Holocaust denial on trial

In the year 2000, David Irving sued the American academic Deborah Lipstadt after she accused him of being a Holocaust denier. As a new film on the trial airs in cinemas, Richard J Evans describes how the case – and his role as an expert witness – made the journey to the big screen...

US academic Deborah Lipstadt exults the High Court in London after winning a libel case brought against her by British historian David Irving, 11 April 2000. (Photo by Martyn Hayhow/AFP/Getty Images)

Seeing yourself played on the screen by an actor is a rather odd experience, but it’s one that has befallen me more than once. It’s come as a result of having been the main expert witness in the libel action brought by the writer David Irving against the American academic Deborah Lipstadt and her publisher Penguin Books in the year 2000.

Advertisement

In her book Denying the Holocaust: The Growing Assault on Truth and Memory, published in the UK in 1994, Lipstadt (now the Dorot professor of modern Jewish and Holocaust studies at Emory University in the US) had called Irving a Holocaust denier and a falsifier of history. He sued her for defamation in the high court, alleging, correctly enough, that what she had written damaged his reputation as a popular writer on Nazi Germany and the Second World War.

Her allegations also affected his earnings, since his reputation was built not only on his racy and readable prose style but also on his claim to have discovered more original sources and to be more accurate and thorough than other historians were. The defence opted for ‘justification’ – that is, it decided to prove that Lipstadt’s allegations were factually correct, an absolute defence in law.

That is where I came in. The defence lawyers asked me to go through Irving’s writings and speeches to see if Lipstadt’s charges were correct. It’s worth noting that I had complete freedom to do this, got no instructions from the defence, and was paid the standard expert witness fee, an hourly rate that meant that I could have concluded that Irving was a great historian and everything Lipstadt had written was wrong, and still received my payment. Moreover, I had to swear in court that I had written my report objectively and without any fear or favour, and sign an affidavit to the same effect.

Finagling the facts

In the event, I found that Irving was indeed a Holocaust denier, at least after the late 1980s. Together with my team of researchers, I discovered a huge number of manipulations and falsifications of the historical record in his work, with words inserted into or taken out of documents where they were not present in the original, mistranslations, mistranscriptions, misdatings and much more besides.

The clinching factor was that all these errors went to support David Irving’s central contentions: that there were no mass gassings of Jews, that Hitler did not know about the extermination of the Jews (or if he did, tried to stop it), that there was no central planning of the mass killing of Jews, and that most of the evidence for the mass murder had been concocted after the war.

If Irving had merely been careless, then his mistakes of fact and quotation would have had a random effect on his arguments, some telling for them, some against. But the effect was anything but random, indicating that the mistakes were deliberate and not accidental. All of this can be read in the transcripts of the trial, available online, and in my book Telling Lies About Hitler (Verso, 2002).

In the event, Irving lost the case comprehensively, and was ordered to pay more than £2m in legal costs, which led to his bankruptcy. It kept open the lines of public debate about the Holocaust, whereas if he had won, Lipstadt’s book would have been pulped, and nobody would ever again have been able to call someone a Holocaust denier and a falsifier of history without facing the threat of an expensive libel suit. The case received massive and worldwide publicity and became the subject of several books apart from my own. It had a powerful educative effect, as all the newspapers carried detailed reports of the factual aspects of the Holocaust, Auschwitz, the gas chambers and the role of Hitler in ordering the extermination of the Jews.

Trial on TV

The trial was also the subject of a hastily put together drama-documentary on Channel 4 television, in which I appeared in the witness box as an old man with a white beard, which was evidently what the television people thought Cambridge professors looked like.

Some time later, however, there was a more considered documentary on BBC Two, Holocaust on Trial, for which the producers phoned me up beforehand to ask me my age, height, weight and hair colour, with a view to casting an actor who at least looked vaguely like me. They chose Michael Kitchen, (the lead actor in the television series Foyle’s War).

The programme was an effective and intelligent mix of archive footage, talking heads and courtroom scenes. By a curious chance, I was walking through London’s Fitzrovia one sunny day a few months after the programme had gone out, when I spotted Michael Kitchen relaxing with a friend in a pavement cafe. I wouldn’t normally do this, but the opportunity was too tempting to miss, so I went up to him. “Are you Michael Kitchen?” I asked. “Yes,” he said wearily. “You played me on television,” I said. That got his attention. It’s not every day that an actor meets one of the characters he’s played in person. He got up and I explained who I was. He remembered the occasion. “I hope I played you to your satisfaction,” he said. “Yes,” I replied, “in fact you played me far better than I played myself, because you could rehearse the lines while I only had one shot at them!”

Writer’s block

Media interest in the case did not die down after the broadcast. Not long after this, Ridley Scott started to put together a movie on the case, commissioning the playwright Ronald Harwood to write a screenplay. Harwood had just won an Oscar for The Pianist and knew a lot about the Nazi period, which he had covered in a number of plays and movies.

But Scott evidently wasn’t satisfied with his work, for he handed it over to a Hollywood ‘script doctor’, Nicholas Meyer (author of a wonderful short novel about Sherlock Holmes, The Seven Per Cent Solution, in which Watson inveigles Holmes into allowing himself to be psychoanalysed by Sigmund Freud, who was, like the great detective, experimenting with cocaine at the time). But even a writer of Meyer’s credentials (including two Star Trek movies) was seemingly unable to rework the screenplay to Scott’s satisfaction, and the movie was never made.

The problem, I guess, was that it is notoriously difficult to make courtroom dramas work on the big screen. As someone who was present for most of the three-month Irving trial, I can testify to the fact that trials are mostly tedious in the extreme, with lengthy periods of acute boredom punctuated only briefly by the occasional moment of high drama. These were very few and far between in the Irving v Lipstadt case. Also, there was no individual, personal story on which to hang the action. Movies need a human figure or figures on which to focus and with whom the audience can identify, and in a large and complex legal action there seemed to be nobody who could fit the bill.

By 2005, however, this had changed, with the publication of Deborah Lipstadt’s History on Trial: My Day in Court with David Irving. The book is her own, very personal, account of the trial, beginning with her consternation at being served with an English high court writ, and going on to depict her relations with the lawyers who handled her defence, the solicitor Anthony Julius and the barrister Richard Rampton in the lead. Lipstadt described in detail, often movingly, the frightening experience of a lone author with little or no means being sued for a large sum of money, and facing a complete loss of academic reputation if she lost. (Later editions of the book were entitled History on Trial: My Day in Court with a Holocaust Denier.)

In due course the book’s potential as the basis for a play or movie was recognised by the leading English playwright and screenwriter David Hare (who had been knighted for his services to the theatre in 1998). Hare had focused, among other things, on the Nazis, with a film called The Reader (2008), dramatising Bernhard Schlink’s novel about the postwar life of a female concentration camp guard. He came to see me as part of a series of interviews of participants in the Irving v Lipstadt trial and, as his assistant took copious notes, we talked for two hours about my memories and impressions of a case that now lay more than a decade in the past.

I told him I felt by this time that it had been a kind of black comedy: it was an action that should never have been brought, with many absurdities (Holocaust denial being the most obvious, but by no means the only one), at the same time as it dealt with the most profound and disturbing of historical issues.

Hare commented that everyone he had talked to had viewed the trial in a different light. But if he was thinking at one time of an approach similar to Kurosawa’s film Rashomon, in which the action appeared from a series of different perspectives, he had clearly abandoned this by the time he sat down to write the screenplay. Very cleverly, he centred the action on Deborah Lipstadt’s own experiences. In the film we see her shocked and dismayed when the writ is so unexpectedly served, and we follow her determination to defend herself in court as she makes her way to London. Once there, she is shocked all over again when Julius and Rampton tell her she will not be allowed to go onto the witness stand or indeed to say anything at all either inside the courtroom or outside it until the trial is over. As the two lawyers explain in the film – with the stiff-upper-lip Britishness contrasted with American brashness – the aim of the defence is to focus exclusively on Irving and his writings and speeches. Anything that distracted from this would allow him to shift this focus away and muddy the waters. The burden of the defence must rest on the contributions of the expert witnesses, they declare. Reluctantly, Deborah Lipstadt agrees.

Lead players

In a series of meetings to prepare for the trial we assembled a starry cast of experts including Christopher Browning, the leading American specialist on the Holocaust, Robert Jan van Pelt, the Dutch-Canadian historian of Auschwitz and its buildings, and Peter Longerich, author of the major German work in the field.

Since the trial was held, with Irving’s agreement, without a jury, all we had to do was to write our reports and submit them to the high court, and then appear on the witness stand to be cross-examined about them by Irving, who had decided to conduct his case in person rather than entrusting it to a barrister.

David Hare reduced this team to just Van Pelt and myself. I wasn’t too happy about the way the movie presented me and my two researchers in a pre-trial conference as determined to nail Irving’s falsifications. In fact, we approached our task without any preconceptions: Irving’s work may have attracted a large readership, but it was of no interest to academics or university teachers so none of us was familiar with it. As we set to work on going through his writings, we became progressively more astonished at what we found. None of this sense of outraged surprise made it through to the movie.

What it did do very well was to transform the tedious and often pedantic detail of the courtroom proceedings into a brief and dramatic summary. When Van Pelt arrived from Canada, heavily jet-lagged, and took the witness stand, Irving ambushed him towards the end of the day with a specious point that would have taken a good deal of time to refute, much to our consternation.

In fact, Van Pelt recovered strongly the next day, though this does not really come across on the screen. Instead this temporary setback is used to dramatise once again Lipstadt’s scepticism about the defence’s reliance on expert witnesses and articulate her feeling that she should be allowed on the witness stand herself. In the end, when I – or rather my character, played by John Sessions – take the stand, the conclusions of my team are presented in a couple of brief sentences, but enough to make it clear that our detailed evidence has backed up the defence’s case.

Thus the film’s focus on Deborah Lipstadt’s personal experience of the process cuts down the courtroom action drastically without betraying its essentials. In addition, since movies of course need a touch of glamour, the role of Laura Tyler, a young paralegal assistant who helped prepare and organise the defence, is strengthened by scenes from her private life.

Trauma of the trial

Perhaps all this means is that indeed, as David Hare had pointed out to me, everyone involved in the trial had a different perspective on it. I wasn’t much aware of the trauma Lipstadt was undergoing, the less so since we did not in fact see one another that often, and when we did, she seemed chirpy and upbeat.

Understandable though her anxieties were in retrospect, none of us on the defence side had the slightest doubt that we would win; the only question was by how much. No doubt the movie had to present the issue as finely balanced, with Irving standing at least a

50-50 chance of winning, otherwise there would have been no tension and no suspense, both of which it succeeds in evoking very well. But that’s not how it seemed to us at the time.

Overall, the film is, I think, true to the spirit and mostly also true to the letter of the whole affair. The courtroom scenes are taken directly from the trial transcripts, as they ultimately had to be. Some of the dialogue surrounding the trial is invented, and the personality traits of some of the characters are exaggerated (Richard Rampton, for example, was, and is, a bit of a wine buff, but to have him appearing in virtually every scene outside the courtroom clutching a bottle of claret seemed to be rather over the top).

The movie also – perhaps inevitably – plays on the familiar stereotypes of the feisty American and the restrained Brit. But none of this, apart from the initial remarks of myself and my researchers at the preparatory conference, seems to me to betray the essence of what the trial was about or how it was fought. For this, we can be grateful for the skill of the leading actors, Rachel Weisz, Tom Wilkinson, Timothy Spall, Andrew Scott, Caren Pistorius and the other players.

As for me, I look forward to meeting actor John Sessions in person and assuring him that I’m more than satisfied with the way that he plays me.

Professor Richard J Evans was regius professor of history at the University of Cambridge from 2008 until his retirement in 2014. His books include Telling Lies About Hitler (Verso, 2002).

Advertisement

This article was first published in the February 2017 issue of BBC History Magazine