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This is an archive site of past posts about Justice Robert H. Jackson, the U.S. Supreme Court, the post-World War II trials at Nuremberg of Nazi war criminals, and related topics.
This archive is organized in reverse chronological order by original posting dates, from most recent back to 2003.
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During the United States Supreme Court’s 1944-1945 term, the Justices heard three final days of oral arguments in the week that began on Monday, April 30, 1945.
Justice Robert H. Jackson missed some of these arguments. He might not have been fully prepared for those that he did attend. In that week, the argument cases and Supreme Court work were not his primary concern.
Beginning on April 25, 1945, President Harry S. Truman had recruited Justice Jackson to represent the U.S. as its chief prosecutor, with allies, of the Nazi German leaders who were on the brink of being defeated militarily and captured. Since then, Jackson had been reading secret executive branch planning documents, meeting privately with the President and other executive branch officials, assembling staff, editing the President’s coming order and announcement of Jackson’s appointment, drafting his own statement, confiding in and getting advice from family and selected close friends, and having other meetings and conversations on this topic.
On Monday, April 30, Justice Jackson traveled from his rural home (Hickory Hill in McLean, Virginia) to the Supreme Court. He had morning telephone calls with President Truman and with White House Counsel Samuel I. Rosenman. At noon, Jackson, with all of his fellow Justices, took the bench. The Court announced a decision and then heard oral arguments in three cases.
On Tuesday, May 1, Justice Jackson did not go to the Court. He worked from home, reading documents, writing a memorandum on an executive branch prosecution plan, and speaking by telephone to the Secretary of War, Henry L. Stimson. In the afternoon, Jackson hosted a meeting of senior Department of Justice and War Department officials, which Judge Rosenman joined in the late afternoon. Jackson missed Supreme Court oral arguments that day in four cases.
Justice Jackson did attend on Wednesday, May 2, 1945—eighty years ago on this date.
The Justices took the bench at noon. Chief Justice Harlan Fiske Stone admitted attorneys to practice before the Court. Then the Justices heard oral arguments, the final ones of the term, in two pairs of consolidated cases.
In each argument, one of the advocates was William Dwight Whitney, partner in the New York City law firm of Cravath, Swaine & Moore. Justice Jackson had seen Bill Whitney argue before the Court earlier in the term. Whitney impressed Jackson. The next day, he recruited Bill Whitney to join his Nazi war crimes prosecution team, where he became a significant contributor.
One of Whitney’s oral argument co-counsel on that day was another New York City lawyer, John M. Harlan. He and Jackson also came to be acquainted, including after President Eisenhower appointed Harlan in early 1954 to be a Judge of the U.S. Court of Appeals for the Second Circuit. (Following Justice Jackson’s death in late 1954, Judge Harlan was appointed to succeed him on the Supreme Court.)
At some point on May 2, 1945, Chief Justice Stone and the seven other Associate Justices learned that Justice Jackson would be working for President Truman as U.S. prosecutor of Nazi arch-criminals. Jackson had not confided in or consulted any Justice when he was recruited. Nor had Jackson disclosed to any of them in advance that he had accepted the appointment, even though some could see it—Jackson did, and we do—as in tension with the separation of executive and judicial powers, and as risking leaving the Court short-handed for some period of time.
I believe that Jackson told his “Nazi prosecutor job” news to his fellow Justices on the morning of May 2. Maybe he did so in the Court’s robing room, just before they took the bench that noontime.
Jackson’s news might have distracted some Justices during that afternoon’s oral arguments.
Indeed, Jackson’s news might be the subject of these undated notes that Chief Justice Stone, who was on good terms with Jackson, and Justice Felix Frankfurter, who was Jackson’s closest friend on the Court, scrawled and passed to each other on the bench during some Court session on or before this day:
I take it there
is no use in
my saying anything
to him.H.F.S.
I would not say
“‘no.” As a matter
of fact, if you can
take the time –
it’s no use to
do it in a casual
talk – I would
ask him for a
talk in your
room, after
430 + spell it
all out for him.
At the White House, President Truman held a Press and Radio Conference in his office just after 4:00 p.m. He read a statement announcing his appointment of Justice Jackson:
(President Truman also signed Executive Order 9547 that formalized his appointment of Justice Jackson—click here.)
Back at the Supreme Court, the Justices had adjourned until the following Monday, May 7, when they would return to the bench and announce decisions. (On that day, Justice Jackson was present for the first part of the session, but then he left the bench to attend to other matters.)
On May 2, after President Truman had announced Justice Jackson’s appointment, Jackson released his own statement to the public (and he circulated a copy of it to each member of the Court):
Late that afternoon, Justice Jackson posed in the Court’s West Conference Room for press photographs.
Jackson sat beneath the portrait of Chief Justice William Howard Taft.
But Jackson was no longer, principally, on the job of being a Justice of the Court. He now was U.S. Chief of Counsel; he would be, soon, in Nuremberg, the U.S. chief prosecutor of Nazi war criminals. He was working
“to do something toward bringing to a just judgment those who have heretofore thought it safe to wage aggressive and ruthless war; and to do it in a way that will be consistent with our traditional insistence upon a fair trial for any accused.”
Eighty years ago this month, the Allied powers—the U.S., the U.S.S.R., the United Kingdom, and others—were on the brink of defeating Nazi Germany militarily, winning the Second World War in Europe.
The Allies had made commitments to each other from 1941 forward to fight and win the war together.
They also had made commitments to each other regarding their post-war actions. Since Fall 1943, when the Allied nation foreign ministers met in Moscow to discuss a wide range of topics, their nations had been committed to cooperating after the war to restore free governments in Europe, and to build what would become the United Nations organization.
At Moscow in 1943, the Foreign Ministers also addressed holding Nazis accountable for the many atrocities that Allied forces had learned of during the war. On November 1, 1943, the Ministers declared, on behalf of their nations, that at the time of an armistice with a German government,
“those German officers and men and members of the Nazi party who have been responsible for, or have taken a consenting part in [referenced] atrocities, massacres and executions, will be sent back to the countries in which their abominable deeds were done in order that they may be judged and punished according to the laws of these liberated countries and of the free governments which will be created therein.”
The Foreign Ministers also recognized that some of the Nazis who were most responsible for atrocities were arch-perpetrators. The November 1, 1943, Moscow Declaration thus stated that it was
“without prejudice to the case of the major criminals, whose offences have no particular geographical localisation and who will be punished by the joint decision of the Governments of the Allies.”
(For the official Moscow Conference records, click here.)
In February 1945, the Allied nation leaders reiterated these commitments at their conference in Yalta.
Two months later, Allied military victory was imminent.
The new U.S. president, Harry S. Truman, accordingly determined how the U.S. would participate with its Allies in joint punishment of major Nazi war criminals. In late April 1945, he recruited U.S. Supreme Court Justice Robert H. Jackson to be the U.S. chief of counsel. Jackson would be responsible for assembling a team, conducting diplomacy, and prosecuting such cases.
Jackson was five days on this new job, and it was still secret, when Adolf Hitler, the most major of Nazi criminals, committed suicide in Berlin. This occurred on April 30, 1945—eighty years ago today.
On the next day, May 1, Allied military forces, U.S. government officials, and some reporters learned that Hitler was likely dead.
On May 2, President Truman told the press, and thus the world, that “official information” indicated that Hitler was dead.
Justice Jackson learned on one of those days of Hitler’s death.
It does not seem that Jackson spent much time thinking about or commenting on the death of the person who could have become his “Defendant No. 1.”
Jackson had not taken the job to prosecute Hitler. Yes, that was a possibility in late April 1945. But many experts thought it unlikely that Hitler would surrender or be captured alive.
Jackson took the job—the job that became U.S. chief prosecutor at Nuremberg of Nazi major criminals—for numerous reasons. A leading one was patriotism. This was his wartime president’s request. And this was public service that Jackson, one of his country’s leading lawyers and public figures, was suited to undertake.
The Justices of the Supreme Court of the United States took the bench at noon on Friday, April 6, 1945.
On Monday through Thursday of that week, the Justices had heard oral arguments in nine cases. On that Friday, they heard arguments in three more.
But as the first order of business on that Friday, they admitted seven attorneys, all men, to practice before the Court. They came from various States—one from California, two from New Jersey, two from New York, one from Pennsylvania, and one from Texas.
One of the New Jersey lawyers actually came to the Supreme Court that day from just across town. U.S. Army Colonel William J. Brennan, Jr., of Newark, age thirty-eight, was serving then in the War Department as Chief of the Labor Branch of the Industrial Personnel Division. It was a senior position, ensuring that production of vital war material was not impaired by work stoppages or personnel shortages.
Colonel Brennan appeared briefly, and I assume in military uniform, before the Supreme Court that afternoon.
He could not have imagined that he would be appointed to the Court less than twelve years later.
Justice Robert H. Jackson, who sat that afternoon on the Supreme Court bench, had been frustrated during the 1942-1945 World War II years to be serving on the Court. He thought that it was “sort of a back eddy” and that he was not doing much that was useful in the war effort.
Jackson could not have imagined that just twenty days later, President Harry S. Truman would recruit him to serve as
the representative of the United States and … its Chief of Counsel in preparing and prosecuting charges of atrocities and war crimes against such of the leaders of the European Axis Powers and their principal agents and accessories as the United States may agree with any of the United Nations to bring to trial before an international military tribunal.
Colonel Brennan was released from active duty in September 1945.
Undersecretary of War Robert P. Patterson later awarded him the Legion of Merit, a U.S. Armed Forces military award for exceptionally meritorious conduct in the performance of outstanding services and achievements.
Justice Jackson returned to the Supreme Court bench in October 1946, after a year away prosecuting Nazi war criminals in Nuremberg.
The next year, Robert Patterson, by then the Secretary of War, pinned on Jackson the Medal for Merit. It was the highest World War II-era decoration that the president could award to civilians who “distinguished themselves by exceptionally meritorious conduct in the performance of outstanding services” in the war effort.
Justice Jackson died in 1954.
Justice Brennan was appointed to the Supreme Court in 1956.
They never were Court colleagues.
They were, in separate, significant ways, colleagues in World War II service.
Thank you to Brennan biographers Seth Stern and Stephen Wermiel and to personnel in the Supreme Court Clerk’s Office for their expert assistance.
Today marks the 85th anniversary of United States Attorney General Robert H. Jackson delivering, in the Great Hall at the U.S. Department of Justice, a deeply important speech, “The Federal Prosecutor.”
Attorney General Jackson delivered this speech to the assembled U.S. Attorneys—the lawyers then serving as the chief federal prosecutors in the federal court districts across the country.
Jackson described, in beautiful, carefully honed words, the ethical ways that prosecutors should wield their vast powers.
This 2025 anniversary of Attorney General Jackson’s speech is unlike its past anniversaries. The U.S. Department of Justice today is being run with political and personal animus—lawless, unethical motivations that Robert Jackson, in his speech and across his life, deplored. Proper criminal cases are being dismissed. Proper criminal investigations are being shut down or not even commenced. Unlawful conduct has been declared to be no longer of federal law enforcement concern. Career, non-political prosecutors have been shunted from areas of expertise to other assignments. Others have been summarily fired.
Today’s Department of Justice leaders claim, explicitly, that they are following the guidance of Jackson’s “Federal Prosecutor” speech.
The facts, alas, show otherwise. Informed people across the political spectrum know and say that, at least privately.
At this perilous time, I urge you to read—and to reread, and to share, and to take deadly seriously—Attorney General Jackson’s 1940 speech. It is below.
And hope, and please work, and speak up, for the better future of law in the United States, including in the U.S. Department of Justice.
The Federal Prosecutor
By Robert H. Jackson
Attorney General of the United States
April 1, 1940
It would probably be within the range of that exaggeration permitted in Washington to say that assembled in this room is one of the most powerful peace-time forces known to our country. The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.
These powers have been granted to our law-enforcement agencies because it seems necessary that such a power to prosecute be lodged somewhere. This authority has been granted by people who really wanted the right thing done—wanted crime eliminated—but also wanted the best in our American traditions preserved.
Because of this immense power to strike at citizens, not with mere individual strength, but with all the force of government itself, the post of Federal District Attorney from the very beginning has been safeguard by presidential appointment, requiring confirmation of the Senate of the United States. You are thus required to win an expression of confidence in your character by both the legislative and the executive branches of the government before assuming the responsibilities of a federal prosecutor.
Your responsibility in your several districts for law enforcement and for its methods cannot be wholly surrendered to Washington, and ought not to be assumed by a centralized Department of Justice. It is an unusual and rare instance in which the local District Attorney should be superseded in the handling of litigation, except where he requests help of Washington. It is also clear that with his knowledge of local sentiment and opinion, his contact with and intimate knowledge of the views of the court, and his acquaintance with the feelings of the group from which jurors are drawn, it is an unusual case in which his judgment should be overruled.
Experience, however, has demonstrated that some measure of centralized control is necessary. In the absence of it different district attorneys were striving for different interpretations or applications of an Act, or were pursuing different conceptions of policy. Also, to put it mildly, there were differences in the degree of diligence and zeal in different districts. To promote uniformity of policy and action, to establish some standards of performance, and to make available specialized help, some degree of centralized administration was found necessary.
Our problem, of course, is to balance these opposing considerations. I desire to avoid any lessening of the prestige and influence of the district attorneys in their districts. At the same time we must proceed in all districts with that uniformity of policy which is necessary to the prestige of federal law.
Nothing better can come out of this meeting of law enforcement officers than a rededication to the spirit of fair play and decency that should animate the federal prosecutor. Your positions are of such independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just. Although the government technically loses its case, it has really won if justice has been done. The lawyer in public office is justified in seeking to leave behind him a good record. But he must remember that his most alert and severe, but just, judges will be the members of his own profession, and that lawyers rest their good opinion of each other not merely on results accomplished but on the quality of the performance. Reputation has been called “the shadow cast by one’s daily life.” Any prosecutor who risks his day-to-day professional name for fair dealing to build up statistics of success has a perverted sense of practical values, as well as defects of character. Whether one seeks promotion to a judgeship, as many prosecutors rightly do, or whether he returns to private practice, he can have no better asset than to have his profession recognize that his attitude toward those who feel his power has been dispassionate, reasonable and just.
The federal prosecutor has now been prohibited from engaging in political activities. I am convinced that a good-faith acceptance of the spirit and letter of that doctrine will relieve many district attorneys from the embarrassment of what have heretofore been regarded as legitimate expectations of political service. There can also be no doubt that to be closely identified with the intrigue, the money raising, and the machinery of a particular party or faction may present a prosecuting officer with embarrassing alignments and associations. I think the Hatch Act should be utilized by federal prosecutors as a protection against demands on their time and their prestige to participate in the operation of the machinery of practical politics.
There is a most important reason why the prosecutor should have, as nearly as possible, a detached and impartial view of all groups in his community. Law enforcement is not automatic. It isn’t blind. One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints. If the Department of Justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff would be inadequate. We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning. What every prosecutor is practically required to do it to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.
If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm—in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.
In times of fear or hysteria political, racial, religious, social, and economic groups, often from the best of motives, cry for the scalps of individuals or groups because they do not like their views. Particularly do we need to be dispassionate and courageous in those cases which deal with so-called “subversive activities.” They are dangerous to civil liberty because the prosecutor has no definite standards to determine what constitutes a “subversive activity,” such as we have for murder or larceny. Activities which seem benevolent and helpful to wage earners, persons on relief, or those who are disadvantaged in the struggle for existence may be regarded as “subversive” by those whose property interests might be burdened or affected thereby. Those who are in office are apt to regard as “subversive” the activities of any of those who would bring about a change of administration. Some of our soundest constitutional doctrines were once punished as subversive. We must not forget that it was not so long ago that both the term “Republican” and the term “Democrat” were epithets with sinister meaning to denote persons of radical tendencies that were “subversive” of the order of things then dominant.
In the enforcement of laws which protect our national integrity and existence, we should prosecute any and every act of violation, but only overt acts, not the expression of opinion, or activities such as the holding of meetings, petitioning of Congress, or dissemination of news or opinions. Only by extreme care can we protect the spirit as well as the letter of our civil liberties, and to do so is a responsibility of the federal prosecutor.
Another delicate task is to distinguish between the federal and the local in law-enforcement activities. We must bear in mind that we are concerned only with the prosecution of acts which the Congress has made federal offenses. Those acts we should prosecute regardless of local sentiment, regardless of whether it exposes lax local enforcement, regardless of whether it makes or breaks local politicians.
But outside of federal law each locality has the right under our system of government to fix its own standards of law enforcement and of morals. And the moral climate of the United States is as varied as its physical climate. For example, some states legalize and permit gambling, some states prohibit it legislatively and protect it administratively, and some try to prohibit it entirely. The same variation of attitudes towards other law-enforcement problems exists. The federal government could not enforce one kind of law in one place and another kind elsewhere. It could hardly adopt strict standards for loose states or loose standards for strict states without doing violence to local sentiment. In spite of the temptation to divert our power to local conditions where they have become offensive to our sense of decency, the only long-term policy that will save federal justice from being discredited by entanglements with local politics is that it confine itself to strict and impartial enforcement of federal law, letting the chips fall in the community where they may. Just as there should be no permitting of local considerations to stop federal enforcement, so there should be no striving to enlarge our power over local affairs and no use of federal prosecutions to exert an indirect influence that would be unlawful if exerted directly.
The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.
Today marks the 133rd anniversary of Robert Houghwout Jackson’s birth.
Robert H. Jackson appeared on Saturday, February 13, 1892, in Spring Creek Township, Warren County, Pennsylvania.
The precise location was the farmhouse that Robert’s great-grandfather Elijah Jackson had built on the Brokenstraw Creek much earlier in the 19th century.
Robert’s birth day was very snowy. But a doctor arrived in time. He delivered Robert in the second-floor room where his father, William Eldred Jackson, had been born thirty years earlier.
For Jackson birthday reading, here are archived versions of some previous RHJ birthday-related posts:
The Jackson List archive site, which is word-searchable and, using quotation marks, phrase-searchable, is here: http://thejacksonlist.com/.
I thank you for your interest and readership. New thanks to the many subscribers who have joined the Jackson List in the past year. And special thanks to each of you who spreads the word.
Happy “Jackson Day” to all!
Until 1933, the United States government minted gold coins. And the U.S. issued paper currency that included certificates redeemable in gold bullion held in government repositories. The U.S. was, in other words, on “the gold standard”—the U.S. dollar was tied to the market value of that commodity.
By early 1933, in the depths of the Great Depression, this system was at risk of collapse. The amount of U.S. currency that was in circulation plus the book value of bank deposits outstripped significantly the government’s gold reserves.
President Franklin D. Roosevelt acted on March 6, 1933, his third day in office, to address this crisis. He began the process of taking the U.S. off the gold standard.
President Roosevelt acted first under a wartime measure that still was on the books, the 1917 Trading With The Enemy Act. He issued an order prohibiting U.S. banks from paying out or conducting any international transaction in gold.
Just days later, President Roosevelt obtained new legislation so that he could continue this project domestically. Congress passed and the President signed the Emergency Banking Act of 1933. As this law authorized, the Treasury Department then nationalized gold—it required all persons to surrender to the government their gold coin, bullion, and certificates, in exchange for paper dollars. As the law also authorized, the government formally devalued the dollar. This caused domestic prices to rise, increasing the incomes of struggling farmers and other producers of domestic materials and goods.
Later, Congress nullified so-called “gold clauses,” the provisions in contracts that entitled obligees to be paid in U.S. gold coin.
And acting pursuant to the Gold Reserve Act of 1934, the Roosevelt administration further devalued the dollar and removed gold coins from circulation.
These measures helped to stimulate economic recovery.
They also prompted high profile litigation—private economic interests challenged the legality of these government actions. Gold certificate-holders challenged the Treasury’s power to compel them to surrender certificates in exchange for currency, not gold. Government bondholders challenged the government canceling bond provisions that entitled them to repayment in gold. Contract obligees challenged Congress nullifying contractual gold clauses.
* * *
On Thursday, January 10, 1935, President Roosevelt had a long evening meeting in the White House residence with senior Treasury Department officials. They were Treasury secretary Henry Morgenthau, Jr., his general counsel Herman Oliphant, Treasury economist George Haas, and the counsel heading Treasury’s Bureau of Internal Revenue, Robert H. Jackson.
President Roosevelt and these aides discussed the message about tax law enforcement and reform that he was preparing to send to Congress.
They also discussed the “Gold Clause Cases,” which that week were in the midst of being argued before the U.S. Supreme Court.
They noted that Supreme Court Justices were being very tough in their questioning of the government’s lead advocate, U.S. Attorney General Homer S. Cummings. As Jackson recalled it later, President Roosevelt said that this questioning suggested that the Court might hold his devaluation policy to be unconstitutional, which would increase government obligations to bondholders. Secretary Morgenthau said that he too was very concerned.
According to Jackson, President Roosevelt asked Morgenthau what could be done to protect the government against the chaos that would result from an adverse Court decision. The President said that he could not accept an adverse decision.
They discussed options. “Outright defiance of the Court was possible,” Jackson wrote (in the passive voice, without saying that this was stated explicitly or, if it was, by whom or how seriously).
They discussed possibly “packing” (enlarging) the Court to produce a new majority that would uphold the laws and policies that were at issue.
Jackson told the group that he recently had read a political science journal article about President Ulysses S. Grant’s two 1870 Supreme Court appointments that had enlarged the Court. These new justices had become part of a new Court majority that, as Grant wanted, upheld the constitutionality of paper money. As the new, larger Court made that decision, it had overruled a recent decision, adverse to Grant’s position, by the previous, smaller Court.
President Roosevelt’s January 10, 1935, meeting with Morgenthau, Oliphant, Jackson, and Haas adjourned just before midnight.
In the days ahead, the President and advisers, including Robert Jackson, continued to consider privately their legal options in the event that the Supreme Court decided the Gold Clause Cases against the President and Congress.
That did not come to pass.
On February 18, 1935, the Supreme Court, by a 5-4 vote, decided these cases in the government’s favor.
During Justice Robert H. Jackson’s 1945-1946 service as United States Chief of Counsel prosecuting Nazi war criminals before the International Military Tribunal at Nuremberg, his United Kingdom counterpart chief prosecutor was Attorney General Hartley Shawcross. But because Shawcross was serving in the new British government, his principal responsibilities during that year were in London, not Nuremberg; he spent significant but quantitatively little time in Nuremberg.
At the Nuremberg trial, U.K. prosecution team leadership, administration, and significant courtroom work was handled by Shawcross’s deputy, Sir David Maxwell Fyfe. He was an experienced barrister who formerly had been a member of Parliament, Solicitor-General in the wartime unity government, and then Attorney-General in Churchill’s caretaker government following Nazi Germany’s May 1945 surrender. Maxwell Fyfe lost his seat in Parliament in the July 1945 elections. His next job, full time, was serving as U.K. lead prosecutor in Nuremberg.
During the planning and then the prosecution of the Nuremberg trial, Justice Robert Jackson and Sir David Maxwell Fyfe worked together closely and became friends. They stayed in touch after each returned to national government service in Fall 1946.
* * *
In December 1948, Justice Jackson, at the U.S. Supreme Court, wrote to Sir David Maxwell Fyfe in London. He had been reelected to Parliament and also was actively, prominently practicing law. Jackson sent Fyfe two of Jackson’s recent Supreme Court opinions, an update that the U.S. government’s publication of Nuremberg-related proceedings was nearing completion, and good wishes: “We often speak of you and send best Christmas wishes to you and Lady Fyfe.”
On January 5, 1949, Maxwell Fyfe penned and mailed a letter back to Jackson. It contained affectionate memories of their Nuremberg endeavors:
My dear Justice,
Thank you very much indeed for your kind message which gave so much pleasure to my wife and myself. I have continually informed people who say “Did you not find Nuremberg great strain?” or “Did you not get bored toward the end?” by saying that I enjoyed every minute of it. They are less surprised when I explain how kind and considerate a host and colleague I had in yourself.
…
Once again with unaltered and unalterable friendship, I send my thanks for so much kindness together with every good wish for 1949.
Yours ever
David Maxwell Fyfe
As we today, seventy-six years later, move into a year that will require hard, good work, I hope that this correspondence gives you a little lift, and that you have allies, colleagues, and friends like Jackson and Maxwell Fyfe had in each other.
In the United States, tomorrow, November 28, marks Thanksgiving Day.
I am thankful to each of you for your friendship, your good works, and your interest in the Jackson List. It grows every day due to your “forwardings” and recommendations to friends, colleagues, students, and others. I truly appreciate it.
As you know, the Jackson List archive site contains hundreds of essays.
Here are some that pertain to Thanksgiving Day. Each of these titles is a click-able hyperlink to a PDF file:
At 10:00 a.m. on Tuesday, November 20, 1945, Lord Geoffrey Lawrence of the United Kingdom, president judge of the International Military Tribunal (IMT), commenced its trial of the principal Nazi war criminals. The trial occurred in Courtroom 600 in the Palace of Justice in Nuremberg, in the United States occupation zone of the former Nazi Germany.
The World War II Allied nations—the U.S.A., the United Kingdom of Great Britain and Northern Ireland, the government of the Union of Soviet Socialist Republics, and the Provisional Government of the French Republic—had, by their August 8, 1945, London Agreement, created the IMT.
In October 1945, prosecutors from the Allied nations filed with the IMT an indictment charging twenty-four Nazi prisoners and six Nazi organizations with four international crimes: common plan, agreement, and conspiracy; waging aggressive war; committing war crimes; and committing crimes against humanity.
The trial opened on November 20 with prosecutors reading the extensive Indictment. French assistant prosecutor Pierre Mounier read a portion of Count Three, charging defendants with committing particular War Crimes in France. The charge included—Mounier stated in court—the word “genocide.” This was the first official public utterance of that new word, which had been coined by Polish lawyer Raphael Lemkin and, at his urging, added by American prosecutors as they finished drafting the Indictment.
Seventy-nine years ago today, on November 21, 1945, twenty individual defendants announced to the IMT their pleas of not guilty. They were Hermann Goering, Rudolf Hess, Joachim von Ribbentrop, Wilhelm Keitel, Alfred Rosenberg, Hans Frank, Wilhelm Frick, Julius Streicher, Walter Funk, Hjalmar Schacht, Karl Doenitz, Erich Raeder, Baldur von Schirach, Fritz Sauckel, Alfred Jodl, Franz von Papen, Arthur Seyss-Inquart, Albert Speer, Constantin von Neurath, and Hans Fritzsche.
The four other defendants charged originally were not present. Ernst Kaltenbrunner was absent due to illness. Martin Bormann was being tried in absentia. Gustav Krupp von Bohlen und Halbach had been declared incompetent to stand trial. Robert Ley had committed suicide.
The IMT permitted no defendant to make a speech on November 21. The USSR had agreed to begin the trial only on that condition because its chief prosecutor, General Roman Rudenko, had not yet arrived in Nuremberg.
* * *
Justice Robert H. Jackson, U.S. Chief of Counsel, then delivered his opening statement. He had been writing and honing it for over a month. The first five paragraphs, transcribed here as he spoke them, explained the entirety of the Nuremberg trial undertaking:
The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating that civilization cannot tolerate their being ignored because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that power has ever paid to reason.
This Tribunal, while it is novel and experimental, is not the product of abstract speculations, nor is it created to vindicate legalistic theories. This inquest represents the practical effort of four of the most mighty of nations, with the support of fifteen more, to utilize international law to meet the greatest menace of our times: aggressive war. The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion evils which leave no home in the world untouched. It is a cause of that magnitude that the united nations will lay before Your Honors.
In the prisoners’ dock sit twenty-odd broken men. Reproached by the humiliation of those they have led almost as bitterly as by the desolation of those they have attacked, their personal capacity for evil is forever past. It is hard now to perceive in these men as captives the power which as Nazi leaders they once dominated most of the world and terrified most of it. Merely as individuals their fate is of little consequence to the world.
What makes this inquest significant is that these prisoners represent sinister influences that will lurk in the world long after their bodies have returned to dust. We will show them to be the living symbols of racial hatreds, terrorism, and of violence, and of the arrogance and cruelty of power. They are symbols of fierce nationalisms and militarism, of intrigue and war-making, which have embroiled Europe generation after generation, crushing its manhood, destroying its homes, and impoverishing its life. They have so identified themselves with the philosophies they conceived and with the forces they have directed that any tenderness to them is a victory and an encouragement to all the evils which are attached to their names. Civilization can afford no compromise with the social forces that would gain renewed strength if we deal ambiguously or indecisively with the men in whom these forces now precariously survive.
What these men stand for we will patiently and temperately disclose. We will give you undeniable proofs of incredible events. The catalog of crimes will omit nothing that could be conceived by a pathological pride, cruelty, and lust for power. These men created in Germany, under the Führerprinzip, a National Socialist despotism equaled only in the dynasties of the ancient East. They took from the German people all those dignities and freedoms that we hold natural and inalienable rights in every human being. The people were compensated by inflaming and gratifying hatreds towards those who were marked as scapegoats. Against their opponents, including Jews, Catholics, and free labor, the Nazis directed such a campaign of arrogance, and brutality, and annihilation as the world has not witnessed since the pre-Christian era. They excited the German ambition to be a master race, which of course implies serfdom for others. They led their people on a mad gamble for domination. They diverted social energies and resources to the creation of what they thought to be an invincible war machine. They overran their neighbors. To sustain the master race in their war-making, they enslaved millions of human beings and brought them into Germany, where these hapless creatures now wander as displaced persons. At length bestiality and bad faith reached such excess that they aroused the sleeping strength of imperiled civilization. Its united efforts have ground the German war machine to fragments. But the struggle has left Europe a liberated yet prostrate land where a demoralized society struggles to survive. These are the fruits of the sinister forces that sit with these defendants in the prisoners’ dock.
Justice Jackson’s opening statement was lengthy. It was 61 typescript pages on the podium before him. His presentation, which included numerous extemporaneous inserts, amendments, and cuts, lasted until late afternoon. He previewed and summarized the evidence to come, including:
Justice Jackson also offered a specific and candid explanation of the Allied theory that it was lawful to prosecute individuals, including national, military, and other leaders up to the level of the head of state, for international crimes including war-making:
Any resort to war—to any kind of a war—is a resort to means that are inherently criminal. War inevitably is a course of killings, assaults, deprivations of liberty, and destruction of property. An honestly defensive war is, of course, legal and saves those lawfully conducting it from criminality. But inherently criminal acts cannot be defended by showing that those who committed them were engaged in a war, when war itself is illegal. The very minimum legal consequence of the treaties making aggressive wars illegal is to strip those who incite or wage them of every defense the law ever gave, and to leave war-makers subject to judgment by the usually accepted principles of the law of crimes.
But if it be thought that the [London] Charter, whose declarations concededly bind us all, does contain new law, I still do not shrink from demanding its strict application by this Tribunal. The rule of law in the world, flouted by the lawlessness incited by these defendants, had to be restored at the cost to my country of over a million casualties, not to mention those of other nations. I cannot subscribe to the perverted reasoning that society may advance and strengthen the rule of law by the expenditure of morally innocent lives but that progress in the law may never be made at the price of morally guilty lives.
It is true, of course, that we have no judicial precedent for the Charter. But international law is more than a scholarly collection of abstract and immutable principles. It is an outgrowth of treaties and agreements between nations and of accepted customs. Yet every custom has its origin in some single act, and every agreement has to be initiated by the action of some state. Unless we are prepared to abandon every principle of growth for international law, we cannot deny that our own day has the right to institute customs and to conclude agreements that will themselves become sources of a newer and strengthened international law. International law is not capable of development by the normal processes of legislation, for there is no continuing international legislative authority. Innovations and revisions in international law are brought about by the action of governments such as those I have cited, designed to meet a change in circumstances. It grows, as did the common law, through decisions reached from time to time in adapting settled principles to new situations. The fact is that when the law evolves by the case method, as did the common law and as international law must do if it is to advance at all, it advances at the expense of those who wrongly guessed the law and learned too late their error. The law, so far as international law can be decreed, had been clearly pronounced when these acts took place. Hence, I am not disturbed by the lack of judicial precedent for the inquiry it is proposed to conduct.
* * *
Justice Jackson’s opening statement at Nuremberg is rightly remembered as one of the most powerful, eloquent and important speeches in human history.
You can read all of it in many places and publications, including here:
https://avalon.law.yale.edu/imt/11-21-45.asp
Some film excerpts of Jackson’s opening are here:
The entire audio recording of Jackson’s opening statement is here in two parts:
In 1945, following Nazi Germany’s unconditional surrender to Allied military forces, the U.S. Army assigned Nathan Hilu, a young New Yorker, to be one of the guards of former Nazis imprisoned at Nuremberg and on trial for war crimes.
Over the next seventy years, Nathan Hilu became a prolific but mostly unknown “outsider artist.” Working with basic supplies in his New York City apartment, he obsessively turned Nuremberg memories into visual depictions and text narratives. Here are two samples of his work:
And now you can see a new, already-acclaimed documentary film, “Nathan-ism,” that portrays the aging artist, studies his art as creation and archive, and explores his need to cope with and share memories and thoughts of immersion in history and horror.
Here is the film trailer:
“Nathan-ism,” which is deeply powerful, will be playing this weekend at Quad Cinemas in Greenwich Village. Here are details:
https://quadcinema.com/film/nathan-ism/
On Saturday, following the 6:30 p.m. showing, I will participate in a Q&A session with “Nathan-ism” director Elan Golod and producer Melanie Vi Levy.
I strongly commend their work, hope that you will see “Nathan-ism,” and encourage you to spread the word.
For further information, here is a recent podcast interview with Elan Golod: https://soundsoffilm.com/.
