On the threat of ‘lawfare,’ does Pope Francis practice what he preaches?

ROME – Despite being the oldest reigning pontiff in the last 145 years, Pope Francis at 86 nevertheless remains remarkably au courant. Among other things, he sometimes borrows the latest cultural buzzword to drive home a point.

One good example is the term “lawfare,” a neologism combining the words “law” and “warfare” to suggest weaponization of the judicial system for political ends.

Francis first dropped the term in a 2019 speech to a Pan-American summit of judges held in the Vatican, warning against the rise of “lawfare,” and he used it again this past April in an interview with the Argentine TV outlet Canal 5 de Noticias.

“Lawfare begins through the mass media, which denigrate [the target] and insinuate the suspicion of a crime. Then massive investigations are created, and to condemn someone the volume of these investigations is enough, even if the crime is never found,” the pope said.

Francis was referring in particular to the cases of President Luiz Inácio Lula da Silva and former President Dilma Rousseff in Brazil. Lula spent 19 months behind bars while Roussef was impeached, both on charges that critics, including the pontiff, regarded as politically motivated.

The pope said “we have to raise our voice” against such abuses of the justice system.

While the vocabulary may be new, Francis’s insistence on keeping politics out of criminal justice reflects established Catholic social teaching. Chapter eight of the Compendium of the Social Doctrine of the Church says, “In defining the proper relationships between the legislative, executive and judicial powers, the constitutions of modern states guarantee the judicial power the necessary independence in the realm of law.”

That’s actually a quote from a March 31, 2000, speech by the late Pope John Paul II to the Italian Association of Judges, in which the pontiff said that in a “modern democratic state … the judicial power stands side by side with the legislative and executive powers, with its own autonomous and constitutionally protected function.”

“The balanced relationship between these three powers, each one operating according to its own specific competence and responsibility so that one never prevails over the others, guarantees the proper functioning of democratic life,” he said.

And, yet.

Yet Pope Francis is vulnerable to the charge of not practicing what he preaches when it comes to lawfare, because he has his own criminal justice system. It’s thus a perfectly reasonable question to ask whether he’s done everything he can to ensure that politics don’t taint its own judgments.

In that light, it’s striking that when Pope Francis recently issued a new fundamental law for the Vatican City State, it pointedly reaffirmed that “the Supreme Pontiff, Sovereign of the Vatican City State, has the fullness of power of government, which includes legislative, executive and judicial power.”

In other words, there’s no separation of powers whatsoever.

While journalists and pundits sometimes lazily say that the papacy lost its temporal powers with the collapse of the Papal States in 1870, that’s not true at all. The pope remains the absolute monarch of the physical territory he governs, even if his authority now is limited to the 108 acres of the Vatican and its extraterritorial properties.

Indeed, the fundamental law is quite specific: “In any civil or penal case, and at any stage, the Supreme Pontiff can defer the investigation and the decision regarding a particular subject, to the exclusion of any further appeal.”

One might have expected Francis the Reformer to introduce at least some degree of autonomy to the judiciary when he updated the fundamental law, the first such revision since 2000, but instead he delivered a ringing reassertion of direct papal authority over the judicial system and everything else.

The consequences of this apparent contradiction between what preaching and practice seem clear in the Vatican’s ongoing “Trial of the Century,” currently lumbering towards a conclusion later this year.

Recently, defense attorneys for Italian Cardinal Angelo Becciu, one of ten defendants accused of various financial crimes, appealed to a three-judge panel led by veteran Italian jurist Giuseppe Pignatone to admit into evidence a series of 126 WhatsApp messages sent to Prosecutor Alessandro Diddi by one of the witnesses in the case, laywoman Genevieve Ciferri, as well as portions of the interrogation of the prosecution’s star witness, Monsignor Alberto Perlasca, both of which had been withheld.

Pignatone rejected the request, siding with Diddi’s argument that the omitted material has to remain secret because it’s relevant to other ongoing investigations.

In a declaration to the court, Becciu – who, by the way, turned 75 on Friday – protested the decision, arguing that Ciferri and Perlasca, along with another Italian laywoman, Francesca Immacolata Chaouqui, are involved in a campaign to defame him.

“They’ve used the pope to carry out a vengeful plan against me, and I don’t understand why [the court] won’t clarify this,” Becciu said. “These three are tranquil and free, while I’ve been suffering the nightmare for three years of these accusations which are showing themselves to be false.”

Obviously, it’s impossible for anyone who hasn’t seen the material in question to assess the merits of the court’s decision.

What can be said is this: If you were to ask ten ordinary people if it’s fair that the judges who made this ruling are paid, hired and fired by the same guy who controls the police and prosecutors, nine probably would say “of course not” and the tenth would just laugh.

In fact, supporters of Becciu, such as the Italian news site Faro di Roma, would argue that what’s happened to him is itself a classic instance of “lawfare.”

In effect, Becciu was judged in the media well before his trial even began, after Pope Francis unceremoniously fired him as Prefect of the Congregation for the Causes of Saints and stripped him of his privileges as a cardinal in September 2020. A criminal charge wasn’t delivered until the summer of 2021.

Since then, Becciu’s been the central defendant in a highly publicized trial, in which his fate is being determined by judges who are directly subordinate to the same executive authority which indicted him. No matter how carefully reasoned the court’s eventual verdict may be, many observers likely will treat it with an asterisk because of doubts about the structural fairness of the process behind it.

Of course, popes aren’t obligated to be completely consistent. Often enough, like leaders everywhere, they can almost seem tributes to Walt Whitman – they are large, and contain multitudes.

Still, if Pope Francis aspires to resist the threat of lawfare around the world, it might help to make sure no one can accuse him of waging it in-house.