Archbishop Viganó and the Extrajudicial Process

Q:   Ok, as per Archbishop Viganó what is an “extrajudicial penal trial”?  If it is extrajudicial, how can it be a trial?

That sounds like being called into the principal’s office, not appearing before a magistrate.

Do we assume they have no real legal case against him, as some commentators claim? Or, do they not want to make public evidence that would be part of a canonical trial? –Father V.

A:  As most readers probably know already, Father V. is referencing the recent statement by Archbishop Carlo Maria Viganó that an “extrajudicial penal trial” has been initiated against him by the Vatican’s Dicastery for the Doctrine of the Faith (DDF).  Archbishop Viganó declared that he was charged with the crimes of “having denied the legitimacy of ‘Pope Francis’ of having broken communion ‘with Him’ and of having rejected the Second Vatican Council.”  On July 5, the Vatican announced that the DDF had declared the Archbishop had incurred excommunication latae sententiae for committing the crime of schism (see “Have Pro-Abortion Politicians Excommunicated Themselves?” for an in-depth look at how latae sententiae penalties work).

There are several separate issues here.  One is purely procedural, involving what the Archbishop (inaccurately) called an “extrajudicial penal trial.”  Another is the issue of whether what the Archbishop has said/done really constitutes schism, which is the actual delict with which he is being charged by the Vatican.  And a third involves the politics of the whole situation, as Father V. mentions.  Let’s take this apart.

First of all, on June 20, 2024, Archbishop Viganó tweeted out a copy of a decree he received via email from the DDF (written in Italian—see the attachment here).  Dated June 11, the document instructed the Archbishop to come to the DDF offices on June 20, to “take note of the allegations and of the evidence regarding the crime of schism, of which he was accused” (my translation).  This opportunity to view the evidence, vital to anyone’s ability to defend himself, is in accord with canon 1720 n. 1.

Among other things, the decree correctly notes that the DDF is competent to judge him: as per the Norms accompanying Sacramentorum Sanctitatis Tutela (SST), the 2001 motu proprio of Pope John Paul II, the DDF “by prior mandate of the Roman Pontiff, may judge Cardinals, Patriarchs, Legates of the Apostolic See, Bishops” when they are accused of “delicts against the faith” (SST Art. 1).  This presumes, obviously, that Pope Francis has given the DDF this mandate in Archbishop Viganó’s case.

The DDF’s decree also cites canon 1717.1, referencing in particular a “prior investigation being superfluous.”  Here’s the full text of the canon, showing that phrase in its full context:

Can. 1717 §1. Whenever an Ordinary has knowledge, which at least seems true, of a delict, he is carefully to inquire personally or through another suitable person about the facts, circumstances, and imputability, unless such an inquiry seems entirely superfluous. (Emphasis added)

We’ll get into the issue of superfluity in a moment.  Right now, let’s continue looking at the content of the DDF’s June 11 decree.

The decree also mentions a May 10, 2024 Congress of the DDF, where they apparently discussed “the starting of an extrajudicial penal process before this Dicastery” (my translation).  This “Congress” was an internal meeting, naturally not open to the public.  Clearly, a process against the Archbishop was already being considered some time ago, behind the scenes.  And subsequently, according to the decree, the officials who would handle this extrajudicial penal process were chosen on June 3.  Their names are unknown to us, which is not unusual.

The Archbishop is informed in the decree of his right to choose a lawyer to defend him;  if he declines to do this, one will be appointed for him.  Finally, the decree states that if the Archbishop fails to appear or to submit a written defense by June 28, 2024, the case will be adjudicated in his absence.  (And that’s exactly what happened.)

While it certainly doesn’t happen every day that a bishop is accused by Rome of being a schismatic, the general formulation of this decree is quite comprehensible, if you’re a canonist.  Since, however, most of humanity (fortunately) does not fall into that category, some explanations are in order—starting with the first question asked by Father V.: what is an “extrajudicial penal trial”?

This is the phrase used by Archbishop Viganó in his tweet, written in English—which is not his native language.  The correct term is administrative process (or procedura administrativa in Latin), found in canon 1341.  (Extrajudicial process is basically a synonym for this, since the procedure is conducted outside of a courtroom.)  Here’s the full text of the canon, with emphases added to show the contrast between a judicial trial, and an administrative procedure:

Can. 1341.  The Ordinary must start a judicial or an administrative procedure for the imposition or the declaration of penalties when he perceives that neither by the methods of pastoral care, especially fraternal correction, nor by a warning or correction, can justice be sufficiently restored, the offender reformed, and the scandal repaired.

Regardless of what country you live in, odds are high that you’re familiar with the notion that when a person is charged with a crime, he is put on trial before a judge or jury, to determine his guilt or innocence.  That, of course, is the equivalent of the “judicial procedure” in canon law.  The “administrative procedure,” on the other hand, is probably an alien concept to most of us, as it generally lacks a comparable parallel in civil law.

Canon 1342 explains when the administrative process can be used, and when it can’t. The Ordinary (c. 134.1; in the Archbishop’s case, the Ordinary is the Pope) can decide to use the administrative procedure “whenever there are just reasons against the use of a judicial procedure” (c. 1342.1), but cannot use it if the potential penalty is “perpetual” (c. 1342.2).  Examples of perpetual penalties include, but are not limited to, dismissal from the clerical state (discussed at length in “Can a Priest Ever Return to the Lay State?”), expulsion from a religious institute, or loss of an ecclesiastical office.  If conviction for a particular delict (a.k.a. crime) is punishable by a permanent penalty like these, the accused Catholic must be tried using the normal judicial process.

But in this case, the June 11 decree from the DDF states right at the top that it involves canon 1364, which tells us that a schismatic Catholic incurs a latae sententiae excommunication.  As grave as the penalty of excommunication is, it definitely does not have to be permanent, as was discussed in “How Does an Excommunicated Catholic Have the Sanction Lifted? (Part I)” and “(Part II).”  Thus a Catholic who is accused of violating canon 1364—or any other delict punishable by excommunication—can indeed be judged using the administrative process.

So if the Ordinary—the Pope in this case, with the DDF acting on his behalf—can decide to use the administrative process “for a just cause,” what sorts of reasons would constitute a sufficiently just cause for not using the regular judicial process?  As we saw in “Receiving Holy Communion Outside of Mass” and “How Can a Priest Transfer to Another Diocese?” the term “just cause” is not defined anywhere in the code, but it is generally accepted to be a pretty low bar in legal terms.  To cite some conceivable examples, perhaps a very poor diocese in the Third World just doesn’t have enough clergy/staff with the needed canonical expertise to fill the roles in a judicial trial; or maybe the accused has publicly admitted committing the delict with which he’s charged, rendering a full-blown judicial process moot.  In any event, it’s clear from the DDF’s June 11 decree that it had already been determined that in the Archbishop’s case, there was/is no need for a judicial trial—in accord with canon 1718.1.  You and I weren’t present at the discussions that unquestionably took place at the Vatican on this subject, and we have no right to know what was said there; so we (who are not parties to this case, remember!) simply have to accept that a just cause exists in the eyes of the Ordinary.

Sure, it is entirely possible that the decision to use the administrative process was influenced by political considerations.  It could be that the Vatican was concerned that in the course of an ordinary judicial process, the Archbishop might make public statements about the dirty laundry of various ecclesiastical officials, which they don’t want the world to know.  Or maybe Rome is simply trying to prevent the process from becoming sensational in the press—remember the murder trial of football player O.J. Simpson in the 1990’s?  Some Catholics might protest that (in their opinions) the reasons for an extrajudicial process for Viganó are unwarranted; but the fact remains that this decision appears quite justifiable on legal grounds.

As was mentioned above, the DDF’s decree makes reference to the superfluity of an investigation prior to conducting their administrative process, and cites canon 1717.1.  The implication of this statement is that the evidence available against the Archbishop is already sufficient.  Certainly Archbishop Viganó has made no secret of his rejection of the Second Vatican Council (mentioned in the DDF’s decree), and has repeatedly heaped scorn on the “Bergoglian pontificate” (e.g. here, page 5), suggesting in his more recent writings that Pope Francis is not actually Pope. 

To be fair, it must be noted that in Italian, it is actually fairly common for Catholic journalists and other commentators to reference a Pope using his last name, without any intention whatsoever of disrespect—take a look at the Italian Wikipedia page for Pope John Paul II, and see how frequently it refers to “Papa Wojtyła,” for example.  Thus the mere fact that Archbishop Viganó often refers to Pope Francis as “Bergoglio” does not, in and of itself, suggest that he rejects the notion that Jorge Bergoglio has really and truly been Pope Francis since 2013.  But the Archbishop’s increasing tendency to completely avoid referring to him as Pope Francis—except when he puts that title in quotation marks (as he did in his June 20 tweet, already cited above)—has made it more and more plain that he is suggesting that Francis is not really the Pope.  In short, calling Pope Francis “Bergoglio” is not ipso facto a schismatic act (especially in Italian!); but stating that “Bergoglio” is not really Pope Francis is.

Let’s also not forget that procedurally, before formally charging any Catholic with the crime of schism, ecclesiastical officials will contact the Catholic and warn him/her that his actions/words can be interpreted as schismatic (or heretical, depending on the situation—see “Was Theologian Hans Kűng Ever Excommunicated?” for a more detailed discussion of how this works).  We can’t lose sight of the fact that excommunication is, by definition, a medicinal penalty (cf. c. 1312.1 n. 1), designed to wake up the offending Catholic to the reality that he has taken himself outside the bounds of full communion with the Catholic Church … and the Church wants him to come back!  (This was addressed at greater length in “Am I Excommunicated? Sanctions, Part I.”)  This is why it is a virtual certainty that privately, Vatican officials were already in contact with Archbishop Viganó, to point out that some (though certainly not all!) of his statements/writings seemed to constitute schism, and to ask him to explain himself—and to warn him of the serious legal consequences if he persists. Of course you and I have no access to the content of their exchanges; but who knows, they may contribute to the reasons why the DDF’s June 11 decree referenced the “superfluity” of any further investigation into the charge of schism.

For the record, the definition of schism is found in canon 751: “schism is the refusal of submission to the Supreme Pontiff, or of communion with the members of the Church subject to him.”  If anyone was unsure before that adequate evidence existed to show that Archbishop Viganó has committed schism, his public statements since receiving the DDF’s June 11 decree leave no doubt.  His full public response to this decree, found here in English, doesn’t merely attack the many statements and actions of Pope Francis; it actually claims that his election to the papacy was not valid when it notes “Bergoglio’s defect of consent (vitium consensus) in accepting his election,” a claim which is surely a novel—and baseless—interpretation of the 2013 conclave and its results.  Quite apart from the fact that none of us can get inside Pope Francis’s head, and know what he was thinking on the night he was elected, there are no grounds for claiming that if a Cardinal elected to the papacy verbally accepted his election, while mentally refusing it, his election as Pope would be invalid.  This is a claim which (lucky for the Church!) has no historical precedent, and no legal justification, either: as canon 124.2 tells us, a juridic act (such as accepting one’s election as Pope), placed correctly with respect to its external elements, is presumed to be valid.

In the same statement, the Archbishop declares, “I am honored not to have – and indeed I do not want – any ecclesial communion with them [Pope Francis and other bishops].”  If that’s not a schismatic statement … then nothing is.  Archbishop Viganó was, wittingly or not, making the DDF’s work even easier, as the case against him became more and more clear-cut.

When assessing the Archbishop’s many statements about Pope Francis and various other Vatican officials, it’s vital to make a big distinction between (a) not liking/agreeing with what Pope Francis et al say and do, and (b) asserting that Francis is not really the Pope, and that various bishops in the Vatican Curia don’t validly hold the offices which they have.  Millions of faithful Catholics worldwide have objected to many decisions/statements emanating from Pope Francis, but this certainly does not mean they are all claiming that he’s not Pope!  In short, you don’t have to be a fan of Pope Francis; you just have to accept that he is the current Holy Father.

Archbishop Viganó’s many written statements on this subject repeatedly appear to disregard this critical distinction: he has (accurately, it seems) delineated many objectionable things which Pope Francis has said/done, accusing him of catering to the homosexual lobby, of protecting clergy who are proven abusers, of making theological statements which are obscure and cause confusion among the faithful, of handing the Communist government in China authority over the selection of bishops which belongs to the Pope, etc. etc.  On top of that, it was Viganó who alerted the world in 2018 to the abuse of seminarians and of minors by then-Cardinal Theodore McCarrick, and the refusal of Pope Francis to take action against him (see “Sex-Abuse Scandals and Papal Responsibility” for more on this).  In short, the writings of Archbishop Viganó provide loads of objective information to argue his position that Pope Francis’s papacy has been a veritable train-wreck to date—and in holding this position, he has a lot of company, as countless faithful Catholics around the world feel fundamentally the same way.  Nevertheless, a Pope can be inept, incompetent, even evil … but this doesn’t mean he isn’t the Pope!  In fact, over the centuries the Church has survived the reigns of far too many Popes who convincingly met this description: we took a look at a number of them in “Can You Be Both a Catholic and a Sedevacantist?”  Perhaps we Catholics alive today were spoiled: if you’re old enough, you’ve lived through the papacies of three Popes who’ve already been canonized saints (and John Paul I’s canonization is in the works, so he may become the fourth).  But the undeniable fact is that this was/is quite a historical anomaly: most Popes do not get canonized—and sometimes the reasons for this are painfully evident.

In his more recent written statements (like this one from June 28), the Archbishop has suggested similarities between his current situation and that of the late Archbishop Marcel Lefebvre, founder of the Society of St. Pius X (SSPX; see “Canon Law and the SSPX” as well as “Are SSPX Sacraments Valid? Part I” and “Part II,” among others).  Archbishop Lefebvre was excommunicated in 1988 for consecrating bishops without a papal mandate, in violation of canon 1382 (now renumbered as canon 1387); prior to that, he had for many years attacked liturgical and other abuses, committed in the name of Vatican II.

And yet, as opposed as Archbishop Lefebvre was to the Novus Ordo Mass, and to so many other postconciliar innovations, he never claimed that the reigning Pope was not really Pope.  Furthermore, here’s a fun fact: while Archbishop Viganó now repudiates Vatican II entirely, Lefebvre was one of the Council Fathers at Vatican II and actively participated in it; and though Lefebvre subsequently railed against the way Vatican II was used to justify all sorts of liturgical and doctrinal novelties, he actually signed almost all the documents produced by the Fathers at the council.

The differences between the positions of Archbishop Lefebvre, and Archbishop Viganó, should thus be apparent.  But in case you’re still not convinced, the SSPX has published a statement distancing themselves from Viganó, and pointing out that “Archbishop Lefebvre and the Society he founded have not ventured down that perilous road.”  Viganó has gone much, much further than Lefebvre and the SSPX ever did.

To sum up: the DDF accused Archbishop Viganó of schism, and given him the legally required opportunity to defend himself.  Viganó has responded publicly, making a number of statements which can only be described as schismatic in nature, as he refuses to acknowledge Pope Francis’s (and the DDF’s) authority to conduct a penal proceeding against him.  Thus it’s no surprise that the DDF subsequently found that Viganó had incurred excommunication latae sententiae. While we don’t know all the evidence that the DDF compiled, we can safely assume that its members privately gave Archbishop Viganó adequate warning of what was coming, and the chance to repudiate the comments he had made—and as we know, the Archbishop declined to do this.

What a tragedy this is!  Archbishop Viganó has done the Church and arguably even the whole world a lot of good, by alerting us to the hard facts regarding former Cardinal McCarrick and those high-ranking ecclesiastical officials who covered for him—and in the process, revealing the ugly truth about many cases of sexual abuse by Catholic clergy.  It’s no wonder that many career church bureaucrats don’t feel much affection for him, since he rocked the boat!  But that doesn’t alter the fact that by stating that Pope Francis isn’t really Pope, and that he does not recognize the authority of the DDF over him, Viganó has indisputably crossed a red line.  It’s time for the Catholic faithful to pray that the unity of the Church be maintained, and that all church authorities, at every level, aim to do what they genuinely believe God wants.

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