Hitler in the dock

Mark Hayhurst, writer of a forthcoming BBC drama and documentary, describes a remarkable episode in 1931 when the Nazi leader found himself fighting for his political future in a Berlin courtroom...

Hans Litten (centre) in court while representing communists, 25 August 1932. Litten’s decision to subpoena Hitler a year earlier was to cost him his life. (Photo by ullstein bild/ullstein bild via Getty Images)

This article was first published in the September 2011 issue of BBC History Magazine

It was a dream of Allied prosecutors in 1945 – and has been a fantasy for many human rights lawyers ever since – that they put Adolf Hitler in the dock and make him answer to a court of law.

The Nazi dictator, who hated the concept of law and detested lawyers as charlatans, escaped Nuremburg of course and was never made to account for his crimes. But he did not escape a lawyer’s grilling altogether. On 8 May 1931 a brilliant young German barrister called Hans Litten faced Hitler across the floor of Room 664 in the Berlin criminal court and subjected him to a gruelling three-hour cross-examination. It was an ordeal that Hitler neither forgot nor forgave. In 1931 Hitler was still in the process of becoming ‘Hitler’, and he had excellent political reasons for not wanting to appear in court. He especially had reasons not to be grilled in public by a resourceful and intellectually able Jewish anti-fascist, which is what Hans Litten was.

This article was first published in the September 2011 issue of BBC History Magazine

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It was a dream of Allied prosecutors in 1945 – and has been a fantasy for many human rights lawyers ever since – that they put Adolf Hitler in the dock and make him answer to a court of law.

The Nazi dictator, who hated the concept of law and detested lawyers as charlatans, escaped Nuremburg of course and was never made to account for his crimes. But he did not escape a lawyer’s grilling altogether. On 8 May 1931 a brilliant young German barrister called Hans Litten faced Hitler across the floor of Room 664 in the Berlin criminal court and subjected him to a gruelling three-hour cross-examination. It was an ordeal that Hitler neither forgot nor forgave. In 1931 Hitler was still in the process of becoming ‘Hitler’, and he had excellent political reasons for not wanting to appear in court. He especially had reasons not to be grilled in public by a resourceful and intellectually able Jewish anti-fascist, which is what Hans Litten was.

Hans was quick-witted, sarcastic, and well informed. Hitler, superbly equipped as he was to speak to a mob in a beer cellar or a mass rally in an athletics stadium, floundered in a courtroom where no one was prepared to listen to an endless denunciation or a frothy tirade. For a brief moment in Room 664 Hitler’s political future was genuinely in the balance.

Hitler was in the courtroom because of violence – in particular the astonishing street violence that his brownshirted stormtroopers in the SA were visiting upon the streets of Berlin.

In 1926 he had sent Joseph Goebbels to the capital to conquer ‘Red Berlin’ and to establish a bridgehead for the Nazi party in a traditionally strong leftwing city. Goebbels’s chosen method was to crack heads. “Berlin”, he said, “needs sensation like a fish needs water”. And that’s what his stormtroopers gave the town. They pitched up in working-class districts like Charlottenburg and Wedding, quartered themselves in taverns (which they called Sturmlokals), created their ammunition dumps, and went to war with the Reds.

Their chief enemy was Berlin’s vast Communist party which, hitherto, had controlled the poorest sections of the city and which, it ought to be said, was not shy of a scrap itself. Over a three-year period the number of street battles between the two sides grew alarmingly, as did the murder rate.

Many of the SA members were former soldiers who hadn’t liked the idea of handing in their guns in 1918. Others were unemployed and half-starved workers who found in the Sturmlokals hot soup and an outlet for their own social frustrations.

This combustible brew was, in turn, heated by a political philosophy in which the cult of violence was never far from the surface. With the communists refusing to back down the result was low-intensity civil war in which neighbours hunted each other down and used murder as a political weapon in order to control the streets.

Hans Litten knew all about this because he was the lawyer that the Communist party and its fighting wing, the Red Front Fighters League, often turned to when their men came up before the law. So when, on the night of 22 November 1930, a group of armed SA men burst into the Eden Palace dance hall in Charlottenburg and fired their Mausers randomly into what they assumed to be a crowd of ‘communist’ revellers, Hans was the man chosen to bring the private prosecution. He had done this many times before, and done it successfully, but this time Hans decided to escape the tedious carousel of prosecuting the brownshirt small fry, and go after the man who was “giving the orders”. Two days into the Eden Palace trial he subpoenaed Hitler.

In doing this Hans Litten had two main objectives – one political, the other legal. The political objective was to confront Hitler with what seemed to be a massive contradiction in the Nazi programme. Ever since the Nazi party had made its dramatic electoral breakthrough in September 1930, where it garnered 18 per cent of the popular vote and 107 seats in the Reichstag, Hitler had become obsessed with the need to cultivate his new supporters. These came from the middle classes and the professions, from the Protestant churches, and from the worlds of business and finance. In temperament and culture they were far away from the young disenfranchised men fighting on the streets.

At the same time Hitler also needed to throw enough red meat to satisfy these men since it was they – and not the pastors and teachers – who would wrest Berlin from the ‘Reds’. Hitler was clearly riding two horses by 1931 and it was Hans’s hope that in being forced to account for the violence of his stormtroopers in Berlin before a court of law, the self-styled führer might fall from the saddle of one of them. Either Hitler would defend the SA and forfeit his new law-abiding middle-class supporters or he would pose as a man of peace and lose the SA.

That was the political objective. But Hans had a legal aim as well. In the wake of the 1930 Nazi electoral breakthrough Hitler had appeared at another trial in Leipzig where, under a benign examination by the Nazi lawyer Hans Frank, he had taken an oath to legality and sworn that his party had turned its back on violence. Hans Litten wanted to test that oath in Berlin because he believed it amounted to perjury. If he could prove that the SA attack on the Eden Dance Palace flowed naturally from Hitler’s political philosophy he might also open the possibility of a perjury charge – which, in turn, could lead to a prison sentence or, at the very least, the deportation of Hitler back to Austria.

Red murderers

When the big day came the Berlin court was packed. Over 2,000 brownshirts jammed the streets outside while inside the public galleries overflowed with Nazis and anti-Nazis alike. Hitler, dressed in a blue suit, attempted to project a sober image – at least at first. He insisted that the SA was primarily a sports organisation dedicated to the study of jiu-jitsu. He described how solitary SA men were systematically picked on by the “Red murderers” as they walked the streets of Berlin.

When confronted with his own loving descriptions of the role of terror and violence in politics he insisted that he’d been writing in metaphors. And when Hans produced a recent Goebbels tract which claimed that Weimar democracy would be “annihilated” and a new Nazi state “raised on the strength of German fists” he declared that it was not an official party publication and therefore had nothing to do with him. And, finally, when Hans called to the stand a renegade SA officer to testify that the top Nazis had rubbished the führer’s oath, Hitler simply called the renegade a liar.

There’s no doubt that Hans won the argument. He showed Germany – and especially the German middle classes – what the Nazis were like. He exposed Hitler’s pose as a man of law for the disgusting farce it was. But Germany did not blink. Hitler was allowed to continue to ride his two horses because a sufficient mass of people preferred brownshirt violence to the prospect of a triumphant German left.

In 1933 Hitler was swept to power and Hans Litten became one of the Third Reich’s first political prisoners. After enduring five years of torture in the new Nazi concentration camps he committed suicide in Dachau. The German surrender, on May 8 1945, came 14 years to the day after Hitler’s ordeal at Hans Litten’s hands in Room 664 of the Berlin criminal court.

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Mark Hayhurst is a freelance drama-writer and documentary-maker. He has made numerous films on historical subjects for the BBC.