By physically eliminating the leaders of the remaining opposition (after Communists, Social Democrats and many other political opponents were arrested and interned in concentration camps), Operation Hummingbird solved a crucial political problem of the Nazi regime (and of Hitler personally). And thus cleared the way for the radical reengineering of Germany.
However (as it happens all the time), it created another problem. A serious problem. A very serious problem. A potentially murderous problem (in a very literal sense). A legal problem.
Contrary to a very popular misconception, even after the Enabling act was passed by both houses of the German parliament and signed into law by Reich President von Hindenburg, Germany still operated under a system of laws – even the Weimar Constitution was legally in force (sans articles temporarily suspended by the Reichstag Fire Decree and the Enabling Act).
Consequently, Hitler and his co-conspirators (and Operation Hummingbird was a conspiracy to commit mass murder – cut and dry, loud and clear, plain and simple) had no legal right to execute their victims without a trial (i.e. without due process).
Consequently, they violated the penal code of the German state. Which from the legal perspective meant that they had just committed a capital crimes, for which they must be immediately arrested, charged, tried, convicted, sentenced to death and promptly executed (being civilians – by guillotine).
Obviously, no one had the real power to arrest these criminals; however, Adolf Hitler desperately needed his regime to look legit as then threat of military action by the French (who obviously had a very dim view of mass murderers in power in Germany) was still a very scary possibility.
Consequently, something had to be done – and done quickly – to take care of this potentially catastrophic problem. As it happens all the time, no one gave any thought to this problem until it arrived in full force.
Hence, the initial actions of the conspirators were… well, not exactly smart or even creative. Hermann Göring (Minister-President of Prussia) instructed police stations on July 2nd to burn “all documents concerning the action of the past two days.”
Reich Minister of Propaganda Josef Goebbels tried to prevent newspapers from publishing lists of the dead. Predictably, it did not work (at that time his ministry did not yet have a complete control over the media) so he had no other choice but to describe (in the radio address) how Hitler and his team had narrowly prevented Röhm and Schleicher from overthrowing the German government.
It did not work well either, so ten days later, on July 13, 1934, Hitler had to justify the mass murder in a nationally broadcast speech to the (now purely decorative) Reichstag:
If anyone reproaches me and asks why I did not resort to the regular courts of justice, then all I can say is this. In this hour I was responsible for the fate of the German people, and thereby I became the supreme judge of the German people.
I gave the order to shoot the ringleaders in this treason, and I further gave the order to cauterize down to the raw flesh the ulcers of this poisoning of the wells in our domestic life. Let the nation know that its existence—which depends on its internal order and security – cannot be threatened with impunity by anyone! And let it be known for all time to come that if anyone raises his hand to strike the State, then certain death is his lot.
There were, unfortunately, two fundamental problems with this address. First, it was a blatant lie as it was perfectly clear no one “raised his hand to strike the State”.
The second problem was far more serious – while the propaganda value of that speech was unquestionably immense, its legal value was exactly zero. Nil. Zilch. Nada. In other words, Hitler et al. were still vicious criminals who had just committed a capital crime. Which in any independent court of law guaranteed the death sentence.
So something still had to be done to solve this problem (i.e. make the mass murder legally sanctioned) – and fast. Adolf Hitler chose the simplest and (as usual) the most radical solution.
He simply had his cabinet pass the “Law Regarding Measures of State Self-Defense” (the Enabling Act of 1933 gave him the necessary power). This law, which consisted of a single sentence, retroactively legalized the murders committed during Operation Hummingbird, adding a legal veneer to the massacre.
This sentence was written by Reich Justice Minister Franz Gürtner, a conservative who had been Bavarian Justice Minister in the years of the Weimar Republic but was eager to demonstrate his loyalty to the new regime.
Germany’s legal establishment further capitulated to the Nazis when the country’s leading legal scholar, Carl Schmitt, wrote an article under a characteristic title “The Führer Upholds the Law” defending Hitler’s July 13th speech.
However, not everyone in the legal community agreed – several local prosecutors did try to press charges against the murderers. Not surprisingly, the Nazis rapidly quashed these attempts and the brave lawyers lost their jobs and sometimes even their freedom.
There was, however, one more problem to be solved. A huge problem (in terms of numbers). A three-million-men problem. What the hell to do with the Sturmabteilung?
The first decision was obvious – Hitler made the abovementioned Viktor Lutze (fiercely loyal to him) the new head of the SA. His primary objective (that he diligently fulfilled) was to transform the stormtroopers into what Hitler (and the Reichswehr) wanted – a training organization. In other words, its primary (and practically only) function was now to train all able-bodied men for Wehrmacht and Home Guard units.
The SA was radically downsized – in just a year its membership plummeted by more than 40%. In four years it declined even further – from almost 3 million in August of 1934 to just 1.2 million in April of 1938. With the start of World War II in September 1939, the SA predictably lost most of its remaining members to military service in the Wehrmacht.
Another function of the SA (this one was outright criminal) was persecution of the Jews (to make it omnipresent, the Nazis needed numbers). It was the primary perpetrator of the “November pogrom” (the Kristallnacht) on November 9-10th of 1938 and thus bears the lion’s share of responsibility for destroying about 200 synagogues (constituting nearly all Germany had), many Jewish cemeteries, more than 7,000 Jewish shops, and 29 department stores. And, of course, of about 100 Jews killed during the pogrom.