March 1933. Munich: A lawyer goes to the police station to inquire about a client who has been arrested. Nazi storm troopers beat the lawyer, knock out some of his teeth, cut his pants off at the knee and order him to walk, barefoot, through the streets bearing a sign around his neck that says, ”I will never again complain to the police.”
William Meinecke, a historian from the U.S. Holocaust Memorial Museum in Washington, D.C., showed a photograph depicting that moment during a presentation to the 28th Annual Georgia Bar, Media & Judiciary Conference last week in Atlanta. He said the story of Michael Siegel, the lawyer in the photo, illustrated that “lawyers are in a particularly vulnerable position in this period.”
However, Meinecke added, lawyers also drafted Nazi laws that swept away civil liberties of German citizens. Moreover, judges overseeing this system weren’t pressured to prop it up—but they did so anyway.
“They did what they did because they wanted to,” Meinecke said.
He noted that the German judiciary historically didn’t overturn laws as unconstitutional the way courts in the United States do. Even if German courts had such a role, as soon as the Nazis expanded their power after being invited into a coalition government, they gutted the German constitution of any civil liberties.
After the Reichstag building was burned in February 1933, Adolf Hitler persuaded German President Paul von Hindenburg to approve an emergency decree. It stated, according to a Holocaust museum translation: “Sections 114, 115, 117, 118, 123, 124, and 153 of the Constitution of the German Reich are suspended until further notice. Therefore, restrictions on personal liberty, on the right of free expression of opinion, including freedom of the press, on the right of assembly and the right of association, and violations of the privacy of postal, telegraphic, and telephonic communications, warrants for house searches, orders for confiscations, as well as restrictions on property, are also permissible beyond the legal limits otherwise prescribed.”
Meinecke played an audio recording of a German police chief speaking on the radio discussing how, with no need for warrants, his officers could roam Jewish neighborhoods at will, search for evidence of any crimes and make immediate arrests.
After von Hindenburg died In 1934, Hitler assumed complete control, and state officials were required to change their oaths from swearing loyalty to the German constitution to swearing loyalty to Hitler. One prosecutor, Martin Gauger, refused, writing, “After careful consideration I find, in good conscience, that I am not able to swear the loyalty oath to the Reich Chancellor and Führer, Adolf Hitler, as required of all officials by Reich law of August 20, 1934.”
Meinecke said Gauger was not arrested, and he entered private practice.
Hitler feared judges whose rulings would limit the scope of Nazi laws, Meinecke said. But courts interpreted them broadly instead.
The German Supreme Court, for example, was asked in 1936 by prosecutors to clarify a law criminalizing sex between Jews and other German citizens. The court—which Meinecke said was “the least Nazi court” in the country—held that “intercourse” was too narrow a term to define the crime because, according to a translation, evidence of the act would be hard to obtain due to ”the most delicate questions.”
“A wider interpretation is also required here because the provisions of the law serve not only to protect German blood but also to protect German honor,” the court added. Therefore the law also covered “actions and tolerations … between Jews and citizens of German or related blood that serve to satisfy the sexual urges of one party.”
After World War II, the International Military Tribunal in Nuremberg tried 16 jurists for crimes against humanity. One defendant, Justice Oswald Rothaug, was cited for his role in steering the conviction and death sentence of a Jewish man charged under the Jewish-German sex law, as well as the cases that led to the execution of three Polish citizens.
“Their execution was in conformity with the policy of the Nazi state of persecution, torture, and extermination of these races,” the tribunal wrote in finding Rothaug guilty. “The defendant Rothaug was the knowing and willing instrument in that program of persecution and extermination.”
Rothaug and nine others were convicted; six received five to 10 years in prison, and four, including Rothaug, were given life sentences in jail. But Rothaug was released in December 1956 and died in 1967, the museum’s website states.
One of the 150 attendees at the conference, Judge Paige Whitaker of Fulton County Superior Court, told the Daily Report she was thankful the concept of judges testing laws’ constitutionality “is a fundamental part of our American justice system and an additional safeguard against a repeat of similar mistakes.”
“That being said,” she added, “one need only look to some of the civil rights era cases … to know that our court system is not immune from overlooking, and thereby enabling, injustice,”
“While we may be said to be a nation of laws, not men, success for our democratic republic requires that the men and women entrusted with applying those laws have the courage and fortitude to maintain our duty to our laws and constitution, even if it becomes unpopular to do so.”
Another attendee, lawyer Michael Caplan, said the session was “a powerful reminder of the critical role lawyers and judges play in ensuring a free and just society—including the constitutional balance of powers, the protection of individual rights and the danger of permitting an executive to use the pretext of an emergency to override constitutional safeguards.”
A Holocaust museum booklet on the role of the judiciary reports that German judges didn’t lose their independence until 1942, when the minister of justice demanded “verdicts according to Nazi principles and ideology.”
The museum noted that the minister of justice’s letters ordering these measures were classified as state secrets because Nazi authorities feared backlash from the German public. “The people want an independent judge,” read one report by the German security service. “The administration of justice and the state would lose all legitimacy if the people believed judges had to decide in a particular way.”
The Daily Report was a co-sponsor of the conference, and the Daily Report’s managing editor, Jonathan Ringel (@JonathanRingel) introduced Meinecke’s presentation to the conference.