Political Campaigns | From Moving into the Dirt Line

"The Lost Charm of the Rule of Law. Or: What Did the Berlin Wall Guard Trials Achieve?" is the title of an article I wrote in 2002. Seven years after its publication, it would have an unexpected impact. It was in the fall of 2009 when Kerstin Kaiser, leader of the Left Party in the Brandenburg state parliament, asked me if I could take on the office of Minister of Justice in a coalition government of the SPD and the Left Party in Brandenburg. I asked for time to consider it. I was aware that my GDR biography would attract many critics.

I sought advice from Gustav Radbruch, who, as the first Social Democratic Reich Minister of Justice, had been subjected to hostility, and whose Reichstag speeches I had edited for the complete edition of his writings. Shortly after taking office in 1921, Radbruch was asked what he thought of the attacks that were directed against him immediately after his inauguration. He replied that it had been clear to him from the start that he would not be spared insults: "Anyone who takes on such an office is moving into the dirty line." So I was prepared, I thought. Moreover, in the context of my work as a criminal defense attorney, several judges urged me to accept the offer. They hoped for more expertise at the top of the ministry, which had previously been headed by a teacher with a CDU party membership card. I agreed.

Afterward, I attended several regional Left Party conferences to present myself and my platform. The main topics were to include, among other things, the reform of the penal system, a law on the implementation of preventive detention, and the preservation of district courts throughout the country. On the way to one such event in Cottbus, I heard my name on the car radio. The passage quoted was from the article on the rule of law, which stated that the term "unjust state" is an unscientific, moralizing, dismissive term, a vulgar apostrophe. According to representatives of the associations of victims of injustice in the GDR, this sufficiently disqualified me for the position of Minister of Justice.

The intensity of the defamatory campaign that now began surprised me. But it was precisely the CDU, the coalition partner spurned by the SPD for the new legislative period, that had chosen the politics of the past as the main focus of its attacks on the formation of a red-red coalition.

The Märkische Allgemeine Zeitung (MAZ) kicked things off the next day, October 30, 2009. They were at least fair enough to print my telephone response – "If a professor from Munich had written the article, nobody would have cared." Otherwise, the then chairman of the Junge Union Brandenburg (Young Union of Brandenburg), Jan Redmann, now chairman of the Brandenburg CDU and its parliamentary group in the state parliament, was allowed to act as the spearhead. Appointing Schöneburg would put the cart before the horse, he stated in the MAZ. He demanded that Minister-President Matthias Platzeck (SPD) block my appointment because I would glorify the injustices of the GDR.

I knew my GDR biography would attract criticism. However, the intensity of the defamatory campaign still surprised me.

From then on, the phrase "Schöneburg's appointment would be a slap in the face of the victims of the GDR regime" made the rounds. It was most prominently expressed by the then-serving Interior Minister and former general Jörg Schönbohm (CDU) under the headline "GDR Injustice Denier Becomes Minister" (BZ from Springer Publishing). Incidentally, four years later, the penal system bill I introduced to the state parliament, which is geared toward the rehabilitation of prisoners, was again "a slap in the face of the victims" for the CDU.

In all likelihood, the protagonists of this political campaign hadn't even read my article, let alone understood it. For Dieter Dombrowski, the general secretary of the Brandenburg CDU, I had at least justified the unjust GDR regime in it (Taz). Dombrowski told the RBB television magazine "Brandenburg aktuell" that I was an "imposition and disgrace for the country," which the print media picked up on (Tagesspiegel and MAZ). Elsewhere, he insinuated that I had not yet broken away from the ideology of the Institute for State and Legal Theory, where I had worked for years (Welt). Unlike my father, I had never worked at that institute.

The Brandenburg CDU leader, Johanna Wanka, even called my appointment as minister the "completion of a taboo" (Berliner Zeitung). It was unacceptable "to expect our lawyers and public prosecutors to have someone like that as their highest authority" (Berliner Morgenpost), she fumed. Hans-Peter Goetz, the FDP parliamentary group leader, also found my nomination "unbelievable." Anyone who didn't view the GDR as a state governed by injustice and the Berlin Wall trials as undemocratic had no place in a cabinet (Welt). The then director of the Berlin-Hohenschönhausen Memorial, Hubertus Knabe, even went so far as to say that I was "a danger to the rule of law" (Taz).

A writer for the "Tagesspiegel" summarized in his commentary: Since Schöneburg downplays the charges against the Berlin Wall guards and denies that the GDR was a state of injustice, this makes him unsuitable for the office of Minister of Justice (Tagesspiegel). Erardo Rautenberg (SPD), then Brandenburg's Attorney General, also entered the fray. In a guest commentary (Tagesspiegel), he attested to my having critically examined the criminal law response to the "systemic injustice" of the GDR at a high academic level. But ultimately, the "Berlin Wall guards" were rightly prosecuted. In this context, the same representative of the Junge Union let the cat out of the bag: This was not a legal discourse, but a political position (Welt).

I did, however, receive public support from legal historian Uwe Wesel. He characterized my essay as "very intelligent." He argued that the "Wall Guard Trials" had certainly proven problematic. The GDR was not a constitutional state. However, one could not describe it as a state governed by injustice—as the Nazi regime did (in the "MAZ" and "Taz"). Halina Wawzyniak, a member of the Bundestag for the Left Party, called the actions against me a "smear campaign."

The pressure had an effect. Tensions were brewing among the Social Democrats. The vice president of the Brandenburg Higher Regional Court, himself aspiring to even greater heights, tried to convince the SPD leadership of my unsuitability. According to press reports (Tagesspiegel, Spiegel online), the SPD sounded out the Left Party to see if they were willing to abandon the personnel proposal. Even new state elections were discussed (MAZ).

Subsequently, a few days before the government was formed, I received a call from an influential comrade in my party. He hesitated, then suggested that I withdraw from the candidacy. His reason: to avert damage to the office. An alternative was already available. I replied that that was out of the question for me. If the party no longer considered me viable, they would have to withdraw me. Shortly thereafter, these plans were over. At a meeting of the Left Party, Helmuth Markov and Anita Tack, who were slated to head the Ministry of Finance and the Ministry of the Environment, respectively, declared that they would not be available for a ministerial post if I were to withdraw.

I told the Tagesspiegel newspaper that I had nothing to reproach myself for. A constitutional state also includes academic freedom. "I will not allow myself to be denied the opportunity to criticize the Berlin Wall Guard Trials – like other criminal lawyers." Moreover, the CDU's statements were almost impossible to surpass in their mendacity. Before my election as a state constitutional judge in 2006, I had also introduced myself to the CDU parliamentary group. I had submitted a list of publications, including the incriminating essay. During my introduction, Interior Minister Schönbohm explicitly asked me about the topic of a state governed by the rule of law. I replied that I rejected such sweeping categories as "state governed by the rule of law" or "victor's justice," but that this did not preclude criticism of the law. I was subsequently elected as a constitutional judge with the votes of the CDU.

Meanwhile, Minister President Platzeck commissioned then-Finance Minister Rainer Speer (SPD) to speak with me. All concerns were quickly dispelled. Speer made a corresponding statement to the press (BZ and Lausitzer Rundschau). This made it clear that the SPD would support me after all (Potsdamer Neueste Nachrichten).

Two episodes are worth mentioning. On November 6, 2009, the state government was sworn in in the Brandenburg state parliament. When it was my turn, the CDU parliamentary group sat down en masse in protest. A unique act in the state's history. Three days later, on November 9, I took over the ministry. My article on the rule of law had been circulated within the ministry. My predecessor from the CDU, who had personally congratulated me on my election as a constitutional judge, refused to hand over the ministry. Her state secretary also left.

It fell to a department head to introduce me to the position at the staff meeting in front of the RBB cameras. Her reluctance, even disgust, was palpable. As I delivered my speech, I was faced with a motionless staff, whose managers came almost exclusively from the western part of the country. Only one, the head of the constitutional law department, whom I knew from my work as a constitutional court judge, dared to congratulate me. He would later pay for it under his anti-communist department head.

In response to this "affair," the Brandenburg Ministry of Justice and the "Forum for Judicial History" organized an academic conference in June 2010 entitled "GDR: Unjust State – or What?" Renowned scholars such as Ingo Müller, author of the groundbreaking book "Further Jurists," and legal sociologist Hubert Rottleuthner gave presentations. A conference report was titled "Lawyers Know No Unjust State" ("Neues Deutschland" also reported on the Potsdamer Neueste Nachrichten). However, the protagonists of the campaign against me showed no interest in the findings obtained there.

This campaign, led by the CDU, was a mixture of cold-blooded power calculations, ideological bias, political intrigue, ignorance, half-truths, and mendacity. The violation of personal rights was collateral damage they accepted.