Burning the Reichstag (45 page)

Nonetheless Brandt believed the story, and it inspired him to keep going for more than a decade with van der Lubbe's case. The application
under Berlin's WGG moved forward slowly (the prosecutor complained that this was because Brandt had spent too much time in America and kept trying to get an oral hearing, instead of relying on documents in the German manner). But the case also began to acquire its own momentum. Neither Brandt nor the prosecutor seemed able to resist the lure of re-opening the question of who set the fire. Both made an effort to identify witnesses and take statements from them.
¹⁸

Many witnesses were still alive. Magistrate Paul Vogt, Brandt's old adversary from Weimar days, gave a statement insisting that Hitler's regime had not tried to influence his investigations and that the case had unfolded entirely in accordance with the law. An administrative judge named Alois Eugen Becker came forward after he saw an article in the newspaper the
Frankfurter Rundschau
(Frankfurt review) in which people who might have been expected to have information about the fire denied all knowledge. Becker had been a political police official in 1933 under Diels. He testified that in mid-February a meeting took place at which the terms of the future Reichstag Fire Decree were discussed. Beyond that he knew little that was concrete, though he did say that there had been rumors around the Gestapo headquarters in Berlin concerning Nazi involvement in the fire, and that the detectives working on the case had told him that van der Lubbe could not have done it alone. Becker reported that Diels's remarks the morning after the fire had been “as usual somewhat cynical, without being in any way definite.”
¹⁹

The most important witness was Diels himself, who gave a deposition in early 1957. By this point Diels had brought evasion to a high art. “I cannot testify here to more on the case of van der Lubbe than I explained in my book,” he said. He did not deny Becker's evidence, claiming only that he could barely remember Becker. He repeated his claim that his knowledge of the case was limited because Göring had cut him out of the investigation.

He continued with a virtuoso display of sinuous negation. “I have absolutely considered the idea that the SA could have set fire on the Reichstag not to be impossible,” he said. “On the other hand, I was then, and am now, of the view that the assumption that van der Lubbe absolutely could not have set fire to the Reichstag alone is erroneous.” Van der Lubbe had been “a pathological arsonist” who was “well supplied with incendiary materials.” After speaking with van der Lubbe, Diels had become convinced that the suspect had set the fire alone. “That on the other hand
later I did not close my mind to the rumors about the involvement of the SA had nothing to do with this, my original opinion.” He did not elaborate. It was a skillful performance, creating the impression that he himself was not directly involved and could treat the whole subject with intellectual detachment.
²⁰

Brandt used the press to bring the Reichstag fire back into the court of public opinion. Apparently at Brandt's urging, in late 1957 the journalist Curt Riess wrote a series of articles on the fire for the magazine
Stern
. Similar series ran in other illustrated weeklies. Riess's series (written under the pseudonym Peter Brandes, which means roughly “Peter of the fire”) was based on what information was available in 1957, which was in fact very little. His account was indebted to such dubious sources as the
Brown Book
, the
White Book
, and Diels's memoirs, alongside contemporary newspaper accounts. Nonetheless Riess also interviewed people who might have had information on the fire. And back around came Diels. What Diels told Riess—as well as what he said to two other reporters at approximately the same time—constituted the most valuable part of these articles, although it would still be a few years before full details of what Diels had said, and
that
he had said it, became public. Riess accepted Diels's version of how he and other “brave police officers” had fought against the violence of the SA. Goebbels had been the main inspiration for the fire. Karl Ernst had been in charge of the operation, and in turn Ernst had delegated its execution to Heini Gewehr.
²¹

In May 1958 the Berlin Superior Court dismissed Brandt's case on a technicality: he and J.M. van der Lubbe had missed the deadline for filing the claim. In 1965, however, a change in the laws allowed Brandt and van der Lubbe to revive the case and bring it once again before the Berlin Superior Court. This time the prosecution sided with Brandt. The court was not so easily won over, however, and the result was the kind of verdict that leaves nonlawyers scratching their heads. On April 21, 1967, the Superior Court acquitted van der Lubbe of attempted high treason and seditious arson, but substituted a verdict of conviction for arson endangering life. Thirty-three years after his execution, the court converted van der Lubbe's death sentence to eight years in a penitentiary.
²²

After this Robert Kempner took over the case from Brandt. Kempner made determined efforts, lasting into the early 1980s, to get a German court to overturn the conviction completely. These efforts succeeded briefly in the Berlin Superior Court in December 1980. But in 1981 the
Court of Appeals overturned this decision, again on technical grounds, and thereafter the case bogged down in the issue of exactly which court had jurisdiction, without producing any important new evidence.
²³

After almost thirty years of renewed litigation, decades after the original crime, the legal result for the van der Lubbe family had been underwhelming. But the effects on the emerging Reichstag fire controversy were considerable.

FRITZ TOBIAS'S HISTORICAL GRAND THEORY
was that most things happen by mistake or by accident, and he applied the same reasoning to his own life as well, as did others: Rudolf Augstein described him as “the amateur researcher who set out to prove the guilt of the Nazi leaders” only to come up with proof of “their noninvolvement.”
²⁴

Documents from the
Spiegel'
s archives show that Tobias was in touch with the magazine as early as March 1956, though the negotiations for commissioning articles based upon his research did not get serious until November 1957. The timing is not a coincidence, for this was precisely when the weeklies
Stern
and
Weltbild
were running their series on the Reichstag fire, at Arthur Brandt's urging and to support his case on behalf of the van der Lubbe family. Tobias himself said in 2008 that the
Spiegel
had become interested in his work, after rejecting it a few years before, only following the appearance of the other series.
²⁵

Testifying in 1961, Tobias claimed that his research into the fire was finished by 1957, and that State Advocate Dobbert, the Berlin prosecutor who was Brandt's opponent in the van der Lubbe case, put him in touch with the
Spiegel
. In a short bio written around the same time, Tobias said that Dobbert had referred the
Spiegel
's Berlin correspondent to “the Reichstag fire specialist in Hannover.” Dobbert, like Brandt, knew how to use the press to advance his case, and Tobias was his chosen instrument. In early 1958 Tobias and the
Spiegel
agreed that Tobias's materials would appear in the magazine as a series. Tobias kept Dobbert informed of how the work was progressing. In mid-1958 he promised Dobbert that he would “very much enjoy” the series, for both professional and nonprofessional reasons. Dobbert helped Tobias in turn by sending him microfilm rolls of original documents in the possession of the Berlin prosecutor's office, which were then unavailable to the public.
²⁶

The
Spiegel'
s editors felt that Tobias's writing needed some punching up to be print-ready. They assigned one Dr. Paul Karl Schmidt, a journalist
and popular history writer, to be his ghostwriter. Schmidt wrote under various pseudonyms, of which the best-known was Paul Carell (under which name his book
Hitler Moves East
was also published in English). He worked slowly on the project through 1958, delaying the planned appearance of the story. But his involvement in the project raised more serious issues as well.
²⁷

Schmidt was yet another
Spiegel
writer with a troubling record from the Nazi years. He had been the press secretary in Joachim von Ribbentrop's Foreign Office. In May 1944, when the Nazis were about to deport Jews from Budapest to the death camps, Schmidt sent a memo to a senior Foreign Office official warning that this “planned action” would attract considerable attention abroad. “The opponents will cry out and speak of persecution (
Menschenjagd
)” in order to use such “atrocity stories” to “try to whip up their own feelings and also those of neutral countries.” To prevent this, Schmidt proposed that explosives be planted and then discovered in the buildings of Jewish societies and synagogues, and that evidence be fabricated that they were trying to undermine the Hungarian currency. “The cornerstone of such an action,” wrote Schmidt, “has to be a particularly crass case, on which one can then hang the great crackdown.” As Bahar and Kugel have written, it is a particularly piquant irony that the
Spiegel
should have assigned the polishing and recasting of Tobias's prose to a man who had advocated the creation of false pretexts for Nazi crimes. Historian Christina von Hodenberg has written that Schmidt was a central figure in a network of journalists who were former members of the Foreign Ministry's propaganda office, and who after the war brought a distinctly far-right—even “under-cover Nazi”—tone to much of the West German press.
²⁸

Tobias said that he met Schmidt at the
Spiegel
offices in early 1957. “I did not work with him more closely,” he testified in 1961. “He simply produced a compressed version of my manuscript.” By 1961 Tobias had good reason to distance himself from Schmidt, and he maintained he had not known Schmidt earlier and had had nothing to do with the
Spiegel
retaining him to work on the manuscript. “I did not know at the time,” Tobias's testimony continued, “that Dr. Schmidt was supposed to have been … an especially fanatical and dangerous National Socialist.”
²⁹

Actually, Tobias may have known Schmidt much earlier. He told a former
Spiegel
reporter in 1996 that he had referred Schmidt to the
Spiegel
in the first place. Schmidt's role as ghostwriter had been a term of the
contract between Tobias and the
Spiegel
, which also suggests that Tobias may have had some influence in Schmidt's selection. In April 1958, just after this collaboration began, Tobias wrote, “Schmidt was a good Nazi and an especially dangerous one, because he was certainly capable and useful,” making almost exactly the point that, under oath three years later, he denied ever having known. Tobias had made his own enquiries about Schmidt. In his papers there is a copy of Schmidt's 1944 memo about the Hungarian Jews, although it is not clear when he acquired it.
³⁰

In 1958 Tobias showed no sign of concern about Schmidt's past. When a Social Democratic friend warned him about Schmidt's record, Tobias wondered if his friend wanted “to exclude them all,” adding all that mattered was “how [Schmidt] writes today.” And there he defended Schmidt's practice of writing about German war experiences with words like “heroic,” and saw nothing wrong with a Schmidt article that equated the Nuremberg prosecutions both to Stalin's show trials and to the Reichstag fire proceedings. Tobias himself later wrote that in Nuremberg Hermann Göring “imitated with astonishing success” the starring courtroom role that Dimitrov had played thirteen years earlier. By 1969, though, Tobias was taking a different tone, complaining to Rudolf Augstein of “my permanent ‘incrimination' through the person of your former employee Dr. P.K. Schmidt.”
³¹

The delays in publishing Tobias's
Spiegel
series, especially through 1958, were a source of constant frustration for Tobias. In the spring of 1959, however, the pace picked up. The
Spiegel
took Schmidt off the project and reassigned it to Gunther Zacharias, who worked faster. The articles began appearing in October. It may be that Tobias's relationship with his police protégés—or, as he called them, his “clients”—contributed to a greater sense of urgency.

IN 1958, IN THE SOUTH GERMAN CITY
of Ulm, a major prosecution of members of an
Einsatzgruppe
for mass shootings in Lithuania in 1941 developed almost accidentally out of a routine civil action launched by the former SS-
Oberführer
Bernhard Fischer-Schweder. The prosecutor in the case against Fischer-Schweder was a man named Erwin Schüle, who, with the aid of captured Nazi records gathered in the American-run Berlin Document Center, was able to reconstruct the crimes with a high degree of precision, and secure long prison sentences again the main defendants. The Ulm trial suggested just how many Nazi crimes remained
undiscovered and unavenged long after the war, and how extensively police and judicial authorities sheltered incriminated colleagues from prosecution. Schüle grew deeply worried about the rule of law in West Germany. On May 8, 1960, the limitation period for prosecuting all Nazi crimes short of first-degree murder (thus including second-degree murder and manslaughter) would run out. In the face of an East German propaganda campaign exposing ex-Nazis in West German justice, it became politically essential to speed up the pace of investigations.
³²

The result, in the fall of 1958, was the creation of a new authority with a cumbersome name: the Central Office of the State Justice Ministries for the Investigation of National Socialist Crimes (
Zentralstelle der Landesjustizverwaltungen zur Aufklärung nationalsozialistischer Verbrechen
). The Central Office was based in Ludwigsburg, a suburb of Stuttgart. Erwin Schüle became its first director