In the last wild days of the election campaign, the old saying of the index finger came to mind. It comes from Gustav Heinemann, the third Federal President, who was an uncomfortable democrat, a thoughtful lawyer and a committed Christian. In 1968, Heinemann recalled an anatomical and moral fact at a time of intense domestic political disputes and he was still Minister of Justice in Willy Brandt’s cabinet: “Anyone who points with the index finger of general allegations at the alleged instigator or mastermind should consider that in the hand with the outstretched index finger at the same time three other fingers point back at him. “
In these last days of the election campaign, this applies to Armin Laschet and his party friends. The CDU candidate for Chancellor is trying to attach a scandal to his competitor Olaf Scholz – something with money laundering – referring to searches by the public prosecutor’s office in the Federal Ministry of Finance. Yes, there is a scandal, but this scandal is not a Scholz scandal, it is a judicial scandal. The public prosecutor’s office in Osnabrück staged its investigations against the central office for money laundering of the customs in Cologne as follows: it carried a judicial search warrant that it had obtained into the public so unclean and falsified that it had to give the impression that Scholz was being investigated. And that’s not all: When Scholzen’s State Secretary Wolfgang Schmidt tried to correct this impression by presenting the relevant judicial document on Twitter, the Osnabrück public prosecutor’s office personally attacked him with another criminal investigation.
Chief investigator and CDU functionary
Are these just strange coincidences? Or are these actions to deliberately harm the SPD candidate for chancellor or at least approve of such harm? The head of the Osnabrück investigators, i.e. the operator of these actions, is Bernard Südbeck. He is not only the chief public prosecutor, but also a CDU member and CDU functionary, namely head of the CDU in Cloppenburg. Is that a rascal who thinks evil? Regardless of which party public prosecutors belong to, they have to investigate impartially and proceed in a proportionate manner. One can doubt that in the present case.
People interested in history know that by misleading, that by press releases that falsify the facts, you can not only influence an election campaign, but even trigger a war. In 1870, Bismarck had a telegram from the Prussian King Wilhelm I, who was staying in the spa town of Bad Ems, so harshly reformulated as a press release, shortened and then circulated that a rather harmless diplomatic dispute with France turned into a poisonous provocation.
Napoleon III saw in this provocation, as wanted by Bismarck, the reason for his declaration of war on Prussia. The Franco-German war of 1870/71 began with the “Emser Depesche”.
The German election campaign of 2021 certainly does not have such significance and the press release by the Osnabrück public prosecutor’s office is not a miniature Ems dispatch. But the whole thing is a stinky boot. It should also evoke memories of old scandals in which Scholz did not look particularly good.
This cannot be explained by mere zeal for persecution. But prosecutor Südbeck has already attracted attention with such eagerness to prosecute when – as the SZ described it on May 15, 2009 (“Hunting scenes from Oldenburg”), he exceeded his powers to participate in an anonymous criminal complaint.
The law does not serve the election campaign
Not only did Heinemann’s sentence of the index finger come to mind during these Laschet / Scholz / Baerbock days, but also a famous legal lecture: Rudolf von Jhering, a highly learned star lawyer of the 19th century, gave it almost 150 years ago, in 1872 The lecture was entitled: “The Struggle for Law”.
The printed manuscript became one of the most successful legal books ever published in Germany – there were twelve editions in two years; the book has been translated into 26 languages. In this book there is the pithy sentence: “The life of the law is a struggle”; the struggle for justice is “an act of ethical self-preservation”.
Paragraph militarism is not as popular today as it was back then. Nevertheless: If the head of the Osnabrück public prosecutor’s office read the book and approved it, then he misunderstood it. It says: “The law is a struggle”. It does not say: “The law is an election campaign”, nor does it say “The law serves the election campaign”. Since my newsletter last Sunday, there have been a number of pertinent peculiarities that raise suspicions of abuse of the law.
Let’s take a closer look at the matter: The authority responsible for money laundering is called FIU (Financial Intelligence Unit), it is based in Cologne and has been suspected for a long time of not having passed on information from banks or notaries about money laundering to the police and public prosecutor’s office. The FIU originally belonged to the BKA; Scholz’s predecessor as finance minister, Wolfgang Schäuble, then slammed the central money laundering office into customs; it wasn’t lege artis.
Not only banks and notaries, but also the compliance departments of large corporations were amazed time and again that their reports to the FIU fizzled out. In this respect, it was and is first of all to be welcomed that the Osnabrück public prosecutor’s office has been investigating cases since 2020 in which there are concrete indications that the FIU has not investigated the suspicion of money laundering.
Strange, strange, suspicious
It was, of course, a little surprising that the public prosecutor’s office did not simply have correspondence between the FIU and the finance and justice ministries presented by the two ministries. Perhaps the investigators feared that the ministries would not disclose everything on their own initiative.
In view of the long-running investigations, it is remarkable that the public prosecutor’s office only obtained a judicial search warrant so late, namely on August 10, during the hot phase of the election campaign, and then, in the hottest phase, has it carried out two weeks before the general election.
Although this approach had a bit of a joke, it was justified by the fact that the public prosecutor, as the investigative authority, does not have to take into account election campaigns – it may even contribute to the fact that new, weighty facts come to the table that the voters do not withhold in their assessment of the candidates should be.
From then on at the latest, however, it becomes suspect: In its press release, the public prosecutor’s office reports something different about the search warrant obtained by it than this search warrant provides and allows: The press release speaks of investigations also in the direction of the management of the ministries, i.e. potentially against Finance Minister Scholz. However, the judicial decision only allows the search for correspondence between employees of the FIU and those of the Ministry of Finance. This difference was and is serious. With these facts misrepresented by the public prosecutor, Scholz came into the political line of fire.
And now we come from the suspect to the disreputable: Finance State Secretary Schmidt, a very close confidante of Scholz, who points out this inconsistency by publishing excerpts from both documents (i.e. press release and search warrant), is therefore being investigated by the Osnabrück public prosecutor’s office on account of the alleged inspection an offense under Section 353 d of the Criminal Code.
According to this Paragraph 353 d StGB, a fine or imprisonment of up to one year is punished for anyone who publishes essential parts of official documents of criminal proceedings before they have been discussed in public court hearings or the proceedings have been concluded. This penal norm is intended to protect the accused from prejudice and the lay judges who are not given access to the criminal files during the criminal proceedings are to be protected in their impartiality. Even if the penal norm is controversial because it is hostile to the press, the Federal Constitutional Court has so far declared it to be constitutional in its decisions. So far so good.
A bad joke
But who was the first to go public here? It was the public prosecutor’s office with a press release in which they incorrectly reproduced the search warrant! With this inaccuracy, she prepared the public’s bias herself – and the State Secretary’s publication of the search warrant helped to restore the bias. This is not a criminal offense, it is not covered by the protective purpose of the criminal norm. The preliminary investigation is therefore abusive. It also remains an abuse of law if the Osnabrück public prosecutor has now handed it over to the public prosecutor in Berlin. It grew on the dung of the Osnabrück public prosecutor’s office. Armin Laschet should not ammunition with such abuses of law.
Laschet has to watch out for his index finger. The three fingers that point to him indicate that his party colleague has firstly issued a falsified press release, secondly, prosecuting the person who clears it up, and thirdly, it lacks any proportionality. The law may be a struggle. It is not an election campaign.
Every Sunday, Heribert Prantl, columnist and author of the SZ, deals with a topic that will be relevant in the coming week – and sometimes beyond. Here you can also order “Prantls Blick” as a weekly newsletter – exclusively with his personal reading recommendations.