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David Irving v Penguin Ltd and Prof Deborah Lipstadt

ON THE DAY of closing statements, March 15, 2000, Mr Justice Gray (right) invited Mr Irving to submit to him a written response on "concessions" which the Defence alleged he had made during the trial. Since Mr Rampton had quite improperly interrupted his closing speech to make further points (see transcript, Day 32), and had submitted a further document to the Judge after closing speeches, Mr Irving submitted this list of points which he apprehended the Court had perhaps failed to grasp. By letter written after handing down his Judgment on April 12, 2000, the Clerk to Mr Justice Gray confirmed that this document had been received. The Judge took into account however only one of the points it contains.


Claimant's Response to the Defendants' Closing Statements

The Defendants' Closing Statements were filed with the Court and served on the Claimant on March 15, and on subsequent dates up to March 21, 2000.

[Point at magic link to open Rampton's submission of March 17, 2000 in a separate window.]



5. (i) Defendant's Historiographical Criticisms of Claimant

5(i)(a) Hitler Trial 1924

Para 2.1-2.4: In describing certain events following the Beerhall Putsch of November 1923, namely Hitler's expulsion of a Nazi ex-army lieutenant from the Party for an anti-Jewish excess committed that night, my source was Policeman Hoffmann. I read most of his testimony, but not enough to learn of his alleged political bias. I do not consider that the fact of his Party membership made him necessarily a perjurer in the 1924 Hitler Trial. Hitler was an unimportant agitator, bound for jail at that time. Hoffmann was a police sergeant, testifying on oath and therefore seemed credible to me.

Para 4.2.: In writing books for the general reader and a wider public than is attained by e.g. the expert witnesses in this case, I agree that I used vocabulary like requisitioning in the way that GIs would talk about liberating wristwatches from Nazi prisoners of war. My readers will have got the point.


5(i)(b): Reichskristallnacht

Para 4.3: I do not concede any error over depicting relations between Hitler and Goebbels that night. The diaries cannot be slavishly followed, as the defendants have, for the reasons I stated I my closing speech (transcript, Day 32, at page 88): "The Goebbels diary is sometimes a very deceitful document; it must be recognized as such and treated very gingerly indeed. It is the diary of a liar, a propagandist. The fact that it was evidently written up not one, but two or even three days later, after the Kristallnacht episode, calls for additional caution in relying on it for chronology and content. It was furthermore in Goebbels' interest to maintain that he had been acting at all material times on Hitler's orders, although those in the know (Rosenberg, Von Hassell, Groscurth, Himmler, Ribbentrop, and Hitler's adjutants Wolff, Brückner, Below, Wiedemann, all of whose evidence was in the Court Bundle) clearly recognised that this was untrue.

Para. 4.3: I translated zurückziehen as "hold back", not "withdraw". Hold back is a possible translation, but I concede that the correct purport would better have been given by "pull back". In 1995 I published the entire 1938 Goebbels diary in the original German, which would have been counter-productive if my translation was deliberately misleading.

Para. 4.5: If I accept that Hitler and Himmler were seen in conversation, "close" or otherwise, on the evening of the Reichskristallnacht; and if I accept that Heinrich Müller issued a telegram some hours later, at 11:55 p.m. - this is not a concession that I accept that a causal link has been demonstrated between these two facts, particularly in view of the evidence of Hitler's anger upon learning of the extent of the outrages.

Himmler expressed his fury afterwards that Goebbels had played fast and loose with his police units, issuing orders directly to them which had led to the outrages. (Source: Groscurth diary, December 29, 1938: Institut für Zeitgeschichte, Tagebücher eines Abwehroffiziers 1938-1940 (Stuttgart 1970)). Himmler noted in a memorandum:

"When I asked the Führer about it, I had the impression that he did not know anything about these events."

Source: Himmler memorandum, cited by Raul Hilberg, The Destruction of the European Jews (New York, 1973); quoted in GOEBBELS. MASTERMIND OF THE THIRD REICH (page 281; and n73, page 614).

Para. 4.6: I do not concede that the order referred to, the order allegedly received from Gruppenführer Fust, was available to me when I wrote my books. As is indicated by the fact that I misspelt the man's name as Lust, I never saw it. As shown by my account on para. 4 of page 275 of Goebbels. Mastermind of the Third Reich I relied on sources at Fust's level including among others the diary of Lutze, his superior, which was not available to Evans and the experts.

Para. 4.7: I do not concede that even if the message referred to (Böhmcker) had been known to me, including it would have added to what my readers knew from other documents I quoted. I had already made plain that Hitler had initially ordered the police "held back" in incidents like this. If I had quoted every such telegram it would have generated pages of sludge and an unreadable book.

Para 5.2: As conceded in my closing statement (Day 32, pages 82f) I concede that (a) I gave the wrong reference number for the 1:20 a.m. telegram issued by Heydrich on Kristallnacht; and (b) I gave the wrong weight to its content.

However I do not concede that the document can properly be construed as being based on an explicit order from Hitler via Himmler to Heydrich, as to the nation-wide atrocities that developed during the night. My answers under cross-examination made this plain.

IRVING: "They are not talking about an immense nation-wide pogrom which was subsequently developed overnight. At present they are talking just about a punitive measure from which the police were to be withdrawn. Adolf Hitler certainly gave instructions for that to be allowed, as I make quite plain in the Goebbels book." (Day 12, page 113)

Para 6.4: The Hess Anordnung of 2:56 a.m. I do not concede that the acts of arson which were to be halted were limited on Hitler's orders solely to German property and shops [Geschäfte] as Mr Rampton argues. At 3:45 a.m. that same night the following telegram was issued by the Gestapo Section II, signed "p.p. Bartz":

"The following orders of the chief of security police [Heydrich]are to be executed urgently and immediately:

1.) according to the latest orders in accord with the Political Leaders all kinds of arson are to hindered;
2.) all orders issued and yet to be issued in this affair are to be stamped SECRET,
3.) without exception every Gestapo head office and office is to submit two reports on the execution of the Aktionen and their effects, particularly about egregious episodes, to the Gestapo section II. The first report must be submitted by this morning November 10 at 5 a.m. at the latest, the second report by seven a.m. this morning at the latest to the Gestapo HQ,
4.) receipt of confirmation of this message is awaited urgently via the Blitz teleprinter Munich No. 47.767 [i.e. Heydrich's telex number]."

In other words Heydrich, who we are informed by Mr Rampton in para. 5.3 was acting at all material times on Hitler's direct orders, is seen clearly ordering a halt to ALL acts of arson, not just against German property and shops.

This telegram is contained on page 157, n277, of the Institut für Zeitgeschichte publication, Tagebücher eines Abwehroffiziers 1938-1940 (Stuttgart 1970), which was a source used when I wrote my books, and which was disclosed by name to the defendants in my Discovery. Since I specifically referenced this telegram in note 49 of GOEBBELS. MASTERMIND OF THE THIRD REICH, at page 613, it is staggeringly dishonest of the Defendants to pretend that this telegram does not exist. It clearly destroys their entire argument.

Para 6.4(ii) It is immaterial that the Party Court summary of messages did not include the phrase oder dergleichen ("or suchlike"). The original message on the headed paper of Hess's office, on which I relied, did. This document is No. 6 in my Discovery. It is referenced at note 49 of GOEBBELS. MASTERMIND OF THE THIRD REICH,at page 613. The source reference offered by Mr Rampton ("note 37 page 613") is clearly another mistake of his.

Page 6.6 The concession as set out is not made. I draw His Lordship's attention to the last paragraph of page 275 of GOEBBELS. MASTERMIND OF THE THIRD REICH. This sets out the substantive content of the findings of the Party Court. As for Mr Rampton's assertion, that I conceded that Goebbels would not have dared to make such an assertion if it were not true, that Hitler had approved the demonstrations, here is the passage of transcript relied on (Day 12, page 89, lines 9-13):

RAMPTON: - he [Goebbels] is not likely to lie to the Alten Rathaus gathering of old party comrades, is he? He is representing to them what he and Hitler have been discussing and what Hitler has told him before that dinner which Hitler did not attend, is he not?

I was merely acknowledging the question, not substantively answering it. Mr Rampton and the Court are well aware from my books that my position (like that of the Party Court) has always been that Goebbels bore the sole responsibility for the events that night, and that Hitler's share was limited to police non intervention.


5(i)(c) Aftermath of Reichskristallnacht.

Para. 2.3. This material (the aims of the Party Court investigation and the types of cases) is clearly relevant to an in-depth multi-chapter study of the Reichskristallnacht; it is far too detailed for a biography of a minister. There were several Party Court sessions and reports; Prof. Evans has quoted only one.

Para. 2.4(v): I made my position plain: First, the "jolly Party members, " etc. - the wording is Mr Rampton's, not mine, despite the impression he gives; second, and the Court will not attach over much importance to "yes's" wrung out of a witness under fierce cross-examination unless they are clearly born out as affirmations by admissions of substance in the following phrases and sentences, which is not the case here.

Para. 2.5: That Hess did on December 19, 1938 order the courts to delve and turn over the culprits for prosecution is clear from the source document I quoted. This is not challenged. What the Supreme Party Court actually decided, weeks or months later (February 13, 1939; at 2.4(i)) should happen to the culprits is beyond the outer rim of this book's purview. In my books I gave many examples of the crimes committed against persons and property during the night.


5(i)(d) Shootings of Jews in the East

I have always maintained that Hitler issued orders, including the Commissar Order and other similar orders before the Russian campaign, which made provision for shooting Russian Jews under various pretexts. On Day 2, at page 258, I state under cross-examination: "I can make your life easier, Mr Rampton, by saying that Adolf Hitler was quite satisfied, I think, with the Einsatzgruppen operations on the Eastern Front in so far as they had the character of security operations. . . Subsequently of course the security operations were then umbrella'd out to include the liquidation of Jews, who were considered to be fair game."

This contrasts very strongly with the staggeringly dishonest assertion by Mr Rampton (at para 1.1, item 6) based on a single line only a few lines before the above quotation, which is wrongly used to make me appear to say almost the opposite.


Para. 1.2:

(i) The Court will recall that I have read out documents like the Bruns Report which I was the first to find and publicise (inter alia in HITLER'S WAR, 1991, at page 20) on countless occasions. This alone destroys the absurd suggestion that I was forced to make this "concession" by Mr Rampton's brilliant advocacy.

(ii) The Commissar and similar Orders have never been denied, but rather asserted in my books including HITLER'S WAR 1977 and 1991 editions.

(iii) That Hitler's authority was behind the orders in (ii) is also never denied, though there is no proof that he was conscious of the scale of shootings.


Para 1.3: It is not conceded that the Müller order of August 1, 1941 was designed to ensure that Hitler was informed of the homicidal operations of the Einsatzgruppen; the internal evidence indicates that it referred to their Intelligence gathering operations against the Communist party and Soviet administrations ("photos, posters, placards, documents"). No documents have been shown as having been sent in to Müller at the Gestapo Amt IV headquarters in Berlin from the Einsatzgruppen in response to this order, nor any being sent by him to Hitler in consequence of this order either.

It is not conceded that any of the Ereignismeldungen were shown to Hitler. There is no proof whatsoever that they were. One only (1) was addressed to the Party Chancellery, which was based in Munich, with a liaison office in Berlin; Hitler however was in East Prussia.

It is conceded that Report [Meldung] 51 was submitted [vorgelegt] to Hitler. It is not conceded that it was read by Hitler. As I stated under cross-examination on Day 2, page 264: "Firstly, I accept the document was in all probability shown to Hitler. Secondly, I think in all probability he paid no attention to it. The reason being the date. This is the height of the Stalingrad crisis.[...]" Other Meldungen of the same period had to be shown to him more than once, which indicated he had not read them on the first occasion. This item is marked as being vorgelegt only once.


Para 1.4:

(i) It is not conceded that I was aware of the Müller letter [August 1, 1941] from the Gerald Fleming book (or that I would have given it great weight if I had been). I read the first few pages of the book when the author gave it to me. I later read the pages relating to the Bruns document when I wanted to check the relevant names. The Müller document was not referred to in those sections that I read.

(ii) The Ereignismeldungen are in the archives of the Federal German Foreign Ministry. I gave complete disclosure of my research files to the defendants, and they found no reference to any notes or copies made by me from those documents. I became familiar with them only during preparation for this trial. (The quotations from the Holmes Show in New Zealand, about the machine-gunnings of "tens of thousands at a time" into pits, are incidentally hard to reconcile with the allegation that I deny that such things happened.)

(iii) The footnote in HITLER'S WAR (1991) at page 817 quotes the fact of the report and the figure it contains, - 363,211 deaths - and gives a precise reference to enable others to obtain the full report. Again, it is hard to reconcile this with the allegation that I deny that such things happened.


Para: 1.5: I have retreated from nothing; my position remains as set out in the paper, which contains no misleading or disingenuous statements.


Section 2 Testimony of General Walter Bruns.

Para. 2.1 When HITLER'S WAR was first completed in 1974 I had not yet obtained the Bruns report. It is an untruth for Mr Rampton to state that "in HITLER'S WAR there is no reference to the testimony of General Bruns." On page 20 of the 1991 edition a six-line footnote recalls this "most spine chilling account of the plundering and methodical mass murder of these Jews at Riga", and gives the complete archival reference to enable the lazier scholars to go and dig it out themselves. This was of course after the 1988 "denial" threshold.

Para. 2.1 On GOEBBELS. MASTERMIND OF THE THIRD REICH Mr Rampton is equally misleading. The report by the "army colonel" (i.e. Bruns) is clearly quoted at length towards the bottom of page 379 of the book, as to the shooting of the trainload of Jews from Berlin; there is also a ten-line footnote identifying the source on page 645. This footnote No. 43 also gives several other sources for these massacres of Berlin Jews.

Para 2.5 See above under 5(i)(d). The Bruns Report is a hearsay account in April 1945 of a December 1941 conversation, in which the 23-year old SS gangster Altemeyer is said to have related to him what he alleges he has been ordered by (unnamed) superiors. It does not tally with (a) what subsequently happened (the subsequent shootings were not carried out any "more discreetly") (b) the British decodes of Himmler's radio message ("all such arbitrary actions will be severely punished in future"). It is therefore proper to discount the unreliable portion of Bruns's recollection. And note that I have posted the whole document in both German and English on my website for the last three years.

Para. 2.8(viii) See above under 5(i)(d). Hitler's guidelines March 1941 which permitted for the killing of the Jews and Bolsheviks are set out in HITLER'S WAR 1991 pages 345-6.

Para 3.4: Schulz-DuBois letter: I refer to my very full statement in my Closing Statement, Day 32 at page 90f: "As I stated under cross-examination, I did not see the Schulz-Dubois document when I wrote my books and I have not seen it since; having now read what Prof. Gerald Fleming tells us about it, I confess that I would be unlikely to attach the same importance as does learned counsel for the Defendants, to what the famously anti-Nazi Abwehr Chief Wilhelm Canaris allegedly told Lieutenant Schulz-Dubois of Hitler's reaction. The British decodes of the SS signals, to which I introduced the Court, and the subsequent events (the actual cessation for many months of the liquidation of German Jews) in my submission speak louder.


5(i)(e) Hitler's views on the Jewish Question

(7) It is clear from the text in GOEBBELS. MASTERMIND OF THE THIRD REICH at page 377 that what Hitler was neither consulted nor informed about was the ultimate fate of the Jews - not their deportation.

(8) Mr Rampton quotes Himmler's note to Gauleiter Greiser of September 18, 1941 about transporting Jews from the Old Reich and Protectorate. He implies that I concealed this. I quoted it in HITLER'S WAR (1977) page 326, in HITLER'S WAR (1991) page 426; I quote a virtually identical statement made by Hitler himself, not Himmler, on October 6, 1941 [see page enclosed]. Any suggestion that I seke to conceal Hitler's role in these deportations is not only wrong: I give better evidence for it thatn Mr Ram,pton and Prof. Evans do: I quote Hitler, not Himmler.

(10) Hitler's Table Talk, October 25, 1941: I refer to the full treatment of this issue given under cross-examination and in my closing statement on Day 32 at pages 90f.


5(i)(f) Expulsion of the Jews from Berlin, 1941

(9) It is a grotesque untruth for Mr Rampton to state that in the witness box on Day 2, at pages 289-290 (or anywhere else) I stated that I had put an "e" on to the end of the word Judentransport. This he describes (para. 10) as "another of P's silly, short term lies". I have never put an "e" on the end of Judentransport, in any of my books, nor did I so agree under cross-examination, although he repeatedly cross-examined me as though I had.

There was thus never any misreading of the words "Judentransport aus Berlin." As stated in para. 10, I correctly transcribed it on January 23, 1974 (see my letter to Dr Kabermann) which was about the same time as I was writing the book. There was accordingly never any "volte-face" by me (para. 11) on Day 3, pages 330-332.

I have always argued, and did so in my closing statement (Day 32, page 90), that a wholly legitimate translation of Transport is transportation (which is the primary meaning given by my Cassell's dictionary). This also disposes of Mr Rampton's accusations of "inconsistent and unconvincing explanations for [my] falsification [which] was deliberate" rendered in his para. 12.

(13) One would have to be monumentally obtuse not to accept that if a phone conversation takes place from Hitler's bunker at the Wolf's Lair, between Himmler (who has only just arrived there) and Heydrich, with a most noteworthy content (namely, not to liquidate a trainload of Berlin Jews), there is a direct connection between the fact that Himmler has waited until arriving at Hitler's bunker to make it.


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