Department of Justice and O'Sullivan 'hand in glove' during McCabe furore
The Department of Justice acted "hand in glove" with then Garda commissioner Nóirín O'Sullivan in the aftermath of the O'Higgins Commission as it was anxious she would not resign.
Ken O'Leary, the former deputy secretary general of the department, said a leaked partial transcript from the commission had put her position in danger.
However, he told the Disclosures Tribunal that officials believed they should support her as there was nothing in Mr Justice Kevin O'Higgins' report that would have warranted her removal.
Not long after the report was published in May 2016 there were media reports, based on leaked transcripts, that Ms O'Sullivan had instructed her legal team to accuse Sgt McCabe of malice. Ms O'Sullivan has always denied this accusation.
Amid growing calls for her resignation, Ms O'Sullivan sent a letter to then justice minister Frances Fitzgerald outlining her position. The tribunal heard the first draft of this letter was in fact written by Mr O'Leary.
It was put to him by tribunal counsel Pat Marrinan SC that a commentator might say the department was acting "hand in glove" with Ms O'Sullivan.
"And so it was," replied Mr O'Leary. "For the very good reason that we had to take the public interest view of all of these matters.
"And our view was that the public interest was not going to be served in any way by the commissioner's position being put in jeopardy at that time."
Mr O'Leary said the position he adopted "wasn't because of loyalty or whatever".
He said there wasn't a proper basis for questioning the commissioner's position, but there was a danger to her due to "the political, feverish climate".
Mr O'Leary said Ms O'Sullivan was being pilloried in public and there was the obvious danger she could go.
There would have been implications for the department and disruption if this had happened.
Mr O'Leary said he knew the exchange of drafts "looked a bit odd" but he did this "to move the process along". The tribunal heard there were around 15 drafts of the letter before it was delivered to Ms Fitzgerald ahead of a debate in the Dáil.
Mr O'Leary was also questioned about phone conversations with Ms O'Sullivan on May 15, 2015. The conversations came after a row broke out at the commission over Ms O'Sullivan's legal strategy to challenge the credibility and motivation of Sgt McCabe.
Mr O'Leary said he believed the context of the call was that the row over the legal strategy might come into the public domain and Ms O'Sullivan wanted to alert him to that possibility.
She had not asked for direction from him, but was using him as "a sounding board". He said he would have told her the department could not get involved in any way in the legal approach adopted by the commissioner.
Mr O'Leary did not inform Ms Fitzgerald of the discussion with the commissioner. He had an uneasiness about doing so as the minister could not establish a commission of investigation and then get involved in the legal advice of a participant.
But he saw a route through which the minister could be appropriately informed when an official at the Attorney General's office contacted the department after learning of the row.
This led department assistant secretary Michael Flahive to email the minister "for information" purposes only.
Mr Flahive told the tribunal it would not have been appropriate for the minister to take any action.