Welcome to The Jackson List!
This is an archive of hundreds of John Q. Barrett essays 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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Robert H. Jackson revered the United States Department of Justice.
Jackson worked in the Department of Justice for five and one-half years. In 1936, he was nominated and confirmed to be Assistant Attorney General heading the Tax Division. In 1937, he was transferred to be Assistant Attorney General heading the Antitrust Division. In 1938, he was nominated and confirmed to be Solicitor General (then DOJ’s number two position). In 1940, he was nominated and confirmed to be U.S. Attorney General. He held that Cabinet office for eighteen months, until he was appointed to the Supreme Court in July 1941.
Thereafter, for the rest of his life, Justice Jackson stayed connected to the Department of Justice. He hired a DOJ attorney to be his first law clerk. Jackson as a Supreme Court Justice read, listened to, and admired the advocacy work of DOJ litigators. He recruited DOJ lawyers to be key members of his Nuremberg staff prosecuting Nazi war criminals. Some of Jackson’s close friends were fellow DOJ alumni.
Today marks the 86th anniversary of Attorney General Jackson delivering, in the Great Hall at the 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.
Given conditions at the U.S. Department of Justice today, this anniversary moment seems very dark. The Department has been, in many ways, gutted. Traditional, high caliber federal law enforcement work has been sidelined. Experienced, ethical career personnel have resigned and been fired. The Tax Division has been dissolved. The Antitrust Division is the site of scandal. Corruption goes unaddressed, and perhaps it abounds. Department leadership acts based on political, personalized animus—exactly the lawless, unethical motivations that Robert Jackson, in his 1940 speech and across his life, deplored.
Yet in this sad context, Attorney General Jackson’s speech stands, for the good in DOJ today and for its future, as a genuine and powerful hope—it is, for someday, a reconstruction roadmap.
I urge you to read the speech—and to reread it, and to share it, and to take it very seriously. The full speech is below.
I also commend two new Harvard Law Review Forum essays that discuss Jackosn’s 1940 speech:
Please keep the hope. Please keep working 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.
In early 1943, Justice Felix Frankfurter invited his friend, First Lady Eleanor Roosevelt, to make a social visit to the Supreme Court of the United States. He invited her to see the Court’s new bust of the late Justice Louis D. Brandeis, who had been a special friend to Frankfurter, and to have a private lunch with Frankfurter and other justices.
Mrs. Roosevelt came to the Court on Wednesday, March 17, 1943. She had a relaxed luncheon with seven justices: Chief Justice Harlan Fiske Stone and Associate Justices Owen J. Roberts, Hugo L. Black, Stanley Reed, Frankfurter, Robert H. Jackson, and Wiley Rutledge. (Associate Justices William O. Douglas and Frank Murphy were absent.)
Unbeknownst to the First Lady, the Justices then—eight of whom had been nominated to the Court by President Franklin D. Roosevelt—were not always so happy together. In various cases, including a significant number about Jehovah’s Witnesses’ claimed constitutional rights to worship, speak, and proselytize, the justices were divided (including with Robert Jackson in something approaching the Court’s middle). Some, including Frankfurter and Jackson, thought that other justices were less than honest intellectually and sometimes unethical in their conduct. Jackson was, for some of these reasons, thinking in 1943 of quitting the Court, but he ultimately decided not to. Roberts also was disenchanted, and two years later he did quit.
But at lunch on March 17, the seven justices demonstrated, for the First Lady and maybe authentically, cordiality toward each other.
Hours later, she wrote, for her daily newspaper column (“My Day”) published the next day, that she
felt a little odd to be lunching with all these gentlemen, but they joked with each other in quite normal fashion. Though they often disagree on intellectual standpoints, they tell me that to an amazing degree they are able to make the distinction between intellectual disagreement and personal liking.
That is a good way to do public business.
(And here is a link to a 2023 Jackson List essay about Mrs. Roosevelt viewing the Brandeis bust: https://thejacksonlist.com/2023/03/17/march-17-monuments/.)
Robert Houghwout Jackson was born in 1892 in the family farmhouse in Spring Creek, Pennsylvania. His parents also had been born in that area, as had their parents, and so forth, back to ancestors who had been born in England, Ireland, and Scotland and emigrated to the United States.
In rural Spring Creek, Robert Jackson was lucky that a doctor was able to assist his mother when she delivered him. His birth did not have any governmental assistance or attract governmental attention—it was a private event, never reported officially. Robert never obtained a government certificate of his birth.
A few decades later, Robert Jackson was married, the father of two young children, a resident of the Jamestown, New York, area, and a lawyer of rising national prominence. In 1924, he decided to travel, with his wife Irene, to London for international meetings hosted by the American Bar Association. Except perhaps for excursions, probably informal, to nearby Canada, this would be Jackson’s first trip outside the United States. To leave the United States, cross the Atlantic Ocean, and enter the United Kingdom lawfully, Jackson needed to obtain a U.S. passport.
This was not difficult. Robert Jackson submitted to the U.S. Department of State a personal description that identified his U.S. place of birth.
In response, the State Department gave Robert H. Jackson a U.S. passport. It had a wax seal and was signed by Secretary of State Charles Evans Hughes. (He later would become Chief Justice of the U.S. and a regular Jackson contact, including in all of his oral arguments before the U.S. Supreme Court).
Jackson’s passport identified him as a U.S. citizen.
* * *
In June 1942, during the early months of U.S. involvement in the Second World War and near the end of Justice Robert H. Jackson’s first term on the Supreme Court, he received a letter from an old acquaintance.
The writer was Porter W. Pemberton. In 1942, he was a southern California businessman. Earlier, he was from Frewsburg, New York.
Robert Jackson knew Pemberton and his birthplace because Jackson also was from Frewsburg—his family had moved from Spring Creek to Frewsburg before Robert started first grade in 1898, and he lived there through his 1909 graduation from Frewsburg High School.
In June 1942, Pemberton was trying to get national defense-related work. But he was being stymied by his lack of a birth certificate.
So he asked a famous and credible person who he happened to know, Justice Jackson, to attest that he knew that Pemberton had been born in Frewsburg, New York, and thus that he was a U.S. citizen:
My dear Justice:
As a former townsman of your[s], I am taking the liberty to ask for help. You no doubt know that at the time of my berth [sic] in Frewsburg there were no records taken therefore I have been unable to get a certificate of berth [sic].
I am needed and can be very useful in defense work out here if I can show good evidence of citizenship. I am sure that a letter from you stating you know I was born in Frewsburg will take care of the matter.
Justice Jackson replied promptly, sending Pemberton the requested letter:
My dear Porter:
I can appreciate that you would be unable to get a certificate of birth, for I have had the same problem. Of course, I knew your mother, went to school with your sister, and know that your parents always lived at Frewsburg, Chautauqua County, New York. In fact, your grandfather, whose name you bear, was well known in that community as one of its earlier settlers. I have no hesitation in saying that I know from general knowledge in the community that you were born a citizen of the United States.
Justice Jackson’s letter reflected his knowledge of Pemberton’s birthplace and Jackson’s understanding of the meaning of Section 1 of the Fourteenth Amendment to the U.S. Constitution:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States….
Two years later, Justice Jackson wrote publicly, in the opening sentences of his dissenting opinion in Korematsu v. United States (the Japanese-American exclusion decision), the same explanation of U.S. constitutional law:
[Fred] Korematsu was born on our soil, of parents born in Japan. The Constitution makes him a citizen of the United States by nativity….
In Summer 1942, Porter Pemberton used Justice Jackson’s letter to demonstrate his U.S. birth, and thus his U.S. citizenship. As a citizen, Pemberton was able to obtain U.S. government defense-related employment.
Gratefully, Pemberton wrote back to Jackson, reporting his success.
Justice Jackson, perhaps thinking that the matter had been routine and obvious, did not write back.
His secretary saved these letters in his files.
Today they are in the Robert H. Jackson Papers, Library of Congress, Manuscript Division, Washington, DC, Box 17, Folder 11.
Charles Elmore Cropley (1894-1952) worked at the Supreme Court of the United States for nearly all of his life, rising from the lowly position of page to a senior staff position, Clerk of the Court.
As the Court’s Clerk, Cropley held the Bible at a number of presidential inaugurations. Probably the most notable was January 20, 1941. Cropley held the Bible on which President Franklin D. Roosevelt took his oath of office, from Chief Justice Charles Evans Hughes, at the start of FDR’s third term.
Cropley then, unfortunately, dropped the Roosevelt family Bible.
(Six months later, Cropley held on perfectly to the Bible on which Robert H. Jackson, after receiving his judicial commission, took his oath of office.)
Six years later, as 1947 came to an end, Mr. Cropley sent year-end words of thanks to Justice Jackson:
I am sure that Cropley sent kindly New Year’s Eve words to each Justice, in 1947 and probably every year.
But Cropley’s 1947 words to Jackson strike me as more than boilerplate.
They seem consistent with the complimentary words that Cropley had penned to Jackson two years earlier, when he was away without leave from the Court, prosecuting Nazis at Nuremberg:
Cropley’s 1947 words also seem consistent with the special view that a good son would have toward someone who showed kindness to his mother. (Jackson was acquainted with Cropley’s mother, and he at least once sent her, via her son, blooms from the lilac bushes at Jackson’s rural home.)
I hope that you are someone who (still?) can read cursive handwriting.
Happy New Year!
On Wednesday, November 21, 1945, United States chief prosecutor Justice Robert H. Jackson delivered his opening statement in the international trial of accused Nazi war criminals.
The next day, U.S. prosecutors began to present evidence. Their focus was Count One of the Indictment, charging defendants with participating in a common plan or conspiracy to pursue aggressive war, to commit war crimes, and to commit crimes against humanity. Their evidence covering these sprawling dimensions of Nazi Germany and World War II included voluminous captured documents, witness testimony, and film.
During the trial’s first weeks (in late November and into December), Justice Jackson attended court regularly, watching his team at work and occasionally addressing the tribunal.
Jackson also worked long hours in his courthouse office, and at his billet (a requisitioned German house). He worked on legal and factual issues in the case. He also coordinated, and sometimes he argued, with his allied nation colleagues. And he managed substantial egos, tensions, talent gaps, and behavior problems within his staff.
Perhaps Jackson’s biggest problem in this period was departure requests from some of his very best lawyers. Having helped to get the trial started, they asked to leave the prosecution team and return to civilian life in the U.S. (where some had spouses and young children). Jackson tried but failed to change some of these prosecutors’ minds. In the end, he granted each of their requests, thus losing much of his “A-Team” early in the trial.
Justice Jackson seemed to keep his various Nuremberg burdens in good perspective. He quipped privately, for example, that while he felt that he was almost as much a prisoner as was lead defendant Hermann Goering, Jackson thought that he would “get out sooner.”
One Jackson respite from work was to go walking and hunting on Sundays in woods near Nuremberg.
On Sunday, November 25, for example, Jackson, accompanied by his bodyguard Private (soon Staff Sergeant) Moritz Fuchs (U.S. Army), went hunting with his (Jackson’s) longtime colleague and close friend Lieutenant Gordon E. Dean (U.S. Naval Reserve). Dean was serving as a U.S. prosecution team senior lawyer and Jackson’s press spokesman. On this hunting outing, Dean shot a hare. Jackson saw several deer but he did not shoot any. What he did “get,” to his pleasure, was “good and tired.”
A week later, on Sunday, December 2, Jackson went hunting again with Dean and Fuchs. Jackson did shoot a deer on this occasion. Maybe Fuchs also shot something; he recalled in later years that Jackson once commented, as they hunted together, that he was glad to see that his bodyguard could shoot.
On Sunday, December 9, a cold day, Jackson and others again went hunting. Someone shot a deer. Jackson himself probably dressed it out. Fuchs recalled seeing Jackson, who had grown up in rural wilderness learning many outdoor skills, do this at least once. At Jackson’s Nuremberg home that evening, the dinner was venison.
Ten days later, on Wednesday, December 19, the eve of the tribunal’s holiday recess, Jackson hosted an early Christmas dinner at his home. He fed his large staff a notably American dinner: turkey with all the fixings.
Then, for an hour, the group exchanged toasts.
Justice Jackson gave a special toast to six colleagues who had been part of his core team since June 1945, when they had left the U.S. for Europe:
Gordon Dean then recounted a Jackson toast from their first day together on that transatlantic airplane journey back in June. At a meal during a refueling stop in Labrador, Canada, Jackson had wished for them all: “May this end as successfully as it has begun.”
At the Nuremberg holiday party six months later, Dean asked all to drink a toast to the man who was responsible for their being there. (This prompted Jackson to joke that Dean was toasting Adolf Hitler.)
Then they drank coffee around the living room Christmas tree.
Then all gathered in the piano room to sing Christmas carols.
And one staff member, secretary Tracy E. Williams, gave Justice Jackson a special gift. He knew and liked that she was a jokester. On this occasion, she gave him a mechanical deer, to supplement his hunting.
In this holiday season, I send you best wishes, including for substantive work, high achievements, dear friendships, respites, gifts, and some laughs.
Thank you for your continuing interest in and promotion of The Jackson List. Thanks to you, it continues to grow. It will be back in the new year with content that I hope will be informative, relevant to your life and work, entertaining, and uplifting.
During summer 1945, Justice Robert H. Jackson, President Truman’s appointee to serve as United States chief of counsel for the prosecution of Nazi war criminals, negotiated in London with British, Russian, and French counterparts. During more than six weeks of complex talks, they created the International Military Tribunal (“IMT”), defined crimes within its jurisdiction and procedures for its operation, gathered and analyzed evidence, and preliminarily identified targets for possible indictment.
In the course of the London talks, the Allies considered, among many issues, where to hold the international trials of captured Nazi leaders. They agreed generally that trials should occur in the former Germany, which had surrendered and the Allies now occupied. To ensure the security of both the Allies (against threats from Nazi military remnants) and the defendants (against threats from anti-Nazi German people), the U.S. Army strongly recommended the southern German city of Nuremberg, located in the U.S. occupation zone. Nuremberg had largely intact facilities that could serve as trial venues.
On Saturday, July 21, 1945, Justice Jackson flew, with members of his staff plus British and French colleagues, to Nuremberg on his U.S. Army airplane. (The Russians declined to join them.) They found a devastated region and city—Nuremberg’s walled old city and parts outside the walls had been largely obliterated by Allied bombing late in the war. The delegation also saw, however, the resources and capacities of the occupation. For example, at a welcoming lunch in the Officers’ Mess in Nuremberg’s Grand Hotel (itself significantly bomb-damaged but already under repair), they enjoyed what Jackson described as a Delmonico’s-quality lunch.
Justice Jackson and his colleagues then made a series of facility inspections. They visited Nuremberg’s Palace of Justice, a large courthouse and adjoining prison. They agreed immediately that this should be the trial location.
They also visited Nuremberg’s massive Opera House, located just outside the old city walls. Although the surrounding streets were filled with rubble and the building had suffered significant bomb damage, the main concert hall—large, ornate, with three balconies including “the Führer’s box”—was intact and functioning.
The next afternoon, the Allied visitors returned to the Opera House. They listened to a 50+ piece German orchestra perform Beethoven’s Fifth Symphony (which had become a musical symbol of the Allies’ war victory). Although the players performed without much enthusiasm, the Allies were understanding—as Jackson noted later that afternoon on his flight back to London, the German orchestra’s small audience that day consisted entirely of nationals of the former war enemies who had destroyed the city. Under the circumstances, Jackson and his colleagues agreed, the concert was well done.
Four months later, at the Palace of Justice, the war crimes trial of principal former Nazi leaders commenced before the IMT.
David Warren Brubeck was born in Concord, California, on December 6, 1920. His father became a California cattle rancher. His mother was a pianist and music teacher. Not surprisingly, David’s older brothers and he became horsemen and musicians. By his late teens, David was playing piano professionally.
After graduating from the College of the Pacific in 1942, Brubeck enlisted in the U.S. Army. For two years, Private Brubeck played in an Army band in California. In 1944, he was trained to be a rifleman. Following D-Day, he was sent to northern France for combat service.
Luck then intervened. After hearing Brubeck playing piano with a Red Cross traveling show, his commanding officer ordered that he not be sent into combat. Instead, Brubeck and a few other soldiers, most of them decorated, formed a swing band that was trucked into combat areas to entertain troops. Called “The Wolf Pack,” it was the first racially-integrated band in the U.S. Army.
After Germany’s surrender in May 1945, Brubeck and his band mates were stationed in Nuremberg as part of the occupation army. They soon discovered the city’s Opera House and made it their rehearsal space.
On July 1, 1945, The Wolf Pack played in a United Service Organizations (“USO”) show that reopened Nuremberg’s Opera House. Later that summer and through the fall, Brubeck and his fellow soldier-band mates served, roamed, rehearsed, and performed, including in USO shows featuring sixteen members of the Radio City Music Hall Rockettes, in Allied-occupied Germany.
The Wolf Pack members were well aware of the IMT proceedings that began in November 1945 in Nuremberg’s Palace of Justice. Brubeck did not attend the trial but he interacted with U.S., U.S.S.R., U.K., and French personnel who were parts of it, including at meals in a large mess hall that they shared.
In January 1946, Brubeck returned to the United States and was honorably discharged from the Army.
He then became, well, Dave Brubeck. He lived a long, productive life of musical genius and international acclaim. Although his time ended physically on December 5, 2012, Dave Brubeck lives on in his compositions, in his recordings, in memories of those who got to see him play, and in the histories of his performance venues.
Across the years after 1945, Dave Brubeck never forgot World War II or Nuremberg. In winter 2004, for example, he recorded a musical autobiography, the leading songs of his war years. The album, “Private Brubeck Remembers,” contains twenty-four piano solos and, in CD editions with a bonus disk, a lengthy interview of Brubeck by Walter Cronkite. In the interview, they share memories of 1945 Nuremberg, where Cronkite also lived as he reported on the IMT trial for the United Press.
In 2005, the City of Nuremberg, noting Dave Brubeck’s dedication throughout his musical career to toleration, peace, and human rights and his personal history in Nuremberg, invited him to participate in the City’s commemoration of the 60th anniversary of the start of the IMT trial. Brubeck accepted—he and his band mates added Nuremberg on the front end of a concert tour that also took them to Austria, Switzerland, Spain, and Poland.
On November 16, 2005, the Dave Brubeck Quartet played in Nuremberg’s Schauspielhaus (playhouse). This modern venue is part of the Staatstheater (National Theater). This complex includes the historic Opera House—the same Opera House that The Wolf Pack helped to reopen to music, and that Justice Jackson then wisely declined to make a courtroom, in July 1945.
During Brubeck’s November 2005 visit to Nuremberg, the Lord Mayor thanked him “for liberating our City.” In fact, with his music, he did.
(Hat tip: Gregory L. Peterson)
Eighty years ago today, on Wednesday, November 21, 1945, United States Supreme Court Justice Robert H. Jackson, serving as U.S. Chief of Counsel for Prosecution of Axis Criminality, delivered to the International Military Tribunal (IMT) in Nuremberg his opening statement in the trial of the principal Nazi war criminals.
The trial, held in Courtroom 600 in the Palace of Justice in Nuremberg, a city located in the U.S. occupation zone of what had been Nazi Germany, had begun on November 20.
The World War II Allied nations—the U.S., the United Kingdom, the Union of Soviet Socialist Republics, and the French Republic—had, by their August 8, 1945, London Agreement, created the IMT.
In October 1945, Allied nation prosecutors 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 in court this extensive Indictment.
On November 21, 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.
Four other defendants who had been 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 then delivered his opening statement. He had been writing and honing it for over a month. The opening 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 spoke a preview and summary of 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 a 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 history.
You can read all of it in many places and publications, including here, at Harvard Law School’s newly-enhanced Nuremberg Trials Project website:
https://nuremberg.law.harvard.edu/transcripts/7?seq=94&date=1945-11-21
Very little of the Nuremberg trial was filmed. But some film snippets of Jackson in action, including moments from his opening statement, are online.
Most important, and available in full, is Justice Jackson’s voice at Nuremberg. You can list to the entire audio recording of Jackson’s opening statement here:
Part one of Justice Jackson’s opening statement at Nuremberg:
Part two of Justice Jackson’s opening statement at Nuremberg:
* * *
The courtroom witnesses, including the defendants, were moved powerfully by Justice Jackson’s opening. One spectator, writer Erika Mann, gave this note to a friend to pass to Jackson:
Journalist William Shirer, perhaps the dean of the press corps in Nuremberg at the start of the trial, was too ill to attend all of Justice Jackson’s opening. But Shirer witnessed some of it, then read the rest, and then sent this letter to Jackson:
Justice Jackson also was pleased as November 21 ended. The Allied prosecutors, and he leading them, had gotten the case to trial.
Jackson’s prosecutorial team also was happy. They knew that they had done huge and great work to get the trial launched. They were delighted that their leader Jackson, who had written his opening statement in private and not mooted it with many of them, had opened the case so majestically.
And they all knew that they had so much work ahead, including in court.
Colonel Robert G. Storey, Jackson’s executive trial counsel, outlined much of that in this memorandum, which he completed and circulated before November 21 had concluded:
In Spring 1945, Mary Frances Langworthy was eighteen years old. She had left high school without graduating, to work. In that final year of World War II, she was employed in the Washington, D.C. area as a secretary in the United States Department of War.
In Summer 1945, Miss Langworthy’s work became an international adventure. She was detailed to travel to London to join the Office of United States Chief of Counsel for Prosecution of Axis Criminality—the OCC, Justice Robert H. Jackson’s Nazi war crimes prosecution team. Jackson then was negotiating with Allied government counterparts to devise the plan to prosecute surviving Nazi leaders as international arch-criminals while also supervising the U.S. investigative staff in Washington, London, Paris, and elsewhere.
Langworthy and others arrived in London to join Jackson’s OCC on Saturday, July 7, 1945.
The next day, Sunday, July 8, happened to be her 19th birthday.
Justice Jackson, who was away from London that weekend on a reconnaissance trip to the European continent, knew that Langworthy would be arriving on Saturday, July 7, and that the next day would be her birthday.
So on Friday, July 6, Jackson, before he embarked on his trip, dictated greetings to Langworthy, had them typed, signed the paper, and left it for staff to deliver to her on her birthday.
On July 8, Jackson’s administrative officer, Captain Ralph L. Morgan (Adjutant Generals Department), gave Langworthy this gift from Justice Jackson:
Actually, Justice Jackson did no such thing.
Indeed, I doubt that he heard of Miss Langworthy until the following week.
Jackson returned to London on Wednesday, July 11. In his office “In Box,” he found a note, typed by his secretary. It was paper-clipped to a carbon copy of “his” birthday note to Langworthy.
The cover note memorialized Captain Morgan’s confession, with explanation, that he had forged the “Jackson” note to Langworthy.
Justice Jackson, who was notably kind throughout his life to underlings, and who liked Ralph Morgan, was not irked. In fact, Jackson was pleased. He noted his approval on the confession and put it in his “Out Box.”
In Summer 1945, Fran Langworthy worked as a secretary on the OCC staff in London.
In September 1945, she became part of the large OCC staff in Nuremberg. She worked as a secretary in its offices in the Palace of Justice (the courthouse), assisting Captain Morgan and typing up translators’ and interpreters’ notes.
Langworthy’s work there continued for some months. But she left Nuremberg before the trial concluded in Fall 1946.
Following Nuremberg, Fran Langworthy, later Fran Cronin, later Fran Potter, lived a long life. Across all of it, a highlight, which she sometimes discussed publicly, was Nuremberg and her work for the OCC.
In August 2024, Fran Potter died at age 98. She was, I believe, the last living member of Justice Robert H. Jackson’s OCC.
In two days, we will mark the 80th anniversary of the start of the Nuremberg trial.
Nuremberg was a high achievement of the rule of law, of fair prosecution, and of due process. It held individual perpetrators accountable for grave crimes. It produced a vast historical record, available for study and teaching ever since, of what Nazi Germany was and what Nazis did. Nuremberg was justice, in fact and in symbol. It created legal precedents that successors have followed and built upon.
And Nuremberg was done, intentionally, by individuals—it was the achievement of Allied nation leaders and their personnel.
For the United States, the achievements of Nuremberg—choosing the path of law, then planning the first international criminal court, and then conducting a public trial competently and fairly—were in large part the OCC’s, from its boss to its baby.
Remember each of them with admiration and gratitude.
* * *
On this date eighty years ago, United States Chief of Counsel Justice Robert H. Jackson entered his appearance before the International Military Tribunal at Nuremberg.
The Tribunal was preparing to adjudicate the indictment of accused Nazi war criminals. On November 14, 1945, it met in a pretrial session to consider a defense counsel’s motion to suspend proceedings against his client, defendant Gustav Krupp von Bohlen und Halbach, based on serious illness (brain damage and mental decline).
Justice Jackson began what was to be nine months of work in Palace of Justice Courtroom 600 by formally announcing his lawful status:
Appearing in opposition to this motion, I should, perhaps, first file with the Tribunal my commission from President Truman to represent the United States in this proceeding. I will exhibit the original commission and hand a photostat to the Secretary.
This year marks eighty years since the start of the international criminal trial following World War II of captured Nazi leaders. In May 1945, President Truman appointed Justice Robert H. Jackson to serve as United States chief counsel for these prosecutions. In August 1945, Jackson signed for the U.S. the international agreement creating the court and defining its jurisdiction and procedures. In October 1945, that court, the International Military Tribunal, met for the first time, in Berlin. In November 1945, the trial began in Nuremberg.
In recognition of the 80th anniversary and Nuremberg’s enduring significance, Smithsonian magazine has just published freelance writer David Noonan’s article, “At Nuremberg, World War II’s Battle Turned to the Courtroom, and an Eloquent Lawyer Helped Lead the Allies to Victory.”
The article is a good introduction to Jackson and Nuremberg, and it is accompanied by information on various Nuremberg films.
Click this link to read the article:
