History on Trial
Deborah Lipstadt opens up about the libel case that pitted Holocaust scholarship against denial.
by Michael Berenbaum
“History on Trial: My Day in Court With David Irving,” by Deborah E. Lipstadt (Echo, 2005) $25.95.
For five excruciating years, from the moment that David Irving sued her for libel in England until the appeals process ran its course, Deborah Lipstadt had to remain silent. Others defended her scholarship and revealed the deceitfulness and deliberately misleading nature of Irving’s writings. But Lipstadt would not, did not take the stand in her own defense.
Lipstadt is a contemporary women not known for her reticence. Silence was hard on someone who prides herself on fighting her own fights — but it was necessary. Now, finally, she speaks freely.
It all started in 1993, when Lipstadt wrote “Denying the Holocaust: The Growing Assault Against Memory and Truth,” a book which described Holocaust denial in our age. A few paragraphs were devoted to Irving, the most informed, original and therefore most dangerous of Holocaust deniers.
Irving could not bring action against Lipstadt in the United States, because as a public figure, the burden was on him to prove that Lipstadt engaged in reckless disregard of truth — a near impossible task — since what she said was true. In England, the burden of proof is reversed. So when Penguin published the book in England, Irving sued both the author and publisher in London.
Lipstadt wrote that Irving was “a Hitler partisan wearing blinkers, who distorted evidence, manipulated documents and skewed and misrepresented data,” and that “Irving seems to conceive himself as carrying out Hitler’s legacy.”
She considered him a dangerous Holocaust denier. As the court determined in 2000, Lipstadt was not wrong, merely understated.
Perhaps Irving thought that Lipstadt would back down, issue a pro forma apology and settle for a symbolic sum. As the trial neared, he asked for a pittance — 500 pounds — to go to charity. Perhaps he thought the potential liability would force the parties to back down.
Lipstadt could not back down. To concede would be to accept defeat, inflict injury upon Holocaust survivors and desecrate the memory of the dead. She had to take a stand to preserve her standing, her dignity and her values.
The lawyers decided that the case would not be tried in the court of public opinion in the press, but in a courtroom. The trial was held before Judge Charles Gray — without a jury.
The press fury Irving induced as he played to them for months allowed his side of the story to be ubiquitous, while Lipstadt was silent. In the end, it was up to the judge to deliver a decisive, clear judgment.
What did Lipstadt do during five years of public silence?
As a blind person may hear more clearly; a deaf person see more intently, one who is muted may listen more carefully.
Lipstadt proves to have the keen eye of a journalist, observing the setting, the demeanor and even the fashion style of everyone from the court clerk to the judge and her barrister. She writes with a novelist’s sense of plot, so that while the reader is led through the entire trial, from first accusation to final vindication, the major story is never lost in the details. She doesn’t tell everything — but she does convey the drama, the anguish and the wealth of emotions that were her day-in, day-out experiences.
She writes without self-pity, but the reader is likely to pity her restraint. For those who did not follow the trial day by day, this book is fascinating reading that gives one a sense of what it was really like to sit there, to see the nature of the evidence, and see how strategic decisions were made.
In the end, all drama aside, the judge understands and renders the clearest of judgments by unmasking the pretense and politics of Irving’s pseudo-scholarship and the racism and anti-Semitism of his beliefs. And the plaintiff, Irving, plays his role to perfection, exceeding even our fondest wishes for him, by destroying himself in public. In defeat, his sting is diminished.
As Lipstadt writes, she did not stand trial alone. Her book is a tribute to those who stood by her. She is the first to recognize their importance, their competence, generosity and dedication.
Her brilliant and dedicated legal team included Anthony Julius, a fine lawyer and literary scholar, who wrote a doctoral thesis on T.S. Eliott’s anti-Semitism, and was a proud Jew known as Princess Diana’s divorce lawyer. His partner, James Libson, and his law firm, Mishcon de Reya, were prepared to take the case pro bono. They recruited Richard Rampton, a distinguished London barrister, to try the case after they prepared it. He, too, was prepared to work pro bono.
In the end, adequate funds were raised for the defense from Leslie and Abigail Wexner, Steven Spielberg, William Lowenberg and other Jewish philanthropists. Rabbi Herbert Friedman, whose distinguished career began as a U.S. Army chaplain working with soldiers and survivors and working with Bricha, organized the fund-raising effort discretely. (For the record, I was honored to assist him.)
The American Jewish Committee stepped in without seeking credit or publicity. Ken Stern, a lawyer and an authority on Holocaust denial, masterfully ran its efforts. Emory University, where Lipstadt is the Dorot Professor of Modern Jewish History and Holocaust Studies, stood by her and gave her paid leave. Others taught her Holocaust course; friends visited, called, e-mailed and supported her through the long ordeal.
Scholars were recruited: Richard Evans of Cambridge, a superb historian and an expert on historiography, read each of Irving’s works and then checked and double-checked the original documents Irving cited and his translations — a tedious and increasingly loathsome task, as the depth of Irving’s deceit became clear.
Christopher Browning of the University of North Carolina, a worthy successor of Raul Hilberg as the leading authority on German documents, worked on German documentation of the “Final Solution.” Robert Jan Van Pelt, a Canadian of Dutch origin, an architectural historian who wrote brilliantly of the gas chambers of Auschwitz and who reads German documentation, testified on gassing at Birkenau.
Peter Longerich, a German living in England, analyzed the work of the Einsatzgruppen in former Soviet territory in 1941-42. Hajo Funke examined Irving’s association with neo-Nazis, Holocaust deniers and racist groups; the speeches he made, and the manner in which he played to his crowd.
Evans examined Irving’s footnotes and documentation. Their findings were devastating to Irving.
The team’s scholarship became contributions to the historiography of the Holocaust. Evans’ case became an extended discourse on how historians should read documents and reach their learned conclusions, an expression of historiography at its best — that demonstrated the most egregious violations of the cannons of the profession. The books that emerged from this team have added significantly to our knowledge of the Holocaust in clarity and in depth.
No survivors were called as witnesses, no Israelis. The trial was designed to be a trial of documents — an added benefit, since we are approaching the day when the last survivor will leave this earth and living memory will become the stuff of history. To those who feared that this natural development of time would put the memory of the Holocaust at risk, the trial proves otherwise.
Lipstadt is entitled to gloat, but does not. She understands the importance of her vindication — and its limitations. The British press was nasty, seeing it as a battle of class — an English gentleman against an American Jewish woman upstart Some barely concealed their anti-Semitism, and sometimes they confusingly presented the trial as an issue of free speech.
In our world, where rumor and innuendo parade as fact and insight, there is a tendency to believe that in every squabble there is some truth to each side and a basic laziness to uncover the truth. At least in England, Lipstadt was spared cable’s Court TV spinning.
Anyone who opens this book will be gratified by Lipstadt’s vindication. But what was all-important was the unmasking of Irving. He may have made the greatest contribution to that himself by bringing the suit in the first place, defending himself and then destroying himself.
Irving was the superstar of Holocaust deniers, and now he is known as the racist and anti-Semite who deliberately misread and mistranslated documents toward one end, the exoneration of Adolf Hitler. This case — and this book — prove that good scholarship can beat bad scholarship, and that even in our age of relativism and deconstructionism, there is a difference between good history and fraud.
Michael Berenbaum is director of the Sigi Ziering Institute: Exploring the Ethical and Religious Implications of the Holocaust and an adjunct professor of theology at the University of Judaism.