Photo: The alleged ring leader of the coup attempt in Germany, Prince Heinrich XIII, being arrested during Reichsbürger raid on Wedneday, 7 December.

“Create A Way To Reverse Burden Of Proof”: What’s The Reichsbürger Raid Really About?

According to the German Ministry of Interior, the Reichsbürger raid in the early morning of 7 December was the “largest anti-terrorist operation in the history of the Federal Republic of Germany”. More than 3,000 officers were involved and 25 people were arrested. They are accused of planning to overthrow the government. But what was the real danger of an imminent coup? What is the Reichsbürger raid really about?

Right on the same day of the raid, the German Minister of Interior Nancy Faeser went on the ARD talk show Maischberger to announce she wanted to change the law to “get rid of enemies of the constitution more quickly”:

“Of course you have to take a close look (on the subject of suspected “Reich citizens” and right-wing extremist officials) and that is of course the danger that we want to get out of the public service as quickly as possible. I am currently in the process of changing the disciplinary law so that we will get rid of such enemies of the constitution more quickly,” Faeser told her host, Sandra Maischberger.

German Minister of Interior, Nancy Faeser, speaks to Sandra Maischberger on the ARD talkshow Maischberger.

Taken by itself, the statement could easily be interpreted as an attempt by the Minister to strengthen the law, when in fact, the very opposite is being planned that would mean nothing short of turning the rule of law on its head in Germany.

As early as March 2016, Faeser told the Bundestag she wanted to to“reverse the burden of proof” for suspected cases of right-wing extremism. She was responding to a question on a new “action plan against right-wing extremism” that her Ministry had announced that same month.

Faeser explained the essential idea of the action plan, which is to “create a way of reversing the burden of proof” for suspected cases of right-wing extremism:

“Those who represent the state must be those who not only act on the basis of the Basic Law, but also have a special role model function (…) It is all the more important that we remove extremists and enemies of the constitution from the public service quickly be able (…)We want to change that, especially in disciplinary law and probably also in civil service law, so that, for example, something that has been on my mind for a long time, is to create a way of reversing the burden of proof. That is, if there are facts, then the person must also prove that it is not the case, instead of the state always (sic!) having to prove, very complicated, that there are other reasons why it is not constitutional.”

In the press release, the Ministry of Interior explained the plan – “an effective bundle of short-term effective repressive and preventive measures” – in drastic language:

“We will smash right-wing extremist networks. We will investigate and stop the financial activities of right-wing extremist networks. We will consistently disarm right-wing extremists. We will resolutely combat hate speech on the internet in order to dry up the breeding ground for hatred and violence. We will remove enemies of the constitution from public service. We will invalidate conspiracy ideologies, promote a democratic culture of debate and do more to prevent radicalization.”

Speaking in the Bundestag on 8th December, one day after the raid, Minister Faeser reiterated her plans to change the law. The burden of proof should be reversed so that the state does not “have to prove the guilt of the accused in a complicated manner”.

In other words, Germany wants to abandon the presumption of innocence when prosecuting suspected cases of right-wing extremism. This is the fundamental principle of common law which guarantees a fair trial for all. What does this mean?

Take the Alternative für Deutschland (AfD) party, for example. The party is currently under observation from the Office for the Protection of the Constitution for suspected right-wing extremism. As the law currently stands, the burden of proof is on the Office, which must successfully prove the accusation that the AfD is engaged in right wing extremism. Until that happens, the AfD is innocent until proven guilty.

A foretaste of what could happen to the AfD if Faeser’s plan to “create a way to reverse the burden of proof” were to come through was provided by a statement from SPD politician Lars Klingbeil, who called for harsh consequences for the party:

“The AfD belongs nationwide on the watch list of the Office for the Protection of the Constitution and not in parliaments, courts or the public service,” Klingbeil told the DPA news agency.

“The raid have again shown a close connection between the violent right-wing extremist scene and the party. The AfD is an “openly anti- constitutional party” that acts as a “parliamentary interface for hatred, hate speech and violence.”

The Green Party leader, Ricarda Lang, also said that an AfD ban should not be taboo.

“Reverse Burden Of Proof”: What Would Happen?

With Faeser’s plan to abandon the presumption of innocence, all that would possibly suffice to ban the AfD – a party elected to the Bundestag with 12.6 % in 2017 and 10.3 % of national votes in 2021- would be for someone, or the Ministry of Interior, to simply accuse the AfD of right wing extremism without having to prove the accusation. The burden of proof would then be on the AfD to prove that the accusation is not true, until which it would be presumed guilty.

Take the instructive case of Birgit Malsack-Winkemann, Berlin judge and former member of the Bundestag for the AfD who was arrested in the raid last Wednesday. Apparently, Malsack-Winkemann was planned as Minister of Justice and was supposed to pave the way for the alleged putschists to enter the Bundestag.

In May 2022, the senate administration applied to the judges’ service court to fire Malsack-Winkemann – a judge for life in Berlin – “in the interest of the administration of justice”, because of her alleged “right-wing wing extremist” statements during her mandate for the AfD. After her mandate in the Bundestag ended, she returned to her previous court at her own request in March 2022. The service court rejected the application, ruling that “The retirement of a judge must not be based on her statements as a member of the plenary session of the German Bundestag, and “The retirement of a judge presupposes a serious impairment of the administration of justice, which cannot be determined here.”

Guess what saved Malsack-Winkemann? The presumption of innocence, which put the burden of proof on the prosecution, not on the accused. That is why Malsack-Winkemann could not be fired or convicted, because the court could not find any evidence about her alleged right-wing extremism.

The court press release states:

“There are no sufficient facts for this. The statements made by the Respondent in the German Bundestag should not be taken into account in the assessment from the outset. According to the Basic Law, MPs are never allowed to a statement in the Bundestag can be prosecuted by a court or official. This constitutional protection against persecution is retained after the end of the mandate and also extends to the retirement procedure. Something else applies to extra-parliamentary behavior by a member of parliament that raises doubts about standing up for the free democratic basic order. The fact that the respondent is a member of the AfD alone does not allow such conclusions. In the specific case, neither the statements made by the respondent on Facebook and Twitter nor the existence of photographs showing the judge with members of the so-called wing of the party were sufficient.”

Without the presumption of innocence, the court might well have ruled to fire Birgit Malsack-Winkemann from her job as a Berlin judge. Whatever Malsack-Winkemann’s statements on social media, the court could not find “sufficient facts” to convict the former AfD politician. She was not guilty of anything, apart from having criticized government policy.

This illustrates perfectly the enormous danger of Faeser’s plans to “create a way to reverse the burden of proof” for suspected cases of right-wing extremism. The result would not be more justice, but none.

Remarkably, in the lawsuit against Malsack-Winkelmann, the Berlin Senator for Justice even ignored how the constitutionally protected rights of members of the Bundestag would disqualify the lawsuit from the very start. The court’s press release points this out in no uncertain terms:

“The statements made by the Respondent in the German Bundestag should not be taken into account in the assessment from the outset. According to the Basic Law, MPs are never allowed to a statement in the Bundestag can be prosecuted by a court or official. This constitutional protection against persecution is retained after the end of the mandate and also extends to the retirement procedure.”

Political Persecution Made Easy As Cake?

In practice, Faeser’s plan to reverse the burden of proof would make the ideal tool of political persecution against right-wing critics of the government. Pure assertion would be enough for successful prosecution, when for now, that is exactly what remains impossible thanks to the presumption of innocence. That is also why the Office for Protection of the Constitution has not been able to ban the AfD, despite well-documented reports of right wing extremist networks operating freely within the party.

Former party leaders Bernd Lucke and Frauke Petry cited right wing extremist networks within the party as one of the main reasons they left the AfD. Former AfD co-chair and federal spokesperson, Jorg Meuthen, who left party in January 2022, also attributed his resignation to the party’s shift to the “very far to the right”.

“The party’s heart is beating very far to the right today, and permanently at an elevated rate,” Meuthen said. “I do see quite clear totalitarian echoes there.”

Reacting to the resignation of Jorg Meuthen, former AfD member Alexander Leschik who left the party in 2021 described how the radical right wing members of the party – also known as the Flugel (wing) – has transformed the AfD over the years. “After today’s exit of Jörg Meuthen from the AfD, the last remaining red lines and walls of fire are falling there. Also the last moderate members must now realize that the wing has not been dissolved, rather the AfD became the wing,” he wrote on Facebook. Leschik, a self-described ‘moderate’ within the AfD, describes how the wing has become an unstoppable force within the party in his book, Im Bann der AfD, which he co-wrote with another former member of the AfD, Nicolai Boudaghi.

Former AfD member, Alexander Leschik, reacts to the resignation of AfD co-chair and federal spokesperson, Jorg Meuthen, in a post on Facebook. In a statement, Meuthen said he was leaving the party because it had shifted “very far to the right”. “The party’s heart is beating very far to the right today, and permanently at an elevated rate,” Meuthen said. “I do see quite clear totalitarian echoes there.”

The raid and the ‘action plan against right-wing extremism’ are not two separate events. They are part of a plan to construct the political arguments to ban the AfD – the biggest thorn in the shoes of the German government.

After a long downward spell which saw the party consistently losing its share of vote in state elections since its breakthrough to the Bundestag in 2017, the AfD is again polling high thanks to the energy crisis which is estimated to result in biggest loss of prosperity in Germany since the post-war period. Recent polls show the party at healthy double digits percentages in the range of 12-15 % in certain regions, not far behind the parties in the federal coalition government. For the Scholz government, just like in the Merkel government, the recurring popularity of the AfD in crisis time, especially when many of the crisis are the result of political choices, is not just a slap in the face but a real political danger they would rather see gone for good. While the AfD lost votes in the 2021 federal elections, it has still managed to secure a solid 10 percent of the vote, despite the odds stacked against it.

In a few more years, it is not impossible for the party to participate, or at least indirectly contribute to forming a government at the state or federal level. Already in February 2020, the AfD was able to make its political weight count in the formation of the state government in Thuringia, when Thomas Kemmerich was elected Prime Minister on February 5, 2020 with votes from the AfD.

Short of being able to fix the problems it has created out of thin air, the Scholz government is going for the more convenient path of changing the law to suit its purpose: to outlaw the AfD by “reversing the burden of proof”. But this is not just about the AfD, it is about the very existence of the rule of law and democracy in Germany. Everyone is concerned. Once the government has created the legal means to reverse the burden of proof, just about anything is possible.

Among AfD politicians, the political message of the raid has been duly received: one day, it could be their turn and it could be very ugly. Even with the presumption of innocence still in force, the suspects were presented in front of the camera during the arrest with their full names and unpixelated pictures to prejudge them in a de facto political show trial. This is a clear violation of the presumption of the innocence that gives an idea of what might be in store if Faeser’s plans to reverse the burden of proof were to come to fruition.

Raid or Media Spectacle?

The official story of the Reichbürger raid is that it was a secret operation. However, as details emerge about how numerous politicians and media were already informed about the supposedly secret operation two weeks in advance, it is beginning to look like the Ministry of Interior deliberately arranged for a media spectacle. The fact that Spiegel, Bild and other media reported live shortly after the start of the raid shows that media was deliberately organized here to dramatize the operation and danger of the putschists. The first articles on the raid in Bild and Spiegel were not reports, but background pieces which were clearly written in advance. It is unthinkable for the media to be informed before an anti-terrorist operation, especially when it is about “the largest anti-terrorist operation in history against the Federal Republic”, because that would jeopardize the success of the operation against the allegedly so dangerous “terrorists. Unless the terrorists were not really dangerous.

Numerous politicians were also informed of the secret raid, which is again extremely strange for a secret operation against what is allegedly the greatest conspiracy in history against the Federal Republic.

“The plans for the raid were classified as secret by the Federal Public Prosecutor,” Left MP Martina Renner criticized the raid in an interview with broadcaster ntv.

“I myself have known about it since the middle of last week and I also know of several media who have been aware of it for two weeks,” explained Renner, who was given details of the names of the suspects, their addresses and the planned time of access before the action.

“But secrecy is difficult if you give the target persons and times beforehand,” Renner complained.

If the operation was secret, why did the Ministry of Interior organize for the media to be present live for the raid? Isn’t secrecy paramount before such operations? What was the objective? What was the real objective of the lurid headlines about the “coup d’état” that was just prevented? Was the story was staged to intimidate other critics of the government? If danger was imminent, why didn’t authorities keep the operation secret?

The role of the media in the supposedly secret operation is especially intriguing. Did the media allow themselves to be used for a PR stunt by the Federal Minister of the Interior just before she prepared to announce forthcoming changes in the law for a more “tough stance” that would entail reversing the burden the proof for suspected cases of right wing extremism?

Was the plan to embed the media in the story to make it subsequently impossible for them to question the official, ready-made interpretation of the raid? Was it to make it difficult for them to criticize the purposed necessity of the radical changes in the law that the Minister planned to pass in the wake of the raid?

The synchronicity of events is at least noteworthy. On 7 December, the day of the Reichsbürger raid, Minister Faeser alluded to forthcoming changes in the law in a Twitter post: “Militant citizens of the Reich share hatred of democracy, our state and people who stand up for our community. That is why we are taking action against such efforts with all the consistency of the rule of law. We will continue this tough pace.”

Dangerous Putschists or Naive Fools?

If the official story is to be believed, the alleged putschists are dangerous bigots who could have destroyed the German Republic. The only problem is that the plotters never posed a real threat. Rather, the coup was a poorly planned stunt by a group of pensioners and cranks who barely had the means to execute their plans. One of the arrested suspects is a card reader, another a cook. The leader is a romantic Duodez prince and the rest mostly small business owners and a few former members of the police and army. At worst, they might have infiltrated the Bundestag and even taken a few politicians hostage, but they would have been quickly eliminated. The weapons seized consisted of a few dozen hunting rifles and pistols have been presented, along with crossbows and blanking guns. That was apparently the material for the imminent coup.

As the dust begins to settle, the official story of the greatest conspiracy against the German Republic is turning out to be non-story.

The real story is yet to come, and that will be about what happens to the AfD if Faeser manages to “create a way to reverse the burden of proof.”

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