Denial [Movie Tie-in]

by Deborah E. Lipstadt

  Anthony’s office had the familiar chaos of a creative mind at work. Papers covered every available surface and books on art, literature, history, and law filled the shelves. A photo of his four young children stood out on his desk and a poster of the Eliot book hung on one wall. In the far corner of the office a framed newspaper with the headline “Princess Wins Record Libel Settlement” described Princess Diana’s lawsuit against a London paper shortly before she died. It was the only indication of his famous client. At the bottom of the page the princess had placed a card embossed with her monogram with a personal note: “Another victory for the eminent lawyer.”12

  As I was taking it all in, a young man with curly dark hair, a full build, and an open demeanor appeared at the door. The minute he said, “Welcome,” I recognized James’s voice. If Anthony looked like a young professor, James looked like a graduate student. While we waited for Anthony, James told me he had graduated from Leeds University, where he studied Arabic. He had spent time in Israel and had joined the firm in 1993. He and Anthony frequently worked together. He had an easygoing, kind, and unpretentious style. I also sensed that, when necessary, he could be tough. Once Anthony arrived, we plunged into discussion of what lay ahead. As we spoke, James took copious notes. Anthony took none.

  On the following day, Professor Evans, a compact man of medium build, with dark hair, craggy features, and an intense look—at first glance it seemed like a scowl—joined us. Born in 1947, Evans came from a lower-middle-class family. He attended Oxford and was an expert on nineteenth- and twentieth-century German history and historiography. After reading his book, In Defense of History, a challenge to postmodernist critiques of history, both Anthony and I were convinced he was the right choice for lead witness. The book argued that the past “really happened, and we really can, if we are very scrupulous and careful and self-critical . . . reach some tenable conclusions about what it all meant.”13

  I tried—without much success—to make small talk with Evans. He seemed guarded, reserved, and even a bit ill at ease talking to me. Only when I mentioned other historians did he loosen up a bit. He was a man of very decided opinions—many of them quite critical—about other historians’ work. After about an hour, we were joined by Thomas Skelton-Robinson and Nik Wachsmann, two graduate students Evans had hired to help with the research work for his report. Born in Germany, Nik, in his late twenties, had first-class honors degrees in History from the London School of Economics. He was writing his Ph.D. dissertation on prisons in the Weimar Republic. Thomas, a Brit who had lived in Germany for over five years, had graduated with honors from Glasgow University and was writing a dissertation about the student movement in West Germany in the late 1960s. He was quiet and listened more than he spoke.

  Anthony asked me to brief them. I stressed that I stood firmly behind what I had written and predicted that their research would prove that Irving had falsified documents. Evans listened closely, but said little. He seemed a bit skeptical. When I talked about Irving as an antisemite and racist, he looked downright uncomfortable. I suspected that he thought me a hyperbolic, American, Jewish woman who was more an ideologue than an open-minded historian. As far as he was concerned, even though he would be our expert witness, the jury on Irving was still out. According to British law the allegiance of expert witnesses is to the court not to those who are paying them. They were to present an objective evaluation of the evidence. However, I worried that our lead witness was beginning his efforts with a decidedly ambivalent attitude toward me and my work. Though I did not doubt that Evans’s research would ultimately prove me correct, I left the meeting more than a bit disheartened.

  The next afternoon, Evans and I walked to the University of London to hear the historian John Lukacs discuss his new book, The Hitler of History, which severely castigated Irving for his depiction of Hitler. Lukacs condemned Irving as an “apologist,” “rehabilitator,” and “unrepentant admirer of Hitler” who twisted documentary sources. Lukacs criticized reviewers who gave him “qualified praise.” Had they inspected Irving’s sources they would have found his work replete with “unverifiable and unconvincing assertions.”14 After the lecture Lukacs told me that Irving had written to his agent, threatening to do to any British publisher who published his book what he was doing to me and to Penguin, UK. His publisher was watching my case and would, Lukacs said, decide what it would do based on what happened to me. I told Evans that if Irving was able to cow me into settling with him, other authors would fear criticizing him and no publisher would publish anything critical of him. Evans listened but said little.

  By May 1998, the date of my next visit to London, Anthony and Penguin had hammered out the terms of a joint defense. Penguin would carry all the “shared costs” and pay for any expenditure relating to both parties, including experts, barristers, and researchers. I still faced substantial expenses, but this agreement lifted a major burden from me. Their insurer would pay their bills. Anthony pointed out that, if, at some point, the insurer balked and Penguin had to assume some of the expenses, they had immense pockets and could treat these expenditures as business expenses. Then he added, “I told them that if they wanted access to you, they had to accept this arrangement.”

  One evening a few members of the legal team gathered for an informal dinner in Soho. We were joined by Richard Evans and Chris Browning, both of whom would be serving as our expert witnesses. Browning was in London testifying for Scotland Yard at the war crimes trial of Anthony Sawoniuk.15 A tall, broad-shouldered, and long-limbed man in his mid-fifties, Browning looks like he belongs on a basketball court more than in an archive. He has rugged features, a wide smile, and a full head of straight hair that seems to be perennially falling in his eyes. He had testified for the Canadian government against Zündel’s claims that the Holocaust was a myth.

  Exceptionally well liked by historians in this field, Browning had recently become ensnared in a nasty academic debate. In his book Ordinary Men: Battalion 101, Browning had argued that the German killers were motivated by a combination of factors. In addition to antisemitism, Browning believed their actions were influenced by their deference to authority, social conformity, and peer pressure. His conclusions had been vigorously attacked by Daniel Goldhagen in his controversial book Hitler’s Willing Executioners. Goldhagen contended that a uniquely German form of eliminationist antisemitism motivated the killers. In other words, Goldhagen considered the killers “ordinary Germans,” while Browning considered them “ordinary men.”16

  At dinner, Browning asked Anthony if he planned to call survivors as witnesses. When Anthony said probably not, Chris recalled that Zündel’s lawyer questioned the survivors on topics with which they were least familiar. “He had let them twist in the wind as long as the judge allowed it. He seemed not to be searching for truth, but for humiliation. It was a horrible ordeal for both the survivors and for the spectators.”

  Evans, who had spent the past two months analyzing Irving’s work, began to talk about some of his findings. “Irving’s veneer of respectability slips away as you do the research.” He admitted that he was surprised by the number of distortions he and his researchers, Nik and Thomas, had already found. “There are simply too many for them to be mistakes. And they always seem to move in one direction: exoneration of Hitler.” I recalled Evans’s skepticism at our first meeting, a few months earlier. Emboldened by his current assessment of Irving’s work, I suggested that, instead of arguing that David Irving is a sloppy historian or bad historian, he posit that he was not a historian at all. Evans dismissed this out of hand. “It is an absurd semantic dispute to declare someone who has written two dozen books about history not to be a historian. No jury will accept it.”17 He said this with a finality that seemed to brook no debate. I thought Evans was wrong, but I did not challenge him.

  As James walked me to my hotel after dinner, I told him I was worried about a jury. Might jury members assume that Irving was simply an iconoclastic and somewhat wacky historian? Might
they share some of Irving’s negative sentiments about Jews and other minorities? Drawing on my legal knowledge, most of which was gleaned from television’s Law and Order, I added that certainly the lawyers would know which jurors to eliminate through peremptory challenges. James’s response was sobering. “We have no peremptory challenges in Britain. The court calls 12 people and that’s your jury.” Once again I felt as if I had been bushwhacked by a legal system not my own.

  SECOND DISCOVERY: A GOLD MINE

  Throughout the summer, the lawyers pored over Irving’s discovery list consisting of nearly fifteen hundred items. I was struck not only by its volume but by the number of items that seemed totally unrelated to our case, including reviews of his book, a videotape of the birth of his daughter, and even something on the assassination of JFK. There was also material that seemed to be connected to a case Irving was preparing to bring against the journalist and historian Gitta Sereny, who in 1996 had written a critical review of his book Goebbels: Mastermind of the Third Reich. The lawyers took note of those irrelevant items because, as James explained, the loser pays costs. “Eventually we will bill him for the time spent reviewing materials which had no connection to our case.” I noted—but hardly shared—James’s optimism.

  The lawyers did something of far greater importance. They prepared an application for a second set of discovery materials. They included all of Irving’s correspondence with leading Holocaust deniers, antisemites, and neo-Nazis. James explained that they were not sure he had actually corresponded with all those on the list they had composed but they figured they would ask and see what it produced. They also requested access to his collection of video- and audiotapes and his personal daily diary. We assumed the diaries would reveal his connections with radical extremists. The tapes would indicate what he said to his admirers away from the media glare.

  A pretrial hearing was scheduled for September 1998. The lawyers were scheduled to present our application for these additional materials. I asked Anthony whether I should attend. He said no. My presence might give Irving an inflated sense of importance and make him less inclined to drop the case. I reluctantly agreed.

  Pretrial hearings are presided over by a “master,” whom James described as a sort of junior judge. Our master was John Trench. I told James that, given the nature of this case, Charles Dickens could not have chosen a more appropriate name. As we anticipated, Irving assiduously fought our application, complaining that this was a “fishing expedition” to force him to disclose his “stock-in-trade.” Trench initially seemed sympathetic to Irving and questioned the broad sweep of materials we were requesting. Anthony argued that since Irving was suing me, I had the right to defend myself. In order to prove that I was justified in calling Irving a right-wing ideologue and antisemite, we were obligated to examine more than the historical materials he used in his books. The hearing stretched from one day into the next. James called during the breaks to update me. “Irving is fighting tooth and nail. He described this action as part of a global conspiracy against him and argued that the ‘enemies of truth’ were out to destroy him.”

  Despite Irving’s protests, Trench eventually acceded to virtually all our requests. It was such a sweeping victory that even Anthony, who generally maintained a studied reserve, allowed more than a trace of excitement to creep into his voice as he summarized the results for me. James did not try to contain his excitement. “We had a fantastic day in court. Irving will have to strip his files bare. A great burden has been placed on him.” Trench also took the unusual action of requiring Irving to sign an affidavit that his discovery was complete and compelled him to pay for the costs of the work entailed in the discovery application.

  Though Irving’s diaries promised to produce a gold mine of material, our right to inspect was strictly limited. Only the lawyers and experts could see them. No one else, myself included, could inspect them. While this stipulation protected Irving from having strangers troll through his personal life, it did not offer him complete sanctuary. Any material we introduced into court became part of the public record. I speculated that surely this would make him drop the case, if only to prevent his private material from being made public. James’s response was sobering: “At one time I would have agreed. Now, after months of dealing with him, I am not sure.”

  At the end of our conversation James told me that Anthony, who rarely engaged Irving in conversation, had approached him during the hearing and said in friendly tones, “This case is too complex and intricate to be heard by a jury. Don’t you think it should be heard by just a judge?” Irving agreed. Anthony told Trench that both sides wanted a bench trial. I was delighted. A jury was unlikely to carefully read and digest the reams of detailed historical material the experts were preparing. A judge would more easily wrap his or her mind around some of the tedious and complex historical and scientific arguments. Because there would be no jury, we did not have to make “emotional” arguments but could concentrate on the heart of the matter: forensics and history. I wondered why Irving had agreed. James speculated that Irving may have been pleased to be involved in a case Anthony Julius considered “complex and intricate.”

  A few weeks later Irving asked Trench to order me to sign an affidavit attesting to the honesty of my discovery procedure. Trench agreed. James believed that he did so because Irving was representing himself. He assured me that it was no big deal. I could complete the affidavit at the British embassy or a consulate. I was leaving for Washington on the next day and decided to go to the British embassy, a campuslike setting adjacent to the vice president’s residence. A clerk in a drab antechamber gave me the forms, demanded $52 in cash, and asked me to wait. Finally, I was ushered into a wood-paneled room dominated by a large, ornate wooden desk. A tall man introduced himself as a “vice consul.” He removed a book, a small velvet bag, and a round container from a wooden cabinet behind his desk. He asked me to stand, place my hand on the book, and swear that I had faithfully executed the form. I was so startled by this process that only after I finished did I realize that I had probably taken an oath on a New Testament. The vice consul removed a small seal with a worn wooden handle from the velvet bag. He opened the container, dipped the seal into red sealing wax, and pressed hard on the document. This relic from centuries past rather amazed me, as did so many other unfamiliar twists and turns that were coming at me from the British legal system.

  TRYING TIMES

  As word of my legal difficulties spread, I began to hear from the Neinsagers, the doubters, in the scholarly community. “Why are you doing this?” they asked. Their comments perplexed me. Why would anyone question the reason I was defending myself? I explained I was the defendant, had not initiated the case, and was not “doing” anything to anyone. One of the leading Holocaust historians told me that my biggest mistake was in not ignoring Irving’s charges. When I explained that I didn’t have a choice, that if I didn’t fight Irving would win, the response was “So what?”

  There were also some British Jews who worried about my staging a strong defense. One prominent member of the community told me that Irving would get a new lease on life from this case. Some of these doubters feared that Anthony Julius was a Svengali of sorts, orchestrating my tough stance. They warned me that I would turn a has-been author into a media personality. I understood their fears and tried to convince them that I had no other option, but I was deeply unnerved by their comments. Anthony told me to ignore them. “They are wrong. We are right.” A trial, he acknowledged, might give Irving a platform, but we would use that platform to decimate his historical fantasies. James, on the other hand, found these suggestions demoralizing in light of the hard and productive work that was being done on the case.

  I was particularly upset when a prominent Jewish lawyer in London declared, “Settle. You might have to pass on getting Irving to admit there are gas chambers, but that would be worth avoiding a trial.” Unable to fathom signing a statement that “passed” on the gas chambers, I was about to ask wha
t he thought should be my bottom line. Four million Jews murdered? Three million? One set of gas chambers? Two? Before I could formulate the words, Anthony interceded: “We will not negotiate with an antisemite on historical truth.” I said nothing but felt exceptionally well represented. I thought back to the Eliot book. Antisemites, irrespective of their standing in the broader world, were scoundrels and with scoundrels one does not compromise.

  Reporters were beginning to ask about the case. In early 1999, over lunch in a small Bloomsbury bistro, I asked Anthony to delineate the topics I should avoid when talking to the press. He looked up from his salad and declared, “All of them. If you don’t talk, most reporters will then drop the story, thereby denying Irving publicity and making him more likely to drop the case.”

  Later that night, I called good friends and told them that Anthony wanted me to keep silent and that I was thinking it over. Joe, an experienced litigator, observed that Anthony was not suggesting what I should do. He was instructing me. I protested that I was used to talking to the press. “I do it well. It’s silly not to use my talents.” Joe’s wife, Amelia, a psychologist who knows me very well, interjected, “Deborah, you hate taking orders from anyone. Anytime. Anywhere.” I laughed, acknowledging that her evaluation was, as the British say, “spot on.” I recalled that according to family legend my first phrase was “Me do it.” We were about to hang up when I said—more to myself than to them—“So much is on the line. And I, who love to lead, must cede control to someone else. I hate that.” After a moment’s pause, I added, “This is hard, excruciatingly hard.”