Burning the Reichstag by Benjamin Carter Hett

Tobias’s intrigues got Zirpins his job. When Zirpins scored his triumph in the Halacz investigation, Wehner wrote Tobias “Dear God how I envied Zirpins … Without the ‘45 collapse that would have been
ipso facto
my job.” 7
    Why exactly Tobias, who was nominally a Social Democrat, developed such a protective fondness for Nazi police officers remains unclear. That it proved crucial for the Reichstag fire controversy, however, is certain. Still, Tobias might not have emerged as the central player in the Reichstag fire controversy had it not been for a chain of events beginning with efforts to re-open the Reichstag fire trial in 1955.
    IN 1954, A LAWYER NAMED ARTHUR BRANDT decided to return to Berlin. Brandt had begun practicing law there in 1921 and was involved in some of the most famous trials of Weimar Berlin, including the so-called Cheka trial of a number of Communist agents in which Paul Vogt, later the examining magistrate in the Reichstag fire trial, did the judicial investigations. Like most left-leaning and Jewish lawyers, Brandt was in mortal danger when the Nazis came to power. He fled to Switzerland the day after the Reichstag fire, found his way to America, became an American citizen, and qualified for the bars of New York and Massachusetts (after an interval producing figure-skating performances and getting his daughters to appear in films with skating legend and movie star Sonja Henie). 8
    Brandt returned to Berlin with the intention of specializing in restitution cases for victims of Nazism. One of his first cases came from Johannes Marcus van der Lubbe, Marinus’s older brother, who asked Brandt to take up Marinus’s rehabilitation. In 1951 the government of West Berlin had passed a law, known as the WGG, for “Restitution for National Socialist injustice.” The WGG allowed victims (or their survivors) to apply to overturn judicial verdicts that had been based on lawsserving the “strengthening of National Socialism” or “National Socialist ideas,” or on “racial, religious, or political grounds.” The point was that only the actions of the Nazi
court
mattered, not those of the prisoner. Even a guilty prisoner was entitled to restitution and rehabilitation if the verdict had been a “Nazi” one in the ways the law specified. 9
    Marinus van der Lubbe, executed in a highly political trial on the basis of a Nazi law passed retroactively against him, should have fitted these terms perfectly. The law did not require evidence of his innocence, in other words evidence that someone else had burned the Reichstag. As Brandt argued in one of his briefs to the court, there could hardly be any doubt that the judgment condemning van der Lubbe to death had “served the strengthening of National Socialism” and that it was reached on “political grounds.” 10
    But West Berlin courts of the 1950s sometimes interpreted the law in surprising ways, demonstrating just how hard it was for victims of Nazism to get their claims recognized in postwar Germany. The Berlin Court of Appeals ruled in 1956, for example, that the heavy tax imposed on Jews who left Germany after 1933 was not one of those laws which “strengthened National Socialism,” nor was it a product of Nazi ideology. Similarly, the “pulpit paragraph,” under which the regime could punish dissident clergymen, did not amount to Nazi injustice because such provisions had existed in German law before the Nazis. The same point applied to Nazi persecution of gay men. 11
    When Brandt submitted his petition to overturn the Reich Supreme Court verdict at the end of September 1955, the press took immediate notice. Brandt’s petition set off a chain of actions and reactions that amounted to a rebirth of controversy over the Reichstag fire. Most of the important subsequent events in the controversy were direct or indirect products of Brandt’s case. 12
    First came Cold