No, Pope Francis hasn't changed Vatican law during the financial trial
Analysis
As the Vatican financial trial continues towards its second day of evidentiary hearings later this month, media attention on the Vatican’s legal process has continued with scrutiny falling especially on the role of Pope Francis in authorizing various stages of the judicial process.
Among many Church watchers, Vatican correspondents, and even senior churchmen, arguing variously for and against the prosecution of the 10 defendants on trial in Vatican City, it has now become common to reference the pope’s supposed interference in the judicial process, and to concede that he has “changed the law” as the trial has progressed.
But is this true? Did the pope change the law while the trial was underway?
In a word, no.
The argument that Pope Francis has changed Vatican procedural law, or authorized it to be ignored, during the Vatican trial came into common currency during the seven months of preliminary hearings which opened the trial.
Beginning in July last year, lawyers for the defendants filed various procedural objections, trying to persuade the judges to dismiss the case — the judges rejected those motions last month.
But what about these four rescripts people keep talking about?
Among their objections, defense lawyers in the Vatican trial repeatedly cited four rescripts issued by Pope Francis — executive acts which grant special legal authorizations. But, while those rescripts have been often referenced in media coverage of the trial, their actual provisions have not been widely discussed.
The first of the four executive orders was signed by Francis in July 2019, in direct response to a complaint raised by the IOR, a Vatican bank, which had come under pressure from the Secretariat of State to approve a 150 million euro loan to bail the secretariat out of the mortgage it had acquired along with the now famous London building at 60, Sloane Ave.
“The amount of the sum, and the purposes for which it should be disbursed, must be carefully assessed in terms of legitimacy and lawfulness, as well as to verify full compliance with current currency and banking regulations,” the pope said, but to do this “requires that the investigations to be carried out by the Institute itself can be carried out with the utmost rigor and the utmost confidentiality in order to protect the best interests of the Holy See and the State.”
The pope then authorized the “derogation” from Vatican law which defense lawyers have complained showed the pope interfering in due process:
Noting that the IOR is meant to conduct proper due diligence investigations on such loan requests, Francis said the bank could “act in derogation from the reporting obligations to other State Authorities” pursuant to Vatican City law, and instead provide “detailed information of what is known to the Office of the Promoter of Justice” instead.
Those “other state authorities,” of course, would have included senior officials at the Secretariat of State; essentially, Francis said the IOR was dispensed from its standard legal obligation to report on their investigation to the people they were investigating.
In the second rescript, signed three days later, the pope further clarified that the investigation included authorizing the promoter of justice (Vatican prosecutor) to deploy “technological tools suitable for intercepting fixed, mobile, as well as any other communication, including electronic ones” — essentially granting a warrant for wiretaps in the course of the investigation, something which most people would recognize as a normal part of criminal investigations.
Far from granting the prosecutors the power to go off on their own, however, the pope insisted that they work with “personnel specifically identified by the [Vatican] Gendarmerie and for a duration of 30 days,” while saying he would extend the warrant upon request, which he did in the fourth rescript in February 2020.
The third executive order signed by the pope came in October 2019, by which time the investigation had broadened to include officials at the Vatican’s Financial Information Authority, as well as at the Secretariat of State, and had included raids on offices and homes of officials at both departments.
After those raids, both departments complained that state secrecy should have prevented those raids from taking place, and that investigators couldn’t use the information seized. Noting that the promoter of justice’s office was proceeding “in the exercise of the prerogatives assigned to him by law,” the pope said that they could use “for judicial purposes” “all documents and materials - paper and electronic - seized during the preliminary formalities carried out to date,” and waived “any obligation of secrecy being enforceable” by the AIF or Secretariat of State.
In effect, as chief executive of Vatican City, Pope Francis waived the protections of state secrecy which could have stonewalled the investigation.
This did create some consequences: the AIF, as a member of the Egmont Group, an international network of financial intelligence agencies, was obliged to keep its files confidential since they included sensitive information from foreign agencies. The raids on AIF offices resulted in Egmont suspending the Vatican agency for several months, and triggered several resignations from its board of directors in protest.
Pope Francis’ “interference” in the case through the four rescripts amount to authorizing an investigation into a senior government department to be kept secret from those being investigated, granting a warrant for wiretaps, and waving state secrecy to allow the investigation to continue. The consequences with Egmont to one side, it is hard to see how any of these actions denied due process to the eventual defendants, or constitute changing Vatican law to strengthen a weak prosecution case — a has been repeatedly claimed.
But didn’t the Vatican judges rule that defendants were denied the right of defense?
Yes and no.
In October last year, prosecutors in the case agreed to reopen their investigation into several of the alleged crimes in their July, 2021, indictment, effectively suspending the judicial prosecution of six of the defendants on some of the charges they faced.
Defense lawyers wanted the charges to be, effectively, dismissed with prejudice after they argued that the investigation authorized by Pope Francis had proceeded with such secrecy that some of the suspects hadn’t been given the chance to explain their version of events to prosecutors before charges were filed.
The prosecution countered that, in several instances, they had attempted to contact the suspects to arrange an interview but had been rebuffed, or constantly redirected with different addresses and contact details — they’d made every good faith effort to talk to them, they said, but they wouldn’t be contacted.
The judges agreed to a compromise: the prosecutors would reopen their investigation, the defendants/suspects could offer their explanations to them and, if that cleared matters up, the charges would be dropped.
As it happened, all the charges except one were refiled by the prosecution in January. When the refiled, they noted to the judges that of the six defendants offered the chance to talk to them, only one took them up on the chance.
Reasonable people can disagree about how hard the prosecutors tried to interview the suspects during their initial investigation, and about the good faith of the defense’s claims to have been denied a chance to give their side of the story.
What didn’t happen was the pope interfering in the judicial process once charges had been filed and the trial had begun.
But didn’t the pope punish Cardinal Becciu before the trial even started?
In September 2020, Pope Francis summoned Cardinal Angelo Becciu to a meeting. It was two years since the cardinal had been promoted out of his old job at the Secretariat of State, where he served for years as the de facto papal chief of staff, and a year since the investigation into financial crimes at his old department had begun.
The pope, apparently, had been shown what the investigation had turned up so far, and he didn’t like what he saw: he ordered Becciu to resign his then-current position as head of the Congregation for the Causes of Saints and his rights and privileges as a cardinal. He was formally indicted nearly a year later — in July 2021.
Ever since then, Becciu’s defenders in the Church and the press — and he has several — have pointed to his sacking by the pope as a denial of due process, and claimed Francis imposed a sentence on Becciu before the investigation was even over, let alone an eventual trial. But is that what he did?
For a start, sacking Becciu (or forcing his resignation) as prefect of a Vatican department is not necessarily a judicial sentence — nor is the pope bound by law (canonical or Vatican City) to follow a specific procedure in firing him. Leadership of a curial department is a job which the pope appoints through free conferral: he picks whom he wants. While there are ordinary terms of office of five years, there is no legal requirement for the pope to keep someone in a job he no longer thinks they are suitable for.
In Becciu’s case, the pope had every reason to think it was necessary to relieve him of his curial roles immediately. As has been reported, even after Becciu left the Secretariat of State in 2018, he continued to direct staff in that department to make confidential payments, and, at least by some accounts, to instruct them to destroy evidence of those transfers.
Becciu did so, it’s been reported, while directly invoking Pope Francis’ name and saying he was acting with secret papal authorization.
In that light, Pope Francis’ decision seems less like extrajudicial punishment, and more like the prudent action of an employer.
More to the point, if a cabinet minister in any other Western government was the subject of a serious criminal investigation, and accused of abuse of office, it would not likely be considered a denial of due process for them to be asked to step down from their job while the matter was resolved.
But what about Becciu’s rights as a cardinal?
Most famous among the rights and duties of a cardinal is participating in a conclave to elect a pope — and, by extension, being an implied candidate for the papacy.
But one of the other rights which Becciu resigned was the right to be tried only in a special ecclesiastical court presided over by another cardinal — though not a lot of people noted that at the time.
If Pope Francis wanted to make sure that, when the investigation was over, the cardinal could stand trial alongside his eventual co defendants in a Vatican City courtroom and not get special treatment, stripping Becciu of that privilege was an essential step.
Arguably, ordering Becciu to resign his privileges but allowing him to retain the title of cardinal was actually a demonstration of fair mindedness by Francis — removing a legal obstruction without formally reducing Becciu in rank ahead of any eventual judicial process, and leaving the door open to stripping him of the red hat entirely if convicted, or restoring his rights if acquitted.
Although Becciu and his friends might feel the cardinal has been hard done by the pope, Francis acting to end essentially a feudal legal privilege not to be tried in common court is not what most people would recognize as a denial of due process.
While these and other legal changes brought in by Pope Francis in the first half of last year certainly have proven relevant to the current trial, all of them were made by the pope prior to charges being filed and the trial beginning — they certainly didn’t change the rules of the trial midstream.
Very helpful explainer. The lines referencing Becciu in the Demos memo definitely caused me to raise an eyebrow in skepticism. Glad to see that skepticism confirmed by people who know what they're talking about.