The threats by President Donald Trump to wipe out the Iranian “civilization” by bombing the country “back to the Stone Age” and targeting civilian sites elicited castigation as international war crimes and recalled the post-World War II Nuremberg trials of the Nazi leadership. That is a topic that warrants reflection as Minnesota and the rest of the nation recognizes Memorial Day on Monday, May 25, honoring those who gave their lives in service to this country in all of its wars.

The major war crimes trial that followed World War II was portrayed in the critically acclaimed movie “Nuremberg,” which rolled out late last year rife with Minnesota connections. Despite widespread praise by critics and theatergoers, the movie did not win a single Oscar at the Academy Awards two months ago.

That’s because it was not nominated for any. It was on the short list in a couple of categories but didn’t make the cut on either of them.

It’s regrettable that the film was not honored, especially here in Minnesota, where the movie has its roots and other linkages worth exploring, highlighted by its derivation from a book titled “The Nazi and the Psychiatrist,” written in 2013 by Los Angeles author Jack El-Hai, who lives and works in the Kenwood area of Minneapolis with his wife and two daughters.

“I am innocent of all the charges made against me. I did not commit any of the alleged crimes.”
Hermann Göring (1893 – 1946)

*****

“The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating that civilization … cannot survive their being ignored.”
Judge Robert Jackson (1892 – 1954)

*****

“Of course, the trial was botched and imperfect … it had to deal with new crimes for which there was no provision in national law or international law.”
Reporter Rebecca West (1892-1983)

Minneapolis movies

Despite its absence from the awards ceremony, the movie remains one of the latest critically acclaimed films with ties to Minneapolis. In 2007, Minneapolis neophyte screenwriter Diablo Cody won an Oscar for her work on the movie “Juno,” a semi-autobiographical account of the growing pains of a teenager.

Six years later, Minneapolis actor Barkhad Abdi was nominated for an Oscar for his supporting role as a villainous pirate in “Captain Philips,” the Tom Hanks vehicle about an assault on an American vessel, although the Somali immigrant did not prevail.

It took a dozen years for El-Hai, who was an executive producer of the film and was a speaker in the beginning of March for the Jewish Historical Society of the Upper Midwest, and his 2013 work to reach the silver screen. It starred Rami Malek, as the real-life psychiatrist Dr. Douglas Kelley, who befriends, analyzes, and then turns against the Nazi chieftain Hermann Göring – Hitler’s second-in-command during the war – skillfully portrayed by Russell Crowe. Both are previous Oscar winners: Malek for his role as singer Freddie Mercury in 2018’s “Bohemian Rhapsody” and Crowe in 2000 for “Gladiator.”

Despite a few liberties, “Nuremberg” is a largely true account focusing on the vacillating relationship between Kelley and Göring, a longtime Nazi, head of the Luftwaffe, and presiding officer of Hitler’s subservient legislative body, the Reichstag. The film is not to be confused with its 1961 predecessor, “Judgment at Nuremberg,” a star-studded movie that won a pair of Academy Awards, including Best Screenplay and Best Actor for Maximillian Schell. That earlier film was a more fictionalized account, focusing on Schell as the Nazi’s lead attorney and one of the tribunal’s judges, an American played by Spencer Tracy.

Another Minnesota nexus concerns a related Nuremberg case that was prompted by North Dakota-born Arley R. Bjella, a 30-year old JAG officer at Nuremberg, who was the appointed defense counsel for an Austrian-born Nazi Franz Strasser, who was charged, convicted, and executed for murdering two of five downed American pilots in Czechoslovakia near the end of the war in a trial that took place at Dachau.

The JAG captain went on to become the long-term chairman of the Lutheran Brotherhood financial service company here in the Twin Cities, now known as Thrivent Financial, before his death at age 84 in 2001.

Supreme Subtext 

A subtext of the new movie concerns Supreme Court Justice Robert Jackson, who served as lead prosecutor in the trial. He developed the novel concept of an international tribunal to adjudicate war crimes, which had hitherto been undefined and never subject to litigation before the Nuremberg trial was conducted.

Jackson, on leave from his judicial duties, headed the prosecution, aided by attorneys from a consortium of major wartime European allies — Great Britain, the Soviet Union, and France. The trial was conducted in a historic courthouse that still stands, after postwar renovations, in the heart of the Bavarian city of Nuremberg (which this writer has visited), not far from the site that was home to the annual Nazi rallies and was 90% destroyed by Allied bombings in the latter stages of the war. A replica of the structure and its courtroom was used in the movie, which was primary filmed in Budapest, Hungary.

Jackson was selected for the prosecutorial lead role after a long career as a government prosecutor, including serving a short period as Solicitor General arguing cases before the U.S. Supreme Court and then as Attorney General in Franklin D. Roosevelt’s administration. A moderate on the decidedly liberal court of the day, he was known as a judicial craftsman. Jackson was described years later as “the best legal stylist of the 20th century” by no less an authority than conservative High Court Justice Antonin Scalia.

The trial involving charges against 24 Nazi leaders resulted in 19 convictions, three acquittals, and 12 death sentences. However, a pair of them — Göring and Nazi labor leader Robert Ley — cheated the hangman by committing suicide before they were to be hanged, each taking his own life by consuming a potassium cyanide pill obtained by unknown means.

As a predecessor to other war crime trials for lesser culprits that took place through the end of 1949 in Germany against 199 Nazi officials, along with similar trials conducted in Japan, the Nuremburg proceeding served as a precedent for modern-day prosecutions. It was the Nuremberg case that captured the most public attention at the time because it was the first of its kind and because of the courtroom denouement of the clash between Jackson and Nazi chieftain Göring, taken nearly a year after proceedings began.

Desire dashed

Jackson’s desire to become chief justice of the Supreme Court was, as depicted in the movie, dashed when the sitting chief, Harlan Stone, died while Jackson was in Nuremberg. Roosevelt’s successor, Harry Truman — who had selected Jackson for the leading role at Nuremberg — passed over him and appointed an old congressional buddy, Fred Vinson, who had served a short stint as Treasury secretary.

Jackson was only a minor character in El-Hai’s book upon which the movie was based. He was elevated into a major role in the movie, portrayed believably by actor Michael Shannon, in order to add conflict to the film.

But Jackson’s work on the Supreme Court stood out, validating Scalia’s characterization of his craftsmanship, as exemplified by three of his most noteworthy judicial observations.

In Watts v. Indiana, 338 U.S. 49 (1955), he pointed out in a concurring opinion in a case invalidating coercive criminal confessions that “any lawyer worth his [sic] salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances,” a predecessor to the Miranda v. Arizona, 384 U.S. 436 (1966) self-incrimination “warning” case.

In Terminiello v. Chicago, 337 U.S. (1949), his dissent in a ruling invalidating on First Amendment grounds a breach of peace conviction of a rabble-rousing inflammatory speaker, perhaps thinking of his Nuremberg experience, informed his colleagues that they ought not “convert the Constitutional Bill of Rights into a suicide pact.”

Most famously, in a concurrence in Brown v. Allen, 344 U.S. 443 (1953), he reminded that the High Court jurists “are not final because we are infallible, but we are infallible only because we are final.” Scalia would be proud!

After the war, Jackson also dissented in a pair of cases in which the Supreme Court allowed public financial aid to parochial schools, another hallmark of his liberal bent. Jackson was also involved in one major matter from Minnesota during the pre-Nuremberg days: a precedent-setting property tax case titled Northwest Airlines, Inc. v. Minnesota, 322 U. S. 292. (1944) in which the locally based airline, now part of Delta Airlines, challenged a state law that imposed a personal property tax on all eleven aircraft in the Northwest fleet at that time.

The tax was challenged by the airline on grounds that it should be apportioned among the various states in which it operated. However, the High Court rejected the argument, deeming it too unwieldy to divide the tax among the states where Northwest flew. Jackson joined the majority decision but also wrote a separate concurrence asking for “help” from Congress to address the “mongrel” status of inter-jurisdictional taxation on property that moves between states. While expressing reservations, Jackson was content to adhere to the doctrine of permitting taxation by the “home port” where the business is located. Under that principle, with Jackson’s blessing, the High Court ruling allowed Minnesota to tax the fleet in its entirety.

Neither Jackson’s colleagues on the court nor Congress responded to his call for legislative assistance. A decade later, in one of his last cases, a similar issue came before the tribunal dealing with a tax on airline equipment in Nebraska. Based on the Northwest precedent, the justices upheld the state’s refusal to apportion taxes in Braniff Airways, Inc. v. Nebraska State Board of Equalization and Assessment, 347 U.S. 590 (1954). This time, however, Jackson was not as accommodating; he issued a dissenting opinion, elevating his previous concurring view into a refusal to join the majority with a dissent that pointed out that his “home port” analysis in the Northwest case was inappropriate to this case in which the airline was registered in Texas.

Segregation suit

Jackson continued on the High Court after Nuremberg for nearly a decade before he died suddenly of a heart attack at age 62, right before the beginning of the Court’s 1954-1955 term. Before passing, however, he joined the unanimous court in the spring of 1954 in the landmark Brown v. Board of Education, 347 U.S. 483 (1954), which invalidated racial segregation in public schools.

A forerunner of the Civil Rights Movement, the ruling overruled the 58-year precedent of Plessy v. Ferguson, 163 U.S. 537 (1896), which had permitted racial segregation in public facilities under the “separate but equal” doctrine. While Jackson joined all of his colleagues in the ruling, one feature of the litigation later drew a great deal of attention. Jackson’s law clerk at the time was William Rehnquist, a recent graduate of Stanford Law School — an institution that has turned out a number of legal luminaries, including Sandra Day O’Connor and Warren Christopher.

While he was up for confirmation as Chief Justice in 1986, Rehnquist was confronted with a memorandum he had written to Jackson while the court was pondering the Brown case, in which Rehnquist urged upholding the Plessy doctrine of racial segregation. Jackson did not buy into it, nor did the senators who questioned Rehnquist 32 years later. The aspiring chief justice tried to retreat by claiming he was merely acting as a “devil’s advocate,” but he had a difficult time shedding the taint of that advocacy.

Jackson was replaced on the High Court by John Marshall Harlan II, a conservative who was the grandson of an earlier justice of the same name – the man who happened to be the only dissenting jurist in the Plessy case.

Jurisprudence aside, Jackson proved in the Nuremberg trial — and in the movie — that his role in bringing a modicum of justice to Nazi barbarism was a singular achievement, as depicted in the book by Minneapolis author El-Hai. As for psychiatrist Kelley, he went on to a distinguished career as a professional author, educator, and host of a forensic science television program.

But he proved to be fallible when he met a tragic end on New Year’s Day 1958 by emulating his Nazi antagonist, Göring: he committed suicide by ingesting potassium cyanide.

The “Nuremberg” movie, Justice Jackson’s role in it, and the cases he decided before and after it, are worthy of consideration, even without any Oscar awards.

More Perspectives columns

PERSPECTIVES POINTERS

Books About Justice Jackson

“Robert H. Jackson, A Life In Judgment” by G. Edward White

“America’s Advocate” by Eugene Gerhart

“Advising the President” by William Casto

“Robert H. Jackson: New Deal Lawyer” by Gail Jarrow

“The Actual Art of Governing: Justice Robert Jackson” by Gerard Magliocca

Marshall H. Tanick is an attorney with the law firm of Meyer, Njus, Tanick, Linder & Robbins, PA.