The Producers

Nobody should be surprised to find the most sordid practices behind these trials. We have seen in Chapter 1 (pp. 40-43) that no ethical limitations were respected in the means sometimes employed to produce “evidence.” We should, therefore, take a closer look at who was in charge in Case 11. Recall that then was no substantial “indictment” process involving a grand jury, and that, as one may confirm by reading DuBois’ book, it was the prosecution in each case that decided who was to be put on trial and with what he was to be charged.

The Wilhelmstrasse Case was not really commensurate with the other cases tried before the NMT; all of the latter had had special purpose characters, as Table 4 shows (p. 35). The Ministries or Wilhelmstrasse Case, however, was somewhat like a “little IMT,” that is, people from an assortment of German government ministries were put on trial and the trial had a correspondingly wide scope. Thus, it was split into an “economic ministries section” and a “political ministries section,” each of which had different prosecution staffs.

The important section from our point of view and, indeed, the most politically important case to come before the NMT was the political ministries section of Case 11, whose chief prosecutor was Robert M. W. Kempner, who has quite a history. It is very useful to present a short summary here of the “high” points of his career.

Kempner, a Jew, was born in Germany in 1899, studied law, and joined the Prussian Ministry of Interior during the Twenties. In the years 1928-1933, he was a senior counsel for the Prussian State Police (under the Ministry of the Interior) and specialized in investigating the rising Nazi Party. He became an anti-Nazi crusader in his official capacity and energetically attempted, without success, to have the party outlawed.

When the Nazis took over the German government in 1933, he was dismissed from his government position, but although Jewish, he was able to continue his legal practice for a short while as a counselor in international law and Jewish migration problems and also, apparently, as legal counsel for the German taxi drivers’ organization. Whether or not he spent any time in a camp or in some other form of detention is not clear. In any case, he moved to Italy in 1935 to take an administrative and teaching (political science) position at a small school in Florence. The Mussolini government closed the school in 1938, so the school and Kempner moved to Nice, France. He did not remain with the school for very long, however, and emigrated to the United States in 1939. His mother already had a research job at the University of Pennsylvania, and this connection seems to have landed him his “research associate” position at that University.²⁸⁷

He immediately resumed his anti-Nazi crusading. He had somehow managed to smuggle out of Germany some of the Prussian police papers, to which he had contributed, and these became the basis of a book, which he published privately in 1943. The book, in stencil form, attempted to show, on the basis of Kempner’s past experiences in Germany, what should be done in Germany after the war in Germany to permanently suppress Nazism. It did not achieve wide circulation but, together with some other books and articles that he wrote, established him as a sort of expert on fighting Nazis. He had also smuggled out some phonograph recordings of Nazi meetings; these had been made by the Prussian police during the years of his service. He contributed them to the University of Pennsylvania. He also did a certain amount of anti-Nazi letter writing to the newspapers. As the war was drawing to a close, he wrote that the Nazi leaders should be tried in the U.S. before regular American courts. In the meantime, he had acquired U.S. citizenship.²⁸⁸

During the war he worked for both the U.S. Department of Justice and the OSS. In the latter agency, he was charged with drawing up lists of German anti-Nazis who could be trusted with posts in the coming occupation government of Germany. He was one of a large group of German Jews in the OSS (which included, e.g., Herbert Marcuse).

At the end of the war, Kempner switched to the War Department and accompanied the U.S. Army back into Germany “on the payroll of the Judge Advocate General.” Prior to the opening of the IMT trial, he served in the fairly significant role of prosecution liaison with defense counsel and later on was in charge of the division that prepared the U.S. trial briefs against individual defendants. During the trial, he was an apparently ordinary member of the prosecution staff and specialized in the prosecution of the Nazi Minister of the Interior Frick. He does not appear to have been particularly prominent, although immediately after the trial he contributed a magazine article to the New York Times on the great work the trial had done in educating the Germans. The killings of the German military and political leaders had not yet been carried out, so he simultaneously predicted, with great satisfaction, that the doomed Nazis would be buried in unmarked graves to “avoid fanatical pilgrimages by still ardent Nazis.” Actually, the ultimate procedure was even more hysterical, because the bodies of Göring et al. were photographed (in order to be gloated over shortly later in the press and in newsreels), disguised in U.S. Army uniforms, taken secretly to Dachau and cremated there, the ashes being sifted into a nearby stream.²⁸⁹

287. New York Times (Feb 22, 1940), 22; (Aug. 26, 1940), 17; (Mar. 30, 1944), 6; (Nov. 14, 1945), 8; ( Jan 17, 1946). 14; Select Committee, 1534-1535; Current Biography (1943), 370; Who's Who in World Jewry (1965), 498.

288. Kempner, 1-12; New York Times (Sep. 28, 1941), sec. 2, 6; (Jan 20,1945), 10.

289. R.H. Smith. 217, 222; Yad Vashem Studies, vol. 5, 44; New York Times (Oct. 6, 1946), sec. 6, 8; (Oct. 7, 1946), 2; (mar. 18, 1947), 4; Select Committee, 1536, 1539.