O'Sullivan asked Fitzgerald to make statement denying McCabe accused of malice
Emails have emerged that reveal former Garda commissioner Nóirín O'Sullivan drafted a statement she suggested ex-tánaiste Frances Fitzgerald could make in the Dáil about the controversial legal strategy adopted against Sergeant Maurice McCabe at the O'Higgins Commission.
But Ms Fitzgerald did not make the statement and sought a meeting with the commissioner the following day - a move suggesting there was tension between the pair over the issue.
The emails, from May 18, 2016, were recovered from Ms O'Sullivan's iPad and were not discovered on the Department of Justice's email system as they were sent to Ms Fitzgerald's Oireachtas email account. At least one of the emails was sent from Ms O'Sullivan's Gmail account.
Although Ms Fitzgerald sought to forward them to the then secretary general of the Department of Justice, Noel Waters, she sent them to an incorrect address and Mr Waters did not receive them.
He told the Disclosures Tribunal yesterday he had "no specific recollection" of tensions between Ms Fitzgerald and Ms O'Sullivan on the issue.
In the emails, Ms O'Sullivan pressed Ms Fitzgerald to divulge information about the legal strategy in the Dáil later that day.
The O'Higgins report had been published the previous week and there were damaging leaks in the media revealing a legal strategy to attack Sgt McCabe.
Ms O'Sullivan suggested that Ms Fitzgerald say that at no point did the commissioner instruct her legal team at the commission to "accuse Sgt McCabe of malice".
This had been asserted in a newspaper headline the week before. "It is not the truth and the word malice was not authorised by Nóirín O'Sullivan," the suggested statement said.
Ms O'Sullivan also said Ms Fitzgerald may wish to state that at no stage did the commissioner instruct her legal team to suggest there was any question of "bad faith" by Sgt McCabe.
She also wanted the then tánaiste to say the commissioner had no control over the conduct of legal argument within the commission.
The draft statement concluded: "I wish to state, here and now, that I have full confidence in the commissioner."
But Ms Fitzgerald did not make the Dáil statement and railed against questions seeking details of the legal strategy.
The tribunal has previously heard audio from the O'Higgins Commission in which a barrister for Ms O'Sullivan stated in May 2015 he had instructions from the commissioner to challenge the credibility, motivation and integrity of Sgt McCabe.
Months later, the barrister said it was an error to say he was instructed to challenge Sgt McCabe's integrity.
Counsel for the tribunal Diarmaid McGuinness said it appeared the commissioner was quite anxious to put the legal instructions on the record, but the minister took a completely different view.
Conor Dignam SC, for Ms O'Sullivan, said she would be testifying that she had been anxious to know if Ms Fitzgerald had confidence in her.