. NMT03-T0131
Volume III · Page 131
[funda…] mental conception. Yet in my opinion the prosecution does not make any effort to embark upon proof that the defendants had come to a mutual agreement in their own minds, such as must constitute the prerequisite for the conspiracy of justice, for the furtherance of the Hitler regime as alleged by the indictment. Instead, the prosecution is content to trace in every statement and every action simply a sign of malicious intent and bad faith without stopping to consider how such actions are to be estimated in the light of historical development and within the limits of the phenomenon as a whole and the practical possibilities. Just as the indictment desires to see in the legislative power [Rechtsschoepfung] conferred upon the judge by the alteration of paragraph 2 of the German Criminal Code an example of the judicial intention to try cases unrestrictedly and arbitrarily, without attention to legal guaranties, so also my client Klemm is credited with completely false motives in detail. Just as it will be proved by the defense that such legislative power for the judge had already been planned, long before 1933, in draft proposals for reform, with the object of creating the necessary synthesis between merely codified law and the actual development of law through the giving of legal judgments, so also shall I show, in my defense of the defendant Klemm, in general, that he, too, was concerned, in his measures, with the preservation of real justice. Reference will therefore inevitably be made to the background of historical development behind the measures with which he is charged, to the related points in the German legal system, and to the actual distribution of power existing during the Hitler regime. In this connection a great deal will depend on the view that is taken of his position, his potential influence and the limits of his authority.
In particular, I shall divide the subject matter of my proof into sections.
In the first place, it will be necessary to begin with the fact that, outwardly, the defendant Klemm has to bear a certain amount of odium: he had joined the NSDAP before it took over power and he remained in it until the capitulation; he was at first Oberstaatsanwalt and Ministerial Councilor in the Reich Ministry of Justice, he was chief of liaison with the SA and reached high rank in that organization, he was a group leader in the Party Chancellery, and he was finally to become Under Secretary in the Reich Ministry of Justice, the last position he held, and a personal friend of and very close collaborator with Thierack, the Minister. The indictment evidently intends, by giving this outward impression, to exhibit Klemm as a man who considered justice to be a means, and treated it as a means, to exclusively
