Court No. III, Case No. 3.
that, on the contrary, all his activities were aimed at preventing or at least modifying the course, set by Hitler's dictatorship. We shall see how he wrestled with the opposing forces of the party, and how unequally distributed the powers were and how his defensive attitude was breached but forcibly. We shall learn how much Hitler had always disliked the administration of justice and its expert administrators, and that at a time when not only the whole of the administration in Germany but also the entire public life, even to a certain extent private life, had already been "coordinated" and shaped according to National Socialist ideas. On 20 August 1942, he had to realize the fact that he had to build up a "National Socialist administration" of justice. Does this not constitute the truest judgment of Schlegelberger that he be judged by a man who, after all, was best qualified to judge? Is it not evident that the Administration of Justice under Guertner and Schlegelberger had done its utmost to face the avalanche? Is Hitler not best qualified to testify against the charges brought try the prosecution, namely that Schlegelberger had lent himself to the carrying out of National Socialist ideas of violence as personified by Hitler?
With this point of view in mind we shall have to judge the defendant Schlegelberger: A man known to us only by his work performed with integrity, and whose activities, viewed from National Socialist aspects, Hitler criticised in the above-mentioned way both in his Reichstag speech on 26 April 1942 and in his decree of 20 August 1942.
Such a person has a right to point out: "The charges brought by the prosecution which, superficially regarded, appear to be against me, and the charges that the prosecution has brought against me in order to incriminate me for my 10 years of service as Undersecretary, cannot be judged as isolated facts and without considering motives, but must be evaluated as a whole." Thus, we will best be able to gain breathing space after the speech of the prosecution, which is necessary in order to reach impartial judgment and which culminates in the Court No. III, Case No. 3.conclusion that Schlegelberger "had indeed played a prominent part in the destruction of German Law", a reproach which he rightly rejects:
with which also the statement of the British Broadcasting Corporation on the occasion of his retirement from office in August 1942 -- namely that with Schlegelberger, the last judge in Germany had disappeared -is incompatible.
Schlegelberger, Undersecretary for civil law, certainly knew how to supervise the orphaned Ministry of Justice for a year and a half in an administrative capacity. The one who succeeded him, his appearance already threateningly forecast, and to the stemming of whose course Schlegelberger devoted his whole self, escaped judgment. The aspect of being the representative, which obviously has influenced the prosecution essentially, has to be disregarded.
We will also have to take the fact into account that Schlegelberger's position as temporary administrator of the Reich Ministry of Justice did by no means equal that of a Minister. If, inspite of these hectic times when everything was being infected by the National Socialist virus, he succeeded in retaining the position taken over from Guertner, his decision alone to remain in office until the limits of what could normally be expected of anyone, was reached, (certainly not an easy decision) would fully justify this step. Judging by his personality and studying in detail the real and true situation during those years, we shall explain what really was behind the Rostock speech, mentioned by the prosecution. Evidence will be offered as to Schlegelberger's real relations with the party and how this was evident in the policy he pursued concerning questions of personnel.
His attitude towards Hitler will be subject to careful examination. We shall be unable to do justice to this task if we do not also acquaint ourselves with those who blindly followed Hitler, and rendered the task of Schlegelberger, and prior to that, Gurtner's, so difficult. Freisler, his antipode, whom Hitler, by entrusting him Court No. III, Case No. 3.with all matters concerning criminal law, had made into a guardian of National Socialist ideas within the Ministry of Justice and all the other party officials, who hated the last bulward of constitutional thought.
With reference to individual counts of the indictment I shall point out that as "seditious undermining of the Military Power", so called passive defeatism only became a punishable offence in 1943 and it was precisely for this purpose that the competency of the People's Court was established as per decree of 29 January '43. The practice of seditious undermining of the Military Power, to which the indictment refers, therefore did not take place until Schlegelberger's retirement. At the time of Schlegelberger's tenure of office, these cases of defeatism were judged according to the malicious statement law (Heimtuckegesetz) and were not punishable by death but by a maximum penalty of 5 years imprisonment. The extension of the German Criminal jurisdiction to include crimes committed abroad as well, was practiced before Schlegelberger took over the administration.
I shall deal in detail with the legal question of the extension of German Law to the occupied territories and I shall throw some light on the origin and the application of the Ordinance concerning crimes of Poles and Jews. I shall show by means of the documents already submitted by the prosecution what demands were made by the Party concerning the treatment of the Poles and Jews and how these requests were opposed by law and in practice. Schlegelberger's general attitude towards the Jewish question will be the subject of the discussion.
Even if the prosecution connects the defendant Schlegelberger with the extradition to the police of so-called asocial persons as well as of Poles and of Jews, the Defense will prove that those orders were only given according to an agreement made between Himmler and Thierack in September 1942. Previous special cases only concerned direct orders by Hitler given to the police and which could not be prevented by the administration of Justice. We shall see that the Court No. III, Case No. 3.police had started during the time of Gaertner to remove prisoners from the prison by command of Hitler if Hitler considered the sentence passed during the criminal proceedings a too mild one.
Only in order to prevent this if possible, or at least to restrict it, did Gaertner insist that he be informed of this order at the same time as was the police. It was only because of that request that the administration of Justice dealt with these matters at all. It will be proved that everything possible was done in order to prevent extraditions to the Police.
I shall also speak of the practice of granting pardons and find here also a confirmation of Schlegelberger's general attitude.
The indictment also deals with so-called Euthanasia. We shall see that Schlegelberger opposed the carrying out of the Euthanasia program soon after taking over the administration. He obviously succeeded, for we shall realize that the measures were stopped in August 1941 and were only started again at the time of Thierack as can be seen from the meeting described by the witness Suchomel.
Concerning sterilization we shall offer abundant evidence to prove that the practice of the Courts for protecting the hereditary health of the German people was unobjectionable, that those Courts had examined conscientiously whether evidence as to the facts required by the law had been submitted and that especially sterilization for political or racial reasons was never decreed. I shall produce a witness to show that this procedure had been carried out in an unobjectionable way even where Jews were concerned.
Regarding the question of the Night and Fog cases, it will be explained for what reasons and with which results the Night and Fog cases were taken over by the general Courts. It also will be set forth what regulations were in force up to the date of Schlegelberger's retiring from office. The extent and the consequences of restricting the proceedings, necessitated by maintaining secrecy, will be explained.
By submitting documents I shall present evidence about the Court No. III, Case No. 3.political development of the National Socialist State and the structure of its administration.
I shall present documents referring to legal provisions and their explanations concerning the questions raised by the prosecution. Finally I shall submit several affidavits which deal with certain questions and help to form a judgment of Schlegelberger's entire personality. I shall produce witnesses for the political and administrative conditions in the National Socialist State. Another witness will, as already mentioned, give evidence on the practice of the Courts for the Protecting of the Hereditary Health of the German People and on general questions regarding sterilization. Finally, I shall name as witness the personal referent of the defendant who, for many years, held this position up to the time of Schlegelberger's retirement from office and who, by virtue of his knowledge gained through professional and personal experience, will be able to give evidence on numerous questions which have to be discussed.
DR. SCHILF (for defendant Klemm):
May it please the Tribunal by way of introduction I should like to call attention to the fact that the indictment also clearly implies with regard to my client Herbert Klemm, that, permeated as he was with National Socialist convictions, his one endeavour was to realise, by judicial methods and throughout the judicial field, the aims of National Socialist despotism. The indictment also, indeed, implies that he was acquainted, himself from the start, in detail, with the great extent of these aims. The prosecution has tried, in connection with each action and with each event that came to light anywhere in the files, to refer everything with which my client was concerned back to that fundamental conception. Yet in my opinion the prosecution does not make any effort to embark upon proof that the defendants had come to a mutual agreement in their own minds, such as must constitute the prerequisite for the conspiracy of justice, for the furtherance of the Hitler regime as alleged by the indictment. Instead, the prosecution is content to trace in every statement and every action simply a sign of malicious intent and bad faith, without stopping to consider how such actions are to be estimated in the light of historical development and within the limits of the phenomenon as a whole and the practical possibilities. Just as the indictment desires to see in the legislative power conferred upon the judge by the alteration of Paragraph 2 of the German criminal code an example of the judicial intention to try cases unrestrictedly and arbitrarily, without attention to legal guarantees, so also my client Klemm is credited with completely false motive in detail. Just as it will be proved by the defense that such legislative power for the judge had already been planned, long before 1933, in draft proposals for reform, with the object of creating the necessary synthesis between merely codified law and the actual development of law through the giving of legal judgments, so also shall I show, in my defense of the defendant Klemm, in general, that he, too, was concerned, in his measures, with the preservation of real justice.
Reference will therefore inevitably be made to the background of historical development behind the measures with which he is charged, to the related points in the German legal system, and to the actual distribution of power existing during the Hitlerite regime. In this connection a great deal will depend on the view that is taken of his position, his potential influence and the limits of his authority.
In particular, I shall divide the subject-matter of my proof into sections:
In the first place, it will be necessary to begin with the fact that, outwardly, the defendant Klemm has to boar a certain amount of odium; he had joined the NSDAP before it took over power and he remained in it until the capitulation; he was at first Chief Public Prosecutor and Ministerial Councillor in the Reich Ministry of Justice, he was chief of liaison with the SA and reached high rank in that organization, he was a Group Leader in the Party Chancellory and he was finally to become State Secretary in the Reich Ministry of Justice - the last position he held - and a personal friend of and very close collaborator with Thierack, the Minister. The indictment evidently intends, by giving this outward impression, to exhibit Klemm as a man who considered justice to be a means, and treated it as a means, to exclusively political ends. I shall prove that this was not the case. In order to demonstrate the seeming contradiction between outward appearance and actual private character, I consider it my duty to give the Tribunal a comprehensive picture of the personality of my client as a jurist and as a man. It will become evident that he was and remained a simple and straightforward person, even after he rose higher in his career, that he was a man of sensitive disposition and refined feeling and always endeavored to act objectively and above all justly. I shall therefore have to ask my client to explain in the witness-box the ideas he had conceived as to the aims of the NSDAP, the hopes he had before him in the legal and political field and the way in which he believed it possible that the political intentions of the leadership of the state could be combined with the idea that law has to prevail.
He will have to explain to the Tribunal how many things he actually did not know in order to enable us to gain an accurate picture of the situation at that time and of the developments.
So far as the separate phases of the activity of the defendant Klemm are concerned, it must be said:
The indictment takes as the first phase his activity as Chief Public Prosecutor and Ministerial Councillor in the Reich Ministry of Justice. The two charges specially raised against him in this field are concerned with the so-called "more severe interrogations" through organs of the Gestapo and with the fact that he was the Ministry's chief of liaison with the SA. I shall prove that it was not the duty of the defendant to suggest in certain cases such "more severe interrogations", in other words, maltreatment of prisoners by the Gestapo. It was, on the contrary, his duty to prosecute such cases through criminal proceedings, since also the Gestapo and its organs were prohibited from ill treating prisoners. In this connection I shall be able to take the opportunity to describe the attitude of my client by reference to the documents which were submitted in the IMT trial. It was the defendant Klemm who, as an official in the Ministry of Justice of Saxony suggested the strict prosecution - which was made so much of both in the indictment and in the judgment given in the IMT trial, - of those SA men who had rendered themselves guilty of ill-treatment of prisoners in the concentration camp at Hohenstein in Saxony. There is no ground for the assumption that Klemm's attitude changed at a later date, when he worked in the Reich Ministry of Justice.
The position of a chief of liaison between the Ministry and the SA leaders will be described by me through reference to the documents. The judiciary as a public authority, had the duty to inform the SA leaders of any prosecution or condemnation of a member of the SA.
It was the purpose of such information to give the SA leaders the possibility of removing criminal elements from their ranks. This purpose was known to the Reich Ministry of Justice. The chief offices of both organizations had to exchange information and experience and were obliged to ascertain in which special cases they had to be interested. It was necessary to appoint a special 'referent' for this purpose, merely in order to simplify the handling of these matters. This post was filled by my cliend Klemm, since he was simultaneously both a member of the SA and of the Ministry of Justice. I hope, indeed, to prove with special effect that it was absolutely opposed to Klemm's conception of his office as such a liaison chief to suppress criminal proceedings against SA members or protect them against prosecution, out that on the contrary he thought it necessary to support vigorously the interests of justice against the SA leaders. An individual case will give me the opportunity to demonstrate how also in this field Klemm was guided by legal considerations alone, and that individual case will be symptomatic of the attitude of my client.
In order co be able to judge correctly the activity of my client in the Party Chancellery, I consider it my duty to describe first of all the sphere of work and problems with which the Chancellery itself had to deal. This seems to me all the more necessary, as evidently completely false ideas of chis organization are prevalent. I shall therefore have to show that by reason of legal regulations the latter had to take part in all the legislative and administrative work done by the Ministry of Justice and that it was not simply an office that carried out tasks concerned purely with Party politics. In the constitutional structure of the 'Third Reich' the Party Chancellery had to perform public functions. I may already at this point draw the attention of the Tribunal to the fact that my client is not affected by Count 4 of the indictment, in spite of the fact that he was employed in the Chancellery of the Party. It is indeed a significant indication that the prosecution has formed an incorrect view of the Party Chancellery, if an official could be employed there who did not belong to the corps of leaders of the Party.
An explanation of the bureaucratic structure of the Party cannot be avoided; its division into separate departments and groups will have to be described. The defendant Klemm was at the head of only a subordinate group in the Party Chancellery. Its number was IIIc. I would ask the Tribunal to be so good as to take due note of this number IIIc in my speech for the defense, so far as the latter is concerned with the Party Chancellery; and also when I come to explain the documents relative to the Party Chancellery. My client was employed exclusively in this legal group. This outward sign alone is an important circumstance to be considered in arriving at a correct estimate of the work of my client. The special task of this group IIIc was to deal with all matters which affected law, codification in this legal group remained, as did Klemm also, officials of the Ministry of Justice; they were merely delegated by that Ministry. They also therefore represented in the Party Chancellery the idea of justice and the concerns of their own Ministry. Whenever different questions were raised in Group IIIc, for example, questions as to the legal disposition of the affairs of foreign peoples, a different department or group of the Party Chancellery dealt officially with and decided upon the matter. Owing to this restriction of the field of their work the legal group only raise objections against the treatment of any matter in another department if formal questions were handled. The legal group had no right of appeal if a matter had been decided on principle by other groups. Thus it will be shown that the decree about penal law with regard to Poles was not dealt with or decided upon in Klemm's legal group but in Group IIIa of the Party Chancellery, which was concerned with "Folkdom questions". The defendant Klemm, therefore, could not exercise any influence whatever, during the period of his employment in the Party Chancellery, on the provisions of this law.
4095a Through further evidence it will be made clear that Klemm's position in the Party Chancellery, as a consequence of the latter's special method of working, could only have slight influence on decisive matters.
Really important affairs concerned with politice or both politice and law, so far as they may interest the Tribunal and the prosecution were not handled by the legal group headed by Klemm.
The officials of the Party Chancellery, so far as they were group leaders, had no influence whatsoever on politics. On the contrary, this was done by the Party's own office. The latter had no state functions as had the Party Chancellery. The NSDAP had offices for agricultural policy, People's Welfare, People's Health, a National Legal Office, an organization of Germans living abroad and many more. There the political principles were planned, there the influence was exercised that found expression in the sentence; "The Party gives orders to the State." All these Offices of the NSDAP must he separated clearly from the Party Chancellery with its function of a public nature. These Party Offices transmitted their plans through the competent "Reichsleiter" directly to Hitler as the Party Leader and Head of State.
Also the position of Bormann must be explained. He also had a variety of Offices and functions as Reichsleader, Secretary of the Fuehrer and Leader of the Party Chancellery At the time when Klemm was working in the Party Chancellery, Bormann was regularly at the Fuehrer's Headquarters and thus away from Munich. All important questions of a general nature, also those affecting justice and its policies and organizations went directly to Bormann in the Fuehrer's Headquarters. There Bormann himself ordered that most of the matters be handled at once. In such cases Klemm's Legal Group often received no information at all of his decision, or at the most a copy subsequently.
When Bormann transferred a job to the Legal Group in Munich he included as a rule instructions for the handling of the matter. When things were handled in this way by Bormann no objections could be raised. Moreover, the evidence I will produce 4096-a will destroy the rumor that my client had close contact with Bormann.
They disliked each other very much. The main reason was that Klemm did * not acced willingly enough to the wishes of Bormann. It occurred only very rarily that Klomm reported to Bormann. To a much greater extent than other subdepartment heads of the Party Chancellery, Klemm informed also Bormann about his own point of view.
After I shall have tried to clarify the unclear and dark picture of the Party Chancellery, I shall discuss in detail the working method of my client and I will outline in what matters he participated and how far he is, therefore responsible, and in what matters he did not participate.
A series of documents submitted by the Prosecution carry the dictation symbol of Bormann, I shall show that all these documents can have nothing to do with my client, Klemm. They were prepared solely by Bormann and his staff at the Fuehrer' Headquarters. No copy was sent to the Party Chancellery at Munich, so that the Legal Group never received any knowledge of them. This is the reason why it is so important to draw attention to the symbol of the Legal Group, namely, IIIc. Klemm neither prepared, nor had any knowledge of, any letters of the Party Chancellery which do not bear that file number. Just as an example I mention Thierack's letter to Bormann on the collaboration of the judicial authorities in the extermination of Poles, Jews and gypsies (Exh. 243). As "Top secret Reich fatter" that writing never reached section IIIc of the Party Chancellory.
I will show that the defendant cannot be held responsible for a possible crime in which the huge organization of the Party Chancellery may have been involve, but not the defendant, if he had never participated in the execution and if he can never have received information about it. It is my opinion that this is also not possible by using the concept of conspiracy or the broadly defined forms of participation according to the Law Number 10 of the Control Council, Such a reasoning is not possible especially if I prove how strongly Klemn advocated -- especially in the Party Chancellery - the idea that law has to prevail in a state and how he tried to prevent that Party organs be influenced in any unfavorable way.
Every day the Group IIIc received complaints against the Justice, the Judges and against the offices of the administration of Justice, which wanted to influence pending proceedings or even to change sentences which had already been passed. Work in connection with such complaints made up the biggest part of the working time of this group. In all these cases the complaints were rejected, by stating that the judge is independent. I shall submit evidence to show that the Party Chancellery, particularly Croup IIIc, expressly forbade all Political Leaders (that is, the Fuehrer Corps of the NSDAP) to interfere in the jurisdiction. It will be demonstrated that this circular decree was issued on Klemm's initiative. I shall disprove the assertion of the Prosecution and shall show that my client advocated emphatically the punishment of Party Members who were found guilty of an offense. Accordingly, Klemm did not use his position in the Party Chancellery to keep judiciary under pressure but on the contrary tried to promote the interests of judiciary and the idea that law has to prevail in a state. In the year 1941 for example he succeeded in persuading Bormann in a memorandum to reject the plans of Himmler, who attempted already at that time to transfer the jurisdiction over the Poles to his police.
c) The documents submitted by the Prosecution, so far as they really affect the Legal Croup of the Party Chancellery, will not be able to invalidate my above assertions. When I will submit the evidence for the defense I will have the opportunity to explain the purpose and the context of these documents. It will be possible to correct many misinterpretations. In this connection it seems to be necessary to explain briefly the fact that Klemm's influence in the Party Chancellery was never so great that it could have played any part in the appointment of Thierack to Minister of Justice in the year 1942. Many a person who could not know the actual events and their background may have had some fantastic ideas in this respect. The explanations of the defense will destroy these conceptions.
5.) With regard to the activity of my client as Under Secretary in the Reich Ministry of Justice, it will be the task of the legal presentation to separate those actions and measures for which he is responsible from those for which he is not responsible. Also with regard to this point I shall emphasize my point of view that on the Basic of Law Number 10 of the Control Council, my client can not be held responsible for what he himself did neither instigate nor approve. In order to be able to find the facts which will serve as the basis for such legal arguments, I must give you during the proceedings of evidence a detailed picture of my client's position as Under Secretary, of his working field and of the extent of his personal influence. Even externally the position of the Under Secretary had changed considerably since the appointment of Thierack. While before this time the Under Secretary in the Ministry of Justice stood on principle between a section chief and the Minister, after that time his position was simply co-ordinated to that of the Minister. Formerly the Under Secretary had a broad working field and had authority to make important decisions himself, and only the most important matters reached the Minister himself, such as bills or critical matters with regard to policies of the state and of justice.
Thierack on the other hand, handled himself all matters with regard to the administration of penal law which the section chief was not permitted or did not want to decide and he degraded the Under Secretary to a position in which the latter could merely give his opinion like any other expert. It is correct, that from an external point of view the working field of my client seemed to be greater than that of his predecessor, Dr. Rothenberger. The sections of the Ministry III (Legislation in the sphere of Criminal law), IV (Administration of Criminal Law), V (Execution of Sentences), which were not under the latter's jurisdiction were formally re-assigned to Klemm. This seeming extension - my client was thus practically in charge of the whole Ministry of Justice with all its main sections, but with the exception of Section XV (Section for secret matters) which was already in the process of dissolution - actually resulted in a curtailment of his executive powers. Only in a limited field did he receive the authority to make independent decisions, namely as Leader of Section II, which was concerned mainly with educational problems and whereby Klemm was entitled in personnel matters to propose appointment and promotion of officials up to the grade of District Court Director and officials of equivalent rank. In all other fields he was subjected to the domineering orders of the Minister in the same way as every other official of the Ministry. Although he could call for the report of an expert and could thus bring a matter to be decided within his sphere he was prevented from doing so if the Minister himself reserved the final word for himself. Through presentation of my evidence it will be made clear how Thierack, because of his previous career, directed his interests, perhaps his only interest, to problems of criminal law and execution of sentences.
Thus we will recognize that the above-mentioned main sections of the Ministry were only formally under the jurisdiction of Klemm and that no change " in the line of the direction of Justice" , as Thierack expressed it in a discussion of the Section Leaders on 7 January 44 (Exh.
45) resulted from the appointment of a new Under Secretary". It will be proved through the evidence how little the Under Secretary could care for other sections, and that because of the external circumstances, as for instance the evacuation of whole sections from Berlin, he was only rarely present at conferences with the Minister or was left out intentionally.
6.) This limitation of the tasks of the Under Secretary through the organization was furthered through the personal qualities of the Minister, Thierack. A picture of Thierack will result from the documents and the statements of witnesses. He was an autocratic, brutal and even a. rude person. He pursued his views and objectives with remarkable stubbornness. Accordingly, he was hardly to be persuaded from an opinion once formed. He tolerated no one next to himself in his struggle for power. For such a person it must have been easy to suppress such a soft and yielding personality as Klemm. Thierack was not interested in problems of the jurisprudence in concepts of law. He thought that he was a politician and merely a practitioner of the administration of justice. The contrast in the characters had an especially unfavorable effect on Klemm's method of working since Thierack thought he could treat Klemm merely as an official dependent on him personally. That resulted from the prior personal relations of the two men. When Therack filled the post of Minister of Justice for Saxoy immediately after the seizure of power by the NSDAP, Klemm was his adjutant. When Klemm again after many years had to come into personal contact with Thierack through his appointment to Under Secretary, he was in the opinion of Thierack, again not more then his adjutant. When he contacted his Under Secretary Klemm, his manners were just as rough as in his contact with other subordinate officials. Even in the presence of other officials he showed tactlessness, and treated him, too, with disdain and certainly not as a "trusted friend", as the prosecution obviously assumes.
Thierack would not attach much weight to an opinion voiced by Klemm as would have been appropriate because of the latter's Official position. In my defense plea this personal relationship is of importance, so that it must also be show that Thierack was an extremely reserved person. He disclosed his plans and intentions to nobody before they were carried out. He kept the most important political-judicial events and decisions secret even from his Under Secretary. When he received visits of other Ministers, or higher Party and SS officials nobody else was present as a rule. This was particularly true in his contacts with Himmler and the people surrounding him, such as Kaltenbrunner. Of the contents of the discussions Klemm like the other officials of the Ministry was not informed until a decree of Thierack was published for the individual sections of the Ministry.
As to the outside Thierack used Klemm only if he considered it as advisable to emphasize his position as Under Secretary. Thus Klemm signed legal decrees not really as deputy of the Minister who was absent, but only when Thierack thought that he should put his signature under a document of little significance. Klemm had to sign the correspondence with other Ministries if Thierack preferred this procedure for reasons of prestige. This is the only reason for the fact that the so-called "directing letters" (Lenkungsbriefe) to the Presidents of the Appellate Courts Stuttgart and Hamburg do not bear Thierack's name but that of Klemm in spite of the fact that it was Thierack who, in individual reports, complained about the sentences as being too light.
7.) Starting from this general statement with regard to the evidence concerning Klemm's position as Under Secretary I will have to discuss in detail the documents submitted by the prosecution and the statements of the witnesses. Here it will be proved that the main counts of the indictment have no relation at all to the activities of my client. Almost all the measures which the prosecution declared as objectionable, were completed when Klemm took over the position of Under Secretary.