause of—the de-legalization and dramatization of trials. This was, thirdly, crucial to the extremist parties’ efforts to make the courtroom a privileged site of ideological combat. The chapter has three parts. Part one sketches the biographies of ten lawyers from across the ideological spectrum. Social extraction, education, political socialization and legal career are the main reference points. Part two is more analytical in its attempt to work out how these prominent party lawyers saw themselves, their work, and the relationship between justice and politics. A final part surveys the uneasy relations between political lawyers and their ‘normal’ peers and amongst themselves.
Political lawyers cannot be understood in isolation from the party legal organizations that employed or retained them. The legal organizations managed (p.51) and financed legal aid, allocating barristers and liaising with party newspapers and parliamentary factions. In reverse, political lawyers staffed the organizations (which they had founded in the first place)—a symbiotic relationship or, to use an even more worn metaphor, two sides of the same coin. Whichever side of the coin we look at first, lawyers or party legal organizations, the complement will remain partially obscured, even though acquaintance with it would be highly desirable for the reader. Starting with lawyers has two advantages. First, chronology suggests it. Secondly, by considering lawyers across the political spectrum before discussing the (obviously partisan) institutions they built, the basic similarity of type is emphasized and the confrontations between opposing lawyers amidst the clamour of ideological self-stylization can be put in perspective.
But how to go about it? At the first peak of its activities, in 1924, the Communist Party legal office kept a list of just over 200 routinely employed barristers. Only party comrades pleaded in the most sensitive cases, but by no means all lawyers on the list were Communists. Social Democrats, members of proletarian splinter parties, or unaffiliated jurists made up more than two-thirds of the total. In the absence of a central organization, i.e. until late 1928, gauging the number of nationalist lawyers is even harder. By late 1932 the Association of National Socialist German Lawyers (Bund Nationalsozialistischer Deutscher Juristen, BNSDJ) had more than 300 barrister members. Though only a small minority of the bar, around 2–3 per cent, 400–500 party barristers cannot all be included in this study.14 Questions about self-perception, view of the judicial process and relations to peers are qualitative. Addressing them requires a fine-grained analysis and attention to detail viable only on a smaller scale.
Perhaps 30–40 ‘high-profile’ political lawyers reached national recognition (or notoriety).15 They constituted, in terms of their visibility and influence, the tip of a pyramid whose much broader base was formed by their less well-known peers. Their law practices were most clearly geared in the first instance to political work. They tended to derive the highest proportion of their sometimes considerable income from party briefs. Finally, they were most clearly identified with the emerging ideal type of the political trial lawyer, shaping the perception of contemporaries and inspiring imitation by their lesser-known peers.
This chapter is based mainly on ten of these most visible party lawyers. Apart from the availability of sources, the selection reflects the relative sizes of the political camps, at least roughly. For the German Communist Party, Ernst Hegewisch (p.52) and Felix Halle are included. Hans Litten did not belong to any party, but self-identified as a revolutionary socialist. Paul Levi was ousted from the KPD leadership (and the party) in 1921 and subsequently rejoined the majority Social Democratic Party, which Wolfgang Heine and Max Hirschberg belonged to throughout the Weimar years. Friedrich Grimm was a member of the German People's Party (Deutsche Volkspartei, DVP) before hurriedly joining the Nazis in 1933. Walter Luetgebrune and Rüdiger Graf von der Goltz both belonged to the German Nationalist People's Party (Deutschnationale Volkspartei, DNVP) before joining the National Socialist Party—in 1931 and 1930, respectively—which had been the political home of Hans Frank all along.
Strikingly, neither the Catholic Centre Party (Deutsche Zentrumspartei), nor the German Democratic Party (Deutsche Demokratische Partei, DDP) boasted party lawyers. They lacked a culture of political defence work comparable to that of the SPD or the extremist parties. What prominence DDP and Zentrum lawyers attained was unrelated to trials in which they pleaded on their parties’ behalf. Tellingly, the prominence of the best-known Democratic Party lawyer, Alfred Apfel, stemmed in part from the well-publicised petition for a retrial of left-wing insurrectionist Max Hölz, which Apfel co-authored with KPD barrister Felix Halle.16 With regard to Centre Party lawyers, the party's history of state persecution during the Kulturkampf begs the question whether a tradition of political defence work similar to that of the SPD had not developed. However, by the advent of the Republic, Centre Party lawyers were no longer a prominent force, a development symbolized by the death in 1918 of the last prominent Centre Party barrister, Reichstag member Julius Bachem.17
Women gained admission to the bar in 1922, after a drawn-out battle with the organs of professional self-government—barely enough time to practice within the timeframe of this study. Though studying law had been possible for women in theory since 1909, in practice many hurdles remained. It was not only that male peers treated them with condescension and/or aggression, but that university adminstrations dragged their feet and faculty boycotted classes with female students. Add to that the financial obstacles, macro-economic turmoil and uncertain job prospects, and it is hardly surprising that only a handful of women entered the bar before 1933. On the contrary, given the arduousness of the journey and the uncertainty of the outcome, the surprising thing is that women should have opted for a career as a trial lawyer at all.18
(p.53) Circumstantial evidence suggests that of the perhaps fifty women who did enter the bar, a far higher than average percentage was attracted to a political practice. Hilde Benjamin, later Minister of Justice in the German Democratic Republic and nicknamed the ‘Red Guillotine’, is the most obvious illustration. She set up a law practice near Gesundbrunnen in Berlin-Wedding in 1928, and worked exclusively for (and with) party comrades.19 Her first celebrated case was the defence of the killers of Horst Wessel, a Berlin stormtrooper whose ‘martyr’ death turned him into a National Socialist poster-boy.20 There were perhaps a half dozen female party lawyers like her, usually, though not exclusively on the left. The nationalist lawyer Paul Bloch, a Jew according to the racial criteria of his would-be political allies, formed a joint practice with his daughter, shortly before the Nazis forced both out of the profession. In short, women lawyers in the Weimar Republic make for a fascinating study in their own right—in the hierarchies of party legal organizations and in Weimar courtrooms more generally they played a minor role.
* * *
Felix Halle was the son of a Jewish merchant from Berlin. Born in 1884, Halle was a pacifist and fervent internationalist.21 He studied law and political science in his hometown, between 1902 and 1905 (whether he graduated is hard to establish—Halle's name is not listed in Berlin University's matriculation or examination rosters).22 Halle worked as a journalist and built his own publishing firm, which he sold to the Communist ‘press tsar’ Willi Münzenberg in 1924. He joined the SPD in 1912 and the Independent Socialists in 1916—a logical step, given that he worked full-time for the USPD press office. Halle spent several months on a visit to the Soviet Union in 1920/21, where he had an adjunct position in the People's Commissariat for Justice. Halle claimed to have been tenured as a professor of law while in Moscow, and routinely used the title. In 1928 the KPD nominated him to the Staatsgerichtshof für das deutsche Reich (not to be confused with the State Court for the Protection of the Republic, see Appendix C) on this basis. But despite persistent efforts on Halle's behalf (by German Communist Party Politburo member Fritz Heckert, no less) it proved impossible to procure an official letter of appointment. Eventually, Heckert was told point blank by a Soviet official that there was no record of Halle's appointment, and in any case for all he knew, ‘this Halle might be a Menshevik’.23 On his return to (p.54) Germany, he joined the Communist Party and headed the fledgling legal co-ordination bureau from its foundation in August 1921.24
In step with the Communist legal organization's growth, Halle steadily extended the ambit of his activities. As well as overseeing the administration of the legal office, he visited prisoners, attended conferences, observed trials, and wrote legal guidebooks, for example on the law of asylum and abortion. His pragmatically entitled How does the proletarian defend himself in political penal matters against police, state prosecutor and the court? (1921) was an instant bestseller. With reluctant admiration, judges referred to it as an obstruction of justice in book form, and it became a reference manual for left-wing political defendants, the ‘in-house political lawyer’ as a Communist paper put it in 1931.25
Halle was ousted from the JZ leadership in 1924 after a fistfight with a Communist deputy, Gustav Menzel (of which more below) compounded internal allegations of laziness, favouritism and high-handedness, all imbued with anti-Semitic overtones. Doing without his expertise proved difficult, however, as he was reinstalled soon after in an advisory function, and became head of the JZ again in 1928, after a purge. In the same year, the Communist Party nominated Halle to sit on the Staatsgerichtshof für das deutsche Reich, a position he held until the Nazi seizure of power.
Ernst Hegewisch, born in Hannover in 1881, was the son of a well-to-do businessman, described variously as a factory owner or a jeweller. During his studies (in Heidelberg, Leipzig, Kiel and Berlin) he had joined the Social Democratic Party but left it after graduation to avoid complications while completing his training (budding jurists were temporary civil servants and at times penalized for membership in Socialist organizations). Still, it is remarkable that Hegewisch did not re-enter the Party once qualified. In fact, the long hiatus between taking his exams in 1905 and opening his commercial law practice in the lower Saxon town of Celle in 1912 suggests that Ernst Hegewisch considered alternative career paths before settling on the bar.26
Hegewisch did not volunteer for military service in 1914, and, when conscription was introduced, was exempted on unspecified medical grounds (he suffered (p.55) from nervous exhaustion later on). A Spartacist, Hegewisch helped found the Celle KPD. During the 1920 Kapp Putsch, the barrister was elected to represent the Celle workers’ committee in negotiations with local government. Hegewisch began to work exclusively for the KPD. He defended high profile clients such as the ‘Communist Robin Hood’ Max Hölz and Karl Plättner, both of whom translated Lenin's stricture of looting the looters rather literally into armed robbery. But Hegewisch also pleaded in much more run-of-the-mill trials and at times moved the centre of gravity of his practice entirely to where the party needed him, e.g. after the Thuringian insurrections of 1921 and the Hamburg uprising of 1923.27
Hegewisch ardently advocated far-reaching party control over members’ legal affairs. A highly irascible character, he was one of the mainstays of the Communist Party legal office as well as its most vocal critic. In scathing attacks, the Celle barrister lambasted the party hierarchy as ponderous, timid and overly restrained in its tactics, while the party press failed to make appropriately copious and aggressive use of the raw material his trials furnished.28
Hans Litten, born in 1903 in Halle, was the son of a distinguished professor of law, Friedrich. Litten senior, a politically conservative patrician, moved the family to Königsberg in 1906. Hans always regarded his father's conversion from Judaism—without which the elder Litten would hardly have achieved tenure, let alone rectorship of Königsberg University—as an act of opportunism. In school, the brilliant young Litten hence made a point of studying Hebrew and joined the romantic, anti-authoritarian and socialist German-Jewish youth group Schwarzer Haufen. Paradoxically, he still heeded his father's advice to study law (which he felt had been ‘invented by an ox, one boring day in paradise’).29 Passing his law exams with flying colours, Litten turned down the opportunity of a position in the Reich Justice Ministry, opting instead to join the Berlin law practice of his socialist colleague Ludwig Barbasch in 1928.
Although branded a ‘Communist’ by the Nazis, Hans Litten was not in fact a party member. He told Barbasch that he was seeking to join the older colleague as one of the few Berlin socialist lawyers affiliated with neither SPD nor KPD.30 According to the autobiography of his childhood friend, the novelist Max Fürst, the idealistic Litten privately criticised the KPD legal organisation for its tendency to make martyrs out of accused party members for propaganda purposes.31 On the other hand, the prominent Weimar publicist Rudolf Olden related a conversation with Litten in which the young lawyer strongly objected to making tactical (p.56) ‘concessions’ to the courts, on the grounds that the ‘system will not last much longer anyway’.32
Whichever source is accurate (and they may very well both be), Litten did valuable work for the Communist legal office, and fiercely combated the extreme right, especially the Nazis.33 Famously, Litten once subjected Hitler to two hours of intense questioning in the witness stand, an episode Benjamin Carter Hett recently placed at the heart of his insightful and thought-provoking biography of Litten.34 At issue was a stormtrooper attack on Communists in the Eden Tanzpalast, a Berlin nightspot in early 1931. In cross-examination, Litten forced an increasingly exasperated Hitler to expose the duplicity of the so-called ‘legality tactics’ which the NSDAP affected to espouse even while the SA was wreaking bloody havoc. At the same time, Litten brought the deep divisions over these tactics within the Nazi movement to light. Even years later, Hitler reputedly turned a dark shade of red at the mention of Litten's name.35 As a consequence, all pleas for the release of Litten, incarcerated continuously since 1933, fell on deaf ears.36
The three Social Democrat trial lawyers included in the group of ten, Wolfgang Heine, Max Hirschberg and Paul Levi, are a study in contrasts. Generationally, geographically and politically they stand for the diversity of the Weimar SPD. Wolfgang Heine, born a schoolmaster's son in Posen in 1861 and easily the oldest of the ten lawyers, was elected to the Reichstag in 1898. During the Kaiserreich, he co-ordinated efforts to reform the restrictive laws of association, but also conducted high profile defences, e.g. in the 1911 Moabit riot trial. Heine was one of the leading right-wing Social Democrats after the Revolution. Until March 1919, he was simultaneously Prime Minister of Anhalt and Prussian Minister of Justice. He had to resign as Prussian Minister of the Interior in the aftermath of the Kapp Putsch (Heine, it was rumored, had been prepared to enter into negotiations with the Putschists). Reverting to his legal practice full time, he and Otto Landsberg represented Reich President Ebert in the infamous Magdeburg slander trial against nationalist editor Erwin Rothardt in 1924/5. Heine also published extensively and was a member of the Staatsgerichtshof as his party's nominee. On 11 October 1925, Heine addressed a capacity crowd in the Theater am Nollendorfplatz to announce his resignation from the court in protest over its verdicts sentencing Communist authors, publishers and book-printers for high treason.37
(p.57) Max Hirschberg, born in Munich in 1883, a brilliant musician and connoisseur of Russian literature and arts, came seventh out of a cohort of 354 candidates in his final examinations. As a Jew, Hirschberg was denied entry into the judiciary or the civil service, and instead he joined the bar, and lived what he later described as the life of an uncommitted drifter. In 1914 Hirschberg volunteered, was wounded and highly decorated. As the war dragged on, he began to attribute its origins to the capitalist economic order. ‘The despoiling of the globe through violence turned me into a revolutionary in spirit for good.’38 It was at this point that he ‘recognised the struggle for justice’ as his calling. He decided to set up as a political lawyer in Munich, joined the USPD in 1919 and the majority SPD subsequently. As legal advisor to the Social Democrat faction in the state legislature and quasi-permanent counsel of the Bavarian SPD's newspaper, the Münchener Neueste Nachrichten, he frequently crossed swords with Hans Frank in court. Between 1928 and 1930 Hirschberg appeared in a number of libel trials Hitler himself initiated to fend off the popular (and highly damaging) claim that he had been bought off by Mussolini over the question of South Tyrol, the so-called ‘Italian Gold’ allegation.
Paul Levi, like Hirschberg born in 1883, was the son of a well-to-do Jewish merchant family from Hechingen in Swabia. His parents’ wealth meant he could study in Grenoble, France, as well as in Berlin and Heidelberg. Setting up his law practice in Frankfurt am Main, Levi made a point of taking on so-called poor law representations (Armenrechtsvertretungen). Apart from the ad-fraud discussed in chapter one, the 1911 Schwabenthan case deserves mention. Five peasant brothers from Steinhofen, a village near Levi's home, were accused of breach of the peace, and duped into waiving important procedural guarantees. Defending them, Levi accused the key prosecution witness, a judge, of breach of the peace. When country judge (Landrichter) Meyer responded with an anonymous newspaper article attacking Levi, the barrister sued him for libel. Amidst great embarrassment, Meyer's superiors had to force him to retract his article and apologize, whereupon Levi, too, let the matter rest.39 His passion, tenacity, and rhetorical skill seared the trial into the Hohenzollern region's collective memory. Eight years later, in the revolutionary months of early 1919, the Neuer Alb-Bote referenced the Schwabenthan case in its attack on a ‘judiciary which will never understand its errors, who will only ever think of the delusion of its embattled, half-godly honour’. Unable to understand the Württembergers’ ‘way of thinking’ and ‘emotional life’, contemporary Prussian officialdom, too, presided over ‘miscarriages of justice which poison the people's soul’.40
Levi's rise in the Frankfurt SPD was swift. He made Rosa Luxemburg's acquaintance in 1913, and became her lover as well as her lawyer.41 Though comprehensive, (p.58) their victory in the ‘militarism trials’ was made inconsequential by the advent of war and Luxemburg's ‘protective custody’ (Schutzhaft). Levi greeted the war with frustration and anger. His compatriots’ enthusiasm exasperated him. He declined, for example, the invitation to participate in a lecture series intending to sustain ‘patriotic fervour’ in Frankfurt. In his reply to the organizer, Levi attacked both the gullibility of ‘the rabble calling itself “the educated classes”’ and the nationalism, conceit and hypocrisy of the German academic establishment—Levi named Theodor Mommsen—purporting to lead the spiritual charge.42 In 1916, Levi was drafted into an artillery regiment. Secretly starving himself, he was discharged on medical grounds, and returned to Frankfurt and to the organization of the various anti-war coalitions inside the socialist movement.
A founding member of the Spartacus group, Levi became leader of the KPD after the murders of Karl Liebknecht, Rosa Luxemburg, and Leo Jogiches. Ousted from the KPD leadership in 1921, he rejoined the Social Democrats together with the rump of the Independent Socialists in autumn 1922. A parliamentarian, Levi edited a newsletter, Sozialistische Blätter für Politik und Wirtschaft, but concentrated mainly on his law practice. His most celebrated Weimar defence was the acquittal he secured in the slander suit brought by state prosecutor Paul Jorns. Jorns had investigated the murder of Liebknecht and Luxemburg in 1919. When, ten years later, the left-liberal weekly Tagebuch accused him of deliberately covering up for the officers responsible, he sued for libel.43 Levi's plea in defence of the Tagebuch editor Leopold Schwarzschild and proprietor Josef Bornstein was an instant forensic classic. Having recounted the murder and the subsequent fate of the subaltern murderers, he closed:
‘The terrible deed, committed long ago, has brought ill fortune to all those it touched [ … ] one man alone rose up, military magistrate Jorns, and I believe that in those ten years he has forgotten whence his red robe takes its colour. [ … ] The dead letters, used to shield the guilty, and the victims’ long decayed bones: here they rise and accuse the erstwhile accuser’.
The acquittal, though subsequently reversed, was a triumph. A week into the appeal proceedings, Levi, running a high fever, fell from his window and died on the spot. The outpouring of venom in the right-wing press's obituaries—one suggested that Levi, no longer able to stand his ‘Jewish stench’, had deliberately jumped—gave a taste of what was in store for other Socialist and Jewish lawyers after 1933. As his fellow Reichstag deputies rose to honour Levi's memory, the National Socialist and Communist factions walked out.
We turn to the right, starting with Friedrich Grimm, the son of a railway draughtsman born in Düsseldorf in 1888. After studies at Geneva, Berlin, Marburg and Münster he initially concentrated on commercial law (like Ernst Hegewisch). (p.59) A protégé of the powerful German People's Party lawyer and Reichstag deputy Adolf Kempkes, Grimm was 25 at the start of the war.44 Thanks to connections and his fluent French, he was assigned to an office censoring the mail of encamped prisoners of war and later defended French officers accused as war criminals in German military courts. Arguing that subjectively, love of their country had motivated his French clients, he claims in his unpublished memoirs to have secured a number of acquittals. When Germany lost the war, his efforts appeared to him not to be reciprocated in trials against German officers.45
Grimm defended leaders of the illegal Schwarze Reichswehr, a large paramilitary formation tacitly supported by the regular armed forces to sidestep personnel ceilings imposed by the Versailles Treaty. The Black Reichswehr operated clandestine hit squads to eliminate suspected traitors, naturally without due process. The brutality and the randomness with which these self-styled ‘Feme judges’ executed ‘unreliables’, often on the silliest of hearsay, caused a scandal when the matter came to light during a series of trials between 1926 and 1930. Keen to protect the Reichswehr leadership, Grimm resisted calls to force the government into acknowledging its own part in arming, financing and training the paramilitaries. Instead, he campaigned for political amnesties, bringing him into an unlikely alliance with Communist Party lawyers Halle and Hegewisch between 1928 and 1932.46
Rüdiger Graf von der Goltz was born in 1894, the youngest son of Prussian military nobility. As a fledgling officer of the guard, he went to war enthusiastically. Neither his brother's death in action nor his own severe injury, both in the first weeks of the conflict, altered his stance. Crippled by the loss of a leg, he again took up the legal studies he had sampled prior to his officer training. He rejoined the army as a staff officer on an intelligence unit. Writing for front newspapers, von der Goltz made contacts, which were valuable assets for his subsequent career as political trial lawyer.47 As head of the Vereinigte Vaterländische Verbände, a right-wing East Elbian pressure group, Goltz’ father, Rüdiger Sr., enjoyed good relations with the leadership of the German Nationalist People's Party. Setting up his law practice in Stettin in 1922, his son tried his hand at local politics, with mixed success.
Goltz's career as trial lawyer was driven by his media-effective style of pleading and his adroit choice of representations. In the Feme trials, he was Friedrich Grimm's nemesis. His courtroom attacks on the Weimar ‘system’, but also on the Reichswehr and the conservative establishment opened the doors to the Berlin Nazi élite. In the last two years before the seizure of power, he routinely represented Goebbels as well as Göring and other top National Socialists (much to the chagrin of Hans Frank).
(p.60) Walter Luetgebrune, born into a well-to-do agrarian family in Westfalia in 1879, studied law at Tübingen and Freiburg. Luetgebrune excelled at his studies, and began life as a lawyer in the practice of the most celebrated Weimar barrister of all, Max Alsberg. After the war, Luetgebrune's political views became increasingly radical and anti-Semitic, and he broke with Alsberg. Luetgebrune defended the student members of a Freikorps militia unit who had staged a mass execution of ‘reds’ at Mechterstädt near Marburg in 1919, naval officers accused of war crimes and, in 1922, the surviving assassins of Walter Rathenau. In 1924, he represented Erich Ludendorff in the Hitler-Putsch trial, securing the former field marshall's scandalous acquittal of the high treason charges. In 1925, he faced SPD lawyer Wolfgang Heine in the Magdeburg Ebert trial. In 1929, his fame was such that he was the main speaker at the 50th anniversary gala of his Tübingen fraternity, the Sängerschaft Zollern.48 Subsequently, Luetgebrune's views turned too radical even for the German Nationalist People's Party, which he had hitherto been associated with. He became the lawyer in chief of the SA after making the acquaintance of Ernst Röhm in 1931.49
Hans Frank was born in Karlsruhe in 1900. Frank's father, Karl, was struck off the bar register for overcharging clients. Steeped in his divorcé father's völkisch values, Frank moved to Munich for his studies, and joined the SA in the early twenties. An attempt to join the Foreign Office failed.50 As a trial lawyer for Munich Nazis, Frank swiftly made his mark with his uncompromisingly rabble-rousing, anti-Semitic style. His pleas were really thinly disguised podium speeches, with frequent endorsements of violence and legal reasoning often restricted to a minimum.51 Frank won Hitler's favour as the Nazi leader's counsel fighting press allegations that Hitler had accepted campaign money from Fascist Italy—essentially, that the Führer was in Mussolini's pocket. After the so-called ‘Italian Gold’ trials, Hitler backed the foundation of the Association of National Socialist German Lawyers (Bund Nationalsozialistischer Deutscher Juristen, BNSDJ) under Frank in September 1928. The newly minted Nazi lawyer in chief scored propaganda successes, culminating in the masterly presentation of Hitler as a witness in the so-called Ulmer Reichswehrprozess in September 1930. The trial of Richard Scheringer, a National Socialist army lieutenant accused of high treason, gave Hitler a stage for his so-called ‘legality oath’. Hitler abjured violence and ostensibly committed the party to a ‘strictly legal’ course. The echo was enormous. Delivered mere weeks before the 1930 Reichstag elections, Hitler's two-hour stump speech from (p.61) the witness stand helped project an air of respectability that contributed to the Nazis’ breakthrough at the polls. Frank's immediate reward was promotion into the party leadership (Reichsleitung). Upon the ‘seizure of power’ he became Bavarian Minister of Justice, narrowly missing out on the Reich portfolio he coveted.
Patterns of professional development
These brief biographical sketches have highlighted the lawyers’ diversity. What did they have in common? In keeping with patterns established by Konrad Jarausch, Kenneth Ledford, and Hannes Siegrist for the legal profession as a whole, almost all came from bourgeois backgrounds. The exception is Rüdiger von der Goltz, scion of major nobility. Relatively few married, mostly those on the right. Hans Frank wed a legal clerk, Brigitte, a few years his senior and given to fits of rage. They had two children. Although he was a notorious womanizer—one of his lovers was Wagner's niece, as le tout Munich knew—he was clumsy and perennially self-deceiving in the conduct of his affairs. Friedrich Grimm and Rüdiger von der Goltz both married, producing four and six children, respectively. There was a fairly wide denominational spread, with two Catholics, (Frank and Grimm), and three Protestants (Heine, von der Goltz and Luetgebrune). Hegewisch was protestant by birth, but an agnostic, just like Litten, whose father had converted from Judaism. Halle, Hirschberg and Levi were atheists.
It is striking that four out of six left-of-centre lawyers were Jewish. With civil service and the judges’ bench effectively blocked, an above average proportion of Jewish jurists opted for the bar, clustering in the large cities. In Berlin, they accounted for more than a third of barristers.52 The percentage was even higher among the lawyers who worked on behalf of the Red Aid.53 Many prominent Social Democrat lawyers—apart from Levi and Hirschberg in our group one might think of Philipp Löwenfeld, Johannes Werthauer, Kurt Rosenfeld, and Oscar Cohn—were Jewish. Anti-Semitic propaganda fused the idea of the unprincipled, opportunistic and eminently buyable ‘Winkeladvokat’ with anti-Socialist and anti-Jewish stereotypes (such as the ‘Jewish oath’ or ‘talmudic practices’ of textual interpretation). Even Christopher Isherwood, in Mr Norris Changes Trains (1935) introduces ‘a fat Jewish slumlawyer’ scouring Berlin police stations for clients.54 Although this study pays some attention to anti-Semitic attacks on Social Democratic and Communist lawyers, Jewish lawyers are not generally discussed separately, for two reasons. For one thing, publications by Konrad Jarausch and Tilmann Krach, as well as an excellent exhibition curated by Simone Ladwig-Winters have covered the subject. Secondly, to consider the cheerfully atheist Levi and Hirschberg or the deeply spiritual, but religiously agnostic Litten under the rubric ‘Jewish (p.62) lawyers’ appears odd. Although all three acknowledged their Jewish cultural heritage, and stood up to anti-Semitic attacks, none of them would have described themselves in these terms, and doing so nolens volens maps the logic of racial criteria.
Most of the lawyers studied at more than one university, again in keeping with contemporary practice. Foreign travel or study abroad was the preserve of the better off. Rüdiger von der Goltz spent two months travelling through Europe in the summer of 1913. An evening with Sarah Bernhardt in her celebrated role as Dame aux Camélias in Geneva provided the most vivid memories. Friedrich Grimm studied in Grenoble, like Paul Levi. Walter Luetgebrune travelled Europe for years after his qualifying exams for the civil service.55
Practicing the law was a second or even third career choice for many of the nationalists. Hans Frank's ambitions to become a judge or to enter the diplomatic service were thwarted one after the other, leaving him little choice but to enter the bar. Walter Luetgebrune had intended to enter the judiciary until a visit to a penitentiary persuaded him to fight for the unjustly convicted, or so he subsequently maintained.56 More likely, the long hiatus between state examinations and entry into the profession indicates an unsuccessful quest for a judgeship. Friedrich Grimm career path led to managing heavy industry before the war deflected it towards advocacy. Whereas Grimm's change of tack was voluntary, Rüdiger von der Goltz never planned to finish his civilian studies, let alone study law. His one and a half year stint at university was something of a studium generale, conducted partly in Switzerland and wholly with a view to rounding the future military man.
It stands to reason that the right-wingers’ willingness to violate the unwritten codes of lawyerly conduct was connected to what we may call their ‘late but zealous’ professional formation. Ex negativo, the case of Friedrich Grimm corroborates. The least extreme right-wing lawyer in our group, Grimm belonged to Stresemann's German People's Party until 1933. Extremely well trained, he finished his Habilitation in 1921 and served as lecturer (Privatdozent), then adjunct professor (außerordentlicher Professor) at Münster University between 1922 and 1933. For him the bar was certainly not a stopgap career choice.57 Perhaps for this reason, Grimm clung tenaciously to the apolitical self-view which Walter Luetgebrune, nine years his senior, had no trouble relinquishing. Grimm's professional socialization followed a trajectory different from the ‘late but zealous’ generation of reluctant barristers à la Frank and von der Goltz.
The observation that trials are ‘like theatre’ is just one starting point for the more complex concept of the performativity of justice that underpins my argument, (p.63) elaborated in chapter five. Nevertheless, it is striking that many party lawyers had thespian ambitions. Both Rüdiger von der Goltz and Hans Frank wrote plays in their youth. While at school, von der Goltz portrayed the Gaul Vercingétorix as a glamorous and daring freedom fighter, contrasted with the oppressor Julius Caesar.58 Frank concocted a much more abstract play set in a hypothetical polity. The ‘jester’ first incites the masses to revolt, only to be accosted by the ‘judge’, a sourpuss of an official. On trial, the jester professes his idealism and is sentenced to death. At the last moment, the ‘king’, an omnipotent, fatherly figure pardons him.59 An earlier play had featured Clio, Frederick the Great, Caesar and Napoleon—Frank liked thinking big. Paul Levi wrote a light-hearted send-up of bourgeois sexual hypocrisy.60 Max Hirschberg loved theatre, as did Wolfgang Heine, who defended Arthur Schnitzler's Der Reigen against obscenity charges.61
‘ … with the gayest youth and in the most harmless way the devil was loose’ — generational factors
Turning to the generational makeup of our group, the lawyers’ youth is striking. When Hans Litten took his own life in Dachau concentration camp to escape his captors’ constant torture in 1938, he was only 34. Hans Frank had just turned 46 when he was executed in Nuremberg eight years later. The majority of our lawyers, six out of ten, were slightly older and belonged to what Detlev Peukert has labeled the ‘war generation’. Born between 1880 and 1895, they were between 20 and 35 years old in 1914. The war deeply affected career paths, political socialization and self-perception. While their elders profited from the post-war build-up, they had to play catch-up: decommissioning, training or re-training, founding a family. As a result, they ‘either played “second fiddle” or projected themselves as the alternative to the “old ones”’.62
Youthfulness dominated the self-stylisation of the ten lawyers. With the exception of Wolfgang Heine, 57 at the end of World War One, all defined themselves in terms of dynamism, speed, and a willingness to challenge tradition. Take the lawyers’ penchant for cars. Rüdiger von der Goltz opened his unpublished memoirs with a long eulogy to cars and prided himself on driving despite the loss of a leg. Paul Levi reportedly loved Greek vases, his cactuses, and speeding around Northern Italy in his motorcar. Hans Frank bought an automobile years before he could afford one, with the result that the cherished possession was constantly at risk of being impounded. As Erich Kästner put it, die Zeit fährt Auto.
(p.64) Rüdiger von der Goltz's account of his conversion to Nazism illustrates the self-projection as the ‘youthful alternative’. Despite obviously downplaying his involvement in Nazi crimes, Goltz's unpublished memoirs are a fascinating source. Intended for personal or family use, not publication, they were deposited in the German Federal Archive and only cleared for access in 1999. Writing in the 1950s, von der Goltz was unapologetic about his continued adherence to Nazi values, and openly flaunts his party credentials. Thanks to this unrepentant attitude, the memoirs throw much light on Goltz's motivations, self-stylization and his relationship to other barristers.
Following in his father's footsteps, von der Goltz had initially joined the German Nationalist People's Party (DNVP), and represented the Landbund, an agrarian pressure group, as well as an East Elbian industrial association. To him, what distinguished the Nazis from the German Nationalists were not the political goals so much as the style in which they were pursued. It is telling, then, that the account of his conversion to Nazism opens with the observation that the ‘old generation had declared bankruptcy’ and ‘the middle was crushed, whether it wanted to or not’. ‘Youth is not prepared to settle for the resignation of age, and that is its privilege’, and so ‘the young ones did not ask, they knew’.63 The rallies of the ‘young ones’—i.e. the Nazis—are painted as a sort of political carnival, where ‘with the gayest youth and in the most harmless way the devil was loose’.64 ‘Speed (‘Tempo’) everywhere. And we were supposed to leave these boys (‘Jungens’) in the lurch? Weren’t we still young ourselves, even at 36?’ the memoir asks. The ‘old generation’ tried to shore up its disintegrating platform with ‘ever harsher emergency decrees’ and ‘political justice’. ‘We did not want this. And that is why we belonged to the young ones! […] Those were the thoughts. Idealism, readiness to personal sacrifice and the will to live’. The situation is cast as one of stark choices, ‘the time of decision’, and at the same time as one where really, all decisions were predetermined: ‘The only choice now was between these young ones and the Communists’, only these were ‘sufficiently unselfish, faithful and willing to sacrifice’.65
Von der Goltz's outlook showed great affinity to his most prominent client, Joseph Goebbels.66 The two met at a dinner party hosted by Berlin socialites Herbert von Dircksen and his wife in February 1930, shortly after the Fahlbusch trial opened. Hohenzollern prince and Nazi supporter August Wilhelm (‘Auwi’ to his friends) had introduced Goltz. The other guests were DNVP leader von Freytag-Loringhoven, the Austrian Stahlhelm principal Starhemberg, Hermann Göring (p.65) and his wife Karin. The rapport between Goebbels and his future lawyer was immediate, and Goebbels asked von der Goltz to defend him in a number of libel suits linked to the anti-Young plan agitation.67 Impressed with Goebbels’ ‘quick wit’, von der Goltz agreed without hesitation. He recalled with admiration how the Nazi party boss duped von Freytag-Loringhoven at the Dircksens’ party. The Nazis’ success, Goebbels proposed, was explained by their supporters’ willingness, matched only by the Communists, to die for the party. But who, Goebbels asked, ‘would be prepared to die for the German Nationalist People's Party’? ‘Freytag-Loringhoven was the first to recover’ and ventured that he ‘could imagine that someone could be prepared to die for the German Nationalists’ cause, too’. ‘With lightning swiftness, Goebbels stuck a dagger straight through his heart: “Yes, but only from old age.”’
Von der Goltz was even more taken with the Nazi politician's bearing on trial: ‘In a two hour long, objective address, Goebbels makes himself the pained and passionate advocate of disappointed youth’, he reported from their first outing in court together.68 Just how ‘objective’ Goebbels courtroom speech really was is less interesting than the observation that, to von der Goltz, the Nazi leader was able to reconcile juxtaposed values and attitudes. Goltz found Goebbels passionate as well as ‘sachlich’, and both a coolly detached steward (‘of disappointed youth’) and a hothearted believer in the cause. In short, Goltz described Goebbels as a kind of literarischer Doppelgänger, in terms that evoke his own idealized self-conception as a political lawyer. Goebbels was equally taken with von der Goltz.69 After the Dircksen's party, Goebbels, his lawyer, and the Görings mulled over the impending trials in a gloomy Berlin cellar bar ‘until three in the morning’. ‘Goltz is knorke’, Goebbels noted in his diary, using a term of endearment of the highest order, usually reserved for SA song evenings and the like. ‘He gives all of us a bit of fun. Apart from that, the evening was pretty much lost’.
Most of all, however, Goltz's political interpretation of the trial lawyer's role swayed the Nazi leader.70 The young lawyer, Goebbels wrote in his diary, ‘sees the job in the right light. His thinking is political’.71 Conversely, von der Goltz knew what Goebbels was looking for: political publicity. His analysis that the impending trials were ‘a unique opportunity for publicising [Goebbels’] ideas through the entire press of all German states’ echoed Goebbels’ agenda.72 As well as admiring (p.66) one another, Goltz and Goebbels, pictured together on the front cover, shared a common perspective on judicial procedure as a vehicle for political propaganda.
Von der Goltz voiced the anti-democratic resentment of his generation most clearly, perhaps because his career reflected the pattern of war-related professional disadvantages postulated by Peukert so exactly. But the self-projection as the ‘youthful alternative’ is evident in all the lawyers of this generation, for example in their scepticism towards parliament. In June 1925, Ernst Hegewisch argued that the ‘government of workers and peasants’ was something ‘entirely different’ from a government ‘pompously installed with parliamentary tricks’. The only way to guarantee a bona fide workers’ and peasants’ government was ‘of course through armed insurrection’ [E.H.'s emphasis].73 Even Paul Levi was at times ambiguous in his support for parliamentary democracy. He characterized the 1922 Law for the Protection of the Republic as an ‘impotent parliamentary measure’, and maintained that democracy and violence were both necessary ingredients in advancing towards socialism. When ‘contrasted with the past’, the ‘Republic as it is’ had an ‘entitlement to being defended’—hardly a ringing endorsement of the status quo.74
‘You’re effeminate, you eat too much, you feast, you’re a far-too-much sleeper [ … ] you’re a coward, you did not fight for your country—what good is all this wailing afterwards?’75 This passage from Hans Frank's diary in June 1920 provides a glimpse of the ‘superfluous generation’ of Weimar politics. Born just after the turn of the century, these men were marginally too young for military service, and thus ‘excluded from the legitimising myth of the front experience’.76 In Frank's case, this may well have been exacerbated by his family's apparent efforts to keep him out of the firing line. Just before finishing grammar school, Frank was sent to stay with his mother in Prague for a year. Feelings of exclusion and guilt fed into frustrations and self-reproach of the sort evident in the passage above, a margin note to an earlier entry. In that earlier text Frank recounts his—supposed—bravery as a member of the Free Corps ‘liberating’ Munich in April 1919. In fact, he had seen no action then, either.
According to Peukert, the ‘superfluous generation’ tended to either political radicalism or apolitical quietism.77 Hans Frank and Hans Litten fall into the first category. Strikingly, both men's thought, rhetoric, and self-view had strong religious undertones, though Litten rejected religious affiliation. Litten's asceticism was the very antithesis of Frank's lifestyle aspirations. The latter's estranged father regularly chided him for his extravagant travel, the two manservants the family employed, and Brigitte Frank's expensive dress sense. The taste in luxury goods, vintage champagne, and stolen art that later earned Hans Frank the reputation as looter-in-chief of occupied Poland were evident right from the start.78 In those (p.67) earlier days, they mostly earned him dates at court facing angry creditors, as the appetite for luxury often exceeded Frank's means.79 His motorcar, for example, was regularly threatened by repossession. In the winter of 1928, a Leipzig mink coat dealer added to Frank's financial woes by asking him to return a coat purchased, but not paid for, by Frank's wife. Unfortunately, the Nazi barrister had been forced to pawn the coat in the meantime, and his attempts at reclaiming the unpaid garment were frustrated by the fact that the pawnshop had already sold it. Frank, true to form, threatened the coat's new owner, a ‘Miss Anny at hairdresser Dadlhuber, Munich’, that he would sue her for the possession of ‘goods illegally sold’.80
Trivial as each episode appears by itself, in sum they paint the picture of a man entertaining delusions of grandeur and unable to match his ambitions to his means, as well as that of a compulsive liar. In Frank's case, the link between the psychological effects of ‘missing out’ on the war and his practice as a Nazi barrister appear manifest. He compensated the perceived stigma of his non-participation in hostilities by formulating a self-view informed by religious self-exaltation. In some passages of his diary, Frank addresses himself directly to God: ‘Do you hear me, I myself want to be the leader, you have sanctioned it, let us say, by giving me the will to be it, I will!’ The vehicle for his leadership would be ‘greater Germany, the fate of the world’81 or the ‘German people, saviour of humanity’.82 In his diary, passages of elation and self-reproach are often intertwined, linked by the idea of penitence paving the way to imagined greatness. Both play on the religious themes of guilt and redemption through sacrifice.83 Religious themes thus underpinned Frank's radical nationalism and his almost manic self-importance. It does not take much imagination to see a relation between Frank's youthful delusions of grandeur and his highly-strung court appearances. At the same time, his ideas about the redemptive nature of sacrifice would have made it easier for Frank to dismiss qualms about the fate of his clients as martyrs to the National Socialist cause.
Summing up, the ten lawyers form a diverse group, notwithstanding their homogenous social extraction, the age clustering, and some similarity in career patterns. But they shared a new conception of judicial procedure. In remoulding the trial lawyer role, they were united to a degree that belies their ideological enmity and occasionally catty infighting. It is to this collective and deliberate project of redefinition that we now turn.
(p.68) Rationalizing the ‘Struggle for Justice’
The monikers party barristers chose for themselves offer a first glimpse of their reconceptualization of judicial procedure. ‘Revolutionary trial lawyer’ and ‘intellectual specialist worker’ were the preferred sobriquets of KPD barristers. Ernst Hegewisch, to whose drawn-out disputes with the KPD we owe the most evocative (if perhaps not the most objective) account of the work of party lawyers, styled his activities ‘nursing duties performed for revolutionary defendants’.84 The self-descriptions of Nazi lawyers stressed party discipline (invoking notions of duty and comradeship) as well as an aggressive interpretation of the trial lawyer role. Apart from relishing the chance to play ‘state prosecutor for the movement’, Hans Frank liked to speak of the ‘legal SA duty’ Nazi lawyers performed. Just like Hegewisch pictured himself metaphorically nursing stricken revolutionaries, so Frank portrayed the Nazi party lawyer as ‘treuer Eckehardt’, standing steadfast and selfless like the eponymous figure from the Nibelungen saga beside their comrades in the dock.85 Apart from such flowery euphemisms, self-designations as ‘political defender’, ‘political lawyer’, ‘revolutionary lawyer’, and ‘national lawyer’ abound, as do constructions simply prefixing the party name, as in ‘Communist lawyer’.
In the context of the apolitical self-perception of the German legal profession, which commentators from Dahrendorf to Ledford have stressed, these names were anything but throwaway labels. Rather, they self-consciously emphasize the party lawyers’ departure from the liberal norms of their profession. They expressed that being a party barrister was ‘not a mere vocational activity’ but ‘constant political action’, as Communist barrister Rolf Helm put it.86 Political lawyers thought of themselves as such—and, by the same token, referred to the rest of their colleagues as ‘non-political’.87
Party lawyers had many opportunities (usually relished) to reflect on their work, bequeathing us with an array of useful sources. Disputes with their parties over (p.69) defence strategy, access to the party press, or simply over pay occasioned self-justification and praise or criticism of other lawyers. Moreover, opponents routinely jeered their court appearances, and even within their own parties, they were often viewed with suspicion.88 In response to these challenges, political barristers developed a sharp profile and a distinctly ideological, partisan, and confrontational view of judicial procedure and their own function within it.
War metaphors dominate the way political lawyers described their role in the judicial process. Ernst Hegewisch's ‘nursing duties for accused revolutionaries’, for example, equated the detention of political offenders with injuries sustained on the battlefield. In the sense that a mild verdict or acquittal promised alleviation, the courtroom was the infirmary. And in the sense that the lawyer was the field surgeon, any measures he took were justified. It was more common, however, to apply the war metaphor to courtroom action itself. Hegewisch himself hailed ‘the struggle against white justice’, not without pointing out that ‘in order to wage war one requires money’.89 Stuttgart KPD barrister Hainz deplored ‘pacifist’ tactics as the antithesis of genuinely ‘Leninist’ defending. Barristers who came under political pressure, such as Artur Samter, were quick to protest that they were not partisans of a ‘pacifist tendency of pleading’.90 The fortnightly legal supplement to the Völkischer Beobachter, edited by Hans Frank, was named the ‘struggle for German justice’. Communist Party legal functionary Eugen Schönhaar imagined himself marshalling his troops for ‘judicial war’, and so on and so forth.91
To an Anglo-American reader accustomed to adversarial trials and steeped in a tradition of fictional courtroom drama, recourse to these metaphors may seem unremarkable. In the context of the inquisitorial trial, however, facilitated by ostensibly neutral ‘organs of the administration of justice’, such talk jarred—especially coming from one of these organs. True, even in the German context, one need not be a political lawyer to discern elements of a struggle in court. But the persistence with which political barristers employed war metaphors locates their activities within a political rather than a judicial context. The barristers’ talk of ‘legal struggle’ aligned their professional lives with their party's ideological project. Their conception of legal procedure, in other words, tended to minimize, if not erase altogether, the distinctiveness of the sphere of law vis-à-vis other arenas of political (p.70) conflict. At the same time, it flew in the face of the self-conception of the German administration of justice in general and of German barristers in particular. That is why both (hotly disputed) disciplinary measures against party lawyers in court and the internal disciplinary machinery of the bar, the so-called ‘honour courts’, invoked the ‘dignity of the organ of the administration of justice’ in order to justify censure.
The notion of justice as struggle stresses the performative, political and existential dimensions of trials. It downplays the dispassionate weighing of factual evidence, applicable law, and procedural rules. A welcome consequence of this shift was the sidelining of legal competence. In court, extremist barristers attached far greater significance to partisan zeal than to sound legal argument. Recommending themselves to their parties, they stressed all sorts of qualities—their ideological commitment, their (alleged) willingness to forego economic advantages, their connections to the press—except legal prowess.92
In October 1932, for example, Berlin barrister Alfons Sack sought a promotion. Unable to leave Munich, Hans Frank had transferred one of Hitler's jealously guarded personal mandates to Sack. The brief gave Sack nervous jitters—‘there is a danger that I will be made responsible for the conduct of the trial to date. Nevertheless, since it is one of the Führer's mandates, I will gladly suffer this danger’—as well as some leverage. Wondering aloud ‘whether I must not be accorded a special place in the ranks of the party's lawyers’, Sack hastened to reaffirm his allegiance to Frank. ‘You, revered party comrade, know me well, both as a man and as a lawyer […] you know that I am completely aligned with you on all matters’. Sack then pointed out that he had ‘selflessly […] championed the simple SA man’ and ‘taken on trials which were sent my way barely a quarter of an hour before the opening bell’. Personal loyalty, selflessness, commitment to the paramilitary agenda of the stormtroopers, and work ethic recommended Sack—not, say, legal sophistication, good connections to Berlin judges or academic merits. In fact, Sack never even mentions his legal competence nor laws and legal arguments. In general, party lawyers seldom stressed their legal abilities, even on the left, where they were in greater supply. They were anxious not to present detractors with an open flank as ‘bourgeois’ or ‘out of touch with the real world’. In the eyes of the extremist parties, political reliability trumped legal skills. As we will see in the next chapter, this preference was reflected in the party legal organizations’ manuals, fee tables, and day-to-day liaison with the lawyers.
At times legal skills appeared positively onerous. Consider for example Hamburg NS barrister Hans Rave's defence of his colleague Heinz Wessig at a party disciplinary hearing in December 1930. Wessig was seeking to overturn his expulsion from the NSDAP following a conviction for an unspecified violent offence. The ‘investigation and reconciliation committee’, or USCHLA (short for (p.71) Untersuchungs- und Schlichtungsausschuss), with Hans Frank presiding, heard that Wessig's expulsion from the party contravened the National Socialist ‘idea of German law’. ‘An old Germanic Council, free from legal dialectic and sophistry’ would have acquitted his colleague, Rave argued. Wessig's actions had expressed ‘a certain Furor Teutonicus’. Were ‘bomb throwers’ unworthy of membership of a nationalist movement just because they had been convicted by a criminal court? Even if Wessig was expelled from the bar, was this a reason for expelling him from the Association of National Socialist German Lawyers? After all, many ‘extremely honourable party comrades’ had had ‘brushes’ with the criminal law. The qualities of National Socialist barristers, in other words, were not just independent from the legal framework governing the profession, but enhanced by defying it. In principle, Rave's praise of his colleague's qualities was a variation on Frank's theme of ‘legal SA duty’. While celebrating Wessig's ‘teutonic fury’ (as expressed by his unspecified offence), ‘legal dialectic and sophistry’ was disparaged. In the end, Wessig's undoing was not his criminal conviction but the personal enmity of Hamburg Gau leader von Allwörden. In order to be a good political lawyer, being a good lawyer was as unnecessary as renouncing violence.93
All extremist party barristers’ endorsed violence, more or less openly. Readiness to resort to it, Ernst Hegewisch wrote to the party leadership in May 1922, was a sine-qua-non of a ‘sound Communist mindset’ (gute kommunistische Gesinnung), its renunciation never more than a concession to tactical necessity. Disowning the ‘revolutionary adventurism’ of Karl Plättner completely, for example, was a mistake. The party's motto vis-à-vis ‘terrorist groups’ such as Plättner's bank robbers ought to be ‘march separately, strike jointly’ (‘getrennt marschieren, vereint schlagen’). Political murder was a legitimate tactic (Hegewisch approvingly cited a recent killing in Spain as an example).94 In public, Communist lawyers were slightly more restrained. At the Red Aid's 1925 convention, KPD barrister Seckel attacked the explosive substances law. Was it just, he asked, to sentence someone to ‘years in prison’ for nothing worse than ‘scaring political opponents by lobbing a hand grenade onto their veranda’?95
Nationalist lawyers echoed Seckel's euphemism about ‘scaring opponents’, or went one better. Rüdiger von der Goltz described the 1930 bombing campaign of the Landvolk peasant radicals as ‘demonstrating with bombs’ or, presumably tongue-in-cheek, as a ‘noisy demonstration’.96 Roland Freisler, subsequently chief justice at the notorious National Socialist People's Court (Volksgerichtshof ), was a particularly violence-prone member of Frank's Association of National Socialist German Lawyers. Pleading in a 1931 Osnabrück trial, and with the court in full session, the barrister snapped up a courtroom whisper that a brawl was in progress (p.72) outside. Freisler promptly called upon the Nazi witnesses and audience members, 40 stormtroopers in all, to accompany him outside to take part.97 When Hans Frank spoke of ‘juridical SA duty’ or of being a National Socialist lawyer ‘mit ganzer Faust’ (roughly, ‘whole-heartedly and fists clenched’), he meant it literally.
Theorizing paranoia: ‘tribute justice’and ‘class justice’
On both extremes of the political spectrum, party lawyers at once razed the distinction between the spheres of law and politics and sought to escalate confrontations in both. Underlying the emphasis on ‘struggle’ and the advocacy of violence was a view of justice as a—more or less pliable—weapon in the all-encompassing clash of ideologies. Two views of justice which party lawyers developed in some detail can serve to illustrate this assertion: Rüdiger von der Goltz's ‘tribute justice’ and the (much better known and more nuanced, but also more ambiguous and controversial among subscribers) notion of ‘class justice’.
‘Tribute Justice’ was shorthand for grafting radical right-wing revisionism onto some well-established tropes of Weimar judicial criticism. The basic argument of Rüdiger von der Goltz's eponymous ‘book in pursuit of German freedom’ was simple. The obligations of the Versailles Treaty had been incorporated into the Republican constitution and internalized by the democratic parties. Their power now depended on turning Germany's external ‘enslavement’ inwards, against its own citizens, or rather ‘subjects’ (Untertanen). The courts were a means to this end: ‘no law and no application of the law exists in a vacuum. And within the German sphere, the air these days is called Versailles’. Goltz outlined his theory of ‘Staatsnotwehr’ (self-defence by the state) and made much of Article 178, which guaranteed that the Versailles obligations were untouched by constitutional norms.98 But the mainstay of his argument, and its strength, was the string of case studies. From the persecution of submarine officers for war crimes to Goebbels’ spate of libel trials in the wake of the anti-Young plan agitation, Goltz drew on celebrated and controversial political trials, foregrounding those he had pleaded in. For all Goltz's bias, misrepresentation, and relentless partisanship, this mode of presentation was highly effective. Though written for the legal layman, and entirely devoid of juridical analysis, legal terms and phrases are sprinkled throughout the text in just the right dose to convey an air of authority. But what really makes the case studies captivating reading is their first-hand, up close and personal nature.
What general deductions about von der Goltz's conception of judicial procedure can we make from Tributjustiz? We can distinguish three levels of Goltz's argument. Firstly, The ‘machinery of justice’ was ‘objectively in the service of compliance (p.73) [Erfüllung] and thereby […] also in the service of the enemy vis-à-vis freedom loving parts of the people’.99 Partly out of a misguided sense of ‘objectivity’ and respect for positive law, partly because the prosecuting practice of Republican governments forced their hand, the courts were guilty of failure to resist.
This failure was particularly problematic because, secondly, the more ‘tribute justice’ became obscure and underhand over time, the more dangerous it got. Under the influence of the ‘creeping poison of trials … outwardly clad in the garb of regular law’, ‘ever-wider circles of the people’ were alienated, feeling that they ‘no longer owned their laws, no longer owned their state’. There was something creepy and infectious about tribute justice—the less visible it became, the more corrosive its effect. Any ‘bourgeois hope’ that ‘the administration of justice and the people’ could live in this way ‘without damaging their soul, damaging their character’ was misguided: ‘Under enemy coercion, no law of our own; without our own law, our identity as a people and as a state become unthinkable’.100 At bottom, the notion of tribute justice thus plays on the fear of division. By pitting the ‘freedom loving parts of the people’ against the misguided fulfillers of the Versailles Diktat, ‘tribute justice’ threatened the very fabric of the German nation. Warped judicial procedure turned Germans unto Germans and prevented their uniting against the rest of the world.
Thirdly, the compelling drama and human interest of the trials drives von der Goltz's argument, not the far from airtight logic of his analysis or deductions. It is written in an emphatic, not an analytical key. Youth, health, honour, nationalism, courage, and sacrifice are contrasted in protagonists like Fahlbusch, Schulz, and Goebbels with the representatives of the ‘system’: greedy, corrupt, cowardly, self-serving, degenerate, international, and weak.
Von der Goltz's criticism of the Reichsgericht (the supreme court) in the trial of the submarine officers Boldt and Dittmar is instructive. The two Lieutenant-Majors were tried for sinking a British hospital ship, and then, in an apparent cover-up, destroying the lifeboats escaping from the stricken vessel. Far from conceding guilt, von der Goltz commended the two sailors. It was ‘widely known’ that British hospital ships were used as cover for munitions shipments, and besides the political repercussions of sinking what turned out to have been a ‘real’ hospital ship would have been ‘damaging to the Reich’. Moreover, the state prosecutor should never have indicted the officers. The Allies had identified only Captain Paatzig, their commanding officer, who had died in the meantime. ‘But the German state prosecuting authorities were objective, and demonstrated that all these prosecutions were not conducted on enemy orders, but sprang from a sense of justice (Rechtsempfinden) all one's own’ by indicting Boldt and Dittmar. Even worse, the Reichsgericht, ‘the Leipzig megaphone, to which the whole world cupped its ear’, missed the chance of ‘mount[ing] a counterattack by hearing the most extensive evidence of enemy atrocities’. This would have ‘demonstrate[d] the impossibility of complying’ with the Versailles Treaty and ‘thereby furnished the government [ … ] with the best possible (p.74) weapon’ to renegotiate it. Not a single war crimes trial would have been concluded, ‘because the highest German court would have turned into the prosecutor of the enemy's entire conduct of war. That would have been legally right, and politically the only right thing to do’.101
In Goltz's disappointment with the ‘Leipzig megaphone’ lies a prescription for the conduct of political trials. Not the individual conviction or acquittal was the ‘ultimate’ aim of a trial, but to shift political perceptions, to pave the way for the fundamental revision of a flawed constitution. The boundary between trial and politics became fleeting: witnesses were called and pleas were framed with a view to exploitation in the press, rather than because they promised legal reprieve. Where recalcitrant judges withdrew the right to speak, as for example in the 1930 libel cases against Goebbels, the prohibited pleas were printed in the party press (and reprinted, verbatim, in Tributjustiz), garnished with the insinuation that there must have been ‘good reasons’ for cutting short the defence. Just as trials were the continuation of politics by other means, so trial-based journalism and pamphleteering recycled judicial procedure for propaganda purposes.
To his opponents, Goltz imputed motives for conducting trials strikingly similar to his own. By the submarine officers’ prosecution, ‘the enemy intended to punish the entirety of the German armed forces for the string of victories which over years he had been unable to answer in the field’. Goebbels was to be ‘eliminated [beseitigen] by way of tribute justice’, the murderers of Foreign Minister Rathenau were put on trial to ‘kill off’ the ‘national freedom movement’ etc.102 In essence, the conception of judicial procedure von der Goltz ascribes to the purveyors of ‘tribute justice’ mirrors his own. At the same time, this view of judicial procedure validated aggressive trial strategies. The ‘idealists’, ‘youths’, ‘freedom-loving elements of the people’ etc. were already convicted when they set foot in the courtroom. Sacrificing them rather than arguing for mitigating circumstances, let alone admitting culpability or showing remorse, was not a moral quandary but a logical conclusion.
To Ernst Hegewisch the judicial system was ‘an instrument of power employed by the ruling class against the proletariat’ and ‘visible expression of the class character of the present order of state and society’.103 Max Hirschberg saw ‘class justice propping up the domination of the ruling class over the proletariat’. Social Democrat and Communist lawyers agreed that Weimar justice was class justice. They disagreed, however, on its precise mechanisms and degree of intentionality.104
Social Democrats Ernst Fraenkel and Erich Kuttner developed a highly differential analysis of the judiciary's class bias. Law students were predominantly (p.75) drawn from the privileged strata of society. The few graduating proletarians were discouraged by the prospect of the long, practically unpaid wait for a spot on the justice's bench. Once there, recruits were socialized in a professional milieu that was culturally as well as politically conservative, cherishing a professional ethos of analytic rigor and unfeeling dispassion. As a result, judges lacked first-hand acquaintance with and sympathy for working class life as well as the capacity (let alone inclination) to empathize. The shorthand for this charge was Weltfremdheit, a hard to translate pejorative implying pampered naïveté and lack of acquaintance with the real world. Flanking the fundamental problem of the judges’ class was a whole host of auxiliary measures, routines and administrative shortcuts penalizing working class defendants. From lack of information to the language of officialdom, from being coaxed into self-incrimination by scornful policemen to being excluded from the lay magistrates’ roster by scheming judicial clerks, workers were disadvantaged in their dealing with the justice system. This systemic disadvantage showed up in the verdicts against them, Kuttner and Fraenkel argued.
Max Hirschberg's analysis of ‘class justice’ shows that Fraenkel and Kuttner's work was influential at the cutting edge of political justice. The SPD lawyer ascribed ‘a narrow, petty-bourgeois horizon in political questions’ to the ‘overwhelming majority of judges’: ‘in the majority drawn from the petty bourgeoisie, they were against the proletariat and in favour of those in power. Whether they played their anti-revolutionary role in good faith [ … ] or abused their judicial power deliberately to subdue the revolution made little difference’.105 Social Democrats like Hirschberg championed judicial reform, often through gritted teeth. Making judges accountable to parliaments; more liberals and Social Democrats on the bench; protecting barristers from intimidation through court fines or disciplinary action; reversing the virtually total abolition of the jury system in the 1924 reforms etc. Important battlefields, but to SPD lawyers, the fight against ‘class justice’ was a struggle to reform, not to replace the judicial system.
Their KPD colleagues used ‘class justice’ in a much broader sense, as a wholesale denunciation of the Republic, and scorned ‘reformism’. Remarkably, West German historiography has transported this Communist criticism of Social Democracy from partisan into scholarly discourse almost seamlessly. According to Heinrich Hannover, Max Hirschberg's major shortcoming was his limited grasp of ‘class justice’: ‘He refused to acknowledge the political dimension of justice, the instrumentalisation of the penal law as a weapon of the ruling class’. Magnanimously, Hannover accords Hirschberg a ‘will to fight […] that let him do the right thing even where his theory was wrong’.106 Contrary to Fraenkel's and Kuttner's overly refined interpretations, there was nothing unconscious about the bias of the judicial system, and addressing ‘imbalances’ was a waste of time. The solution was not (p.76) ‘piecemeal’ reform but to sweep aside the judicial system along with the political order it allegedly conspired to protect.
Whereas left-wing lawyers could at least agree that the courts were a problem, right-wing lawyers were divided even on this question. Some, like Friedrich Grimm, were basically sympathetic to the judges. Political interference in their work was the problem, unshackling, not attacking the courts was the order of the day. By contrast, Hans Frank called for a ‘struggle against a judiciary traitorous to its own blood’ and rejected co-operation with the Weimar courts. Rüdiger von der Goltz took a more ambiguous position—some judges were ‘independent’, others the stooges of democracy.107 Often, it was precisely the German judges’ objectivity and devotion to the law that made them such pliable tools of ‘tribute justice’—the deutscher Michel in robe and wig, so to speak.
Von der Goltz's Tributjustiz owed much to the notion of class justice. The assertion that ‘the people has a much more refined feeling for justice than many a highly educated man’ echoes the charge of ‘Weltfremdheit’. At times, the accusation was taken up verbatim, as in the iteration ‘weltfremd, volksfremd, frontfremd ’. In one fell swoop, the phrase implies being out of touch, alien (with a racial inflection) and cowardly, or at least inexperienced in combat. Both left and right juxtapose a ‘coldly objective’ or ‘abstract’ jurisprudence with the human suffering it imposes on precisely the most worthy people. Hence von der Goltz lamented the humiliating transport of the submarine officers (‘“in accordance with the directives for murder suspects”, as a ministerial communiqué put it [ … ] a long chain around the ankle’). Communist and nationalists also shared a conspiratorial view of justice. The Communist central legal office saw the spectacular Tscheka trial as an effort to ‘morally condemn the party in public’ and to facilitate revoking the immunity of KPD Reichstag deputies.108 According to Rüdiger von der Goltz, the Feme trials intended to ‘demoralise’ the Reichswehr. Branded murderers, its leaders would be compelled to hand over the reigns to Social Democracy ‘in the pacifist sense’.109 Goebbels’ trials he regarded as a ‘concerted’ campaign scheduled to ‘go on stage to destroy at all costs his increasing public renown before the September 1930 Reichstag elections’.110 Against nationalists, he felt state prosecutors acted ‘subjective through and through, subjective like—a barrister’.111 The barristers’ perception of their opponents’ motivation, though primarily a reflection of their own, justified a reply in kind.
Even metaphors of left- and right-wing judicial criticism overlapped. Depicting Iustitia as a whore was popular with both political extremes and SPD lawyer Hirschberg.112 The image implied duplicity and bourgeois double standards, as (p.77) well as a mercenary materialism. Last but not least, it lent itself to lurid plays on words and titillating visualization. The anarchist weekly Schwarze Fahne, for example, devoted a title page to a crude cartoon showing the heavy-set figure of a judge in robe and cap raping a blindfolded justice.113 For the right, the judges were the ones being violated, which called for an adaptation of the imagery. Rather than dwelling on the trope of rape, the right-wingers used the image of ‘justice in chains’. The element of coercion stayed, but the potentially humiliating and embarrassing sexualization of the supposed victims of political interference, the judges, was dropped.
There is something deeply ironic about the notion of German judges cajoled into passing verdicts favourable to Weimar democrats, given how miserably efforts to restrict ‘judicial independence’ foundered. However, pointing out this irony (as many commentators have) should not detract from the powerful appeal of this genre of judicial criticism. Gefesselte Justiz (Justice Enchained) by disgruntled ex-civil servant Ewald Moritz was a great publishing success, selling in excess of 100,000 copies within two years. The only book on the topic of political justice with comparable sales figures was Felix Halle's Wie verteidigt sich der Proletarier … ?, selling 76,000 copies by 1929.114 Both figures dwarf the pre-1933 sales of Hitler's Mein Kampf.
Nationalist lawyers and publicists even hijacked the slogan of ‘class justice’ itself. Hartmut Plaas, an intimate of fellow Rathenau conspirator Ernst von Salomon and his lawyer Walter Luetgebrune, for example, lamented the detention of Nationalists in the Dungeons of the Bourgeoisie in his eponymous pamphlet. An ‘administration of justice in whose judgements a certain societal, political or social tendency manifests itself is not grounded on justice, but on power. It is class justice.’ One contributor to the volume was Martin Bormann, later Hitler's ‘private secretary’ and one of the most powerful men in the Third Reich. Bormann had spent a year in prison for his part in the Feme slaying of Walther Kladow, suspected of betraying the Nazi martyr Leo Schlageter to the French. His piece, entitled ‘Klassenjustiz’, argued that not Communists but nationalists were the main victims of the courts’ political bias. Bormann contrasted the alleged mistreatment of nationalist prisoners such as himself with the supposed favouritism towards Socialists. Like the Communists’ use of the term, Bormann's notion of ‘class justice’ identified the courts with the ‘system’ in a wholesale denunciation of both:
Back in freedom, we witness the system that abused and enslaved us in captivity holding power. We hate this system [ … ]. We have forgotten how to be ‘just’. The ‘just’ is always a weakling, trying to hide his weakness beneath the mantle of justice. We have no belief in a German administration of justice while it is the politicians’ whore [ … ] That is why we will not rest until the fall of the system has become reality.115
(p.78) Plaas’ pamphlet strenuously emphasized hatred for the ‘bourgeoisie’ in whose ‘dungeons’ the nationalists smarted. This appeal to the workers was compromised, however, by the inability of contributors to disguise their disdain for the ‘masses’: ‘formless […], not to be grasped in their slimy, corrosive mollusc-likeness […] like armies of rats, the dust and excrement of the gutter on their backs’.116 Objectively, attempts to equate left- and right-wing suffering from judicial bias should have foundered on the shoals of conviction rates and average jail terms. Nevertheless, the slogan ‘class justice’ appealed to constituencies nationalists hoped to sway. Its purchase lay not in analytical rigor but in the visceral allure of its central assertion, that in Weimar's courts, prejudice was posturing as neutral arbiter. ‘Class justice’ harnessed the anti-judicial rhetoric of the left to the goals of the radical right in a wholesale attack on the ‘system’.
It was in this visceral sense, and not in the sophisticated sociological analyses of Ernst Fraenkel and Erich Kuttner, that the notion ‘class justice’ had most traction. That right-wing lawyers sought to emulate this mode of argument pioneered by their Communist peers suggests, independently of their success, that both extremes saw practical judicial criticism touch a nerve in contemporaries. Fundamentally as they disagreed on the meaning of ‘class justice’, extremist barristers used the slogan to assert the primacy of ideology. Politics determined everything, including the administration of justice, whose neutrality and independence was a hoax. In a sense, the greatest enemy of this position was not the ideological antagonist but the insistence that an arena for moderation could be found in the courts. That is why Plaas belittled the ‘pale liberal obsession with justice’ [der blasse liberale Gerechtigkeitsfimmel].117 The pattern of the extremes’ mutual cross-legitimisation, each furnishing the other with a justification for its radicalism, applied with a vengeance to the sphere of law. Even while combating one another, the extremes undermined the foundations of liberal politics in tandem.
Conceiving of judicial procedure as power politics in a robe and a wig helps explain why the moral problem of forsaking individual clients in the party's interest hardly ever occupied the lawyers responsible for it. As Felix Halle's guidelines for proletarian defendants put it:
For conducting a political trial, the outcome alone, which depends upon the verdict of the bourgeois court, cannot be the yardstick [ … ] In the interest of the movement, it may be necessary to conduct a trial with fundamental acridity in order to force the bourgeois courts to make their class justice transparent to the broad masses as clearly as possible.118
Even though Halle offers a partial qualification (in some cases of ‘lesser significance’ it could be ‘thoroughly unfitting [ … ] to play the revolutionary hero’), he justifies, indeed mandates, the party lawyers’ disregard for their clients’ sentencing. (p.79) The necessary ‘fundamental acridity’ required aggressive and unrepentant posturing by defendants (and their lawyers), while the ‘transparency’ of class justice increased with the harshness of sentences.
‘Cleaning the toilet for Uncle Scrooge’: party lawyers vs. their non-political peers
This final part of the chapter looks at the relations between political lawyers and their colleagues. Charting the flows of praise and vitriol that connected political lawyers with one another and their non-political peers does more than add colour. It illustrates to what extraordinary degree the lawyers were perceived (not least by themselves) as innovators as they carved out the niche of political specialization. The following thus helps situate party lawyers more exactly in the broader context of the Weimar legal profession.
As political specialization grew more pronounced, existing partnerships were strained. ‘Grave differences’ prompted Max Hirschberg to dissolve his pre-war partnership ‘with a non-political lawyer’. He joined Philipp Löwenfeld and Adolf Kaufmann, ‘Social Democrats and political defenders like myself.’ On the right, Walter Luetgebrune's preoccupation with ‘grosse Sachen’, high-profile trials, frustrated his partner Smend. The mundane, but lucrative run-of-the-mill briefs that were the lifeblood of their Göttingen practice suffered as a consequence, and Smend dissolved the partnership in 1928.119 There were exceptions: Rüdiger von der Goltz shared his Stettin practice with a non-political colleague called Weiss, to their mutual benefit, as he recalled.120 But the overall trend towards increased specialization is clear. Younger lawyers joining the profession in the late 1920s (Hans Litten, Hans Frank, Hilde Benjamin, Götz Berger) did so in ideologically aligned partnerships dedicated exclusively or almost exclusively to political defence work.121 In fact, the very designation ‘non-political lawyer’ announces the rise of the political specialists—previously, lawyers had been non-political by default.
Non-political lawyers saw their political peers as unprofessional, self-important, and vain. In 1929, Hitler sued the liberal Welt am Montag for libel over a satirical account of a meeting with nationalist media tycoon Alfred Hugenberg. Initially, Hans Frank inspired nervousness in his opponent, barrister Riegelhaupt, who asked the court repeatedly to defer proceedings. Once privy to Frank's written arguments, nervousness turned to exasperation. The writ was ‘from a legal perspective about the most baseless thing I have come across’, Riegelhaupt wrote. Frank incriminated language that was not even used in the contentious piece. His main (p.80) point seemed to be that the lampooned meeting had never taken place. Apart from the fact that Hugenberg and Hitler had frequently met, Frank ignored the distinction between factual reporting and satire and its reflection in legal precedent. Riegelhaupt felt ‘tempted to lecture on the most basic principles of criminal law’ and regretted that he had asked for proceedings to be postponed in anticipation of ‘interesting legal problems’: ‘one refutes such attacks with the nonchalant posture of ironic superiority’. Another Munich lawyer, barrister Kühlmann, was retained by Franz-Xaver Weixler, a National Socialist editor from Augsburg, who sued Frank for charging inflated fees. The services for which Frank had billed 1200 Marks, Kühlmann wrote, took an hour at most ‘unless a “well-known barrister” takes longer for such tasks’.122
The verdicts of the bar's disciplinary organs, the honour courts, reflected the unease party barristers inspired in their non-political colleagues. Honour court procedure had changed very little since 1877. Complaints from clients, colleagues, judges or government could trigger disciplinary proceedings. On average, the elected boards of lawyers’ chambers rejected 80 per cent of complaints out of hand. In most of the remaining cases, the board simply voiced its ‘disapproval’. The vast majority of complaints thus never gave rise to a formal investigation, the next level of escalation in disciplinary proceedings, handled by the state prosecutors’ office of the relevant Oberlandesgericht (higher court of appeal).123 If the state prosecutor pressed charges, the honour court itself was convened. It consisted of five members of the local lawyers’ chamber's board, including the president. Appeals could be lodged with the Reich honour court at the Leipzig supreme court. The Reich honour court featured seven judges: three lawyers qualified to plead at the Reichsgericht and four Reichsgericht judges, including the president or his deputy. A majority of judges, not barristers thus had the final say in disciplinary matters, a poignant reminder of the limitations of the emancipation of the legal profession discussed earlier.
The honour courts’ task was moderate in scope. Hannes Siegrist estimates that between 0.5 per cent and 2 per cent of lawyers were formally investigated per year, with less than half facing the honour court subsequently.124 In 1909 and 1910 the Reich honour court only sat a handful of times, passing judgement in 122 cases for the two years combined. The bar's bylaws (Rechtsanwaltsordnung) compelled barristers to maintain the ‘dignity of the profession’ (§28). Debt or alcohol problems, (p.81) extra-marital affairs, illegitimate children, even a wife's restaurant ownership could therefore lead to honour court proceedings just as easily as overcharging clients.125 All the more remarkable, then, that political activity was exempted, in principle at least, from censure. In a landmark 1905 ruling, the Reich honour court held that in disciplinary matters, ‘political activity’ was to be ‘disregarded entirely’: any ‘lawyer is free to express his political orientation as long the manner of its exercise does not violate the limits set by the law in general and the duties of his estate.’126
In practice, however, party lawyers routinely occupied the honour courts in the Weimar Republic. By statistical average, one in ten Weimar trial lawyers could expect to be subject to disciplinary investigation—which, as a rule, did not culminate in full-blown proceedings—over the course of his career.127 By contrast, all the lawyers discussed here, with the exception of Wolfgang Heine and Friedrich Grimm, faced the honour court during the fourteen years of the Republic alone, Hans Frank and Ernst Hegewisch more than once. Roland Freisler, subsequently chief justice of the feared National Socialist People's Court was tried in the Reich honour court a record four times. Clearly, party lawyers attracted disproportionate disciplinary censure.
After Paul Levi squashed the 1911 ad fraud racket, the Frankfurt bar association reprimanded him for covertly advertising his practice, Levi challenged the censure, and the row escalated all the way to the Reich honour court, where Wolfgang Heine secured Levi's acquittal. Heine also took an interest in the case against Max Falkenfeld, an SPD lawyer from Frankfurt/Oder. Falkenfeld had been taken into ‘protective custody’ by the Kapp Putschists, and took them to court for civil damages after the amnesty curtailed a criminal investigation. He was indicted for allegedly violating the ‘dignity of the profession’ by the publication of extracts from Reichsgericht files he had obtained in his civil action, but acquitted in February 1922.128 Max Hirschberg faced the honour court for likening the Bavarian ‘Standgerichte’ to ‘Schandgerichte’, ‘shameful courts’ rather than ‘special courts’ at a Munich USPD convention in February 1920.129 Although Hirschberg was deemed to have crossed ‘the boundary which the dignity of the profession draws for the politician’, he was cleared of all charges on 11 December 1920. The fact that his outbursts had been ‘isolated occurrences’ made them ‘probably excusably’. The following October the appeal against Hirschberg foundered at the Reich honour court.130 ‘A few years later’, Hirschberg speculated in retrospect, ‘the verdict would probably have been different’.
(p.82) Extremist barristers attracted the bulk of the honour courts’ attention. Ernst Hegewisch, for example, was fined for exhorting a mass meeting to free Max Hölz, the self-styled ‘Communist Robin Hood’, ‘if necessary’ by violence. Subsequently, he was wary of the disciplinary organs, who ‘make an elephant out of a mosquito where revolutionary trial lawyers are concerned.’ He had in mind the case of fellow KPD lawyer Ferdinand Timpe, who the honour courts had disbarred.131
Nationalist, and above all National Socialist, lawyers began to occupy the honour courts in earnest from the late 1920s onwards.132 The radicalization of the nationalist lawyers’ behaviour in court reflected that of the ‘movement’ as a whole. In the first half of 1930 alone, the Munich lawyers’ chamber received two complaints against Hans Frank. In Stettin, Rüdiger von der Goltz clashed with the head of the local lawyers’ chamber, his opponent in a custody lawsuit. Goltz was issued a ‘note of censure’, which he, like Levi, rejected, whereupon he was reprimanded again. After the seizure of power, he ousted his nemesis and assumed the leadership of the lawyers’ chamber.133 Roland Freisler occupied the Reich honour court on four separate occasions. The last of the verdicts, from September 1932, passed judgement on a whole series of incidents, including Freisler's marshalling of 40 witnesses as shock troops for a fistfight, discussed above.134 The Reich honour court condemned Freisler's ‘fully deliberate steps, intended to serve the gratification of his need for agitation’: ‘It is inadmissible that a barrister [ … ] makes his party political confession into the sole guiding light for his thinking and action.’ If Freisler was unwilling to accept this, he had ‘in the final analysis to choose between politics and profession’.135 Somewhat belatedly, the court thus responded to political specialization in the bar. That this ruling essentially reversed the landmark 1905 judgment underlines the impact of radicalized party lawyers.
The high incidence of disciplinary action against party lawyers points to a cultural gap: their style grated with their non-political colleagues. The ban on advertising, for example (substantially in place until 1994, and still influential today),136 meant that honour courts were quick to sense unfair attempts at self-promotion in colleagues’ media appearances. Not entirely without reason—Ernst Hegewisch once suggested quite seriously that the Communist Party need not pay Berliners, as the press coverage they enjoyed was ample compensation. Political lawyers, on the other hand, relied on media coverage for other reasons as well. Newspaper (p.83) headlines were often the only point of bringing a lawsuit. It was standard practice, for example, to indict detractors for libel (Ernst Röhm's infractions of §175 penalizing homosexual contacts are a good example). Once friendly newspapers had reported defiantly on the brave battle against the enemies’ lies, the libel allegations were quietly dropped. The noise lawyers like Freisler, Frank and Hegewisch made stood in inverse relation to the strength of their legal arguments. No wonder that ‘normal’ lawyers scratched their heads and appealed to the honour courts. Their verdicts reflected deep-seated reservations towards the dramatization and politicization of trials and the use of media essential to the party lawyers’ work.
Political barristers reciprocated the resentment. They frowned upon the supposedly selfish and money-minded motivation—‘für Herrn Raffke Toilette putzen’ (cleaning the toilet for Uncle Scrooge)—and lack of ideological commitment of their apolitical peers.137 Communist lawyers regularly complained of ‘bourgeois’ colleagues who had ‘stabbed their clients in the back’, without specifying what exactly they meant.138 Ernst Hegewisch accused non-political competitors of dumping. Colleagues undercutting his honorariums were either ‘beginners’ eager to get a foot in the door or lawyers ‘popular with hustlers and credit sharks’. ‘Naturally’ such a lawyer ‘who would never uncompromisingly [E.H.'s emphasis] defend Communists, who is solely interested in getting his name in print’ was ‘able to conduct a political trial at a rate below his own costs’.139 But even where political lawyers did not question the ethics of non-political peers, they emphasized the value of party membership, for example because they could be entrusted with illegal activities.140 ‘Bourgeois business lawyer’ and ‘political defender’, in short, were mutually exclusive interpretations of the barrister role.141
Party barristers may not always have flocked together, but they certainly recognized each other as birds of a feather. The main frame of reference for political lawyers were other political lawyers. Both across ideological boundaries and within their own camp, they looked upon one another as collaborators, but also as rivals. Rhetorical or tactical skill, for example, was recognized and praised, especially in retrospect. Hilde Benjamin recommended Hans Litten's speed of thought, his legal erudition, and his combativeness in court.142 Benjamin herself, whose office in Badstraße in the workers’ district Berlin-Wedding represented (and employed) only KPD members, was similarly praised by her junior associate, Götz Berger.143 Rüdiger von der Goltz found retrospective words of praise for Walter Luetgebrune (a ‘first class jurist’) and Roland Freisler (a ‘restless soul’, ‘highly talented’ though ‘stubbornly wedded to his own ideas’, and a man with ‘an essentially good heart’).144 Von (p.84) der Goltz also appreciated ‘Communist barrister Levy [sic]’, as ‘a man with an enchanting gift for forensic speech’. Goltz could quote passages from Levi's plea in the Jorns/Bornstein trial almost verbatim.145 The examples could go on: across ideological boundaries, mutual recognition linked political lawyers.146
Stark criticism was more common than praise, however, especially within the same ideological camp. Right-wing barristers couched their criticism of one another in terms harking back to the old-style, ‘apolitical’ lawyers’ ethos. Friedrich Grimm accused Rüdiger von der Goltz, Alfons Sack, Paul Bloch and Walter Luetgebrune to seek out ‘sensational political trials’. With his tendency ‘to submit spectacular petitions for the submission of evidence’, to ‘make “the bomb go off”’, Goltz in particular came in for criticism for aspiring to become the ‘mouthpiece’ of radical nationalism.147 As to Luetgebrune, though ‘doubtless a talented barrister’, Grimm thought him too lazy for those aspects of a political defence which went beyond the plea. To protect his lucrative Feme briefs, Grimm claimed, Luetgebrune had asked him to stop agitating for a general political amnesty. Grimm ‘disdained’ this ‘pure business point of view’, which, like his KPD colleague Ernst Hegewisch, he believed to be incompatible with a political practice: ‘And this man wanted to be a national barrister, who was supposed to fight against injustice, against the abuse of justice! But the barrister was supposed to aid the persecuted! But the barrister's profession was no business enterprise!’148 Allegedly, Luetgebrune even entreated Grimm to relinquish the defence of Paul Schulz. In an exact reversal of this accusation, Rüdiger von der Goltz claimed that Grimm had asked him to give up his client August Fahlbusch to protect the army leadership.149 Even while political lawyers relegated their own clients’ interests to the back row, they discredited rivals by imputing client neglect.
Paradoxically, Grimm was a political lawyer who thought of himself as apolitical. This was manifestly wrong. He enjoyed excellent rapport with journalists and publishers, and had no qualms about bringing them to bear on ‘on-going proceedings’.150 In the Feme trials, Grimm wrote not one but two glossy pamphlets, one of them with Luetgebrune, the latter's ‘business’ standpoint notwithstanding. Nonetheless, Grimm claimed that ‘it was not me who had brought politics into the (p.85) courtroom’ and that ‘even in the great political trials it always appeared to me as though the barrister […] stood above the parties’ quarrel’. In his memoirs, Grimm attacked Luetgebrune, von der Goltz and the others for ‘following the line of the right-wing parties’.151 The rivalry continued unabated after 1933. Despite the ‘misgivings’ that allegedly accompanied his entry into the NSDAP in 1933, Grimm appeared as a deputy in the puppet Reichstag only two years later. Grimm's appointment so irked von der Goltz that he approached Rudolf Heß for his own ‘parliamentary’ seat. Again reversing Grimm's charges, von der Goltz ridiculed his rival's policy of asking ‘the unfortunate [Wilhelm] Frick for permission before accepting briefs’.152 Even while denying their own submission to party control, Grimm and von der Goltz imputed it to each other.
The lynx-eyed watch political lawyers kept on one another gave party legal organizations leverage, as moderate lawyers had to beware of being ‘outflanked’.153 It strengthened, for example, Hans Frank's position at the head of the NS lawyers’ organization as the ultimate arbiter in all disputes. Thus barrister Alfons Sack criticised his Berlin colleagues Richard Frost and Wolfgang Zarnack (‘in a certain sense […] not up to the task’). Frost, in return, informed Frank that Sack lied to win mandates and ‘should not belong to a community of National Socialist lawyers’.154 In 1928, Roland Freisler even instigated honour court proceedings against Walter Luetgebrune, admittedly before the latter's entry into the NSDAP.155 Frank avoided taking sides in disputes among his subordinates. He merely asked everyone to stay on board ‘in the interest of the accused’.156
Rivalries between KPD lawyers were also common. Ernst Hegewisch was keen to distinguish himself from Frankfurt KPD barrister Artur Samter, whom he labelled a ‘propaganda speaker’. The courts held Hegewisch in high regard because ‘in spite of my uncompromising decisiveness the judges have the impression that any craving for sensation is anathema to me (Unlike Pol [sic] barrister Samter, of whom the judges frequently assume the opposite).’157 Whereas Samter was too polemical, other colleagues were not polemical enough. Felix Halle's writings, for example, would not entice a dog to leave his place behind the oven, according to Hegewisch.158
(p.86) Strikingly, Communist barristers viewed as their greatest antagonists not National Socialists, but Social Democrats. The enmity towards Kurt Rosenfeld, Paul Levi's partner in the Luxemburg trials, for example, bordered on paranoia. Gerhard Obuch, a Communist barrister-parliamentarian from Düsseldorf accused Rosenfeld of faking concern for prisoners in order to spy on them and procure material for ‘counter-agitation’.159 Artur Samter's protest against being removed from an important trial culminated in the charge that the Communist Party legal organization ‘has done barrister Rosenfeld's bidding’. For Ernst Hegewisch, Rosenfeld's defence of the Socialist Revolutionaries in the 1922 Moscow trial was ‘treason’. Rosenfeld, furthermore, had a ‘father in law who is a millionaire and leather-goods producer’. ‘As a revolutionary lawyer’, he refused to be placed ‘on the same level as bourgeois lawyers, let alone on that of Herr Kurt Rosenfeld’.160
Nazi attacks on left-wing lawyers conflated stereotypes of lawyers and Jews.161 In his famous 1912 pamphlet Wenn ich der Kaiser wär, nationalist barrister and president of the Pan-German League (Alldeutscher Verband) von Claß set the tone. ‘The Jew’, he wrote
remains a Jew in all that he undertakes […]. If he becomes a barrister, he has a corrosive effect, because his inborn conception of law stands in opposition to those inherent in the written German law, and the talmudic practices which twist lawfulness into lawlessness and vice versa are the result.162
Within this general framework, attacks on Jewish Social Democrats could be remarkably personal. In an article entitled ‘Jewry and the bar: a contribution to the psychology of trial conduct’, Nazi theoretician Wilhelm Stapel described Jewish jurists as ‘psychologically’ unsuited to the law. Their ‘oriental temperament’ meant they were bound to plead emotionally, to curry favour with judges, and to resort to personal smears. ‘The Jew’
merely strings argument to argument, much like an impressionist painter puts one splash of paint next to another. Not the logical clarity of contours, but the intensity of the splash of paint is characteristic of his kind. After all, his means of achieving an effect is not objective logic, but subjective stimulation [W.S.'s emphasis].163
(p.87) Full of half-expressed anxieties, misrepresentations, and internal contradictions, Stapel's anti-Semitic stereotypes were staples of nationalist legal discourse.164 Typical Jewish lawyers are cunning, ‘calculating’, effeminate (though they also threaten to ‘penetrate’ the sanctity of Roman-Germanic ‘objectivity’), cowardly, hypochondriac, choleric, and overbearing (‘grell ’). In short, they represent a danger to a truly Germanic administration of justice, and ought hence to be barred from Iustitia's palace (as well as from university faculties).
‘Jewry and the bar’ unfolds its panorama of ‘typical’ Jewish lawyering with explicit reference to Max Hirschberg and his partner Philipp Löwenfeld, or ‘Montanus’ and ‘Campanus’ in Stapel's ham-fisted parody. The two had cross-examined Stapel in a 1932 lawsuit, and sued for libel over the article—reluctantly, because well aware of the potential political cost. Going after Stapel was ‘an unwelcome obligation’ to themselves, their fellow Jewish citizens, and the dignity of the bar, as they put it. To defend himself, Stapel at first insisted on the ‘purely scientific nature’ of his diatribe. However, after the emergency decree of 20 December 1932 gave courts the option to curtail cases in which a political offence was likely to result in a sentence under two years, he abruptly changed his tune. ‘Political motivation’ had guided his pen, the right-wing publicist now assured the court, which duly closed the case on 28 January 1933. There is rich irony in this final twist. To escape punishment, the anti-Semite engaged in exactly the kind of mendacious, spineless, and supremely pragmatic legal wiggling that he accused Max Hirschberg of, and imputed to Jewish lawyers in general. Despite their own efforts at dramatising legal proceedings for political ends National Socialists saw no contradiction in accusing Jewish lawyers of ‘turning the courtroom into a playpen of class struggle and playacting’.165
Just like the Communists, National Socialists had particular bêtes noirs. Hans Frank intended turning a libel suit involving Munich barrister Nußbaum into a ‘Judeneid’ trial: ‘expert witnesses’ would offer an exegesis of ‘the famous talmudic passage about the Jew's oath towards an acum’.166 Frank even managed to get the Jewish lawyer arrested, but Nußbaum's death in early 1929 cut Frank's plan short.167 Berlin Nazi barristers Sting and Roland Freisler attacked Johannes Werthauer, a prominent barrister-parliamentarian, in the Prussian Landtag and the Angriff. Not only was the war to blame on ‘Juda's seed’, but Werthauer belonged to ‘those who fattened themselves with whatever a starving economy bleeding to death could be (p.88) blackmailed and cheated out of’.168 Friedrich Grimm, in his unpublished memoirs, accused Jewish lawyers, especially the ‘pacifist demagogue’ Werthauer, of monopolizing reparations litigation, with ‘corruption’ and transnational ‘Jewish’ co-operation defrauding the German government. Grimm also lamented the ‘gruesome demagogy of the left-wing press’ during the Feme trials, with the ‘Jewish element’, and Werthauer in particular, prominent. ‘And so it came about that this bitter inner-political struggle perhaps contributed most to the expansion of anti-Semitism which subsequently had the unfortunate consequences during Hitler's time which in the end led to the catastrophe.’ In other words, Grimm blamed the Jews for the Nazi genocide, an intimation so repulsive it merits no comment.169
Anti-Semitism shaped courtroom interactions, too. In spring 1930, Hans Frank defended stormtroopers accused of grievous bodily harm in Schweidnitz, Upper Silesia. Breslau SPD barrister Foerder represented the victims, who had joined the criminal action as Nebenkläger. Frank heckled Foerder in open court, and encouraged his charges to do the same. In a newspaper article published during the trial, Frank claimed that ‘his race’ prevented Foerder from ‘understanding the sentiments of German men’. Foerder's complaint to the Munich lawyers’ chamber highlighted the article and Frank's refusal to stop his clients wearing their brown SA uniforms, in defiance of the court's explicit orders. Frank, Foerder wrote, had not only violated the ‘dignity of the profession’ but harmed his clients. The Munich lawyers’ chamber took no action, possibly because of the passage of the 1930 political amnesty.170
Not even stridently nationalist lawyers could escape the racial anti-Semitic bias. Paul Bloch, a Protestant convert, was a skilled and prominent lawyer and DNVP member. He defended National Socialists such as Edmund Heines and Paul Schulz. Loyalty and competence were not enough, however, to pacify ardent anti-Semites like Munich publisher Lehmann. Even though Lehmann liked to boast that he regarded legal fees as ‘propaganda costs’ and saw Bloch as an ‘outstanding barrister in principle’, he was mortified when his author Ewald Moritz retained the ‘Jewish’ lawyer. Lehmann had taken away from the Feme trials (in which Bloch had energetically defended the nationalist killers) ‘the permanent sentiment that in the end, he [Bloch] was never really in our camp and that he will never become unfaithful to the people of Israel, even when apparently representing Germans in a trial’.171 A ‘born Jew’, Bloch was ‘unable to act in a way other than that prescribed by his Jewish custom- and blood-law’, Lehmann wrote on a separate occasion.172
In August, 1923 Ernst Hegewisch sent a letter to Karl Radek, Lenin's special envoy to Germany. As ‘the mouthpiece of countless proletarians, who wish to see preserved my activity as political lawyer of the revolutionary movement’, he solicited Radek's support in a pay dispute with the party. Forty-three attachments detailed his selfless service.173 It is deeply ironic that Hegewisch addressed himself to Radek, who, eleven months earlier, had filed a secret and unequivocally damning report on him. Radek had taken particular exception to the ‘disgusting’ mutual adulation between the lawyer and Max Hölz. Hegewisch was ‘in the main responsible for the fact that today, Hölz is no longer quite normal’, Radek wrote, and recommended that the barrister be removed from any sort of political responsibility.174 Blissfully unaware of Radek's report, Hegewisch wrote to other prominent Communists. He was not ‘an average lawyer’ occupied with ‘average matters’, he informed Zinoviev, for example.175 Hegewisch's self-confidence was striking. The revolutionary movement had no ‘barristers equal to myself’, and ‘for revolutionary fighters, only the best lawyers ought to be good enough’.176 Hegewisch took pride in his fast-paced lifestyle as a ‘travelling barrister’,177 desired ‘representations in large criminal trials’ and refused to occupy himself with ‘every piece of dirt’ that came along.178 Commanding the affections of the ‘heart of the workers’, Hegewisch thought himself a ‘lawyer revered, even loved, by the proletarians’. Defendants not represented by him would feel disadvantaged and rebel.179 This hubris reached its apex in the barrister's belief that defendants were not concerned about the personal consequences of a trial as long as he defended them, that they would ‘rather be sentenced with Hegewisch than acquitted with barrister … [sic].’180
The vignette illustrates the impact of Weimar political lawyers. In contrast to the mainstream of German jurists, party lawyers sought rather than shirked publicity, media presence and controversy. They were driven by a strong sense of personal mission to redress injustice, which they tended to see as endemic in the administration of justice. Because redressing systemic ills dominated their agenda, party barristers interpreted the role of the trial lawyer aggressively, and were unlikely to (p.90) avoid confrontation with judges, state prosecutors and peers. Judicial procedure was by no means ‘above politics’ to them, rather it was a means of wielding political power (although nationalists were likely to bemoan the politicization of justice and to present their own work as a sort of antidote). The party lawyers’ style was personal and subjective, shunning the traditional exhortation to ‘objectivity’ (Sachlichkeit). Finally, they were prepared to radically submit themselves, but also their clients, to party discipline. While they preferred pleading in line with the legal interests of their individual clients, they were ready to relinquish them when they felt it was necessary or they were ordered to.
These traits made political lawyers indispensable for Weimar extremist parties. As the trial lawyer and publicist Bruno Weil put it, the ‘barrister who regards as the main question whether his client is fined ten Marks or is acquitted totally misapprehends the nature of political trials. The trial is nothing, the echo is everything.’181 In the extremist parties’ struggle to combat the Weimar ‘system’, trials were both unavoidable and a unique platform for propaganda—and lawyers like the ones portrayed in this chapter crucial for the de-legalization of trials, and for the aestheticization, dramatization and politicization of justice.
Aggressive, media-savvy and ideologically committed lawyers like Ernst Hegewisch and Rüdiger von der Goltz, Hans Frank and Felix Halle unshackled extremist parties from the need to manoeuvre around ‘legalistic’ misgivings from barristers intent on safeguarding their clients’ interests. What is more, they could rely on the lawyers’ ambition, eagerness for publicity and procedural inventiveness to turn judicial procedure into engaging and dramatic performances of ideology. At the same time, the parties came to depend on the services of such barristers, as we will see in the next two chapters. Ernst Hegewisch is a case in point. Despite his querulousness, his pricetag and Radek's disdain, Ernst Hegewisch not only continued to work for the KPD, but did so more or less on terms of his own choosing.
The rise of political lawyers suggests that in Weimar political trials, the importance of the verdict was limited. While certainly not ‘nothing’, as Bruno Weil polemically argued, the verdict was only one of many variables that political barristers sought to influence, and in many cases not the most important. In that sense, the ‘echo’ really was ‘everything’. This observation has far-reaching implications for our study of Weimar political justice. Firstly, it suggests that we should take seriously the intention to ‘turn the courtroom into a revolutionary stage’. We ought to look at the political lawyers’ dramatization of judicial procedure not as a quirky and individualistic incidental to the ‘actual’ legal business of negotiating offence, norm and sanction, but as a key element of trials. Secondly, it stands to reason (and subsequent chapters substantiate this hypothesis) that the employers of political barristers, mainly the extremist parties of left and right, shared their priorities. But if the barristers and their paymasters prioritized ‘echo’ over ‘verdict’, how useful are perspectives on political trials that take as the primary (and often (p.91) enough, only) yardstick the differential incidence of verdicts? Again, this is not to absolve the Weimar judiciary from blame for the pro-nationalist bias which undoubtedly informed its judgements. It is merely to point out that given the ‘defence’ priorities of party lawyers, the verdicts in Weimar political trials were in many ways neither surprising nor their most instructive feature. Rather than focusing exclusively on the ‘what’ of verdicts, we should look seriously at the ‘how’ of the ‘echo’, at trial coverage, clemency appeals, parliamentary interventions, protest rallies, and amnesty campaigns. Looking at party lawyers is certainly not a sufficient, but probably a necessary first step to achieving this more comprehensive view of Weimar political justice.
(1) Weber, R., ‘Einleitung’, pp.9–50 in Hirschberg, M. (Weber, R., ed.), Jude und Demokrat. Erinnerungen eines Münchener Rechtsanwalts, München 1998, p.10.
(2) Weber, R., ‘Einleitung’ in Hirschberg, M., Jude und Demokrat, p.10–12, und idem. ‘Dr Siegbert Geyer und seine historischen Vorbilder’, unpublished study cited in ibid., p.11, fn.12. Feuchtwanger, L., Erfolg. Drei Jahre Geschichte einer Provinz, Berlin 1989. To avoid ‘misunderstandings’ and ‘doubts about the author's position’, manifestly to avoid compromising his standing with GDR authorities, Feuchtwanger had authorized the omission of passages highlighting the similarity of right- and left-wing strategies and criticising Soviet justice from the 1950 edition (Lüttig, G., ‘Zu diesem Band’, pp.808–16, in Feuchtwanger, L., Erfolg, here pp.815–6).
(3) Quoted from Kreiler, K., Traditionen deutscher Justiz. Politische Prozesse 1914–1932. Ein Lesebuch zur Geschichte der Weimarer Republik, Berlin (Ost) 1978, p.7. I am grateful to Chris Clark for his translation, which I have taken over (almost!) verbatim.
(4) As in English, the sobriquet is a not-so-subtle slur, in this case probably referring to Otto Landsberg, who routinely represented Braun, see e.g. Landesarchiv Berlin (LA[B]) A.Rep.358-01 Staatsanwaltschaft bei den Landgerichten/267,/276,/362,/2375,/2529,/2615 and/6008.
(5) BA(B) R1507 RKO Band 328,  Warncke, P., ‘Majestätsbeleidigung’, Fridericus No.3, January 1928.
(6) Heydeloff, R., ‘Staranwalt der Rechtsextremisten. Walter Luetgebrune in der Weimarer Republik’, Vierteljahrshefte für Zeitgeschichte 32 (1984), pp.373–421.
(7) In strictly Weberian terms, this study is more interested in the ‘Realtypus’ of the Weimar political barrister, i.e. in the empirical combination of traits and patterns of behaviour that distinguished party lawyers, rather than in advancing a theoretical construct in which certain traits are exaggerated to facilitate analysis (Weber's ‘Idealtypus’) cf. Schmidt, Manfred, Wörterbuch zur Politik, Stuttgart 1995, p.409.
(8) Jarausch, K., The unfree professions. German lawyers, teachers and engineers 1900–1950, Oxford 1990, Siegrist, H., Advokat, Bürger, Staat. Sozialgeschichte der Rechtsanwälte in Deutschland, Italien und der Schweiz (18.-20. Jhd.), Studien zur Europäischen Rechtsgeschichte 80, Frankfurt a.M. 1996 (Siegrist allows that the role of ‘politicising trial lawyers has been underestimated’, vol.2, pp.578–9.), Ostler, F., Die deutschen Rechtsanwälte, 2.ed., Essen 1982. For ‘weak liberals’ thesis see especially the excellent Ledford, K., From General Estate to Special Interest. German lawyers 1878–1933, Cambridge 1996.
(9) As Karl Dietrich Bracher famously put it (Bracher, K.D., ‘Einleitung’ in Hannover, H./Hannover-Drück, E., Politische Justiz 1918–1933, Frankfurt a.M. 1966, p.12). For a similar, if more simplistic English-language perspective (‘German courts preferred to risk the conviction of a few innocent people so as to assure the conviction of all who were guilty’, a practice opposed to the ‘fundamental philosophy of criminal procedure in Anglo-American societies’) see Johnson, E., Urbanisation and Crime, Cambridge 1995, p.40.
(10) Gängel, P., Die Rote Hilfe Deutschland und ‘ihre’ Rechtsanwälte im Kampf gegen die Justiz der Weimarer Republik, unpublished dissertation, Berlin (Ost) 1985, pp.28–32, here p.30.
(11) Morris, D., Justice Imperiled. The Anti-Nazi Lawyer Max Hirschberg in Weimar, Ann Arbor 2005. Knobloch, M./Reifner, U., ‘Der “kommunistische” Anwalt und die freie Advokatur—Zur Biographie von Ernst Hegewisch (1881–1952)’, pp.23–35 in Fabricius-Brand, M., (ed.), Rechtspolitik ‘mit aufrechtem Gang’: Werner Holtfort zum 70. Geburtstag, Baden-Baden 1990.
(12) For a recent, and excellent, study of an individual lawyer that also provides very good contextualization see Hett, B., Crossing Hitler: The Man Who Put The Nazis in The Witness Stand, Oxford 2008. Other studies of individual lawyers include Beradt, C., Paul Levi. Ein demokratischer Sozialist in der Weimarer Republik, Frankfurt a.M. 1969, Trotnow, H., Karl Liebknecht. Eine politische Biographie, Köln 1980, esp. pp.56–72, Heid, L., ‘“Er ist ein Rätsel geblieben” Oscar Cohn—Politiker, Parlamentarier, Poale-Zionist’, pp.25–48 in Benz, W. et al. (eds.), Jüdisches Leben in der Weimarer Republik, Schriftenreihe wissenschaftlicher Abhandlungen des Leo-Baeck-Instituts 57, Tübingen 1998. A collection of essays published by the editorial board of the journal Kritische Justiz paid some attention to the collective aspect of fashioning the party lawyer niche. However, the project suffers from the omission of all right-wing lawyers, no less ‘political’ and streitbar than their Social Democrat and Communist colleagues (Redaktion Kritische Justiz (eds.), Streitbare Juristen. Eine andere Tradition, Baden-Baden 1988). See also the discussion of portraits of individual right-wing lawyers in the introduction.
(13) ‘Non-political’ is not to say ‘apolitical’. ‘Non-political’ lawyers might well have been party members and local politicians, but they separated their political role from their courtroom work.
(14) Prest, W., The Rise of the Barristers. A Social History of the Bar 1590–1640, Oxford 1986, Chapter four, ‘Group portrait’.
(16) Another famous Apfel trial was his defence of George Grosz from the charge of blasphemy in connection with a suite of drawings which became famous under the title ‘Der Christus mit der Gasmaske’, between April 1928 and February 1930. Found guilty in the first instance, Grosz was subsequently acquitted (LA(B), A.Rep.358-01 Staatsanwaltschaft bei den Landgerichten/358). See also Andrea Gängel, ‘Der “Rote Hilfe Anwalt”—Alfred Apfel,’ Weltbühne 16/1989, pp.494–6.
(18) Bajohr, S., Rödiger-Bajohr, K., ‘Die Diskriminierung der Juristin in Deutschland bis 1945’, Kritische Justiz vol.13 (1980), pp.39–50, Manns, H., Frauen für den Nationalsozialismus. Nationalsozialistische Studentinnen und Akademikerinnen in der Weimarer Republik und im Dritten Reich, Opladen 1997, Grüttner, M., Studenten im Dritten Reich, Paderborn 1995, p.23, pp.109–23.
(19) Schwarz, E., Schwarz, J., Schneider, H.-J., Die Rechtsanwälte der Roten Hilfe Deutschlands, Bonn 2002, pp. 86–7., Gängel, P., Die Rote Hilfe Deutschlands und ‘ihre’ Rechtsanwälte im Kampf gegen die Justiz der Weimarer Republik, unpublished dissertation, Berlin (Ost) 1985, p.84, Wagner, H., Hilde Benjamin und die Stalinisierung der DDR-Justiz, Aachen 1999.
(21) Stascheit, U., ‘Felix Halle’ pp.153–62 in Redaktion Kritische Justiz (eds.), Streitbare Juristen, p.154.
(22) Tischler, C., ‘Zwischen Selbststilisierung und Selbstaufgabe. Felix Halle und die KPD’, pp.233–50 in Hering, S./Schilde, K. (eds.) Die Rote Hilfe. Die Geschichte der internationalen kommunistischen ‘Wohlfahrtsorganisation’ und ihrer sozialen Aktivitäten in Deutschland (1921–1941), Opladen 2003, here p.234, fn.2.
(23) Tischler, C., ‘Felix Halle und die KPD’, pp.233–50 in Hering, S./Schilde, K. (eds.) Die Rote Hilfe, Opladen 2003, p.238f.
(24) According to Petra Gängel, he only joined the KPD in 1922, a year after he had been put in charge of the Juristische Zentralstelle (central legal office, JZ). According to Schneider, Schwarz & Schwarz (p.141) on the other hand, he had already joined the KPD on his return. See also the lengthy and complicated explanation Halle himself gave of this question (Tischler, C., ‘Felix Halle und die KPD’, pp.233–50 in Hering, S./Schilde, K. (eds.) Die Rote Hilfe, Opladen 2003, p.236, Gängel, P., Rote Hilfe, p.75, BA(B) RY1/I2/711 Juristische Zentralstelle (JZ) Band 1, f., Halle to ZK KPD/Politburo, Berlin 22.2.28).
(25) Halle, F., Wie verteidigt sich der Proletarier in politischen Strafsachen vor Polizei, Staatsanwaltschaft und Gericht?, 2.ed., Berlin 1924, MOPR Berlin, 6. Jahrgang No.1, January 1931, BA(B) RY1/I2/711 JZ Band 11, - Halle an Obuch, Rosenfeld, Samter, Seckel, Herzfeld and Alexander, Berlin, 1.12.24, . See also Brauns, N., ‘Die deutschsprachige Verlagstätigkeit der Roten Hilfe’, pp.96–102 in Hering, S./Schilde, K. (eds.) Die Rote Hilfe, Opladen 2003, p.97.
(26) Gängel, P., Rote Hilfe, p.78, Knobloch, /G.Reifner, U., ‘Der “kommunistische” Anwalt und die freie Advokatur—Zur Biographie von Ernst Hegewisch (1881–1952)’, pp.23–35 in Fabricius-Brand, M. (et al., eds.) Rechtspolitik ‘mit aufrechtem Gang’ Werner Holtfort zum 70. Geburtstag, Baden-Baden 1990.
(28) See e.g. BA(B) RY1/I2/711 JZ Band 8, - Hegewisch to KPD central office, Celle 8.5.22, .
(29) Quoted following Gründler, K. ‘Kampf um das Recht—Anwalt Hans Litten und der faschistische Terror’, DeutschlandRadio Berlin, 19.6.2003, 〈http://www.dradio.de/dlr/sendungen/merkmal/145684/〉 20.6.2010 21:30.
(30) Hett, Crossing Hitler, pp.46–50, here p.47.
(31) Cited following Düx, H., ‘Hans Litten’, pp.193–203 in Redaktion Kritische Justiz (eds.), Streitbare Juristen, p.197.
(32) Quoted following Hett, Crossing Hitler, p.53.
(33) Gängel, P., Rote Hilfe, p.82.
(34) For coverage of the trial see e.g. ‘Der Eid und die Gesetzlichkeit’, Vorwärts, 9.5.31, ‘Die nationalsozialistischen Führer werden nervös’, Berliner Tageblatt, 9.5.31 (BA(B) NL 2111 Heine Band 142).
(35) According to Freisler, quoted by Litten's mother (Düx, H., ‘Hans Litten’, pp.193–203 in Redaktion Kritische Justiz (eds.), Streitbare Juristen, p.201).
(36) Thanks to the untiring efforts of Litten's mother Irmgard, even the British Conservative Lord Allen intervened on his behalf, to no avail (Düx, H., ‘Hans Litten’, pp.193–203 in Redaktion Kritische Justiz (eds.), Streitbare Juristen, p.201).
(37) Winkler, H.-A., Weimar. Die Geschichte der ersten deutschen Demokratie. 1918 bis 1933. München 1993, pp.44, 84, 115, 120–1, 127–30.
(38) Hirschberg, M., Jude und Demokrat, pp.57–8.
(39) Archiv der sozialen Demokratie (AsD) papers Paul Levi (NL Levi) Mappe 254.
(40) AsD NL Levi Mappe 254 [unfol.] Der Neue Alb-Bote—Ebinger Tageblatt. Freisinniges Volksblatt für Württemberg, Baden und Hohenzollern 38, 15.2.1919.
(41) Quack, S., Geistig frei und niemandes Knecht. Paul Levi und Rosa Luxemburg, Köln 1985.
(42) (AsD NL Levi Band 124 [non-foliated] Levi to Ausschuß für Volksvorlesungen, Frankfurt a.M. [draft, dated ‘November 1914’]).
(43) ‘Kollege Jorns’, Tagebuch, 24.3.1928. The article was written anonymously by Berthold Jacob.
(44) Steveling, L.,Juristen in Münster—ein Beitrag zur Geschichte der Rechts- und Staatswissenschaftlichen Fakultät der Westfälischen Wilhelms-Universität Münster/Westfalen, Münster 1999, p.182, Sauer, B., Schwarze Reichswehr und Fememorde. Eine Milieustudie zum Rechtsradikalismus in der Weimarer Republik , Berlin 2004, pp.28–34, Nagel, I., Fememorde und Fememordprozesse in der Weimarer Republik, Köln 1991, pp.55–61.
(45) BA(K) NL 1120 Grimm Band 9, p.1, pp.5–9. Corroborating Grimm's account is difficult because the Bibliothèque Nationale de France has not released Grimm's papers.
(46) For Grimm's biographical data, see Krach, T., Jüdische Rechtsanwälte in Preußen, pp.154–6.
(47) BA(K) papers von der Goltz (KLE 653).
(48) Lönnecker, H, ‘Wenn Helden zu Problemem werden. Hindenburg und Ludendorff als Ehrenmitglieder akademischer Verbände’, pp.8–11, 〈http://www.burschenschaftsgeschichte.de/pdf/loennecker_hindenburg.pdf〉, 17.6.2010.
(49) Heydeloff, R., ‘Staranwalt der Rechtsextremisten. Walter Luetgebrune in der Weimarer Republik’, VfZ 32 (1984), pp.373–421.
(50) BA(K) NL Frank Band 31 Hans Frank an Brigitte Frank, Berlin (Briefkopf Dr.iur.HF, München [crossed out by hand]) 30.3.27.
(51) Joachim Fest perceived something ‘put-on’ about Frank's celebration of violence (Fest, J., ‘Hans Frank—Kopie eins Gewaltmenschen’ in idem., Das Gesicht des Dritten Reichs. Profile einer totalitären Herrschaft, 9.ed, München 2006). Fascist poet Curzio Malaparte, on the other hand, ascribes Frank a ‘unique mixture of cruel intelligence, refinement and crudity, of brutal cynicism and shrewd sensitivity’ (Malaparte, C., Kaputt, Karlsruhe 1961, pp.143–4).
(52) Jarausch, K., ‘Jewish Lawyers in Germany, 1848–1938: The Disintegration of a Profession’, Leo Baeck Institute Yearbook vol.36 (1991) No.1, pp.171–90.
(53) According to Nikolaus Brauns 60 per cent of the lawyers on the Communist party legal office list were Jewish, Brauns, N., Schafft Rote Hilfe!, p.171 with further references.
(54) Isherwood, C., The Berlin Novels, London 1999, p.74f.
(55) Heydeloff, R., ‘Staranwalt der Rechtsextremisten. Walter Luetgebrune in der Weimarer Republik’, Vierteljahrshefte für Zeitgeschichte 32 (1984), pp.373–421, p.373.
(57) Klee, E., Das Personenlexikon zum Dritten Reich, Frankfurt a.M. 2003, p.200f. See also the excellent Wikipedia entry on Grimm, 〈http://de.wikipedia.org/wiki/Friedrich_Grimm_(Jurist)〉 [28.3.2010 16:10].
(58) BA(K) KLE 653 von der Goltz, Band 1 .
(59) BA(K) NL 1110 Frank Band 2, diary entries 28.11.20, and 17.6.20.
(60) AsD NL Levi Mappe 12 [non-foliated], ‘Die doppelte Moral’ [fragment, undated].
(61) Heine, W., Der Kampf um den Reigen, Berlin 1922.
(62) Peukert, D., Die Weimarer Republik. Krisenjahre der Klassischen Moderne, Frankfurt a.M. 1987, p.30.
(63) BA(K) KLE 653 von der Goltz Band 2, , von der Goltz, R., Tributjustiz. Ein Buch um die deutsche Freiheit, München 1932, p.68.
(64) ‘war mit munterster Jugend in harmlosester Form der Teufel los’ (BA(K) KLE 653 von der Goltz Band 2, ).
(65) BA(K) KLE 653 von der Goltz Band 2, .
(66) For a perceptive discussion of ‘bourgeois anti-bourgeois sentiment’ and the preference for the Communists on the grounds of their decisive convictions/disdain for the ‘fat nobility’ of Republican patronage see Schumann, D., Politische Gewalt in der Weimarer Republik 1918–1933. Kampf um die Strasse und Furcht vor dem Bürgerkrieg, Essen 2001, p.262.
(67) BA(K) KLE 653 von der Goltz Band 2, . The date of the dinner party was 21 February 1930.
(68) BA(K) KLE 653 von der Goltz Band 2, –, –.
(69) See e.g. Goebbels, J., Die Tagebücher: Sämtliche Fragmente, herausgegeben von Elke Fröhlich im Auftrag des Instituts für Zeitgeschichte in Verbindung mit dem Bundesarchiv, Teil I: Aufzeichnungen 1924–1941, vol.1, München 1987, p.587 (8.8.30), p.502 (21.2.30).
(70) ‘He explicated the Feme trials to me. Absolutely consistent and right. He will now conduct my Hindenburg trial’. (Goebbels, J., Die Tagebücher: Sämtliche Fragmente, vol.1, p.503 (21.2.30)).
(71) Goebbels, J., Die Tagebücher: Sämtliche Fragmente, vol.1, p.554 (30.5.30).
(72) BA(K) KLE 653 von der Goltz Band 2, , see also ‘Das Urteil gegen Dr Goebbels’, Vossische Zeitung 30.4.31. For an in-depth discussion of Goebbels’ systematic libel against Berlin police vice president Bernhard Weiß, see Bering, D., Kampf um Namen. Bernhard Weiß gegen Joseph Goebbels, Stuttgart 1991.
(73) BA(B) RY1/I2/711 JZ Band 7, - Hegewisch to Politburo, Hamburg 17.6.25, .
(74) Beradt, C., Paul Levi. Ein demokratischer Sozialist in der Weimarer Republik, Frankfurt a.M. 1969, p.68, p.71, p.87, p.97.
(75) BA(K) NL 1110 Frank, Band 2/1, diary entry 17.6.20.
(76) Peukert, D., Weimarer Republik, p.30.
(77) Attitudes which Peukert saw embodied by Heinrich Himmler and the actor Heinz Rühmann, respectively.
(78) ‘Im Westen liegt Frankreich, im Osten wird Frank reich’, as the popular saying went.
(79) BA(K) NL 1110 Frank Band 44 [non-fol] Karl Frank to Hans Frank, München 29.10.29.
(80) BA(K) NL 1110 Frank, Band 43, copy of the mink coat dealer's letter by Frank's office (page headed ‘Barerstraße 57 I’, München 3.4.29) and Frank to ‘Frl. Anny bei Friseur Dadlhuber, München’, [no place given], [undated].
(81) BA(K) NL 1110 Frank Band 2, diary entry 17.6.20.
(82) BA(K) NL 1110 Frank Band 2, diary entry 25.4.19.
(83) Frank evoked a ‘Sphärenlinie der ewigen Harmonie der Menschengeschichte, deren deutscher Teil durch meinen Kopf gelegt ist!’ (BA(K) NL 1110 Frank Band 2, diary entry 17.6.20).
(84) ‘Sanitätertätigkeit an revolutionären Angeklagten’ BA(B) RY1/I2/711 JZ Band 7, - Hegewisch to [recipient blackened, probably Politburo], Celle, 12.1.24, , ‘kommunistischer Facharbeiter’ ibid., Band 8 - Hegewisch to Radek, Celle 7.8.23, , ‘intellektueller Facharbeiter’, ibid., – Hegewisch to Bilke, Celle 23.8.23, , ‘der Partei zugehöriger juristischen Facharbeiter’ ibid., Band 1, - Halle to ZK KPD, Berlin 5.12.26, , ‘revolutionärer Anwalt’ ibid., Band 7, - Hegewisch to [recipient blackened, probably Politburo], Celle, 12.1.24, , ibid., Band 8 - Hegewisch to Radek, Celle 7.8.23, , ibid., – Hegewisch to KPD central office, Celle 8.5.22, , ‘politischer Verteidiger’ ibid., – Hegewisch to KPD central office, Celle 8.5.22, , ibid., Band 11,  ‘Erinnerungen eines politischen Verteidigers’ [draft article by Artur Samter], ‘revolutionärer Rechtschutz’, ibid., Band 8, - Hegewisch to Vorstand KPD Ortsgruppe Celle, Celle 28.7.23, . Hegewisch's Sanitäterdienst echoes Clara Zetkin's dictum that the Red Aid was the ‘Sanitätskolonne im Klassenkampf’ (Schilde, K., ‘Schafft Rote Hilfe!’, pp.31–56 in Hering, S./Schilde, K., Rote Hilfe, Opladen 2003, p.42).
(85) ‘Staatsanwalt für die Bewegung’ BA(K) NL 1110 Frank Band 28–1, Frank to Hitler, München 21.6.28, ‘juristischer SA Dienst’ ibid., Band 31–1, Frank to Hans Zöberlein, München 9.7.30 ‘getreuer Eckehardt’ ibid., Band 36II, ‘BNSDJ Jahresbericht’ 1932.
(86) Gängel, P., Die RHD und ‘ihre’ Rechtsanwälte im Kampf gegen die Justiz der Weimarer Republik, unpublished dissertation, typed manuscript, Berlin (Ost) 1985 p.101.
(87) Hirschberg, M., Jude und Demokrat, p.136, p.198, BA(K) NL 1150 Luetgebrune Band 142 [non-foliated], Luetgebrune to Smend, Hannover 15.3.28.
(88) Hans Frank, for example, featured in the Hamburg SPD weekly Das Echo der Woche as ‘Hitler's lawyer-for-rent [Leihanwalt Hitlers]’ (BA(K) NL 1110 Frank Band 27–2 ‘Hitlers Verrat am Deutschen Volk’, Das Echo der Woche, ‘Wahl-Sonderausgabe Nr.2’, 24.7.32). National Socialist announcements about his appearance were alternatively denounced as a fraudulent election promises (ibid., Band 31–11 NSDAP Pforzheim [signed ‘Ortsgruppen- und Bezirksleiter Fritz Rilling’] to RR [care of Frank], Pforzheim, [undated, Eingangsstempel 5.8./8.8.]) or as a measure designed to guarantee the loyalty of the accused (ibid., Band 29–8, barrister Lothar Günther to Landgericht Dresden (4.Zivilkammer), Dresden 13.7.32). Magdeburg NS lawyer Kuhlmey was belittled as ‘the little Nazi brother of Frank II’ (ibid., Band 24, barrister Kuhlmey to Frank, Magdeburg 4.9.30).
(90) BA(B) RY1/I2/711 JZ Band 11,  Samter to KPD central office, Berlin 28.5.25.
(91) BA(B) RY1/I2/711 Band 1, , JZ [probably Halle] to Politburo, Berlin 17.12.24, BA(K) KLE 653 von der Goltz Band 1, , BA(K) NL 1110 Frank Band 36I Kiewitz to Frank, Oppeln 22. and 23.4.30.
(93) BA(K) NL 1110 Frank, Band 29–1, Hans Rave to von Alwörden [Gau leader Hamburg] [Abschrift], [carbon copy], Hamburg 2.12.30.
(94) BA(B) RY1/I2/711 JZ Band 8 -.
(95) BA(B) RY1/I4 RHD Band 1 -.
(96) Von der Goltz, R., Tribut-Justiz. Ein Buch um die deutsche Freiheit, Berlin 1932, p.62.
(97) Schriftführeramt des DAV (ed.), Die Entscheidungen des Ehrengerichtshofs für deutsche Rechtsanwälte, vol.26, Leipzig 1932, EGH session 22.9.32, pp.180–2. For the other decisions involving Freisler, see ibid. vol.21, Leipzig 1927, pp.140–2, pp.193–5, and vol.22, Leipzig 1928, pp.128–30.
(98) Von der Goltz, R., Tributjustiz, p.8.
(103) BA(B) RY1/I2/711 JZ Band 8, - Hegewisch to Vorstand KPD Ortsgruppe Celle, Celle 28.7.23, .
(104) Linnemann, G., Klassenjustiz und Weltfremdheit. Deutsche Justizkritik 1890–1914, Kiel 1989, pp.107–20.
(105) Hirschberg, M., Jude und Demokrat, p.120f.
(106) Hannover, H., ‘Max Hirschberg (1883–1964) Der Kritiker des Fehlurteils’, pp.165–79 in Redaktion Kritische Justiz (eds.), Streitbare Juristen. Eine andere Tradition, Baden-Baden 1988, p.178.
(107) Von der Goltz, Tributjustiz, p.7f., p101f.
(108) BA(B) RY1/I2/711 JZ Band 4, - ‘Kurzes Exposé. Urbahns-Tscheka-Zentraleprozess’ [undated], .
(109) Von der Goltz, R., Tributjustiz, p.33.
(110) BA(K) KLE 653 von der Goltz Band 2, .
(111) (BA(K) KLE 653 von der Goltz Band 2, ).
(112) Der Angriff 11.3.29, p.4 ‘Die Helden im Loch’, Hirschberg, M., Jude und Demokrat, p.154, p.198.
(113) LA(B) A.Rep 358.01/371 [non-foliated] ‘Die Justiz wird vergewaltigt!’, Schwarze Fahne 10/1925.
(114) Stascheit, U., ‘Felix Halle (1884–1937) Justitiar der Kommunistischen Partei’ pp.153–62 in Redakhon Kritische Justiz (eds.), Streitbare Juristen, here p.153.
(115) Bormann, M., ‘Klassenjustiz’, pp.60–5 in Plaas, H., Wir klagen an! Nationalisten in den Kerkern der Bourgeoisie, Berlin 1928, p.65.
(116) Anon., ‘Abrechnung’, p.14f. in Plaas, H., Wir klagen an!, p.14.
(117) Plaas, H., Wir klagen an!, p.9.
(118) Halle, Wie verteidigt sich der Proletarier … ?, p.xii.
(119) BA(K) NL 1150 Luetgebrune Bd. 142 [non-foliated], Luetgebrune to Smend, Hannover, 15.3.28.
(120) BA(K) KLE 653 NL von der Goltz Bd.2, .
(121) Hirschberg, M., Jude und Demokrat, p.136, p.198, BA(K) NL 1150 Luetgebrune Band 142 [non-foliated], Luetgebrune to Smend, Hannover 15.3.28.
(122) BA(K) NL 1110 Frank Band 28–2, barrister Riegelhaupt to Amtsgericht München [Abschrift], Berlin 2.4.29; ibid., Band 35–8, Kühlmann to Landgericht München I (6. Zivilkammer) [Abschrift], München 24.4.30 and 19.5.30. See also ibid., Band 35–3, barrister Abitz-Schultze to Landgericht München, 8.5.31.
(123) Offensive to professional autonomy, this point had been hotly disputed in the deliberations leading up to the Rechtsanwaltsordnung of 1877. However, experiments with investigations by lawyers’ chambers themselves had not been satisfactory. Vehrenberg, H., Geschichte der deutschen Rechtsanwaltsordnung vom 1.Juli 1878, Freiburg 1935, pp.14–18, Ledford, K., ‘Lawyers, Liberalism, and Procedure: The German Imperial Justice Laws of 1877–79’, Central European History vol.26 (1993), pp.165–93.
(124) Siegrist, H., Advokat, Bürger, Staat. Sozialgeschichte der Rechtsanwälte in Deutschland, Italien und der Schweiz (18.-20. Jhd.), Studien zur Europäischen Rechtsgeschichte 80, 2.vols, Frankfurt a.M. 1996, pp.641–9, p.642.
(125) Siegrist, H., Advokat, Bürger, Staat, pp.641–9.
(126) Schriftführeramt des DAV (ed.), Die Entscheidungen des Ehrengerichtshofs für deutsche Rechtsanwälte, vol.12, Leipzig 1906, EGH session 25.11.1905, p.43.
(127) How many barristers were investigated varied geographically. Bavaria had the highest rate of complaints, 80 per cent of Munich barristers faced a complaint during their careers (Siegrist, H., Advokat, Bürger, Staat, p.641).
(130) Hirschberg, M., Jude und Demokrat, p.139, Schriftführeramt des DAV (ed.), Die Entscheidungen des Ehrengerichtshofs für deutsche Rechtsanwälte, vol.19, Leipzig 1924, EGH session 5.11.21, pp.124–5.
(131) BA(B) RY1/I2/711 JZ Band 7, - Hegewisch to [recipient blackened, Politburo?], Celle 12.1.24, , ibid., - Hegewisch to Pieck and Timpe, Hamburg 24.4.25, , ibid., Band 8 - Hegewisch to KPD central office, 8.5.22, , ibid., Band 9, - Hegewisch to Amtsgericht Celle, Celle 27.11.22.
(132) Krach, T., Jüdische Rechtsanwälte in Preußen, München 1991, p.150.
(133) BA(K) KLE 653 von der Goltz Band 2, .
(134) Schriftführeramt des DAV (ed.), Die Entscheidungen des Ehrengerichtshofs für deutsche Rechtsanwälte, vol.26, Leipzig 1932, EGH session 22.9.32, pp.180–2. For the other decisions involving Freisler, see ibid., vol.21, Leipzig 1927, pp.140–2, pp.193–5, and vol.22, Leipzig 1928, pp.128–30.
(135) Schriftführeramt des DAV (ed.), Die Entscheidungen des Ehrengerichtshofs, vol.26, Leipzig 1932, EGH session 22.9.32, p.182.
(136) I am grateful to my father, Reinhard Grunwald, for alerting me to recent changes in the handling of the professional by-laws. See also Guthmann, A., ‘Neuere Rechtsprechung zur anwaltlichen Werbung’, Neues Wirtschaftsrecht 2 (2002), www.nwit.de/archiv/NWIR%202/anwaltliche%20Werbung.%20pdf (19.4.2012).
(137) BA(B) RY1/I2/711 JZ Band 8, - Hegewisch to Bilke, Celle 23.8.23, .
(138) Gängel, P., Rote Hilfe, p.106.
(139) BA(B) RY1/I2/711 JZ Band 8, - Hegewisch to Radek, Celle 7.8.23, .
(141) BA(B) RY1/I2/711 JZ Band 8, - Hegewisch to KPD central office, 8.5.22, .
(142) Benjamin, H., ‘Hans Litten’, Weltbühne 19.6.1973.
(143) Berger, G., ‘Kämpferin gegen Faschismus und Klassenjustiz’ in Dokumentation von Mitarbeitern der Justiz anläßlich des 65. Geburtstages der Genossin Dr Hilde Benjamin, Berlin (Ost) 1967 (quoted following Gängel, P., Die RHD und ‘ihre’ Rechtsanwälte im Kampf gegen die Justiz der Weimarer Republik, unpublished dissertation, typed manuscript, Berlin (Ost) 1985, pp.83–5).
(144) BA(K) KLE 653 von der Goltz Band 2, ; Band 3, , .
(145) BA(K) KLE 653 von der Goltz Band 2 f. See also Quack, S., ‘Paul Levi (1883–1930). Politischer Anwalt und sozialistischer Politiker’ pp.131–40 in Redaktion Kritische Justiz (eds.), Streitbare Juristen, 1988.
(146) BA(K) NL 1120 Grimm Band 13, pp.43–5.
(147) BA(K) NL 1120 Grimm Band 13, p.14, p.38.
(148) BA(K) NL 1120 Grimm Band 13, p.17. Grimm furthermore claimed that Luetgebrune's clients shared his sentiments. Paul Schulz was ‘very dissatisfied’, Munich publisher Lehmann, ‘outraged’: ‘Luetgebrune had defended Ludendorff and since taken on a style of living which was cause for concern in right-wing circles, even amongst his friends. He always travelled with his secretary and demanded very high fees […]’ (ibid., p.16).
(149) BA(K) KLE 653 von der Goltz Band 2, .
(150) In the French military court trial of a French lieutenant, Rouzier, for shooting an NSDAP member from Germersheim during the occupation of the Palatinate, Grimm held twice daily press briefings for dozens of journalists. BA(K) NL 1120 Grimm Band 12, pp.1–29, p.12, p.26; Grimm, F./Luetgebrune, W., Antrag und Begründung zur Wiederaufnahme des Verfahrens zugunsten des Oberleutnants a.D. Paul Schulz aus Berlin, München 1928.
(152) BA(K) KLE 653 von der Goltz Band 3, f. To be fair, it appears as though Goltz was true to his word at least insofar as he defended his cousin, Dietrich Bonhoeffer, at the Volksgerichtshof.
(153) Cf. BA(K) KLE 653 von der Goltz Band 2, , BA(K) NL 1110 Frank Band 31–2, Raeke to Frank, Hamburg 23.9.31, [attached] Raeke to president of Schwurgericht Hamburg, Hamburg 14.9.31.
(154) BA(K) NL 1110 Frank Band 33–2, Frost to Frank [‘vertraulich und persönlich’], Berlin 21.5.32.
(155) BA(K) NL 1150 Luetgebrune Band 142, ‘Urteil’, Ehrengericht der Anwaltskammer Celle, Celle 21.11.31.
(156) BA(K) NL 1110 Frank Band 33–2, Frank to Frost, München 23.5.32.
(157) BA(B) RY1/I2/711 JZ Band 7, - Hegewisch to Pieck and Timpe, Hamburg 24.4.25, .
(158) BA(B) RY1/I2/711 JZ Band 8, -, Hegisch to Radek, Celle 7.8.23, .
(159) BA(B) RY1/I2/711 JZ Band 11, f. Obuch to Pieck, Düsseldorf 18.8.28, , ibid., Band 11, - Samter to KPD central office, Berlin 28.5.25, . Ernst Hegewisch expressed similar resentment (ibid., Band 7, - Hegewisch to KPD central office, Hamburg, 9.11.24, ).
(160) BA(B) RY1/I2/711 JZ Band 8, - Hegewisch to KPD central office, Celle 8.5.22, , , –.
(161) Hannes Siegrist notes that the currency of anti-Semitic stereotypes led even Jewish barristers to partially own the underlying prejudices. Munich barrister Siegbert Feuchtwanger—whose name has an uncanny ring given Lion Feuchtwanger's character Siegbert Geyer—for example, thought that the ‘commercialisation’ of the profession would be less advanced if the bar numbered fewer Jews (Siegrist, H., Advokat, Bürger, Staat. Sozialgeschichte der Rechtsanwälte in Deutschland, Italien und der Schweiz (18.-20. Jhd.), Studien zur Europäischen Rechtsgeschichte 80, Frankfurt a.M. 1996, vol.2, pp.868–71).
(162) Quoted following Krach, T., Jüdische Rechtsanwälte in Preußen, München 1991, p.28f.
(163) Stapel, W., ‘Anwaltschaft und Judentum. Ein Beitrag zur Psychologie der Prozessverhandlung’, pp.752–7 in Deutsches Volkstum, 2.9.1932, here p.752f.
(164) Weber, R., ‘Einleitung’, pp.9–50 in Hirschberg, M. (Weber, R. ed.), Jude und Demokrat. Erinnerungen eines Münchener Rechtsanwalts, München 1998, p.24–6, Morris, D., Justice Imperiled: the Anti-Nazi Lawyer Max Hirschberg in Weimar Germany, Ann Arbor 2005, esp. pp.46–9.
(165) Krohn, M., Die deutsche Justiz im Urteil der Nationalsozialisten, p.242, p.284. Cf. the libel suit Berlin barrister Max Feblowicz brought against the article ‘Jüdische Anwaltsmethoden’, Angriff No.81, 9.10.1930, LA(B) A.Rep 358.01 Staatsanwaltschaft bei den Landgerichten/18 and further examples given in Krohn, op.cit., p.266.
(166) BA(K) NL 1110 Hans Frank Band 40–14, Frank to Hermann Esser, München 18.1.29.
(167) BA(K) NL 1110 Frank Band 28–1, Frank to Hitler, München 21.6.28.
(168) ‘Der Anwalt der Sklarz und Barmat’, Angriff, 20.3.31, ‘Was sagt die Anwaltskammer?’, Angriff, 11.3.31. Werthauer was particularly suitable as a target for this allegation, as he had defended Secretary of State Hermes of the Ministry of Nutrition against the charge of corruption in 1922, brilliantly exposing the mechanisms of right-wing political justice (AsD NL Levi Mappe 82 [non-foliated], ‘Plädoyer Werthauer’).
(169) BA (K) NL 1120 Friedrich Grimm Band 10, p.47, p.51, Band 13, p.10.
(170) BA(K) NL 1110 Frank Band 36I, barrister Foerder to Vorstand der Anwaltskammer München, Breslau, 5.7.30. See also ibid., Philipp Loewenfeld to Vorstand der Anwaltskammer München, München, 24.4.30.
(171) BA(K) NL 1205 Zarnow Band 6,  Lehmann to Zarnow, München 9.2.31. See also LA(B) A.Rep 358.01/271f.,/274f.,/277,/280 and/2616.
(172) BA(K) NL 1205 Zarnow Band 6,  Lehmann to Zarnow, München 16.5.31.
(174) BA(B) NY 4051 Hölz Band 14, - Radek to Executive of the Communist International, [no place given] 14.9.22.
(175) BA(B) RY1/I2/711 JZ Band 8, - Hegewisch to Zinoviev, Celle 23.9.23, .
(176) BA(B) RY1/I2/711 JZ Band 8, - Hegewisch to Radek, Celle 7.8.23, .
(178) BA(B) RY1/I2/711 JZ Band 8, - Hegewisch to KPD central office, Celle 8.5.22, . During the hyper-inflation, the JZ proposed adjusting the lawyers’ pay in line with the remuneration tables for civil servants, which were published monthly. Hegewisch, however, wanted higher pay: ‘the civil servant index cannot be the measuring stick for a revolutionary barrister’ (BA(B) RY1/I2/711 JZ Band 8, - Hegewisch to Radek, Celle 7.8.23, ).
(179) BA(B) RY1/I2/711 JZ Band 7, - Hegewisch to [recipient blackened, Politburo?], Celle 12.1.24.
(181) Weil, B., Gegen die Rechtsnot der deutschen Juden, p.119, quoted following Beer, U., Die Juden, das Recht und die Republik. Verbandswesen und Rechtsschutz 1919–1933, Rechtshistorische Reihe 50, Frankfurt a.M. 1986, p.188.