On February 3rd, 1945, American bombers struck Berlin during a Saturday session of the People’s Court. A falling beam killed Judge President Roland Freisler in his own courtroom. When they found his body, his hand was still clutching the file of the man he was about to sentence to death: Fabian von Schlabrendorff, one of the July 20th plotters who had tried to kill Hitler. Von Schlabrendorff survived.
In 1967, he joined West Germany’s highest court. By then, 29 of Freisler’s fellow judges were already sitting on that same bench. His path to that courtroom began years earlier, on a Russian airfield in 1943. On March 13th, 1943, a German officer handed a small parcel to a lieutenant colonel boarding Hitler’s aircraft at Smolensk airfield.
The package was wrapped to resemble two bottles of Cointreau, a gift between officers, but inside was a time bomb. The officer was Fabian von Schlabrendorff, adjutant to Oberst Henning von Tresckow at Army Group Center. He had set the detonator for thirty minutes after takeoff. It never fired.
The cold of the unheated luggage compartment killed the chemical fuse before the explosives could detonate. Schlabrendorff flew to East Prussia the next day, recovered the parcel before anyone could open it, and slipped back into his official duties as if nothing had happened. Born in Halle in 1907 to a Prussian aristocratic family, von Schlabrendorff had trained as a lawyer in the 1930s and joined the Wehrmacht as a reservist when the war began. In January 1941, he was posted to Army Group Center as Tresckow’s adjutant.
Over the next two years, he became the secret liaison between the Eastern Front conspirators and the central figures in Berlin: Ludwig Beck, Carl Goerdeler, Hans Oster, and Friedrich Olbricht. He carried messages, helped plan a coup, and kept the resistance network alive through 1943 and into 1944. On July 20th, 1944, Claus von Stauffenberg detonated a bomb in Hitler’s briefing room at the Wolf’s Lair in East Prussia. Hitler survived.
The conspirators in Berlin had only hours to seize power before the news reached the capital, and they failed. Most were arrested or shot within days. Von Tresckow took his own life the next day rather than face capture. Schlabrendorff was implicated through his work with Tresckow and arrested in mid-August.
He was held in the Gestapo prison on Prinz-Albrecht-Straße in Berlin and tortured for weeks. They drove spikes through his hands at one point. He gave them no names. In adjacent cells sat Admiral Wilhelm Canaris, the former head of military intelligence, and Hans Oster, his deputy.
Carl Goerdeler, the conspirators’ candidate for chancellor, was in the same wing. Throughout the autumn of 1944, Roland Freisler had presided over the show trials of the senior plotters, sentencing them to death in proceedings filmed on the order of Joseph Goebbels. Goerdeler was executed at Plötzensee on February 2nd, 1945. Von Schlabrendorff’s turn before Freisler came the following morning.
He was in the courtroom that Saturday when the American bombers struck. The raid was one of the heaviest American daylight attacks of the war on the city. A direct hit on the People’s Court at Bellevuestraße brought down a section of the roof during the session. Roland Freisler died beneath a falling beam.
Von Schlabrendorff, sitting only meters away, was unhurt. When his file was pried from Freisler’s hand the next morning, the trial had simply been postponed. The court was still standing. So was the man who would replace its president.
The trial reopened a month later under Wilhelm Crohne, Freisler’s deputy, now acting president of the People’s Court. Von Schlabrendorff conducted his own defense. His argument was procedural: the torture he had been subjected to had rendered the proceedings outrageously unworthy of justice. On March 16th, in one of the rarest verdicts the People’s Court ever issued, Crohne’s court acquitted him.
Acquittal did not mean freedom. Von Schlabrendorff was transferred from one concentration camp to another: Sachsenhausen, Flossenbürg, then Dachau. In late April, he was moved to Tyrol with roughly 140 other prominent prisoners. SS guards escorting the column were intercepted by a regular Wehrmacht unit, and the SS commander in northern Italy ordered them to stand down.
On May 5th, 1945, the US Fifth Army liberated the group. Von Schlabrendorff had been a man the regime tried to execute. Now he was one of the regime’s most useful witnesses. He wrote analyses of the Wehrmacht and Nazi war crimes for William Donovan’s Office of Strategic Services, and Donovan questioned him personally.
When Donovan joined the American delegation preparing the Nuremberg trials, he brought von Schlabrendorff with him. The man Freisler had nearly killed was now on the staff that would try the system Freisler had run. The three men who had run the Reich Justice Ministry in succession were already beyond reach. Franz Gürtner had died of natural causes in January 1941.
Freisler was dead. Otto Thierack, who had succeeded Schlegelberger as Justice Minister in August 1942, was captured by British forces and took his own life at the Eselsheide internment camp in October 1946. The American military tribunal that opened at Nuremberg on March 5th, 1947, would have to settle for the men beneath them. Sixteen men stood in the dock.
Nine former Justice Ministry officials, and seven judges and prosecutors from the People’s Court and the special courts. The senior defendant was Franz Schlegelberger, who had run the ministry after Gürtner’s death and held it as acting minister until 1942. Among them was Oswald Rothaug, the Nuremberg special court judge who had sentenced the elderly Jewish merchant Leo Katzenberger to death on charges of racial defilement. In its judgment, the tribunal described that case in a phrase that became its epitaph: “The dagger of the assassin had been concealed beneath the robe of the jurist.
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On December 4th, 1947, the tribunal delivered its sentences. Four defendants received life imprisonment, including Schlegelberger and Rothaug. Five others received fixed terms of seven to ten years. One was given five.
Four were acquitted. Von Schlabrendorff had been the man on trial. Now the men who had built the courts that tried him were on trial themselves. Within ten years, every one of them would be free.
Von Schlabrendorff returned to legal practice in West Germany. In 1946, he published Offiziere gegen Hitler, later translated as The Secret War Against Hitler, one of the first major German memoirs of the July 20th plot. He spent the late 1940s working as a lawyer, writing and lecturing on the resistance, and giving evidence in trials of senior Nazi figures. The men who had nearly killed him were in Landsberg prison.
That did not last. Franz Schlegelberger walked out of Landsberg in 1950 on health grounds. He was seventy-three and had served less than three years of his life sentence. Returning to Flensburg, he fought for and eventually won a state secretary’s pension from a Schleswig administrative court, published legal texts, and lived until December 1970.
He died at ninety-four, a free man drawing a state salary from the country whose justice ministry he had helped run for Hitler. Kurt Rothenberger, sentenced to seven years, was released the same year and went back to legal work in Hamburg. When investigations into his past reopened in 1959, he took his own life. Oswald Rothaug, who had sentenced Katzenberger to death, served until December 1956.
Herbert Klemm, Thierack’s wartime state secretary, was released the following year. By the end of 1957, all four life sentences had been commuted. None of the men convicted in the Justice Case completed the prison term the tribunal had imposed. These outcomes were not accidents.
On January 31st, 1951, US High Commissioner John J. McCloy issued a sweeping clemency decision covering the Landsberg prisoners. Ten of fifteen death sentences were commuted, and most fixed terms were reduced. Throughout 1950, pressure had built: the Soviet atomic test, the outbreak of war in Korea, West Germany being courted as a Western ally.
McCloy’s clemency cleared the Americans. The bigger instrument was waiting in Bonn. On May 11th, 1951, the Bundestag passed the Implementation Law for Article 131 of the Basic Law with only two abstentions. It returned nearly every former civil servant, judges and prosecutors included, who had been categorized below major offender under denazification, to government service with seniority and pensions intact.
A 1948 OMGUS communique had already reported that sixty to seventy percent of judges and prosecutors in the US zone were former Nazi Party members. Article 131 protected them. By the late 1950s, the West German judiciary looked much as it had under the Reich. Von Schlabrendorff watched it happen from inside the profession he had nearly died defying.
In 1967, West Germany gave him a seat on its highest court. On September 1st, 1967, Fabian von Schlabrendorff was sworn into the Federal Constitutional Court’s Second Senate at Karlsruhe. He was sixty years old. By then, he had been acquitted by a Nazi court, had written one of the first German memoirs of the resistance, and had watched the men who had built the Nazi court return to legal practice.
His tenure on Germany’s highest bench would last eight years. That summer, a Berlin court convicted Hans Joachim Rehse, a former People’s Court judge who had signed 231 death sentences, of complicity in three murders. He was sentenced to five years. No West German court had ever convicted a People’s Court judge before.
None ever would again. On December 6th, 1968, after a retrial ordered by the Federal Court of Justice, Rehse was acquitted. The Appeals Court reasoned that a judge could be convicted for his verdicts only if he had knowingly broken the law, a doctrine known as Richterprivileg, or judicial privilege. Rehse said he had believed his sentences were legal under the laws of the time.
That was enough. All other investigations into People’s Court personnel were dropped. On December 15th, 1970, the Second Senate ruled on a constitutional challenge to a new law expanding state powers of surveillance and wiretapping. The majority upheld the law.
Von Schlabrendorff disagreed. Alongside Justices Geller and Rupp, he became the first judge in the Federal Constitutional Court’s history to put his disagreement on the record. A man whose hands had been driven through with spikes by the Gestapo in 1944 was writing the court’s first formal objection to expanded state surveillance. Von Schlabrendorff retired on November 7th, 1975, after eight years on the bench.
The reckonings, when they came, came after him. In February 1978, the playwright Rolf Hochhuth published an article in Die Zeit describing Hans Filbinger, Minister-President of Baden-Württemberg and Federal Vice-Chairman of the CDU, as a terrible jurist for his work as a Kriegsmarine military judge in 1945. Four death sentences in which Filbinger had participated came to light. He resigned on August 7th, 1978, the most prominent West German politician forced from office over a Nazi-era judicial record.
Von Schlabrendorff died on September 30th, 1980, in Wiesbaden. He was seventy-three. On January 25th, 1985, the Bundestag passed a resolution declaring the People’s Court an instrument of judicial murder and state terrorism. On May 28th, 1998, a federal law annulled every judgment that court had ever handed down, including the 1945 charges against von Schlabrendorff himself.
He had been dead eighteen years. The court that had tried to kill him had been struck from the German legal record by the country whose highest bench he had sat on.
