An Undeniably Interesting Case
By SETH STERN
HISTORY ON TRIAL
My Day in Court with David Irving
By Deborah E. Lipstadt
368 pages. Ecco Press. $25.95.
It’s been more than five years since an English judge found Emory University historian Deborah Lipstadt innocent of libeling David Irving in a case that officially branded him as a Holocaust denier. At this point, there isn’t much new to say about the trial or its plaintiff, whom Lipstadt referenced in her 1993 book on the Holocaust denial movement.
The trial garnered international media attention, attracting the hordes of paparazzi usually associated with the British royal family. It was already the subject of two books published in 2001, including one by British historian Richard J. Evans, a man Lipstadt’s defense team hired to deconstruct Irving’s books. HBO even reportedly commissioned a movie about the case starring Anthony Hopkins as Irving.
So why this book? Generally speaking, the defendant usually isn’t the ideal candidate to write a trial’s definitive objective history. Well, there are plenty of good reasons to read History on Trial. It’s a compelling blow-by-blow narrative that began a fall day in 1995 when Lipstadt received a letter informing her of a possible libel action that she tossed aside with barely a second thought.
Of course, as events would prove, that wasn’t exactly how things unfolded. Irving may not have had the facts on his side but he did have British law working for him—at least at the outset.
In British courts, defendants in libel cases must prove the statements at issue are true. That puts libel plaintiffs in a much better position than in the United States, where the burden is placed on them to prove the statements they claimed injured them are false.
Lipstadt was fortunate that her case attracted the sympathies of deep-pocketed backers including Leslie Wexner, founder of The Limited and Victoria’s Secret chains, who could afford to offset more than $1.5 million in legal bills should would rack up. She assembled a dream team of historians and attorneys, who included Princess Diana’s divorce lawyer.
History on Trial offers a fascinating window into trial strategy. From the outset, her defense team pledged not to let the case become a platform for Irving to question whether the Holocaust happened. Instead, they built a case designed to show that even his previously well-regarded books were filled with duplicity and errors that always pointed in the same direction: questioning the Holocaust and favoring Hitler.
Then there are the trial scenes themselves, in which her barrister, Richard Rampton, eviscerates Irving one piece of evidence at a time. In just one of many aspects of British law that might seem arcane to American readers, different lawyers prepare the case and present it at trial.
True, you will have to wade through a few too many references to what wines she and her lawyers drank and how she unsuccessfully sought to unwind at night. (Note to readers: Don’t watch The Sound of Music or The Merchant of Venice to escape a trial centered on Nazis and anti-Semitism.)
But she largely keeps up the suspense even though most readers know well the outcome. The way Rampton boxes Irving into a corner with his evasions reads better than a Grisham courtroom scene. The way Lipstadt tells it, every word Rampton couldn’t recall while cross-examining witnesses, and every averted gaze, served a purpose. Or at least that’s what he told Lipstadt to calm her nerves.
It also helped their cause to have such a foolish opponent, who proved true the old adage that “he who represents himself has a fool for a client.” No responsible lawyer would tell her client to proceed with this sort of libel case. Lipstadt’s lawyers got their hands on Irving’s personal diaries, in which he describes singing racist ditties to his daughter and details speaking engagements before Aryan groups. He also must have known that his previously published books about Nazi Germany could not withstand serious scrutiny.
But Irving just couldn’t pass up such a prominent soapbox, which ultimately proved his undoing. The trial judge’s sweeping decision ruined Irving’s reputation and ultimately left him bankrupt. The British legal system gets at least one thing right in a case like this: Loser pays.
In the years since, Irving has been reduced to a sniveling bigot with little reach beyond his own website, but larger questions raised by the trial still linger.
What’s nearly as disturbing as Irving and his neo-Nazi supporters was the tendency of legitimate historians to defend him in the name of protecting free speech or brush him off as merely quirky. Why were Lipstadt and her team of historians criticized for the potentially chilling effect they might have on academia rather than Irving, who was the one who actually instigated the whole matter in the first place?
Lipstadt blames an old-boy network in which British academics, such as military historian Sir John Keegan, were more apt to sympathize with a sloppy and self-taught colleague with the right accent than an uppity Jewish-American female.
Sadly, the end of the trial did not bring an end to Holocaust denial. In fact, Lipstadt points out, it seems to have received a new lease on life in the Arab world.
Seth Stern is an attorney and a legal-affairs reporter for Congressional Quarterly in Washington, D.C.