Steven H. Pollak
At one point, a prominent Jewish lawyer in London approached Emory University professor Deborah E. Lipstadt and urged her to settle the libel case brought by a powerful author who denies the Holocaust ever happened.
Lipstadt, who recounts the incident in her new book “History on Trial: My Day in Court with David Irving,” began mulling over the absurd calculations of such a settlement: Would she ask the plaintiff to accept four million Jews killed? Three million? One set of gas chambers? Two?
Before she could think of a response, her attorney, Anthony Julius of Mishcon de Reya in London, stepped in and said, “We will not negotiate with an anti-Semite on historical truth.”
Lipstadt then did something she rarely does: She stayed quiet.
“I said nothing but felt exceptionally well-represented,” Lipstadt wrote.
Lipstadt, the Dorot professor of Modern Jewish and Holocaust Studies and director of the Rabbi Donald Tam Institute for Jewish Studies at Emory University, has just published a chronicle of her six-year legal battle with David Irving. A well-known British writer of books on the Third Reich and World War II, Irving routinely says things such as “more women died on the back seat of Edward Kennedy’s car at Chappaquiddick than ever died in a gas chamber in Auschwitz.”
The author of more than 20 history books on WWII, Irving became notorious for his assertion that the Holocaust never happened. Such a claim might have been dismissed without attracting attention outside extremist circles, except for Irving’s reputation as a popular historian. Given Irving’s high profile as an author and historian, Lipstadt felt compelled as a scholar to include his dubious claims in her 1993 book, “Denying the Holocaust: The Growing Assault on Truth and Memory.”
Irving responded by suing Lipstadt for libel, claiming the book undermined his professional reputation. Though Lipstadt had to take the suit seriously because of the nature of British libel law, it also gave her the opportunity to debunk the theories of Holocaust revisionists in a public forum.
Irving’s libel case against Lipstadt and her British publisher, Penguin Books, culminated in 2000 with a three-month bench trial and a ruling for Lipstadt in London’s High Court of Justice. The litigation finally concluded in July 2004, when the Emory professor decided not to continue efforts to recover her legal expenses.
At trial, Lipstadt and her legal team delivered a stunning blow to Irving’s reputation. In a decision that made front-page news on both sides of the Atlantic, Judge Charles Gray said it was “incontrovertible that Irving qualifies as a Holocaust denier” and went on to call the plaintiff a “racist” and an “anti-Semite.”
No Friendly Competition
The new book, Lipstadt’s third, is more than a retelling of the case. It brings the trial to life by weaving personal insight and observations with a meticulous recounting of the trial and explanation of legal strategy.
In one aside, Lipstadt described how at the end of the trial when the judge finished reading the stinging decision, Irving stood, stretched out his hand to opposing counsel and said, “Well done, well done.”
It was “as if he had just been bested in a rugby match,” Lipstadt wrote.
The trial, however, was no friendly competition.
In the 1993 book at issue, Lipstadt described Irving as a “dangerous spokesman for Holocaust denial” and said he had been “accused of skewing documents and misrepresenting data in order to reach historically untenable conclusions, particularly those that exonerate Hitler.” She also said Irving frequently associated with anti-Semites, neo-Nazis and other extremists.
Irving, who represented himself at trial, claimed the 1993 book and subsequent remarks by Lipstadt in the press ruined his reputation and caused publishers to retreat from book deals. In particular, Irving wanted to hold Lipstadt responsible for St. Martin’s Press’ backing away from a contract in 1996 to publish his biography of Nazi propaganda chief Josef Goebbels.
In an e-mail to the Daily Report, Irving said he did not wish to comment on Lipstadt’s latest book because he had not read it.
“I have no real comment on the Lipstadt book, and it would be impertinent of me to offer any as I have not read it and cannot do so until it arrives in the UK, when no doubt I and others in this jurisdiction will scrutinise it most closely,” he wrote.
British vs. American
Unlike the American system, British libel law places the onus of proof on the defendant—in this case, Lipstadt.
Therefore, once Irving initiated the suit, the Emory professor had to demonstrate that her published words were true. Lipstadt said the other legal defenses—that Irving misinterpreted her words or that they were not defamatory—were not options. After all, she agreed that Irving had not misinterpreted her allegation that he was a “denier, Hitler partisan and right-wing ideologue.”
In another contrast to American law, British courts do not distinguish between private and public figures.
On these shores, Irving probably would have been considered a public figure and therefore would have had to prove not only that Lipstadt’s words were false but also that her actions involved “actual malice” as discussed in the landmark U.S. Supreme Court case New York Times v. Sullivan, 376 U.S. 254 (1964).
Julius, who served as the architect of Lipstadt’s defense, was already known to much of the British public as Princess Diana’s lawyer. Lipstadt knew of Julius through his book on anti-Semitism in T.S. Eliot’s writings. (The book was a dissertation for a doctoral degree in literary theory Julius earned while working full-time as a lawyer.) James Libson, another Mishcon litigator, assisted Julius in the case.
Lipstadt and her lawyers opted for what was described in the book as the “atom bomb defense” of British libel law: They would claim that Lipstadt was justified in what she wrote because “the words at issue were true, even if they were defamatory.”
In yet another distinction from the American system, the British courts do not grant audiences to solicitors such as Julius and Libson except under rare circumstances. Instead, solicitors must rely on a barrister to present their case to the judge.
For their voice in the courtroom, Lipstadt’s team chose Richard Rampton, an Oxford educated barrister whose earlier work earned him the honored title of Queen’s Counsel.
Rampton also has the distinction of being the barrister who argued the longest civil trial in English legal history (313 days in court over about three years). In that case, Rampton represented McDonald’s in its libel suit against two amateur activists who had been distributing pamphlets portraying the restaurant chain as an enemy of the environment, a promoter of unhealthy lifestyles and a greedy capitalist enterprise.
A pair of Atlanta attorneys appear briefly in “History on Trial”: Kilpatrick Stockton’s Joseph M. Beck helped Lipstadt ensure that she complied with discovery, and Greenberg Traurig’s David N. Minkin discussed the implication of Penguin UK’s counsel inquiring about the indemnification clause of the contract Lipstadt signed with the book’s American publisher.
“When I told my lawyer, David Minkin, that Penguin was asking about the indemnification clause, his eyes opened wide and face grew taut,” Lipstadt wrote. “He seemed to be trying to mask his concerns, but the tension in his voice came through clearly as he explained that Penguin might be contemplating shifting the financial burden of the case to my shoulders.”
To Lipstadt’s relief, Penguin stood by her.
The defense team marshaled an array of experts to prove that Irving manipulated, misrepresented and mistranslated works from a variety of sources—all in an unsuccessful bid to disprove the Holocaust.
On one point—the existence of the gas chambers at Auschwitz and Birkenau—Irving remained firm in his belief that no one was gassed to death in the now-destroyed rooms. He suggested on the witness stand that the gas chamber at Birkenau had been a morgue where the Nazis used Zyklon B to delouse corpses.
But as Rampton grilled him in court and shot holes in that theory, Irving proposed that the room also could have been an air raid shelter for SS guards.
“Now it is an air raid shelter, is it?” Rampton asked.
The barrister then demanded to know why the Nazis would build a bomb shelter several miles from the SS guards’ barracks. According to Lipstadt, the distance is two miles.
“If this is for the SS, this air raid shelter, it is a terribly long way from the SS barracks, is it not?” Rampton asked. “They would all be dead before they ever got there if there was a bombing raid. Have you thought about that?”
Irving stood by his claims, even after the defense team presented reams of other gas-chamber evidence, including accounts from death-camp inmates and SS guards, architectural blueprints, aerial photos and corroborating post-war sketches done by an inmate. The defense also found numerous instances where Irving’s footnotes and sources did not confirm the things he wrote and said.
Why did Irving appear eager to twist the facts? Lipstadt and her legal team pointed to his political affiliations with extremists and said he used his writing to further those views.
Although Irving discounted his association with extremists, his affinity for Nazis came through when he addressed the judge as “mein Fuhrer” during closing arguments.
In his e-mail to the Daily Report, Irving was unrepentant.
“I am not a whinger, and I find this loud and endless whining about The Holocaust and its ‘survivors’ (i.e. people to whom relatively little happened, in comparison with, say, the survivors of Dresden, Hiroshima, or Coventry, or of Iwo Jima for that matter) unattractive; no, not a whinger,” he wrote, using an informal British term for “whiner.” “I am a fighter, and I shall fight on,” he added.
The legal drama in “History on Trial” was alternately comical, sad, absurd and compelling. However, one of the book’s more pointed lawyer moments came not in the courtroom, but at a lunch in Rampton’s office during the second week of the trial.
As the legal team munched on crustless white bread, egg salad and salmon sandwiches, Lipstadt gained insight into a life in the law when she told Rampton about a young paralegal who earlier said she felt like she was “making a difference” at the start of her legal career by working on this case. After the trial, the paralegal told Lipstadt, commercial cases will seem so petty.
Rampton, who had been nursing a glass of French Burgundy, eyed Lipstadt with a quizzical look and said, “But Deborah, that’s true for all of us.”