He had to refer very emphatically to the doctrine of nulla poena sine lege. Only in Russia, China, and some small Cantons of Switzerland did this doctrine not apply. He would again study carefully the opinion mentioned by the Reich Minister of the Interior. The Reich Ministry of Justice would then, for its part, prepare an opinion and send both opinions to the Reich Ministers for their information.
State Secretary Dr. Meissner said that the statements of the Chancellor were entirely correct from a political perspective. The public was right in demanding a severe punishment for van der Lubbe.
The Reich President [Hindenburg], however, might twice suffer severe qualms of conscience, namely, if he were to sign an order prescribing the death penalty, etc., and then again if he were to decide later on to pardon the condemned man. He asked that the Reich Chancellor, the Reich Minister of the Interior, and the Reich Minister of Justice [Gürtner] submit the matter to the President before there was a final decision by the Cabinet.
Reich Commissar Dr. Popitz stated that he was afraid that the Reich Supreme Court [Reichsgericht] would not recognize the validity of a retroactive order prescribing the death penalty.
The Chancellor stated that he would get in touch with the President of the Reich Supreme Court about this.
It was expected that the Chancellor would first speak alone with the President concerning the matter.
[ . . . ]
Source of English translation: Minutes of the Conference of Ministers on March 7, 1933. In United States Department of State, Documents on German Foreign Policy: From the Archives of the German Foreign Ministry. Washington, DC: United States Government Printing Office, 1957-1964. Series C (1933-1937), The Third Reich: First Phase, Volume 1: January 30 – October 14, 1933. Document Number 54, pp. 113-19. (English translation attributed to the U.S. Department of State Division of Language Services and edited by the GHI staff.)
Source of original German document: Niederschrift über die Ministerbesprechung am 7. März 1933. In German Foreign Ministry, Akten zur Deutschen Auswärtigen Politik, 1918-1945. Göttingen: Vandenhoeck und Ruprecht, 1971. Series C: 1933-1937. Das Dritte Reich: Die Ersten Jahre. Volume I, 1: 30. Januar bis 15. Mai 1933. Document number 54, pp. 112-17.