The Courage to Say “No”: Martin Gauger and the Oath to Hitler

Contributing Author: United States Holocaust Memorial Museum

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Photo credit: United States Holocaust Memorial Museum, courtesy of John W. Mosenthal

Today marks the 75th anniversary of the opening of the Nuremberg Trials, where judges from the Allied powers — Great Britain, France, the Soviet Union, and the United States — presided over the hearing of 22 major Nazi criminals. Subsequently, the United States held 12 additional trials in Nuremberg of high-level officials of the German government, including a trial of members of the Reich Ministry of Justice, judges and prosecutors. The anniversary of the Nuremberg Trials provides an opportunity to reflect upon the responsibility of prosecutors and other legal professionals to ensure a fair and impartial system of justice today.

For over two decades, the United States Holocaust Memorial Museum in Washington, D.C. has offered programming for a variety of professional audiences — judges, prosecutors, military, government, and police — to study the role played by their German counterparts in the destruction of democracy and implementation of Nazi policy in the 1930s and 40s. The Nazis relied upon these professions to provide legitimacy for the regime and to carry out the “Final Solution”. Participants in our programs, disturbed by the complicity of their German counterparts, often raise the question, “What could professionals have done to resist the Nazis?” The story of Martin Gauger, a prosecutor who refused to swear the oath of loyalty to Hitler, presents an example of the kinds of actions that were possible for German professionals. Gauger’s story, an anomaly rather than the norm, raises timeless questions for American judges and prosecutors about their role and responsibilities within our democracy today.

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Photo credit: United States Holocaust Memorial Museum, courtesy of B. I. Sanders

Martin Gauger was the son of a Lutheran minister who raised him with strict Protestant values. After finishing his legal studies and passing the state exam in 1933, Gauger began work as a prosecutor at the state court in Wuppertal, Germany. Just one year later, in August 1934, German President Paul von Hindenburg died, and Hitler moved to consolidate power by combining the offices of President and Chancellor and assuming the powers of the presidency. The government held a national referendum intended to legitimize these changes on August 19, 1934. Amidst government intimidation, almost 90% of voters chose “yes”, thereby sanctioning Hitler’s takeover of the presidency and the establishment of a Nazi dictatorship. The next day all civil servants were required by law to swear a new oath: “I swear I will be true and obedient to the Führer of the German Reich and people, Adolf Hitler, observe the law and conscientiously fulfill the duties of my office, so help me God.” As a junior prosecutor, Martin Gauger refused. He wrote to the presiding judge of his court that he was unable to swear the required oath to Hitler in good conscience. Five days later, he resigned his position. He was not arrested, harassed, or abused. He simply lost his job and left the court.

Gauger was just 29 years old when he made the choice to refuse the oath. His reasons for refusing were both professional and personal. On a personal level, he was appalled at the arrest and harassment of his father over an editorial urging good Protestants to vote “no” on the referendum. On a professional level, Gauger acted in part because he recognized the arbitrary nature and the increasing “lawlessness” of the Nazi state. With the summary arrest and execution of prominent SA (Nazi Storm Trooper) leaders and some conservative politicians in the “Night of the Long Knives” in summer of 1934, Hitler had shown himself willing to use extra-legal means to target even members of his own party whom he viewed as a threat to his hold on power. Hitler’s retroactive legalization of these murders both horrified and disgusted Gauger.

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Photo credit: United States Holocaust Memorial Museum Collection

Further, Hitler’s official title as Führer and Reich Chancellor, his assumption of the powers of the presidency, and the expansion of state authority under multiple emergency decrees meant that Hitler had authority beyond the legal constraints of the Constitution and the state apparatus. This extra-legal line of authority, known as a “Führer Order,” extended through the ranks of the Nazi party, the SS, the state bureaucracy, and the armed forces. It allowed for agencies of the party, state, and armed forces to operate outside the law when necessary to achieve the ideological goals of the regime, while maintaining the fiction of adhering to legal norms. As Gauger wrote to his brother, Siegfried, explaining his decision to resign, “I could not swear an unlimited oath of loyalty and obedience to a man who is bound neither by the law nor the traditions of justice.” As far as we know, Martin Gauger was the only judicial official to resign rather than swear the oath to Hitler.

Although not directly harmed by his decision to refuse the oath to Hitler, Martin Gauger’s subsequent biography is tragic. After leaving his career as a state prosecutor, Gauger was unemployed for about a year. In this period, he wrote a legal dissertation about the relationship between the Church and the law, which was subsequently banned from publication by the Nazi regime. Eventually he found work as a legal advisor for the “Confessing Church,” a movement within the German Evangelical Church (Deutscher Evangelischer Kirchenbund, a confederation of Protestant churches) that opposed Nazi intervention in Church affairs. He spent the next few years defending pastors against Nazi persecution. In the process he encountered and befriended members of the Kreisau Circle, an opposition movement against the Nazis.

After German forces invaded Poland in September 1939, beginning World War II, Gauger refused military service. He believed the war was an immoral war of aggression. He fled instead to the Netherlands in May 1940, but was eventually arrested and taken to prison in Düsseldorf to await trial for desertion. Head of the Reich Security Main Office Reinhard Heydrich ordered protective detention for Gauger and he was later transferred to Buchenwald concentration camp near Weimar, Germany. Just two months later, on July 14, 1941, Gauger and 90 other prisoners were deported to the “euthanasia” killing center in Pirna-Sonnenstein and subsequently killed in gas chambers as part of a Nazi program to kill weak and ill concentration camp prisoners (called Action 14F13). Gauger was only 35 years old.

In his final letter to his brother, Gauger wrote, “When the fog in which we live clears, people will ask themselves why only the few and not all behaved this way.” Gauger’s words serve as both a challenge and reminder that resonates with professionals in our programs. Compelled by the history, participants reflect on their own professional roles today as they raise essential questions: given the power inherent in the courts, when do we have a responsibility to act in the face of injustice? What can we do each and every day to meet our responsibilities as citizens in a democracy and in our profession?

More information about the Museum’s “Law, Justice, and the Holocaust” program can be found at www.ushmm.org/judiciary.

For additional information on the life of Martin Gauger, see Boris Böhm, ed. “Die Entscheidung konnte mir niemand abnehmen…” Dokumente zu Widerstand und Verfolgung des evangelischen Kirchenjuristen Martin Gauger. Dresden: Stiftung Sächsische Gedenkstätte, 1997.

The National District Attorneys Association (NDAA) is the oldest and largest national organization representing state and local prosecutors in the country.

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