NOTE FROM THE EDITOR 

To commemorate the 75th anniversary of the International Military Tribunal, Crime Story presents a new series, NUREMBERG. Sean Smith examines the many dimensions of the historic judicial proceedings. Drawing on official transcripts of the trial, as well as a vast bibliography of first- and second-hand accounts, NUREMBERG tells the stories behind the legal, political and personal struggles which complicated this revolutionary exercise in international jurisprudence. You can find Part 1 of our Nuremberg series here.


November 21, 1945

When Robert Jackson lays down his opening statement on the podium and glances up at the eight judges, he’s struck by the overwhelming strangeness of the moment. The newly-refurbished Nuremberg courtroom. The scores of journalists jammed cheek-to-jowl in the cantilevered balcony. The white-helmeted guards, ramrod straight, truncheons gripped behind their backs. The interpreters in their glass enclosure, the attorneys and secretaries crowded into the well. A living, breathing audience in the hundreds, every one of them brutally illuminated by the movie lights suspended from the ceiling like man-made suns. The scratching of pens, the shifting of feet, the whir of the newsreel cameras. It is all supremely disorienting to Jackson. More like lecturing a subway car packed with fidgeting, impatient commuters than presenting the most important speech of his professional life.

Jackson straightens his papers, all 61 pages. He’s scrawled “SLOWLY” beside several key points, a reminder to pause, breathe and allow the full weight of his words to sink in on his listeners. It is as if he is willing away the months of bureaucratic chaos that marked the preparation for this tribunal. 

He begins with his right hand gripping the podium’s corner; very soon, it’s clenched and resting against his right hip in classic oratorical posture. As legal historian Dennis J. Hutchinson notes,

HUTCHINSON: FIRST AND FOREMOST, JACKSON [IS] AN ADVOCATE. HIS JUDICIAL OPINIONS TEND TO BE NEITHER MEASURED ASSESSMENTS OF COMPETING POSITIONS NOR AUTHORITATIVE PRONOUNCEMENTS. THEY ARE RHETORICAL EXERCISES, RELYING ON DETAILED NARRATIVES, OR VIVID IMAGERY OR PAIRED CONTRADICTIONS, ALL DESIGNED TO ARREST OR MOVE … THEIR AMBITION IS TO CONVINCE AN AUDIENCE, NOT BUILD A DOCTRINE.

Jackson’s IMT opening on November 21, 1945  is a culmination, the supreme test of his skills. At Nuremberg, Jackson’s audience is History itself.

JACKSON: 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 “FUHRERPRINZIP”, A NATIONAL SOCIALIST DESPOTISM EQUALLED ONLY BY 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, BRUTALITY, AND ANNIHILATION AS THE WORLD HAS NOT WITNESSED SINCE THE PRE-CHRISTIAN AGES…. 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.

Years later, Jackson remembered his prosecution of the Nazi leadership at Nuremberg as the high mark of his illustrious career, surpassing even his Supreme Court tenure as a personal point of pride. His remarkable legal achievement, however, was the product of an often bewildering tangle of logistical complications and personnel conflicts, which threatened to scuttle the entire undertaking. Jackson and his team skirted disaster almost daily; their accomplishment was, at once, a historic precedent and a case study in the pitfalls of tribunal by committee.

***

We travel back in time seven months to April 26, 1945. 

On behalf of President Harry Truman, White House Counsel Samuel Rosenman visits Jackson at the Supreme Court and asks him to marshal the International Military Tribunal into reality. Increasingly frustrated by the mundane issues before the Supreme Court, Jackson would later admit in his Columbia University oral history to being excited by this new opportunity.

JACKSON: IT WAS A VERY DEPRESSING TIME TO BE ON THE COURT. I’VE NEVER FORGOTTEN THAT THE MONDAY AFTER PEARL HARBOR WE HEARD TWO ARGUED CASES INVOLVING THE QUESTION WHETHER COUNTRY CLUB MEMBERS WERE TAXABLE ON THEIR GREENS FEES AT GOLF COURSES. I SPUTTERED MUCH ABOUT HEARING SUCH A DAMNED PETTY QUESTION ALL DAY WHEN THE WORLD WAS IN FLAMES.

The challenge Rosenman and Truman present to Jackson, however, is in fact far more monumental than either man lets on. Historian Dennis Hutchinson later characterizes their offer as selling Jackson a bill of goods.

HUTCHINSON: JACKSON WAS TOLD, ERRONEOUSLY, THAT A GREAT DEAL OF EVIDENCE HAD ALREADY BEEN COLLECTED AND THAT HIS JOB WOULD BE TO PRESENT THE WORLD’S CASE AGAINST NAZISM BEFORE AN INTERNATIONAL TRIBUNAL. THE OFFER WAS TREBLY MIS-LEADING. IN FACT, [1)] LITTLE EVIDENCE HAD BEEN GATHERED, MUCH LESS ORGANIZED; 2) THERE WAS NO FORMAL AGREEMENT AMONG THE FOUR POWERS ON THE SCOPE OR PROTOCOLS FOR THE TRIALS; AND 3) ROSENMAN’S INTIMATION THAT JACKSON COULD BE BACK BY THE BEGINNING OF OCTOBER TERM 1945 WAS BASELESSLY OPTIMISTIC…. JACKSON’S GUARD SHOULD HAVE BEEN UP, BUT THE OFFER MUST HAVE SEEMED TOO GOOD TO RESIST.

And so Justice Jackson takes leave from the Supreme Court and accepts the position. He proceeds to recruit an All-Star legal team of friends and former associates, including General William J. “Wild Bill” Donovan, Sidney Alderman, Francis “Frank” M. Shea, as well as his former deputy at the FBI, Thomas Dodd, and leaves for London to negotiate the four-power Charter with the British, Soviet and French delegations. 

June 26, 1945

It is in London that Jackson first comes face to face with the logistical and legal nightmare that was the IMT.

HUTCHINSON: WHAT WAS EXPECTED TO LAST A WEEK OR TWO TURNED INTO MONTHS, AND THE FINAL AGREEMENT, EVENTUALLY ENDORSED BY NEARLY 20 OTHER UNITED NATIONS COUNTRIES AS WELL, WAS NOT CONCLUDED UNTIL AUGUST 8. THE NEGOTIATIONS PROVIDED ONE HEART-STOPPING REVELATION AFTER ANOTHER FOR JACKSON. HE DISCOVERED HOW LITTLE EVIDENCE HAD BEEN GATHERED. STAFF ORGANIZATIONAL PROBLEMS, NOW ON HIS PLATE, WERE ENORMOUS. THERE WAS LITTLE AGREEMENT AMONG THE FOUR POWERS OVER WHAT CRIMES TO CHARGE OR HOW THEY WERE TO BE PROVED.

These were long, weary weeks of blood, sweat and tears. The Brits were hesitant to share vital intelligence, the Soviets were blunt and undiplomatic, the French diffident. There were moments when it seemed that Jackson alone was holding the entire endeavor together by sheer force of will. The Agreement the Four Powers signed on August 8 was nevertheless a milestone in international jurisprudence. Jackson proudly summarizes the achievements of the London conference in an October, 1946 post-trial report to President Harry Truman:

JACKSON: WE NEGOTIATED AND CONCLUDED AN AGREEMENT WITH THE FOUR DOMINANT POWERS OF THE EARTH… WHICH FOR THE FIRST TIME MADE EXPLICIT AND UNAMBIGUOUS WHAT WAS HERETOFORE, AS THE TRIBUNAL DECLARED, IMPLICIT IN INTERNATIONAL LAW, NAMELY, THAT TO PREPARE, INCITE, OR WAGE A WAR OF AGGRESSION, OR TO CONSPIRE WITH OTHERS TO DO SO, IS A CRIME AGAINST INTERNATIONAL SOCIETY, AND THAT TO PERSECUTE, OPPRESS, OR DO VIOLENCE TO INDIVIDUALS OR MINORITIES ON POLITICAL, RACIAL, OR RELIGIOUS GROUNDS IN CONNECTION WITH SUCH A WAR, OR TO EXTERMINATE, ENSLAVE, OR DEPORT CIVILIAN POPULATIONS, IS AN INTERNATIONAL CRIME, AND THAT FOR THE COMMISSION OF SUCH CRIMES INDIVIDUALS ARE RESPONSIBLE….THIS IS THE BASIC CHARTER IN THE INTERNATIONAL LAW OF THE FUTURE.

August 1945

It is an exhausted Justice Jackson who arrives in Paris to begin preparation for the tribunal itself. Yet it is in that city that the intense infighting which will plague the American prosecution team first becomes palpable.

Executive Trial Counsel Tom Dodd prides himself on his ability to keep his head down and weather the fray (“saw wood,” as he put it), fantasizing always about a return to Connecticut, Grace, his wife, and the children. But with each passing day, he is becoming convinced that Jackson’s audacious experiment in international justice is being continually undercut by the “gold braid” contingent, military men with their own theories of justice and organization. Writing from Paris in early August, he outlines the brewing conflict to Grace.

DODD: YOU SEE IT IS A COLONEL’S CLIQUE – FROM TOP TO BOTTOM – AND IT IS PROVOKINGLY UNPLEASANT FOR CIVILIANS. I BELIEVE A TERRIBLE MISTAKE HAS BEEN MADE IN THIS RESPECT. [THE IMT] SHOULD BE RUN BY CIVILIANS IN THE NAME OF THE CIVIL POPULATION AND IN THE INTEREST OF PEACE BY WAY OF CONTRIBUTING TO THE PREVENTION OF WAR. FROM EVERY PERSPECTIVE IT IS AND SHOULD BE A CIVILIAN ASSIGNMENT – AND NOT ONE ENTRUSTED TO MEN OF WAR. ARMIES FIGHT WELL SOMETIMES – THEY DO NOTHING ELSE WELL. STUPID DISTINCTIONS OF RANK BLIGHT ALL OTHER ACTIVITIES THAT MILITARY MEN GET INTO.

October 1945

Jackson finally arrives in Nuremberg and almost immediately, his shortcomings for the role of leader of the US delegation become apparent, and the entire IMT experiment is in serious danger of collapse.

Logistics, chains of command, and proper organizational operations: all are Jackson’s responsibility and none his forte. Having spent the prior seven years as Solicitor General, Attorney General and finally Associate Justice of the Supreme Court, Jackson is accustomed to engaging in legal and jurisprudential conversations in controlled settings, where he is running his own show. He is neither a consensus builder nor a natural administrator but a passionate exponent, suddenly miscast as a manager. A writer and thinker, now responsible for a small city’s worth of secretaries and clerks and guards and workers and prisoners. Jackson is severely challenged by his omnibus duties as US Chief Prosecutor and both his critics and his admirers agree: as the director of the US effort at Nuremberg, Jackson is a disappointment. Sir Hartley Shawcross, Labor MP and lead British IMT prosecutor, mixes his admiration for Jackson with sober analysis.

SHAWCROSS: JACKSON WAS NOT IMMUNE FROM THE HUMAN FRAILTIES WE ALL POSSESS. SOMETIMES HE WAS IMPATIENT, OCCASIONALLY HE WAS IRRITABLE. [ALTERNATE BRITISH IMT JUDGE NORMAN ] BIRKETT THOUGHT HE WAS INCLINED TO BE POMPOUS OR EVEN VAIN. BUT THESE WERE CRITICISMS WHICH WERE LAID AT TIMES AGAINST US ALL.

Such criticisms were laid most often, and most publicly, against Jackson, however.

October 10, 1945

With the Tribunal’s start date rapidly approaching, Dodd grows more frustrated with the  bureaucracy hobbling the IMT’s work. In a letter home to Grace, Dodd airs his grievances.

DODD: THE STAFF HERE CONTINUES TO GROW – BUT FOR WHAT PURPOSE I DO NOT KNOW. IT REALLY IS A STRANGE ORGANIZATION. THERE ISN’T AN EXPERIENCED TRIAL LAWYER AT THE TOP OR NEAR IT – NOR IS THERE ONE OF ANY GREAT LITIGATION EXPERIENCE – AND NONE WITH ANY CRIMINAL LAW EXPERIENCE. AND IT IS ALL VERY CLEAR THAT NO SUCH QUALIFICATIONS ARE HERE.

October 19, 1945

Just over a week later, Dodd prepares a resignation letter, certain that the “stupid” priorities of the military personnel surrounding him will turn the IMT into a never-ending, self-perpetuating bureaucratic dead-end, one in which he refuses to get trapped. Yet, between the lines, we can hear his professional disappointment – he wants more and blames the “Colonel’s clique” for blocking him.

DODD: I HAVE DRAWN UP A LETTER TO JACKSON ASKING THAT I BE RELEASED – NOW THAT THE INDICTMENT HAS BEEN SERVED AND THE INTERROGATIONS OF THE PRINCIPAL DEFENDANTS ARE COMPLETE… I WISH I COULD COMPLETE THE JOB HERE WITH SOME KIND OF TRIAL RESPONSIBILITY – IT WOULD BE BETTER THAT WAY – HOWEVER I CANNOT SEE HOW IT CAN BE DONE AS IT WILL BE FEBRUARY OR LATER, IN MY JUDGEMENT, BEFORE THESE PROCEEDINGS ARE OVER. IT IS ALL RIGHT FOR ARMY OR NAVY PERSONNEL WHO ARE UNDER ORDERS AND PREFER THIS ASSIGNMENT TO MOST OTHERS, BUT FOR ME IT WOULD BE QUITE FOOLISH AND SILLY. AS A MATTER OF FACT IT IS MY OPINION THAT MUCH OF THE DELAY THUS FAR IS DUE TO THE ARMY/NAVY ATTITUDE – “WHY HURRY? THIS IS A GOOD DEAL. LET’S MAKE IT LAST.” A FEW GOOD TRIAL CIVILIAN LAWYERS WOULD HAVE HAD THIS CASE IN SHAPE AND ON TRIAL BY NOW.

***

Paralleling the civilian-military divide is a smoldering disagreement among the attorneys about the theory of the case. Will it be based on live witness testimony or lean more heavily on captured Nazi documents? Both approaches have their fervent adherents, and the disagreement between the camps threatens to derail all of Jackson’s hard work.

One of the foremost proponents of live testimony is General William J. “Wild Bill” Donovan. WWI Congressional Medal of Honor winner and Director of the Office of Strategic Services (OSS, considered the precursor to CIA), Donovan has a well-established penchant for tracking down German war criminals. After being recruited by Jackson in late Spring, 1945, “Wild Bill” made his agency’s files, staff, and equipment available to the Justice and the fledgling IMT; it was a godsend in the trial’s preparation. Informally, some even refer to Donovan as Jackson’s “First Deputy,” though where he stands in the true chain of command remains unclear. Donovan, for one, is used to operating without portfolio – his career is an extended study in brilliant freelancing. Donovan is passionate, persuasive and endlessly charismatic.

Jackson favors the documentary approach, and while he cuts a less romantic figure than “Wild Bill,” he nevertheless lays out his position whenever possible and has his own loyal followers. Jackson would later summarize his thinking like this:

JACKSON: THE NUREMBERG TRIAL OF THE NAZI WAR CRIMINALS PROVES THAT ALWAYS IT IS WORTH WHILE TO GIVE MEN A HEARING BEFORE YOU DECIDE TO EXECUTE THEM… [BUT ALSO] IT WAS THE NECESSITIES OF A TRIAL WHICH FORCED A GENUINE SEARCH FOR AND DISCLOSURE OF THE DOCUMENTATION OF THIS WAR… WHETHER THESE DOCUMENTS WOULD EVER HAVE BEEN PRESERVED OR MADE AVAILABLE EXCEPT FOR THIS TRIAL MAY BE DOUBTED. THE TERRIBLE EXPERIENCE OF THIS GENERATION WOULD SOON BE FORGOTTEN OR DISBELIEVED HAD NOT DOCUMENTS SPELLED IT OUT IN GHASTLY DETAILS, BUT IF THEY HAD BEEN SIMPLY FOUND AND PUBLISHED, EX PARTE, NO ONE WOULD HAVE KNOWN WHETHER THEY WERE GENUINE. WHAT MAKES THEM NOW UNDENIABLE IS THAT THEY HAVE BEEN SUBMITTED TO EXAMINATION IN ADVERSARY PROCEEDINGS, WHERE THEY HAVE BEEN AUTHENTICATED BY THOSE WHOSE INTEREST WAS TO DENY AND WHOSE KNOWLEDGE OF THEIR TRUTH OR FALSITY WAS UNQUESTIONABLE. AS A RESULT, EXPERTS WILL LONG DRAW LESSONS FOR THEIR SPECIALTIES FROM THE NUREMBERG EVIDENCE. THE RECORD OF THE PLOTTINGS AND INCITEMENTS, PREPARATIONS AND INTRIGUES THAT PRECEDED AND ACCOMPANIED THE SECOND WORLD WAR IS VASTLY RICHER THAN HAS BEEN AVAILABLE TO SCHOLARS CONCERNING ANY OTHER WAR.

Jackson’s strategy, then, is as much aimed at historians and world leaders as it is at the judges in Nuremberg. To him, Donovan and Company’s desire for headline-grabbing and news-reel-shocking witness testimony and high-stakes cross examination is misguided, a play for immediate melodrama appealing to the vengeful instincts of the general public. Jackson, instead, seeks to present an unimpeachable judicial precedent, as well as a warning to future would-be authoritarians and their facilitators. As Dennis Hutchinson observes:

HUTCHINSON: JACKSON FEARED THAT TESTIMONIAL EVIDENCE WOULD DEVOLVE QUICKLY INTO FINGER-POINTING AND RECRIMINATIONS, IF NOT RAW PROPAGANDA – EITHER OF WHICH WOULD CORRODE THE INTEGRITY OF THE PROCEEDINGS. 

The Chief Justice’s focus, in other words, is on the long game. Yet, fundamentally, Jackson’s document-based strategy is also a subtle acknowledgment of his own professional shortcomings. As both his critics and his admirers  point out, Jackson is an advocate, not a trial attorney. He is wary of the hurly-burly of individual testimony because, unlike documents, witnesses talk back. 

***

By this third week in October, second-guessing Jackson and his camp becomes a sort of bureaucratic parlor game. Our witness to this intrigue is Colonel Telford Taylor. The thirty-seven year old Taylor had served as a reserve colonel in Army Intelligence, managing the distribution of information derived from deciphered enemy communications; a Harvard Law School graduate with experience in the federal government, he’d looked forward to taking a position in a private New York law firm after the war. Taylor is allied with Francis “Frank” M. Shea, a friend from his time before the war at the Justice Department. Shea also knows Jackson from Justice; in fact, Shea was one of the first people that Jackson called after being tapped to lead the US prosecution team (the first was Sidney S. Alderman, general counsel and vice president of the Southern Railway System, whose Supreme Court oral arguments had impressed Jackson). Shea and Alderman were crucial early partners of Jackson’s as he began the monumental task of getting both the Charter and Tribunal up and running. As the trial approaches, however, both men’s influence wanes.

Taylor attributes this to the rise of Colonel Robert G. Storey. A Texas attorney and former delegate to the International Convention of Comparative Law at The Hague, Storey is single-minded in his reliance on the Nazi paper-trail to the detriment of witness testimony and has earned Jackson’s full support. Taylor is openly dismissive of Storey and the validity of his approach.

TAYLOR: [STOREY] WAS PLEASANT ENOUGH, BUT SEEMED TO BE OBSESSED BY HIS TROVE OF DOCUMENTS (“DOCAMINTS” IN HIS TEXAS PATOIS) TO A DEGREE THAT DISTORTED HIS CONCEPTION OF THE TRIAL. HE VIEWED THE PROSECUTION’S CASE AS COMPRISING LITTLE MORE THAN PRESENTATION TO THE TRIBUNAL OF ORGANIZED GROUPS OF DOCUMENTS IN “DOCUMENT BOOKS,” ACCOMPANIED BY EXPLANATORY BRIEFS BASED ON THE DOCUMENTS, WHICH HE CALLED “SELF-PROVING” BRIEFS. I RESPONDED, PERHAPS TOO BLUNTLY, THAT THE DOCUMENTS COULD NOT BE EFFECTIVELY HANDLED IN SO MECHANICAL A WAY, AND THAT IF THE PROSECUTION’S CASE WAS SO LIMITED, AND DEVOID OF LIVE TESTIMONY, THE DEFENDANTS’ CASE MIGHT GET MUCH MORE PUBLIC ATTENTION THAN OURS.

October 22, 1945

Jackson cuts decisively through the confusion and determines the future course of the prosecution when he issues General Memorandum #5. In it, the Chief Prosecutor boldly reshuffles his personnel and establishes a Legal Staff Trial Organization to function beneath him, comprising a five-man Board of Review and four Consultants. Noticeably absent from the list of Consultants is General William J. “Wild Bill” Donovan. General Memorandum #5 upends the relationship between the two men. Shea and Taylor later learn that Jackson had initially listed General Donovan as a Consultant, but that “Wild Bill” struck his name out, miffed. Dodd describes his surprise in a letter to Grace penned that same night.

DODD: FORGIVE ME, DEAR, FOR BEING A LITTLE PLEASED – BUT I CAME INTO THIS ORGANIZATION AT THE BOTTOM AND RECEIVED SOME SHABBY TREATMENT. TONIGHT AT DINNER EVERYONE WAS UP SHAKING MY HAND. I ALWAYS FELT THAT THE STAFF MEMBERS KNEW WHAT WAS GOING ON AND THEY SHOWED IT TONIGHT. WELL SO IT GOES – AS ALWAYS WITH ME. A FEW DAYS AGO I WAS PRETTY LOW, AND FEELING QUITE DOWN, ETC. THEN THIS HAPPENS SO UNEXPECTEDLY! TOMORROW WE ORGANIZE THE WHOLE PLACE AND START ANEW…. I DO HOPE I CAN DO A GOOD JOB AT IT. BUT IT WILL NOT BE EASY AND SOME OF THE SOREHEADS WILL BE DIFFICULT.

With General Memorandum #5, Jackson shunts former principals Shea and Alderman to supporting roles and asserts the primacy of the documentary strategy. As a result, feelings and professional pride are wounded, old friendships strained. Shea resigns and leaves for the United States on November 1.

October 26, 1945

Jackson doubles-down on his support for Storey and “docamints” – while simultaneously offering an olive branch to Donovan. Jackson appoints Storey as Executive Trial Counsel and elevates key figures whom he’d previously excluded to a Panel of Trial Counsel, including Donovan, Alderman and Dodd.  Jackson’s new maneuver rewards Dodd for his loyalty and marks a sincere attempt to bring the warring parties together on the eve of the proceedings. As Taylor tells us, the latter effort is only partially successful.

TAYLOR: DURING THE FIRST HALF OF NOVEMBER THERE WERE SEVERAL JOINT MEETINGS OF THE TRIAL PANEL… DURING WHICH THERE WAS ACRIMONIOUS DISCUSSION OF SUCH TRIAL QUESTIONS AS THE USE OF WITNESSES, THE VALUE OF “SELF-PROVING BRIEFS,” AND THE SCHEDULING OF THE VARIOUS PORTIONS OF THE AMERICAN PROSECUTION’S CASE. GENERAL DONOVAN, ALDERMAN AND I ALL THOUGHT THAT THE IDEA OF BRIEFS IN WHICH THE DOCUMENTS WOULD “PROVE” THE CASE WITHOUT SUPPORTING ARGUMENT WAS ABSURD, AND THAT WE SHOULD NOT BACK AWAY FROM THE USE OF WITNESSES. ON NOVEMBER 5 THERE WAS A PARTICULARLY SHARP SET-TO, DURING WHICH DONOVAN DENOUNCED THE WHOLE BASIS OF STOREY’S PLANNING AS “FOOLISH….” A WEEK LATER THERE WAS ANOTHER UNPLEASANT FLARE-UP, AND IT WAS DURING THESE WEEKS THAT THE RELATIONS BETWEEN JACKSON AND DONOVAN BECAME SO BADLY STRAINED THAT SOON THEREAFTER THEY REACHED THE BREAKING POINT.

Donovan’s dissatisfaction mounts daily. 

November 7, 1945

Jackson dispatches Storey, in his capacity as Executive Trial Counsel, to take Donovan’s temperature regarding the reorganization – Storey has barely left his meeting with Donovan before Wild Bill fires off a complaint to Jackson.

DONOVAN: DEAR BOB, TO PREVENT MISUNDERSTANDING LET ME TELL YOU OF MY TALK WITH BOB STOREY – TODAY. HE SAID THAT HE CAME TO ME AT YOUR INSTANCE TO ASK WHAT PART I WANTED TO TAKE IN THE TRIAL. I REPLIED THAT YOU NOT HE SHOULD ASK THAT QUESTION. HOWEVER TODAY I COULD ONLY CONCLUDE THAT YOU TOOK THIS MEANS OF CANCELLING OUR ORIGINAL ARRANGEMENT AND OF INDICATING THAT YOU CONSIDERED THAT YOU SAW NO PLACE FOR ME. THE NUMBER AND DISPOSITION OF TRIAL COUNSEL SHOW YOU ARE RIGHT. I AM SORRY YOU DID NOT TAKE A DIFFERENT MEANS OF TELLING ME.

Jackson’s November 8 reply is a curious blend of tones – part position paper, part Dear John letter.

JACKSON: MY DEAR BILL: YOUR LETTER ADVISING OF YOUR DECISION TO LEAVE THE CASE CONTAINS EVIDENCE OF MISUNDERSTANDING WHICH I WISH AT ONCE TO CORRECT. I ASKED COLONEL STOREY TO MAKE RECOMMENDATIONS AS TO THE PART IN THE TRIAL WHICH MIGHT BE TAKEN BY EACH OF THE SEVERAL EXPERIENCED TRIAL ATTORNEYS WHO HAVE GIVEN DEVOTED SERVICE TO THE CASE. BEFORE DOING SO I ASKED HIM TO SEE THEM, COMMENCING WITH YOU, TO LEARN THEIR PREFERENCES…. COLONEL STOREY TOLD ME THAT YOU ADVISED THE BOARD, IN EFFECT, THAT YOU DID NOT THINK HIGHLY OF RELIANCE ON THE CAPTURED DOCUMENTS TO THE EXTENT THAT OTHERS DO AND I GATHERED THAT YOU WOULD NOT BE INTERESTED IN THE DOCUMENTARY ASPECTS OF THE CASE….  I ANTICIPATED YOU WOULD PREFER TO WORK WITH LIVE WITNESSES OR CROSS-EXAMINATION OF DEFENDANTS AND DEFENSE WITNESSES. BUT IT IS NOT LIKELY THAT THE DEFENSE PART OF THE CASE WILL BE REACHED UNTIL AFTER THE FIRST OF THE YEAR. WHAT WITNESSES WILL BE USED AND WHEN IS DIFFICULT TO SETTLE UNTIL AFTER THE ENTIRE DOCUMENTARY CASE IS COMPLETED ON NOVEMBER 10TH…. YOUR CONTRIBUTION TO THIS CASE PERSONALLY AND THROUGH YOUR ORGANIZATION HAS BEEN OF VITAL IMPORTANCE AS I HAVE ALWAYS TAKEN PAINS TO RECOGNIZE. THERE HAVE BEEN ORGANIZATIONAL AND OTHER DIFFICULTIES FROM TIME TO TIME BUT AN OLD FRIENDSHIP ENABLE THEM TO BE DISPOSED OF. IF YOU ARE OF THE OPINION THAT THE TRIAL AS IT IS NOW SHAPING UP DOES NOT PRESENT A PLACE OF INTEREST TO YOU, I SHALL UNDERSTAND AND ACCEPT YOUR DECISION. BUT I DO NOT WANT YOU TO REACH THAT CONCLUSION ON ANY MISUNDERSTANDING OF THE MOTIVE OF EITHER MYSELF OR OF COLONEL STOREY. SINCERELY YOURS, BOB.

Jackson continues to search for ways to accommodate Donovan, or at the very least signal his importance to the US prosecution. 

November 15, 1945

Less than a week before the tribunal’s start, Jackson manifests his anxiety about the political grievances by dissolving his Board of Review and establishing a Planning Committee. Dodd captures the underlying tension in Jackson’s maneuver:

DODD: TODAY JACKSON NAMED A BOARD OF SENIOR TRIAL LAWYERS CONSISTING OF HIMSELF, COLONEL STOREY, GENERAL DONOVAN, MR. ALDERMAN AND YOURS TRULY. HOWEVER I AM NOT SO SURE IT WILL WORK. JACKSON IS AN ADMINISTRATIVE IMPOSSIBILITY – AND WORSE HE COMPROMISES AT ALL TURNS ON QUESTIONS OF PERSONNEL AND PERSONAL RESPONSIBILITY. I MAY WORK INTO THE CASE BUT THE STRUGGLES FOR POSITION ARE TERRIFIC….

Machinations such as these reflect how pained Jackson is by the consequences of his leadership decisions, especially when they involve a prominent figure and one-time friend like Donovan. 

November 21, 1945

Even as the trial opens and Jackson steps up to the podium to deliver his opening, the Donovan business weighs on him. He addresses it, if obliquely, in his statement.

JACKSON: IN JUSTICE TO THE NATIONS AND THE MEN ASSOCIATED IN THIS PROSECUTION, I MUST REMIND YOU OF CERTAIN DIFFICULTIES WHICH MAY LEAVE THEIR MARK ON THIS CASE. NEVER BEFORE IN LEGAL HISTORY HAS AN EFFORT BEEN MADE TO BRING WITHIN THE SCOPE OF A SINGLE LITIGATION THE DEVELOPMENTS OF A DECADE, COVERING A WHOLE CONTINENT, AND INVOLVING A SCORE OF NATIONS, COUNTLESS INDIVIDUALS, AND INNUMERABLE EVENTS. DESPITE THE MAGNITUDE OF THE TASK, THE WORLD HAS DEMANDED IMMEDIATE ACTION. THIS DEMAND HAS HAD TO BE MET, THOUGH PERHAPS AT THE COST OF FINISHED CRAFTSMANSHIP….  I SHOULD BE THE LAST TO DENY THAT THE CASE MAY WELL SUFFER FROM INCOMPLETE RESEARCHES AND QUITE LIKELY WILL NOT BE THE EXAMPLE OF PROFESSIONAL WORK WHICH ANY OF THE PROSECUTING NATIONS WOULD NORMALLY WISH TO SPONSOR. IT IS, HOWEVER, A COMPLETELY ADEQUATE CASE TO THE JUDGMENT WE SHALL ASK YOU TO RENDER, AND ITS FULL DEVELOPMENT WE SHALL BE OBLIGED TO LEAVE TO HISTORIANS.

November 24, 1945

Donovan attempts one last Hail Mary play for the use of witnesses. On the first weekend of the trial, Donovan circulates a memorandum offering to personally interview Goering (in the company of his defense counsel) with an eye to obtaining a confession. The General pushes for a speedy reply: “This is damn hard work and if [Goering] is to be ready the present momentum must not be lost.” There is no record of Jackson’s response, but soon thereafter, Donovan leaves Nuremberg for good.

December 1, 1945

Jackson finds the contretemps so unsettling, he fires off a note to President Harry S. Truman, attaching copies of his recent correspondence with the General. It is, in effect, a post-mortem on the whole Donovan affair, as well as on Jackson’s evident shortcomings as an apparatchik.

JACKSON: ONE MATTER THAT I THINK YOU SHOULD BE INFORMED ABOUT IS THE DEPARTURE OF GENERAL DONOVAN. WHEN I ASKED HIM TO WORK WITH ME I WAS REPEATEDLY TOLD THAT HE WOULD NOT WORK IN SECOND PLACE WITH ANYBODY. I KNEW THE DIFFICULTIES OF THAT, BUT HE WAS THE HEAD OF O.S.S. AND I NEEDED WHAT HELP THAT ORGANIZATION COULD GIVE. IN THE EARLY STAGES OF THE CASE, GENERAL DONOVAN PERSONALLY WAS VERY HELPFUL. HE THEN TOOK A LONG TRIP TO CHINA DURING WHICH HE WAS ENTIRELY OUT OF TOUCH WITH THE CASE. SINCE HE CAME BACK, HIS IDEAS AND MINE OF HANDLING THE CASE WERE FAR APART. THEY WERE SO FAR APART THAT I HAD TO TELL HIM I WOULD NOT PUT HIM ON THE FLOOR TO CONDUCT ANY PART OF THE CASE. I HAVE TRIED TO LET THE MATTER PASS WITHOUT PUBLICITY EVEN TO THE POINT OF SUBMITTING TO SOME CRITICISM FROM HIS FRIENDS. BUT I THINK YOU SHOULD KNOW THE FACTS….

Jackson concludes his letter to Truman with a characteristic mixture of humility and idealism. 

JACKSON: I AM SURE I HAVE MADE A GOOD MANY MISTAKES HERE, BUT THIS [THE DONOVAN AFFAIR] IS NOT ONE OF THEM. AND THE CASE IS STRONG ENOUGH TO SURVIVE MY WORST BLUNDERS. THE ONLY THING I FEAR IS THAT IT WILL DRAG AND DRAG. BEST PERSONAL WISHES, RESPECTFULLY YOURS, ROBERT H. JACKSON. 

Let’s return to November 21, 1945 and the packed, brightly-lit courtroom where Justice Jackson speaks. Across from him, the defendants sit rigidly in the dock, as overwhelmed as the Prosecutor by this unprecedented moment. Each of the accused will occasionally steal a glance toward the man in the dock’s most prominent seat (first row on the aisle): former Reichsmarschall Hermann Goering. As Jackson vows to expose the atrocities perpetrated by the Nazi regime, Goering’s fellow defendants study Prisoner Number 1, trying to read his mood and approximate his smirk. Can Goering maintain control of the accused, even when he is shorn of all insignia and prerogatives and held up to the condemnation of the civilized world?  Will he find a way to assert his personality and force of will, in spite of the restrictions placed upon him? The Tribunal will be the ultimate test of Goering’s leadership.