Background

In 1943, Dorothy Hamilton Stepler wrote:

“Ten years ago there was still time to have kept the German state legal and constitutional. Ten years ago German law, though becoming weaker and weaker, was still an objective guardian of the citizens’ rights. And ten years ago a young German lawyer was defending with the fervour of a fanatic the justice which he saw the totalitarian state rapidly crushing” (‘Hans Litten and Civil Liberty in Germany’ (1943) 22(4) DR 434, 434).

The year referred to, 1933, most notably saw the passing of the infamous Enabling Act, which allowed Hitler as Chancellor to bypass parliament when making laws. About a month earlier, that young lawyer was among the very first arrested following the Reichstag Fire. Why? The answer begins in 1931, when this particular left-wing lawyer was only 27 years old and had just two years’ experience as a practitioner. Hans Litten was unknown, “[y]et he had summoned the most formidable public speaker of his age and was preparing to take him on in rhetorical battle” (Benjamin Carter Hett, Crossing Hitler: The Man Who Put the Nazis on the Witness Stand (OUP 2008) 2).

Litten was born on the 19^th June 1903. Though he died at the age of 34, he had become one of the most prominent lawyers in Germany of the interwar period, practising in the area that would now be called 'human rights'. For instance, in a trial following the events of Blood May 1929 where police fired into crowds of protestors, Litten went straight to the top and (unsuccessfully) sought to charge the Berlin police chief, Karl Friedrich Zörgiebel, with incitement to commit murder. When Zörgiebel later brought assault proceedings against a woman who had slapped him, Litten popped up again, representing the woman in court. He was said by his best friend to be “a fanatical warrior who fought with the desperation of ‘one who fights the last battle’” (Hett, Crossing Hitler, p. 2). He had to be. In nearly all the important political cases prior to 1933, Litten appeared on behalf of the “anti-Nazis” (Hamilton Stepler, p. 435). In “trial after trial, appeal after appeal, he waged a ferocious and single-minded legal battle… to expose the Nazis’ programmatic violence [and] hold their leaders accountable” (Hett, Crossing Hitler, p. 4).

The Eden Dance Palace Trial

To attract middle-class voters, the Nazi party vowed it was loyal to the Weimar Constitution and the rule of law, and Hitler made a point of rejecting any suggestion of a policy of violence within the SA; go too far in that direction, however, and he risked angering its loyal members who “dream of a violent coup d’état (Hett, Democracy, p. 36; Knut Bergbauer et al., Denkmalsfigur an Hans Litten: Biographische Annäherung 1903–1938 (Wallstein Verlag 2008) 138). Litten aimed to expose Hitler by forcing him to commit either to a violent or a peaceful movement which would reduce the party’s following within the disappointed group. Additionally, in a case in Leipzig the previous year Hitler had, under examination by Hans Frank (a Nazi lawyer later convicted at the Nuremberg Trials), stated that the party had moved away from violent tactics—if Litten could show that the SA shootings at the Eden Dance Palace were a result of a policy of violence, it may open up the possibility of Hitler being charged with perjury leading eventually to his imprisonment or deportation.

It was in that context that the Eden Dance Palace Trial, where four Nazi Stormtroopers were charged with attempted murder, opened on the 8^th May 1931 and was reported on by the entirety of the Berlin press (Bergbauer et al., p. 140). Although he acted in many cases such as this, Litten thought here he could “spear a bigger fish”, and decided the time was right to call Hitler himself to court. He intended to use his evidence to show that Nazi violence could not be simply explained away as hot-headed youths going too far, but that it was planned and systematic and resulted from Hitler’s direct orders (Benjamin Carter Hett, The Death of Democracy (Henry Holt 2018) 36). The document summoning the relevant witnesses was signed at the bottom, “Litten. Advocate”: “The letters of the last name looped much larger than the rest of the text, conveying determination, pride, and perhaps even arrogance” (Hett, Crossing Hitler, p. 1).

When entering the courtroom, Hitler was forced to confront “deep insecurities about his level of education”, and to do so in the face of the “brilliant” Litten, “an effortlessly superior law student… a precocious master of legal argument, fearless in confrontation with judges, witnesses, and opposing attorneys, and tireless in the pursuit of evidence. He has a photographic memory” (Hett, Democracy, p. 36).

Litten asked about the party’s approval of comments by Joesph Goebbels, following the killing of a member of the SA in 1930, that the culprits “must be beaten to pulp and muck”:

Litten: “You said that no violent actions are carried out by the National Socialist Party. But didn’t Goebbels come up with the slogan ‘The enemy must be beaten to a pulp’?

 Hitler: “That is not to be taken literally! It means that one must defeat and destroy the opponent organisation, not that one attacks and murders the opponent” (Hett, Crossing Hitler, p. 91).

Not too convincing.

Over the course of three hours, Litten’s “calm, relentless questioning steadily wears Hitler down” (a fascinating photograph of a visibly weary and worried Hitler, taken in the midst of the examination by a secret camera smuggled into the courtroom, is available here):

“The climax comes in an exchange over a pamphlet written by… Goebbels… a quick guide to Nazi ideology for new party recruits. It includes the promise that if the Nazis cannot come to power through elections, ‘then we will make revolution! Then we will chase the parliament to the devil and found the state on the basis of German fists and German brains!’

 If Hitler’s party is legal, Litten wants to know, how could such a thing… be published by the party’s official publisher?... Hitler evades the question by denying that the party ever approved the pamphlet. Then, over the lunch break, Litten learns that the pamphlet is still being sold at Goebbel’s meetings and at all party bookstores. Can Hitler explain this? Hitler cannot. He roars with helpless, inarticulate rage. Litten calmly presses him for an answer.

 Then the judge, Kurt Ohnesorge, throws Hitler a lifeline… ‘This has nothing to do with this trial,’ he says, disallowing further questioning. Hitler is shaken and embarrassed. But he is saved.” (Hett, Democracy, p. 37).

From a legal perspective, given the matters in issue in the trial and the form of questions posed, there was probably merit in this interruption—though we are left to wonder what larger victory might have been won by Litten, and what level of blow might have been sustained by the party, had an answer been compelled. Nevertheless, Hitler suffered a humiliation in the witness box (Sven Kienscherf, ‘Kampf für Gerechtigkeit – Gestern und Heute’ (2018)). He never forgot the ordeal and, as mentioned earlier, Litten was one of the first to be imprisoned without trial the night of the Reichstag fire (Hamilton Stepler, p. 435). A partial transcript of the cross-examination (borrowed from Crossing Hitler) is available online here.

Later

Litten then spent the final five years of his life in concentration camps. When guards beat incoming prisoners, Litten protested and was nearly executed there and then; when the Jewish prisoners at Dachau were locked away and isolated, he “kept them sane” by reciting literary works from memory and lecturing on a wide range of topics; and when each prisoner was ordered to produce something to celebrate Hitler’s 46^th birthday, Litten read aloud a poem entitled “Die Gedanken sind frei” or “Thoughts Are Free” (Hett, Crossing Hitler, pp. 4–5) (the poem is available with varying translations here and here).

Hans Litten is not a household name and is a minorly celebrated figure. For example, the Berlin Bar Association and the Federal Bar Association offices are located at Hans-Litten-Haus in Berlin, the Hans Litten Prize is awarded bi-annually by the German Association of Democratic Lawyers, and a branch of the scouts in Hamburg named for Litten adopted the motto of “To openly support justice and encourage others to oppose injustice” (Stefanie Schüler-Springorum, ‘Hans Litten 1903–2003: The Public Use of a Biography’ (2003) 48(1) LBIYB 205, 205).

Historian Helga Grebing has asked why Litten did not flee after the end of his trial with Hitler: was it some residual faith in the rule of law, or even an acceptance of martyrdom (‘Hans Litten: Gegner der Nationalsozialisten – Opfer des Terrors – Persönlichkeit der Erinnerungskultur’ (2008) 40 MDISB 192, 192–193)? When his family moved to Czechoslovakia, Litten refused to join them, saying that “millions of workers can’t get out… So I must stay here as well” (Hett, Crossing Hitler, p. 152).

His mother, Irmgard, constantly fought for his release from detention, later writing a book: A Mother Fights Hitler (1940).

“Once she even offered to have herself interned in her son’s place, because she considered she was responsible for his actions since she had brought him up to be a decent human being. But Hans was much more than that. By the poor in North Berlin, whom he defended in court so often without pay, by his fellow prisoners to whom he gave nearly all the delicacies his mother sent him, by innumerable second-hand booksellers, fruiterers and salespeople to whom he was a total stranger, he was considered a saint. On one occasion when he needed a copy of a poem which was very difficult to obtain. a specialist in old High German removed it from a very valuable book, saying: ‘For Hans Litten I would have a piece of flesh cut out of my body, if I could help him by so doing’” (Hamilton Stepler, p. 435).

Yet this reverence only increased the danger Litten was in. Hitler stated that anyone who intervened on Litten’s behalf “goes straight into camp”, and “went purple in the face” whenever Litten’s name was mentioned (Hamilton Stepler, pp. 435–436). When the Nazis did rise to power, Litten was viewed as a “trophy” whose “maltreatment satisfied a long-held lust for vengeance on the part of the Nazi movement’s paramilitary units, first and foremost the SA” (Kim Wünschmann, Before Auschwitz: Jewish Prisoners in the Prewar Concentration Camps (Harvard University Press 2015) 29).

Conclusion

Shy and reserved in his personal life, “beset by many fears and phobias—including crossing streets”, Litten was nevertheless “capable of extraordinary physical courage” and is said to have personified the final struggle against the defeat of the rule of law in Germany (Hett, Crossing Hitler, p. 9; Hamilton Stepler, p. 436). Not without his own share of flaws, Litten however cannot but be remembered as an inspirational figure who put his skills as a lawyer to their best use under dire circumstances. He is someone who deserves far wider recognition than he has received to date.

Postscript

Readers may enjoy the short lecture on Hans Litten by Pádraig Ó Muirigh entitled, “The Man Who Put Hitler on the Stand”, available here. Additionally, the BBC has produced a dramatisation of the cross-examination and an accompanying documentary, The Man Who Crossed Hitler (2011) and Hans Litten vs Adolf Hitler: To Stop a Tyrant (2011). The documentary is available here and includes scenes from the drama, though the latter is very well worth seeking out in its entirety.