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Convoluted trial may boil down to simple question: Is the Pope above the law?

ROME – At one level, the question facing the three judges overseeing the Vatican’s long-running “trial of the century,” who are expected to deliver a verdict next month, is extremely straight-forward: Are the defendants innocent or guilty of the various forms of financial crime with which they’ve been charged?

Yet lurking beneath and beyond the surface is another question, one with much larger implications than the fate of these ten individuals, most of whom, presumably, will return to relative obscurity once the process is complete.

To wit: Is the Pope above the law?

That may seem a loaded or rhetorical question, but it’s actually a serious legal matter which was framed in memorable fashion this past week by attorney Luigi Panella, who’s representing Enrico Crasso, an Italian banker and former financial advisor to the Vatican’s Secretariat of State.

Arguing that prosecutor Alessandro Diddi has relied on an overly sweeping interpretation of papal authority, Panella asserted that a guilty verdict would carry the Church all the way back to 1075 and the sweeping claims of a “plenitude” of power contained in the infamous collection Dictatus Papae of Pope Gregory VII.

To put the point differently, Panella basically claimed that Diddi is repurposing the celebrated Nixonian adage from the Watergate era: “When the president does it, that means that it is not illegal.”

Panella presented his closing arguments – which the Italians, colorfully, refer to as his “harangue” – over two days this week, and, at one level, they were focused on a painstaking effort to rebut the substantive charge that Crasso engaged in fraud during his role in the controversial $400 million purchase of a former Harrod’s warehouse in London on behalf of the Secretariat of State.

Among other points, Panella insisted that evidence in the trial failed to prove that Crasso ever derived any financial benefit from his dealings with Italian financier Gianluigi Torzi, who brokered the final stages of the London deal.

In fact, Panella cited an audio recording of a 2018 meeting among Torzi, Crasso and Fabrizio Tirabassi, an official of the Secretariat of State also charged in the case, in which not only does Torzi make no mention of offering Crasso compensation, but it seems clear Torzi actually wanted him removed from the deal.

As a more technical matter, Panella also pointed out that several of the charges against Crasso involve crimes in Vatican law which can only be committed by a “public official,” when in reality Crasso never worked for the Secretariat of State and was paid for his services not by the Vatican but by the banks and holding companies with which he was involved.

All of that, however, pertains mostly to Crasso’s specific situation. Panella also made arguments of a much larger scope, challenging the integrity of the process itself.

In effect, Panella tried to turn the verdict into a referendum on the limits of papal power, returning to an issue which was amply discussed at the beginning of the trial – did the pope, or Diddi acting in his name, stack the deck against the defense with a series of four waivers, technically known as rescripts, between July 2019 and February 2020, which granted the prosecutor broad investigatory powers without judicial review, and in ways arguably inconsistent with existing Vatican law?

At first blush, it’s tempting to say that such a claim is nonsense, since the pope is an absolute sovereign. In the Catholic system, he’s the supreme legislator, i.e., the source of law, and therefore if he wishes to set that law aside in a given case, he’s fully within his rights to do so.

Yet Panella argued that such a notion of what it means for a pope to possess “absolute” authority is an anachronism. Modern popes, he insisted, have moved beyond the era of the Dictatus Papae, endorsing the rule of law and subjecting themselves and their aides to the requirements of laws which they themselves have emanated. Moreover, Panella noted, the Vatican is also a signatory to a variety of international conventions and treaties which likewise create binding legal limits on papal discretion, such as the European Convention on Human Rights.

“The Holy See has committed itself to respecting the principal of the supremacy of the law, of a government of laws,” Panella said. “Today, an absolute monarchy is no longer sustainable.”

Panella also noted that the controversial rescripts were never published in the Acta Apostolicae Sedis, the official registry of Vatican legislation, which, in his view, means they never had the force of law, and therefore are subordinate to both the Fundamental Law of the Vatican City State and also the Code of Canon Law.

“The Code of Canon Law imposes limits on rescripts too,” he said. “You can’t go to the pope to ask for something that’s not consistent with the law, and these requests are contrary to the law.”

On the basis of those considerations, Panella bluntly told the judges that their legal duty is to toss out the entire two-and-a-half year prosecution and basically start over.

“You’re men of the law,” he told the judges, “and you must respect and apply the law.”

No matter what happens next month, appeals are considered likely, and so the legal wrangling may continue. In terms of broader public impressions, however, the arguments made by Panella, and echoed to varying degrees by other defense attorneys and various commentators on the case, raise the prospect that even if Diddi manages to secure convictions for at least some of the defendants, it could turn out to be a Pyrrhic victory for Pope Francis.

This trial was supposed to be a cornerstone of the pontiff’s campaign of Vatican reform, a demonstration to the world that a new era of transparency and accountability was dawning, one in which nobody, even a cardinal such as Italian Cardinal Angelo Becciu, would be above the law.

Francis just presided over an entire Synod of Bishops dedicated to the theme of synodality, one implication of which is that all voices in the Church matter, and that the hierarchy no longer can simply dictate outcomes which affect everyone.

Should the perception be, however, that’s precisely what’s happening in this trial – i.e., that the pope (or his hand-picker prosecutor) have abused their authority by riding roughshod over the rule of law, in order to reach a pre-determined conclusion – then it could call into question the broader legitimacy of the pope’s agenda.

The conventional estimate is that the Vatican lost around $150 million on the London deal. In terms of possible damage to his legacy, however, Francis may find that the dollars-and-cents cost of the London affair is the least of his worries.

All this suggests that when Diddi takes the floor next month, in the multifunctional hall of the Vatican Museums where the trial is being held, in order to present his own final harangue – and, I repeat, that is the proper term – he’s not the only one with a lot riding on how well he performs.

* * *

As a footnote, Diddi may have another fire to put out, if not with the Vatican tribunal then at least in the court of public opinion. It came to light last month, though it didn’t attract much attention because the synod was still underway, that while he conducts the Vatican prosecution, Diddi is also moonlighting as the defense attorney for a public official charged with corruption in a case out of Naples.

Concetta Ferrari, the chief of staff for Italy’s Ministry of Labor, is one of seven individuals charged in the case, which involves the break-up of what the Italians call a patronato, meaning a publicly subsidized office that helps people obtain pension and social security benefits. The claim is that Ferrari gave a green light to the reorganization after being bribed with gifts by other defendants, including a job for her son, a vacation in Tropea, discounted rentals of a boat and a car, a Luis Vuitton handbag worth around $800, and a steep discount on the purchase of an Audi Q3 for another son.

In principle, there’s no direct conflict of interest for Diddi, since the defendants in the Vatican case and the Naples affair don’t appear to overlap – though, honestly, it’s not clear if anyone’s actually taken a hard look to see if there are any such connections, which there very well might be. As Italian journalist Leo Longanesi once famously said, “You can never have a revolution in Italy, because we all know each other.”

More broadly, critics have raised the question of whether it’s appropriate for Diddi to be racking up billable hours as a defense lawyer while also acting as the prosecutor in the highest-profile criminal trial in Vatican history. Some have suggested that in effect, the Vatican trial is simply a long-running infomercial for Diddi’s own personal practice, claiming his goal is less the administration of justice than notoriety.

As ever, there are different ways of looking at it, and, given the dismally low standards of Vatican compensation, one probably can’t fault Diddi for wanting to supplement his income. On the other hand, the situation creates yet another question mark about a trial which, let’s face it, wasn’t exactly running a deficit of doubts and perplexities.

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