Jeffrey Lena: California lawyer
for the Vatican and the Pope
in U.S. courts
By Jason Horowitz
April 19, 2010
This is a bad time for Jeffrey Lena to have quit caffeine.
In Kentucky, the 51-year-old attorney is defending Pope Benedict XVI from a deposition motion in a case involving child abuse by clergy.
In a suit pending before the U.S. Supreme Court, Lena is arguing that the Vatican cannot be tried for transferring a predatory priest from Ireland to Oregon.
In Mississippi, he is defending the Vatican against accusations that it participated in a money-laundering scheme.
In New York, Lena is defending the Holy See in a commercial-licensing dispute about the use of images belonging to the Vatican Museums.
Wherever it is in the United States that the Vatican stands accused, Lena is there to protect it.
"I am counsel for the Holy See," Lena said.
As an international clerical sex abuse scandal has rocked the Roman Catholic Church and raised questions about the meaning of sin and crime, penance and punishment, church and state, Lena, a sole practitioner who works out of a small office in Northern California where his wife has kept the books, has taken the lead in defending the Vatican in the courts of law and public opinion. That means that the mild-mannered and reclusive comparative law specialist is swamped. And he looks it.
Puffy bags hung under Lena's brown eyes on Wednesday morning as he ordered an herbal pomegranate tea at a Washington coffee shop. With waves of salt-and-pepper hair, a workman's build, unclipped fingernails and an outfit of plaid flannel shirt, bluejeans and black shoes, Lena doesn't look the part of advocate for the Supreme Pontiff of the Universal Church, prince of the apostles and Vicar of Jesus Christ on earth.
The genesis of Lena's employment with the Vatican is an enduring Church mystery upon which he refuses to shed any light.
"I've never wished to be in the public eye," says Lena, who once spent three hours hiding out in an empty Austin courtroom to avoid photographers. "And this is like suddenly crossing a divide from a private to public figure, and I wish to retain my privacy."
Some of Lena's former opponents say he is in way over his head and does not possess the legal heft to command such complex and historic cases.
Victims' groups say Lena's deft navigation of legal loopholes is anathema to an institution built on the revelation of truth. But Vatican supporters say he is effective, and that his immunity defense has broader applications for international law beyond the current scandal.
What is clear is that through his newly voluble response to media inquiries about the Vatican's actions, the down-to-earth lawyer has emerged as the Pope's de facto spokesman
[only for the legal matters presented against the Pope in the United States].
Lena lives with his wife and son in a Berkeley Hills home that had no television until this past Christmas. His family has owned the property since the 1960s. His grandfather, Lino Lena, emigrated from Italy; his father, Leland, a public-school teacher, participated in the invasion of the Philippines as a Coast Guardsman.
Raised Catholic, Lena and his two younger siblings accompanied his parents to Sunday Mass and hunted for Easter eggs. Lena was a shy, "cerebral" and "athletic" young man, according to his brother Justin, now living in South Dakota. He lettered in tennis and took Latin lessons.
As the Lenas raised their family in Berkeley in the 1960s, John XXIII, affectionately known as the "Good Pope," issued a 1962 policy focused on the high church crime of solicitation of indecent acts during confession and the "foulest crime," concerning clerics who have acted obscenely toward other men, children or "brute animals."
A central concern in the Catholic Church has long been to protect priests from the whims of powerful bishops who could punish them for expressing opposing viewpoints.
The policy emphasized secrecy within the Church, but also from civil authorities for whom the severe Church punishment of defrocking a priest is a veritable slap on the wrist.
['Also from civil authorities' is false!]
Questions about the relative powers of canon and civil law couldn't have been farther from Lena's mind as he grew up in Northern California. He got good grades in high school, but he says he cared more about sports. After graduation, he worked in construction and helped his cousin build a house in the Oakland Hills.
He became more intellectually curious at the University of California at Santa Cruz, from which he graduated in 1982, and earned his MA in history from the University of California at Berkeley in 1986, specializing in the roles different religious traditions played in shaping American history. According to the university's alumni association, the lone activity listed under his name at Berkeley was "reading/study."
In 1988 he married Adele D'Alessando, of Milan, and became a candidate for a PhD in history; he completed the course work and oral exams but never delivered his thesis. Instead, he started teaching history at Berkeley and the University of Maryland.
In 1993, Lena enrolled in Hastings College of the Law, where he became friends with Ugo Mattei, a renowned Italian legal scholar whom Lena calls a "master" of comparative law.
With Mattei's help, Lena transferred to Berkeley's law school and studied at the University of Milan. After completing his law degree, Lena returned to Italy in 1996 as a visiting professor in the country's universities.
According to Luisa Antoniolli, a comparative law professor at the University of Trento in Italy who was friendly with Lena, he was always busy, lagging behind on work and popular with faculty and students. (She says that one anonymous evaluation at the end of his course read, "You are very beautiful but you should change your glasses.")
Antoniolli says that the last time she saw Lena he had already taken on some of the Vatican cases, a development that surprised her. "The Vatican doesn't sound like the exact place where Jeff would really feel at home," she says. "Not at all."
Somewhere along the line in Italy, Lena established a life-altering relationship with the Holy See. Lena says he became counsel to the Vatican through "academic and professional associations in Italy" and declined repeated requests to explain the connection.
Mattei, who has since fallen out with Lena, claims to be the link.
"I involved him with the Vatican for some cases in the U.S. unrelated to the current issues," said Mattei in an e-mail message. He added, "We worked intensively together for the Vatican for a couple, maybe three years, but all of that was with the former Pope and Secretary of State."
But Mattei, who has called the Italian communist
Il Manifesto his favorite newspaper, is an odd person to have connected Lena to the Vatican.
"Mattei is a pretty left-wing guy," says Antonio Gidi, who co-wrote a book on comparative law with Mattei. Gidi points out that Mattei had also co-written "Plunder" with Laura Nader, the sister of Ralph Nader. "He is as far away from the Pope as you can get."
A source with better understanding of the situation, but who is not authorized to speak publicly on the issue, says that Mattei put Lena in touch with Franzo Grande Stevens, a top Italian lawyer who represented the late Fiat chairman Gianni Agnelli, and that he chose Lena to defend the Vatican Bank.
Lena says there was never a religious "litmus test" for him to join the Vatican's defense in 2000.
"He got hired in those cases because they needed somebody," says Mark Chopko, who was general counsel for the United States Conference of Catholic Bishops between 1987 and 2007, and who now works for a private firm in Washington. "Commercial litigation is very labor-intensive; the people in charge of the institutions in Rome needed a commercial litigator."
Lena views his defense of the Vatican under an over-arching principle that a state should have jurisdiction over a foreign sovereign only when harmful conduct is actually attributable to the foreign government. If a state reaches out to take jurisdiction over another country, the delicate balance of international power can be undermined.
"Just because a sovereign is small," Lena says, "it does not mean that its rights in this regard should be trampled upon."
"Often an immunity argument seems unfair in the specific case," says Paul Clement, who served as U.S. solicitor general between 2005 and 2008 and who is assisting Lena on the U.S. Supreme Court aspects of the Oregon case. "But it is for a broader policy goal."
Not everyone is impressed with Lena's ideas.
Lee Boyd, a lawyer with the California law firm of Howarth and Smith who worked for the plaintiffs in the Vatican Bank case, says she was astonished that the Holy See used Lena as its counsel.
"He's not your typical aggressive, showy trial lawyer; he tends to be passive in the courtroom," she says. "He's not a big-time lawyer. He seems like a small-town lawyer and doesn't seem to get the larger issues. I don't know if he would make it in the high-stakes world that I operate in with the big firms. He's not in that league, not in that caliber at all. I've always been curious why Jeff Lena has the Vatican and not a big firm like the other sovereigns hire. It's a mystery to me."
The 9th Circuit Court of Appeals found that some property claims could not be excluded under the political question doctrine, but the Vatican Bank ultimately prevailed in avoiding jurisdiction on the grounds of Foreign Sovereign Immunity Act.
("She may be upset because I defeated her," Lena says of Boyd. "Notwithstanding the fact that I am unassuming in manner and do not engage in grandstanding.")
While the Vatican Bank case in California unfolded, a sex abuse scandal swept over the American Church. The public scrutiny and widespread depiction of the Church hierarchy as protecting criminal priests led to American bishops arguing for and ultimately persuading the Vatican to accept new norms that established zero tolerance for abusive priests in the United States.
In 2002, the abuse victims' lawyer Jeff Anderson brought John V. Doe v. the Holy See in Portland, Ore. After many years of litigation, the 9th Circuit Court of Appeals ruled that Vatican did not have blanket immunity under the Foreign Sovereign Immunity Act because of an exception for harm suffered at the hand of a foreign entity in the United States.
"The Vatican controls the operation of the priests," Anderson says.
The appellate court ruled that it would be possible to proceed on the theory that
the priest is a direct employee of the Holy See [unless the individual priest is employed in an office in the Roman Curia, there is no way he can be considered an employee of the Holy See!]. though many lawyers believe such an argument is difficult to prove.
Lena then petitioned the U.S. Supreme Court to have the departments of State and Justice weigh in on the case. On March 12, Anderson argued in Washington before Solicitor General Elena Kagan, rumored to be a top candidate for the upcoming vacancy on the U.S. Supreme Court. Anderson says that, as he walked out, Lena was waiting outside. They shook hands and then the Vatican's counsel went in to argue the Holy See's side.
"He's always been kind of an enigma," says Anderson, who called Lena a formidable, civil adversary. "In going after the bishops, I always got these white-glove firms, a gazillion lawyers, the people who represent corporate America. Here, Jeff's in the lead role."
By 2003, Pope Benedict XVI, who was still known as Joseph Ratzinger and was prefect of the Holy See's watchdog congregation, had taken a more aggressive and hands-on approach to the disciplining of alleged abusers.
But the cases kept coming. In 2005, abuse victims filed a putative class action lawsuit in Kentucky, which does not have the burden of proving that priests are employees of the Vatican. In that case, the plaintiffs are trying to show that negligent bishops, in their capacity as Vatican officials, caused injury on U.S. soil by failing to report predatory priests to civilian authorities.
Lena was able to slow the case down by arguing that documents served to the Vatican were in sloppy Latin and needed to be retranslated. Ultimately, though, the 6th Circuit Court of Appeals ruled that the Vatican does not have total immunity and the case could continue under the theory that, assuming a tort was committed,
bishops could be legally considered officials of the Vatican. That legal determination could eventually expose top Vatican prelates to accountability in U.S. courts.
The plaintiff's attorney, Bill McMurry, is also seeking to depose Benedict.
Last month,
Lena filed documents with the U.S. District Court in Louisville claiming that the Pope is immune from the jurisdiction of United States courts because he is the head of a sovereign state; Lena also is claiming that American bishops are not employees of the Vatican. Lena also will dispute that the 1962 church policy required clerics to keep sex abuse cases secret from civil authorities.
McMurry says he thought Lena was an able lawyer, though when he first discovered that the relative legal novice would be lead counsel for the Holy See, "I thought it was a hoax."
("Ask him if he thinks it's a hoax anymore," Lena says.)
Lena is now a familiar face to the top Vatican power brokers. In 2006, Lena oversaw the deposition of William J. Levada, who succeeded Ratzinger as the prefect of the Congregation for the Doctrine of the Faith, as part of a bankruptcy proceeding against the archdiocese of Portland, Ore.
In the deposition, Lena set the ground rules so that Cardinal Levada answered questions regarding his activities when he was archbishop of Portland, but not questions touching on his work as a Vatican official.
Since then, the clerical abuse that Benedict has lamented as "filth," and the resulting lawsuits that many prefects in Rome once considered endemic to a uniquely "litigious" American culture, is now at the doors of St. Peter's.
According to several Church insiders, Lena has expressed frustration that
Vatican officials in Rome have failed to get the Church's point across clearly, that too many cardinals were chiming in off-message and that the Church had to speak out more because the lawyers on the other side were speaking out.
"In my conversations with Jeff, it appears that he has become very instrumental as a spokesperson for the Vatican in terms of public relations, they are now leaning on Jeff for advice and counsel," McMurry says. "I do know that recently he was a bit frustrated that these documents were making their way into the press, that Jeff was really torn that he needed to stay home and write a brief when he really needed to be at the Vatican taking care of damage control."
"For me it's not damage control, it's providing counsel," Lena says. "The frustration does not come from statements of individuals who are, of course, free to speak their piece. The frustration comes from the media's over-attribution -- mis-attribution, in fact -- of individuals' views directly to the Holy See."
The Vatican seems to be getting Lena's message. Last week, the Holy See posted online a new guideline to its bishops around the world that, to some who have worked with him,
sounded a lot like Lena pushing the Church into the future: "Civil law concerning reporting of crimes to the appropriate authorities should always be followed."
[Why can't the MSM read? The guidelines were a simplification for the layman of internal guidelines issued to all bishops by the CDF in 2003. The only new thing was that the guidelines were simplified for the layman and therfore made public. The MSM largely left it unreported, bu t worse failed in their duty, They should have looked at the guidelines to see how they were applied - if applied - to cases that turned up since the guidelines were issued in 2003. That would have been the professional way of utilizing the 'new' information!]