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ROME – In the summer of 1971, no question before the U.S. Supreme Court was as contentious as the Pentagon Papers case, in which the Nixon administration sought to prevent the New York Times and the Washington Post from publishing a classified report on the Vietnam War.
In a 6-3 decision, the court eventually upheld the right to publish the material, in a ruling considered a landmark for freedom of the press.
Suppose that during the oral arguments before the court, it emerged that Chief Justice Warren Burger had agreed to meet Katherine Graham, publisher of the Post and thus a party to the case, without any of the attorneys present and completely off-the-record. It would have been considered a classic example of prohibited ex parte communication during a trial, and likely would have resulted in invalidating the entire process.
In an independent system of justice, the chief judicial authority has to maintain scrupulous neutrality, observing rigorous hands-off protocols intended to protect the integrity of the process. Otherwise, people will assume that legal decisions are simply an extension of politics by other means.
The point comes to mind in light of news that yesterday, Pope Francis granted a private audience to Italian Cardinal Angelo Becciu in the papal library on the second floor of the Apostolic Palace, the same space where he receives heads of state and other VIP visitors.
Becciu is currently on trial before a Vatican tribunal, charged with criminal misappropriation of Vatican funds to support charitable foundations with ties to his own family in Sardinia, as well as complicity in a failed $400 million London property deal while he was still the sostituto, or “substitute,” in the Secretariat of State, meaning the pope’s Chief of Staff.
Under the legal code of the Vatican City State, the pope is both the supreme executive and judicial authority. In any other setting, yesterday’s tête-à-tête would have triggered an immediate appeal from the lawyers involved and might well have produced a mistrial.
In the Vatican, on the other hand, it generated nothing more than raised eyebrows and resigned shrugs. In truth, Francis’s almost indecipherable rapport with Becciu has been part of the equation in the present trial before it even began.
In September 2020, Francis summoned Becciu to his residence at the Domus Santa Marta to inform him that he was being fired as the Prefect of Congregation for the Causes of Saints and stripped of his privileges as a cardinal, including the right to participate in the next conclave. That was 10 months before Becciu was indicted by the Vatican tribunal, and to many observers, it seemed the pope had prejudged the case.
That’s certainly the impression of German Cardinal Gerhard Müller, for instance, the pope’s former top doctrinal official, who said in a recent interview book that Becciu “was humiliated and punished before the world without any possibility of a defense.”
“Now we await the end of the trial before the Vatican tribunal,” Müller said. “Everybody should have the presumption of innocence, a right that’s been sacrosanct since the time of the ancient Romans.”
Since then, the pope’s had plenty of other contact with Becciu.
On April 1, 2021, Francis went to Becciu’s apartment to celebrate the Holy Thursday Mass, a gesture which was taken at the time either as a rehabilitation of Becciu or as a further condemnation, given that the pontiff often visits prisoners on Holy Thursday.
The pope and Becciu have also spoken several times on the phone while the trial has been underway, including one conversation that was taped by a member of Becciu’s family and ended up being admitted as evidence.
As for yesterday’s meeting, Becciu seemed ebullient afterwards.
“We had a very cordial and serene conversation,” he told reporters. “The pope renewed his esteem and trust, as has been the case for some time.”
“Every meeting with him is, for me, a reason for great joy,” Becciu said.
From the point of view of sound legal procedure, such exchanges between a defendant and the head of the judiciary are simply indefensible. In fact, Catholic social teaching extols the principle of the independence of the judiciary — everywhere, that is, other than inside the Vatican itself.
Of course, Francis isn’t just the chief judicial authority, he’s also the chief executive of the Catholic Church, and he has to govern. It makes all the sense in the world that for reasons of state, he might need to speak to a figure with a deep knowledge of many of the issues currently on the pope’s desk.
In other words, the fact of being both chief executive and chief judicial authority creates an inevitable conflict of interest – either the pope is going to look like he’s interfering in the legal process, or his hands are going to be tied in running the church.
The solution, as I’ve suggested before, is a genuine separation of powers, in which the Vatican would have its own independent judiciary with power over civil and criminal matters (not, of course, questions of faith and morals.)
The pope has to be the pope, which means he needs to be able to meet anybody he wants.
He also, however, needs to inspire confidence that when the Vatican hands down legal verdicts, it’s doing so with integrity – and that means he may need to voluntarily renounce a small piece of his own power, in exchange for a much larger payout in terms of moral authority.