The Problem of Paragraph 175 (Auszüge)

Convinced, at least in his own mind, that he had finally excluded the Ministry of Justice from the forthcoming trial and that he and his likeminded allies were now in full control, Goebbels began to realise that perhaps a few problems still remained. He confided about one to his diary on April 5:

I am having a great deal of work preparing the Grynszpan trial. The Ministry of Justice has deemed it proper to furnish the defendant, the Jew Grynszpan, the argument of Paragraph 175. Grynszpan has until now always claimed, and rightly so, that he had not even known the counsellor of legation whom he shot. Now there is in evidence some sort of anonymous letter by a Jewish refugee which raises the possibility of homosexual relations between Grynszpan and vom Rath. It is an absurd, typically Jewish claim. The Ministry of Justice, however, did not hesitate to incorporate this claim in the indictment and to send the indictment to the defendant.

This shows again how foolishly our legal experts have acted in this case, and how short sighted it is to entrust any political matter whatsoever to the jurists.

Goebbels attributed the problem of Grynszpan's projected defence strategy solely to the phrasing of the indictment drawn up by Justice's inept officials. However, this was far from true. Grynszpan first revealed his intention to utilise this defence in mid- 1941 during his interrogation by the Gestapo's Jagusch. Information to this effect was included in the RSHA's final report when the prisoner was turned over to the Ministry of Justice. It was on the basis of the RSHA pre-trial report that Justice's Freisler informed his colleagues at the meeting of January 22 that there was a problem, whereupon the group agreed on the need to obtain Hitler's specific approval to proceed with the trial despite the possibility that Grynszpan might claim homosexual relations with his victim.

There is further evidence that Goebbels' version was motivated more by his thorough dislike of the Ministry of Justice than by facts. The inclusion of the homosexual angle was not due to some anonymous letter, as Goebbels had claimed. Dr. Mueller-Hess, the German psychiatrist due to be called as a witness in the trial, recalled in 1947 that he had been asked to examine Grynszpan on October 15, 1941, probably before a definite decision had been made to try the youth. In any event, the indictment was being drawn up at that time and could not have been available to the defendant. Dr. Mueller-Hess recalled that Grynszpan had told him:

A man stopped (Grynszpan) on the street - either in front of a news stand or a public toilet - and had in the course of the conversation persuaded him to have homosexual relations. At the same time he gave his name and said that he was counsellor of embassy (sic) at the German legation. Since the man promised to use his position to help (Grynszpans') parents, he agreed and had relations with him on several occasions. How and in what manner this occurred I do not recall any more. Despite his pleas for positive action on behalf of his parents, Herr vom Rath repeatedly put him off. Infuriated by this, he committed the murder.

Meanwhile it became known at Hitler's Headquarters that the Fuehrer had balked at formally transferring responsibility for the trial from the Ministry of Justice to the president of the People's Court. Probably in an effort to help things along, Grimm at this point asked Ribbentrop to arrange for an "audience" with Hitler to report on his work, as he had done in connection with the trial of David Frankfurter. However, Grimm was out of his depth now and nothing came of this initiative.

Back in Berlin, everything seemed to proceed as planned, except for the mandate for Thierack. On April 11, Diewerge wrote to Goebbels that "in accordance with the Fuehrer's decision as reported to me, I have worked on the trial preparations, not with the Ministry of Justice, but with Dr. Thierack. The Foreign Ministry has followed suit" (emphasis added). He went on to say that if the dates for the trial ordered by the Fuehrer were to be met, Thierack's authorization would have to be announced quickly, since a number of steps could only be taken by the Ministry of Justice and the Office of the Chief Prosecutor. "I therefore urge that the Fuehrer Headquarters be advised of the urgency of the matter so that Minister Dr. Lammers can pass on the authorisation to Dr. Thierack."

Everyone involved in the trial preparations acted as if the transfer of power from the Ministry of Justice to the president of the People's Court were a "fait accompli" - everyone, that is, except Acting Minister of Justice Schlegelberger. He acted as if nothing had happened. On April 10 he wrote to Goebbels. It was a unique letter in many ways:

Since the Fuehrer has ordered continuation of the criminal proceedings against Grynszpan and the trial is to begin on May 11, 1942, I would appreciate early confirmation that the Fuehrer, when he agreed to the trial before all the world, was aware that Grynszpan as part of his defence will allege homosexual relations with Counsellor of Legation vom Rath. Permit me to refer in this connection to the meeting of 22 January 1942 with Dr. Freisler, attended by Ministerial Counsellor Diewerge, and the minutes thereof transmitted on 24 January.

Knowing that the Ministry of Propaganda, in obtaining Hitler's agreement to hold the trial, had failed to make any formal reference to the homosexual aspect, Schlegelberger seemed to enjoy throwing down the gauntlet. It is unlikely that Schlegelberger on his own took up battle against the powerful Goebbels, but he must have had some strong allies in the highest echelons. In any event, the letter must have created more than a little consternation on the part of the Minister of Propaganda. (It is of course not beyond the realm of possibilities that the letter contributed to Schlegelberger's early retirement in August 1942, albeit with a sizeable lump-sum payment. That, however, did not save him from being tried by the Nuremberg war crimes tribunal and sentenced to life imprisonment. He was pardoned in 1950.)

Diewerge advised Gutterer of Schlegelberger's letter on April 13, pointing out that in the recent past he had no longer worked with the Ministry of Justice but with Thierack, and requesting permission to disregard the acting minister's letter. Wiser heads prevailed and permission was refused. Instead, it was decided to try a new approach with a letter from Diewerge (on behalf of State Secretary Gutterer) to the liaison between the Ministry of Propaganda and the office of Reichsleiter Martin Bormann (chief of the Party Chancery and close confidant of the Fuehrer), seeking to enlist his help in obtaining Hitler's authorisation to go ahead with the trial. In the letter Diewerge argued, in respect to Grynszpan's potentially damaging testimony, that internal press coverage of the trial would be well controlled and that the enemies of Germany would lie regardless of what was said in the courtroom. Under the circumstances, so reasoned the pragmatic Diewerge, Grynszpan's proposed testimony posed no problem.

All this must have started to affect Goebbels. He had expressed some doubts regarding the trial already in his diary entry of late January, when he considered holding part of the show behind closed doors. By April 14, he wrote:

The Grynszpan trial is now supposed to star the middle of May. I still have to make some preparations for it. The preparations made on the part of (the Ministry of) Justice are in some respects psychologically not very clever. Thus, for instance, the problem of homosexuality, which is not under debate, has been drawn into the trial and the question of the evacuations of the Jews is also to be treated publicly. I consider this to be most clumsy. The enemy propaganda will immediately attach itself to these points and conceivably attempt to turn the trial against us. I will therefore see to it that these two aspects are not discussed in court. The remaining preparations are in accordance with my suggestions and will undoubtedly, if carried through, make the trial a complete success.

While Goebbels' rumination about the Ministry of Justice regarding the homosexual angle was old hat, all at once the "evacuation of Jews" was perceived as a problem. Up to that point, it had been planned to address this matter by calling various witnesses who could testify to the excellent treatment accorded the Polish Jews. However, by early 1942, the transports had taken on a much more sinister character (to the extermination camps) and Goebbels apparently decided that discussion of such transports would be counterproductive. Otherwise, however, everything was still on "go".