A man named Trenker and the “following orders” defense

Yes to liberty and justice. Yes to standing up for what’s right, for defending those who are being falsely prosecuted or persecuted. Yes to addressing our constitutional crisis. No to false memes.

Jun 11, 2025

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Recently, there’s been an onslaught of memes and posts with the topic: “Following orders” did not work as defense for the Gestapo in Nuremberg. Smart, intelligent people are spreading this meme.

The only problem: That defense did indeed work for the Gestapo. Sadly. Wholly against the German constitution as it existed during the duration of the Third Reich. Adolf Hitler may have assumed powers not delegated to the executive branch in 1933, he may have been enabled to create legislation and imprison people as he pleased. But by and large, Hitler left the Weimar constitution intact.

That constitution, in turn, incorporated tremendous chunks of the Prussian constitution, as well as the Bavarian constitution that drew much substance from the Prussian version.

The “superior orders” defense consisted of two separate principles.

1) If a superior, e.g., the king or a general, gave an order that had political ramifications, but that was not a felony offense, the subordinate could indeed claim “superior orders” as his defense.

2) If a superior, e.g., the king or a general, gave an order that was known to violate criminal statutes, “superior orders” provided no cover for the subordinate who executed that order.

Specific examples:

A1: If the king told his Minister of Commerce to shut down the newspaper of a person who opposed the king’s policies, and the Minister did so, the newspaper publisher could not sue the Minister for damages. The Minister was merely following orders.

A2: If the king told his Minister of Commerce to murder the newspaper’s editor, and the Minister did so, “superior orders” provided no defense, because murder is a felony.

B1: If the Minister of Education commanded all headmasters to force their teaching staff to join a political organization in order to keep their jobs, those teachers could not sue the headmasters, as the headmasters were following orders.

B2: If the Minister of Education commanded all headmasters to burn down the homes of teachers who would not join a specific political organization, those headmasters could not claim “superior orders,” since arson is a felony offense.

In A1 and B1, recourse would be against the king or the Minister of Education, not those who followed their orders. In A2 and B2, recourse would be against the Minister of Commerce and the headmasters, because although they followed orders, they knew that those orders were criminal acts.

This had been law in Germany since the 1870s and continued to be law in Germany through 1945. The principle had been tested in June 1921 during the Leipzig War Crimes Trial. At the time of the offense, the criminal acts in question had not been covered by the Geneva Convention. Therefore the military men who claimed they were following orders were acquitted. In accordance with the German constitution.

The Dostler trial in 1945 put this principle to a strenuous test.

In March 1944, Anton Dostler — Infantry General of the German 75th Army Corps — received notification from subordinates that fifteen U.S. soldiers had been captured in Italy. They had been tasked with blowing up a railway tunnel.

After their capture, they were interrogated and held as prisoners of war. Colonel Almers reported their mission to General Dostler, who in turn forwarded the information to Field Marshal Kesselring. Kesselring ordered the execution of all fifteen men. Dostler passed that order along to Almers.

Almers attempted to stop the execution, recognizing that the murder of POWs contravened the Geneva Convention. Dostler insisted. Almers again refused. Dostler doubled down on his insistence, pointing to Hitler’s executive order from 1942 (“Commando Order”), which mandated the execution of all would-be saboteurs, POWs or not. One of Dostler’s subordinates had refused to sign off on Dostler’s order and was dishonorably discharged from the German army for his courage. His name: Alexander zu Dohna-Schlobitten.

In 1945, Anton Dostler had the ‘good luck’ of being the first military man to stand trial in Nuremberg. He attempted several defenses.

He had not personally carried out the executions. That was Colonel Almers, not he.
He had not decided to execute the men on his own. That order had come from his boss, Field Marshal Kesselring. Kesselring was to blame, not he.
He was only doing what Adolf Hitler, commander-in-chief, had demanded in his executive order.

Dostler had one big problem. Executing POWs directly contravened the Geneva Convention. His actions therefore were not protected by the “superior orders” defense.

Understanding that they would face this defense repeatedly, the prosecutors for the Nuremberg trials established “principles of international law” by which they carried out their work. Principle IV stated that:

The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.

Because of this “principle,” it would be easy to infer that the prosecutors who tried cases in Nuremberg did in fact reject the “following orders” defense. That would be a false inference.

Those mostly-wise prosecutors followed both common sense and international law in that ruling. Mass executions, killing POWs, burning down towns and villages, torture, murdering civilians in cold blood — those crimes are covered by international law and were covered by international law when Germans “followed orders” and did what their superiors told them to do. The “following orders” defense therefore was rendered immediately moot when a defendant had violated international law.

But “regular” acts of war? Not subject to prosecution. Therefore Anton Dostler was convicted in his trial and executed by firing squad. But Fritz Hartnagel, who had been a captain in the German army and commanded his signal corps unit in Stalingrad, was certainly arrested in the summer of 1945, yet was never tried before any court. The orders he followed were normal for wartime, even though death may have resulted from his actions. He did not contravene the Geneva convention or break international laws or commit felony offenses.

Which brings us to the Gestapo and these unfortunate memes.

The most influential Gestapo agent connected with White Rose interrogations was a man named Othmar Trenker, aka Alfred Trenker. Trenker had been a regular Gestapo agent in the early years of the Third Reich, a simple “assistant commander” at a very young age.

His work with the Munich Gestapo resulted in a promotion to deputy chief of the Gestapo in Posen (Poznań) in Poland. In that capacity, he worked with SS-Sturmführer and Kriminalrat Herbert Lange in the development of the “gas vans” used to murder Jews in Poland before extermination camps were established for that purpose. Though he tried to improve his image in the eyes of his superiors, there were problems with the gas vans in his district, causing the operation to be scrapped.

Between the end of his assignment in Posen and March 1944, he acted as a “roving ambassador” for the Gestapo, filling in where his special talents were most needed. It was probably during this time that he resurfaced in Munich, perhaps following a mission in Vienna.

In March 1944, Trenker received the promotion of a lifetime, placed in charge of Gestapo headquarters in Budapest. Officially Trenker retained his designation as an employee of Reich Security Bureau IV A 3, supposedly concentrating on apprehending “all men known for their hostility to Hitler, transferring them to Germany” for trial. Off the books, Trenker cooperated with Adolf Eichmann in the liquidation of the Jewish population in Hungary.

He did such a good job in Budapest that when arrests were made in connection with the “July 20, 1944” resistance movement, Kaltenbrunner (supreme head of the Gestapo in greater Germany) personally requested that Trenker be reassigned to Berlin.

Again Trenker proved himself beyond his bosses’ expectations. He demonstrated that he could get confessions from the most recalcitrant sinner. His torture of Peter Graf Yorck von Wartenburg became the stuff of Gestapo legend, though he deemed such work too menial for his exalted rank. After all, he was a Hauptsturmführer and Lieutenant Colonel. “Torture” was something the grunts took care of.

During a 1988 interview with Alexandre Szombati, Trenker was asked how he could have tortured people. He replied, “They are ‘people’ to you? Criminals who tried to assassinate the head of State! They got what they deserved.”

After the war, Trenker used his brilliant legal mind to cultivate the defense strategy used by most (if not all) Gestapo agents in the Nuremberg Trials. While imprisoned in the American POW camp at Glasenbach and together with another Gestapo jurist named Siegel, Trenker posited that the Gestapo was nothing more or less than a “publicly and legally recognized police department” that had been incorporated into the Nazi hierarchy, “just as train and postal employees had been.”

Trenker and Siegel managed to formulate their description of the Gestapo’s “duties” in such a way that Reich Security Bureau IV B 4 (the Gestapo bureau that worked out the details of Eichmann’s contribution to the “Final Solution”) was excluded from their narrative. American jurists bought the lie and many of the worst offenders such as Trenker and Schaefer escaped relatively unscathed.

The same mostly-wise jurists who documented the Nuremberg Principles, who correctly assessed war crimes as crimes not justified by “superior orders,” allowed almost all Gestapo agents to escape unscathed. Many Gestapo agents went to work after the war as “regular” police. They suffered no penalties for the egregious harm they inflicted on people for twelve years. Hand-wave. Following orders. Regular police.

I do not understand how the Nuremberg prosecutors allowed Trenker’s arguments to stand. These men had also violated international law. They merely wore a different uniform.

Of the Gestapo agents involved with White Rose interrogations, only Eduard Geith stood trial in Nuremberg. Not for the horrors of his work as a Gestapo agent. But because he murdered two English POWs in cold blood.

A relatively new study of the Austrian Gestapo delves into Trenker’s life and convenient deceptions. See upcoming post on Friday for more about that research. For all the pain, suffering, and death that Trenker directly caused, he got off almost scot-free. His initial conviction was merely for failure to disclose his early membership in the NSDAP!

When people, even well-intentioned people, rewrite historical tropes for political purposes, please be on guard. It’s bad enough when prominent individuals rewrite their personal histories and pretend they were always anti-Nazi, or antifascist, or on the side of justice. Just because they practice historical revisionism does not give us license to bend facts to suit our narratives.

Yes to liberty and justice. Yes to standing up for what’s right, for defending those who are being falsely prosecuted or persecuted. Yes to addressing our constitutional crisis at the top of your lungs.

But NO to using biting memes that are inaccurate or wrong to make your point. We’ve got to be better than that.

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