"Irving v. Lipstadt" Trial for Movie Theaters, Part II

Published: 2015-10-10

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Irving v. Lipstadt Trial for Movie Theaters, Part II 2015-10-10 David Merlin Smith's Report, no. 216, October 2015, pp. 5-7

(…continued from SR 215)

Ms. Alison Thompson
Mr. Mark Gooder
Cornerstone Films, c/o Sunray Films
12 Sunray Avenue Herne Hill
London, SE24 9PY
[email protected]
Tel: +44 (0)758 033 758

September 30, 2015

Re: The movie Denial and the historical facts of the Irving Trial

Hello Ms. Thompson and Mr. Gooder:

Two months ago, I e-mailed you a letter regarding factual and personal aspects of Deborah Lipstadt’s book, History on Trial; Lipstadt’s account of her long vendetta with author David Irving, which culminated in a defamation action. The action was tried in a London court in 2000 before Judge Charles Gray. My first letter discussed how Irving pulled defeat from the jaws of victory when he failed to focus on actual defamations of him spread by Lipstadt. Instead, Irving made his entire career and personal life the object of this litigation. He single-handedly took on the defendants’ small army of barristers, attorneys, and expert witnesses, and ended up being crushed.

Since your company, Cornerstone Films, is promoting the movie Denial, which is based on History on Trial, and since Denial is supposed to be “a powerful story about the legal and personal battle Deborah Lipstadt fought to defend the veracity of historical facts,” I wished to send a follow-up letter discussing the historical facts at issue at the trial.

Lipstadt and her supporters have loudly proclaimed that the trial “proved the Holocaust.” That is not accurate. Judge Gray specifically stated:

“It is no part of my function to attempt to make findings as to what actually happened during the Nazi regime.”

Irving opened the case telling the court:

“I have never held myself out to be a Holocaust expert, nor have I written books about what is now called the Holocaust.”

The case is better described as a wide-ranging questioning of Irving’s competence as a historian; an ex-post-facto effort to substantiate Lipstadt’s claim that Irving had falsified the historical record.

Judge Gray broke the alleged falsification of historical facts into 4 elements:

“(a) 19 specific individual criticisms of Irving’s historiography…; (b) his portrayal of Hitler… (c) his claims in relation to Auschwitz (d) the bombing of Dresden.”

However, it is worth noting that it emerged at the trial that Irving had made a major contribution to Holocaust research.

The Hitler Order

From the time of the Nuremberg Tribunal, most interpretations of the Holocaust claimed that Hitler had given an order for the mass murder of all Jews, and he directly planned and organized a secret program of mass murder. This is the now-defunct Intentionalist Theory. David Irving’s cardinal role in sinking this theory emerged during his cross-examination of defense expert witness, Christopher Browning.

Trial Transcript-[Professor Christopher Robert Browning]

Battleship Irving sunk by Lipstadt

“I would say that there had been substantial study of the Holocaust; the Trunk book, in terms of the Jewish Council’s, Hilberg in terms of the apparatus, Schloenus in terms of the pre-Holocaust bureaucratic process. What had not been studied before you published was a particular focus on decision-making process and Hitler’s role. That is one part and, in so far as we can confine ourselves to that, indeed, your publication of Hitler’s War was the impetus for the research in that area.”

Even Holocaust doyen Raul Hilberg has been forced to change his view.

Q. [Mr Irving] Do you know what his [Hilberg’s] opinion is on whether Adolf Hitler actually issued an order or not?

A. [Professor Christopher Robert Browning] I think his feeling is if you are looking for an order in a formal sense, that such a thing probably was not given.”

It was not acknowledged during the trial that Irving had made one of the most-notable breakthroughs in Holocaust research.

19 Criticisms

Richard J. Evans, a British history professor, was hired to justify Lipstadt’s comment that Irving, “falsified history.” Evans and his team spent two years examining Irving’s books, papers, personal papers and speeches in painful detail and presented a 740-page “Report” for the defense. He came up with 19 possible errors. Judge Gray discussed the faults of Irving at length. The alleged distortions related to Irving’s presentation of the following events:

1. Hitler’s trial in 1924,

2. Crime statistics for Berlin in 1930,

3. The events of Kristallnacht,

4. The aftermath of Kristallnacht,

5. The expulsion of Jews from Berlin in 1941 (based on Hitler’s War, 1977 edition)

6. Himmler’s log for 1 December 1941,

7. The shooting of the Jews in Riga,

8. Hitler’s views on the Jewish question,

9. The timing of the “final solution” to the Jewish question: the Schlegelberger note,

10. Goebbels’s diary entry for 27 March 1942,

11. Himmler minute of 22 Sept. 1942,

12. Himmler’s note for this meeting with Hitler on 10 December 1942,

13. Hitler’s meetings with Antonescu and Horthy in April 1943,

14. The deportation of the Roman Jews in October 1943,

15. Himmler’s speeches of 6 October 1943 and 5 and 24 May 1944,

16. Hitler’s speech on 26 May 1944,

17. Ribbentrop’s testimony from his cell at Nuremberg,

18. Marie Vaillant-Couturier testimony,

19. Kurt Aumeier testimony,

German Secret Code

Evans’s critique often relied on the claim that the Germans used a “secret code” in their communications. In the trial Evans stated:

“Every time there is an euphemism, Mr. Irving... or a camouflage piece of statement or language about Madagascar, you want to treat it as the literal truth, because it serves your purpose of trying to exculpate Hitler.”

As Judge Gray wrote:

“Much of the argument revolved around questions of translation. I did not derive much assistance from the debate as to how words such as ausrotten, vernichten, abschaffen, umsiedeln and abtransportieren are to be translated.”

Irving Ought to Have Appreciated…

What Judge Gray did fault Irving for was his trusting German sources too much and not trusting contrary stories enough. An example is Gray’s criticism of Irving’s portrayal of Hitler’s role in the 1923 Putsch:

“Irving ought to have appreciated that Hofmann’s allegiance to Hitler rendered his testimony untrustworthy”.

Regarding Irving’s reporting of Berlin crime statistics:

“[Irving] chose to cite, without qualification, the claim made by Daluege, a committed Nazi, that in 1930 a strikingly large proportion of the offences of fraud were committed by Jews. Daluege’s enthusiastic membership of the Nazi party together with his activities on the Eastern front during the war should have led Irving to doubt any pronouncement of his affecting the Jews.”

And regarding Kristallnacht and the testimony of Bruckner, Schaub, von Below, Hederich and Futkammer:

“…in my view he ought to have approached their accounts with considerable scepticism…”

On the other hand, Gray had great faith in what he called “Vaillant-Couturier’s vivid, detailed and credible evidence about the women’s camp at Auschwitz.” Of course Vaillant-Couturier was in Birkenau and her testimony was that:

“[W]e saw the unsealing of the cars and the soldiers letting men, women, and children out of them…. To render their welcome more pleasant at this time—June to July 1944—an orchestra composed of internees, all young and pretty girls dressed in little white blouses and navy blue skirts, played during the selection, at the arrival of the trains, gay tunes such as “The Merry Widow,” the “Barcarolle” from “The Tales of Hoffman,” and so forth. They were then informed that this was a labor camp, and since they were not brought into the camp they saw only the small platform surrounded by flowering plants.”

Gray did admit, in the face of numerous examples presented by Irving:

“The possibility exists that some of these witnesses invented some or even all of the experiences which they describe.”

However, he still ruled against Irving.


Judge Gray also ruled against Irving on the basic of “context.” Regarding the Schlegelberger note:

“I consider that, in the light of all the surrounding circumstances and in the light of subsequent events, it is (to put it no higher) very doubtful if the Schlegelberger note is evidence of a wish on the part of Hitler to postpone the Jewish question until after the war,…

Irving’s perception of the importance of the note appears to take no account of the mass murder of the Jews which took place soon afterwards.”

Likewise Gray ruled that Irving’s claim was in error that Hitler’s 1943 intervention regarding Roman Jews was for their benefit:

“…the Roman Jews were sent to the notorious concentration camp at Mauthausen where they were at the mercy of the SS. I also take the view that it was a culpable omission on Irving’s part not to inform his readers that these Jews were ultimately murdered.”

His Portrayal of Hitler

Much of the trial revolved around Irving’s claims that Adolf Hitler was “a friend to the Jews.” This was a non-starter with Judge Gray. He wrote:

“Irving’s submissions on this topic appear to me to have a distinct air of unreality about them.”

There were discussions if Hitler’s private chauffeur was Jewish, or whether Hitler was kept in ignorance of the manner in which Heydrich and Himmler were setting about solving the Jewish question. Ultimately, Judge Grey found “that Hitler was rabidly anti-semitic from the earliest days… He spoke, in his famous speech of 30 January 1939 and on other occasions, in the most sinister and menacing terms of the fate which awaited the Jews.”

The Bombing of Dresden

The issue of the bombing of Dresden related to various statements Irving made regarding the number of deaths in the 1945 bombing in public speeches and in Irving’s book The Destruction of Dresden, published in 1963. The defense claimed Irving overstated the death toll in the bombing, and attacked Irving’s reliance on the Tagesbefehl No. 47, a German document on the number of casualties caused by the Dresden bombing. Gray found that Irving should have been more suspicious of the document.


The issue that attracted the most attention were comments made by Irving, “namely that no gas chambers were commissioned or operated at the camp and that in consequence no Jew lost his or her life in gas chambers there.” Defendants claimed that “that almost one million Jews were put to death in the gas chambers of Auschwitz” and that “500,000 Jews were killed in morgue 1 of crematorium 2” i.e. in one particular room.

The defendants hired Dr. Robert Jan Van Pelt, a professor of architecture, as their expert on the functioning of the eight alleged gas chambers at Auschwitz. (There were also numerous rooms for clothing fumigation at Auschwitz and Birkenau.)

Simply put, Van Pelt testified that Morgue 1 of Crematorium 2 could have been used as a gas chamber. It was here that Irving was overwhelmed. He raised only two objections to Van Pelt’s testimony about Crematorium 2, and nothing about any of the other “gas chambers.” It was a very poor performance.

(to be continued…)

Additional information about this document
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Author(s): David Merlin
Title: "Irving v. Lipstadt" Trial for Movie Theaters, Part II
Sources: Smith's Report, no. 216, October 2015, pp. 5-7
Published: 2015-10-10
First posted on CODOH: Oct. 10, 2015, 6:46 a.m.
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