Goering at Nuremberg, 1

Robert H. Jackson was an Associate Justice on the Supreme Court by day, and one of the most eloquent men alive. In 1945-46 he led the American prosecution at the Nuremberg Trials, “perhaps the greatest opportunity ever presented to an American lawyer.” His powerful opening statement testifies to the power of words, used well, to shape the meaning of events:

That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power ever has paid to Reason.

What these men stand for we will patiently and temperately disclose. We will give you undeniable proofs of incredible events. ... Our proof will be disgusting and you will say I have robbed you of your sleep.

While the United States is not first in rancor, it is not second in determination that the forces of law and order be made equal to the task of dealing with such international lawlessness as I have recited here.

But Jackson was not so commanding when he cross-examined the most powerful Nazi on trial, Hermann Goering. Goering had run the German Air Force, and had once been Hitler’s designated successor; he was, by some accounting methods, the #2 Nazi. Jackson, in his opening statement, had said that

in the prisoners’ dock sit twenty-odd broken men. Reproached by the humiliation of those they have led almost as bitterly as by the desolation of those they have attacked, their personal capacity for evil is forever past.

But Goering was not a broken man. Used to being in command, he was comfortable being in command, and when he took the stand he took command of the room.

Jackson, from what I can tell, wanted a showdown with Goering, like the climactic courtroom showdown in A Few Good Men. Jackson’s Tom Cruise-like pressure and probing questions would gall Goering/Jack Nicholson into pathetic denials, or else angry incriminating outbursts. It did not work. It didn’t work because the Nazi Leaders are Not Like Us. Jackson repeatedly asks, did you order such and such atrocity?, to find Goering repeatedly answering, with calm and poise, yes—sometimes, yes, of course. Jackson asked

Did you not also sign personally a decree on September 17, 1940, ordering the sequestration of Jewish property in Poland?

And Goering does not just agree, he doubles-down on the legitimacy of the act. The place mentioned in the decree—it really belonged to Germany anyway:

Yes. I stated that once before. In that part of Poland, if I may point that out, which had been previously an old German province. It was to return to Germany.

Later Jackson reads from Hitler’s will, where Hitler accuses Goering of disloyalty, a perfect chance for Goering to distance himself from Hitler; but Goering replies

I neither betrayed the Führer nor did I at that period of time negotiate with even one foreign soldier. This will...rests on an unfortunate mistake and a mistake which grieves me: that the Führer could believe in his last hours that I would ever be disloyal to him.

Elsewhere, in testimony that would make the lawyers for the other defendants smile, Goering takes all the blame with pride:

There was no one else who could even approach working as closely with the Führer, who was as essentially familiar with his thoughts and who had the same influence as I. Therefore at best only the Führer and I could have conspired. There is definitely no question of the others.

This was not an act of self-sacrifice, done to draw the punishment due by right to other criminals. Goering was genuinely irritated to be on trial with what he regarded as a bunch of small and insignificant men.

In his account of the trials, Telford Taylor tells us that Goering in court was “lucid and impressive,” and was praised “for his poise, skill, and candor” (The Anatomy of the Nuremberg Trials; Taylor worked for Jackson at Nuremberg). If Goering’s calm acceptance of the horrible accusations against him is alien, even more alien are his choices of when to deny, disagree, and push back. When Jackson shows Goering a decree making “plans for the complete solution of the Jewish question,” and asks if it was he (Goering) who signed it, Goering says “No.” He says, “This decree I know very well.” He did sign it; that he does not deny. He objects to the translation. The ensuring discussion occupies a page of transcript. On the correct translation of the plans, Goering says, they were for a “collective” solution of the Jewish question.

Observers thought that Goering wiped the floor with Jackson. And while Jackson did get his A Few Good Men moment, it was not the one he would have wanted. If you’ve seen the film, you’ll remember this low point: Lieutenant Commander Galloway (Jo, played by Demi Moore) renews the prosecution’s objection to a doctor who is giving expert testimony. She is overruled, but won’t let it drop, and now “strenuously” objects:

Judge: The objection of the defense has been heard and overruled.

Jo: Move to reconsider.

Judge: Your objection is noted! The witness is an expert and the court will hear his opinion!

Her colleagues complain later: all she’s done is “get it in the jury's head that we're afraid of the doctor.” Back in Nuremberg, Jackson, in another attempt at a gotcha moment, produces a 1935 document calling for, he says, “preparation for the liberation of the Rhine.” Clear evidence that the Nazis had long planned an aggressive war, right? No: Goering points out that the document has been mistranslated; it provided that the Rhine must be “cleared” (not “liberated”), meaning cleared of civil river traffic in the event of war. These are contingency plans, not secret plans for aggressive acts. Jackson was beaten, but he couldn’t move on:

Jackson: But [these preparations] were of a character which had to be kept entirely secret from foreign powers?

Goering: I do not think I can recall reading beforehand the publication of the mobilization preparations of the United States.

This snarky comeback breaks Jackson. He turns to the judges, petulantly:

this witness is not being responsive...it is perfectly futile to spend our time if we cannot have responsive answers...this witness, it seems to me, is adopting, and has adopted, in the witness box and in the dock, an arrogant and contemptuous attitude toward the Tribunal which is giving him the trial which he never gave a living soul, nor dead ones either.

Does Jackson want a judge to tell Goering to cut it out with the arrogance? The judges say that they’ve already ruled that witnesses can explain their answers, and that they are not going to change their minds. Next day Jackson again objects to witnesses being allowed to “make such explanations as may be necessary”; his objection is again rebuffed. This could only “get it in the public’s head” that the prosecution was “afraid of Goering.”

In his 1993 memoir about the Trials, Taylor writes that “Many came to equate the outcome of that confrontation [with Goering] with the success of failure of the trial itself.” He quotes from the diary of one of the judges: this was

the critical moment of the trial. If the leader of the surviving Nazis could be exposed and shattered...then the whole free world would feel that this trial had served its supreme purpose; but if, for any reason, the design should fail, then the fears of those who thought the holding of any trial to be a mistake would be in some measure justified. (Emphasis added)

Taylor, looking back almost fifty years later, regards this attitude as ridiculous. The documentary evidence against Goering was overwhelming. It alone was enough to convict him on all counts. Jackson should have kept his eye on that—conviction—and concluded that it simply did not matter what Goering said on the stand. Tom Cruise’s clients were going to hang, unless he could goad a confession out of Colonel Jessup. Goering was going to hang no matter what.

For Jackson and for our diarist-judge, how the trials would be remembered was as important as what actually took place. But in the lasting memory of the people as a whole—not the historians and the scholars, but you and me and the “general public”—what facts about the Nuremberg trials have stuck? Not a dramatic and failed confrontation between Jackson, representing America and all that is Good, and Goering, representing an Evil Empire. Would a successful confrontation—one from which Goering emerged diminished and humiliated—have been remembered? My guess is no. What remains are the simple facts of the event: these men were tried, most were found guilty, and many were executed; justice was done. Goering himself was sentenced to hang. His request to be shot—a more dignified death—was rejected. He committed suicide before the sentence could be carried out.