Why didn't Fitzgerald lift a finger to protect McCabe?
Micheal Martin warned the Government would fall if somebody knew more than was let on, writes Jody Corcoran
The Taoiseach spoke to Maurice McCabe last Tuesday night. It was a relatively brief conversation. They spoke for perhaps 15 or 20 minutes. Leo Varadkar felt that out of courtesy to McCabe, given that once again, through no fault of his own, he was at the centre of a major controversy, he had a right to know what was in the email which is now threatening to bring down the Government.
When Leo Varadkar read the email to McCabe, the garda sergeant disputed its contents. He said that the criminal allegation referred to, concerning a serious sex abuse allegation against him, was not, in fact, raised at the O'Higgins Commission on that day; that is, the day the email was written and sent to the then Minister for Justice Frances Fitzgerald.
In fact, the sex abuse allegation was not raised at all at the O'Higgins Commission, ever. McCabe told the Taoiseach that the transcripts of the commission would show this. "This leaves us all a little confused because we do not even know if the contents of the email were accurate," Varadkar told the Dail last Wednesday.
The Taoiseach should have been alarmed, not confused. This was not any old email. This was an email drafted following conversations between the Chief State Solicitor's Office and the Office of the Attorney General, and subsequently between the AG's office and the Department of Justice.
Whatever the accuracy of its contents, and there remains questions about that, it is apparent from the email that Frances Fitzgerald, her advisers and senior officials were told, in real time, that the Garda Siochana were allegedly planning to aggressively challenge Maurice McCabe's credibility.
Now fast forward almost two years to February last. At the time, there was political controversy in the Dail on this very issue. But the justice minister never disclosed what she had been told. If she had, would Micheal Martin have pulled down the Government back then? We will never know.
Further to that, however, it is also evident from the email that there was widespread knowledge within the criminal justice system, including within the Department of Justice, of the child sex abuse allegations against Maurice McCabe, for at least two years before it became public knowledge earlier this year.
Not only that, but it was also widely known that the Director of Public Prosecutions, 10 years ago, in 2007, had determined that the allegation did not constitute a sexual assault or an assault, and had directed that no prosecution was warranted.
Yet the minister for justice did not lift a finger to find out more, whether she needed to protect the good name and character of Maurice McCabe, when she received that email.
The email, which was drafted in May 2015, also gives a possible indication as to how the allegation came to be so widely known, for it reveals that the allegation against Maurice McCabe "was one of the cases examined by the IRM".
The IRM is the Independent Review Mechanism, lawyers appointed on the hoof as the various Garda scandals began to unfold.
On May 13, 2014, the Government decided that the minister for justice should establish the IRM to "consider allegations of Garda misconduct or inadequacies in the investigation of such allegations, with a view to determining to what extent and in what manner further action may be required in each case".
This was one of the actions agreed by Government as a response to the Guerin Report into allegations of corruption within the Garda, made by Maurice McCabe, which was published on May 9, 2014.
Whatever its accuracy, the email to Frances Fitzgerald indicates that the IRM came to examine the sex abuse allegation against McCabe arising out of a complaint that the serious sexual abuse allegations against him had not been properly investigated by the Garda.
In April 2014, a complaint was made to the Garda Siochana Ombudsman Commission by the now adult woman who had accused him of sexual assault. That woman is the daughter of another garda, against whom McCabe had made an upheld complaint.
In her complaint to GSOC, she claimed that her allegation had not been properly investigated by the Garda.
It should be noted, in order to establish the existence and status of complaints to the GSOC, a conduit through the Department of Justice conveyed queries to GSOC from the IRM.
While it is not clear from the email concerned, alternatively the complaint that the sex abuse allegation was not investigated properly by the Garda could have been made by Maurice McCabe himself.
The Garda whistleblower is known to feel that had the Garda properly done so, the DPP would have completely exonerated him, to an extent even greater than people accept that he was.
The email suggested, however, that the "serious scriminal complaint" which McCabe had always denied had arisen at the O'Higgins Commission.
The effect of that, ultimately, would have been to make public this most serious allegation and in the process, undoubtedly, damage the character and credibility of Maurice McCabe, or at least question his motivation as a whistleblower.
And what did the minister for justice do when she was told that a course of action was to be taken?
She did nothing.
Her defence of her inaction is that two officials, one in the AG's office and the other in her department, had "agreed" that this was a matter for the Garda Commissioner, who was being legally advised, and that neither the Attorney General nor the minister had a "function" relating to that evidence. The AG at the time, Maire Whelan, has since been appointed a judge in the Court of Appeal, in controversial circumstances.
In other words - in the words of the Taoiseach, in fact - Frances Fitzgerald did not lift a finger on receipt of this email, but accepted an agreement based on "second-party or even third-party" conversations between two officials.
It was not until this year, almost two years after the email was written, that the sex abuse allegation made it into the public domain, through the utterly bizarre revelation that the allegation against McCabe had found its way into another arm of the State, namely the child protection services in the Health Service Executive; and worse, that by then the allegation was even more serious, to include 'digital penetration', by fault of a cut and paste error, apparently.
Following those deeply disquieting revelations earlier this year, which also showed the then Taoiseach, Enda Kenny, to be a man to have conversations with his ministers in his own head, I wrote on Sunday, February 19, last:
In 12 months, or even 12 weeks' time, Micheal Martin may look back on the events of last week and say to himself that was the moment he should have pulled the plug.
The capacity for incompetence which still surrounds this Government may give him another opportunity to sate a certain feeling of 'buyer's remorse' within the party this weekend.
This feeling is that Micheal Martin may have blown the best chance he will ever have to bring down the Government and see Fianna Fail return to power.
So should he have gone for an election? The short answer is no.
However, there is no escaping the view that this Government will not see out 2017.
Martin signalled his intention last week: "There is a point after which all good faith efforts to make this Dail work will have failed and there will be no alternative but to have an election."
That point was much closer now than it was before last week, he said: "It may well be reached if there are further revelations which suggest that the Government has been acting in bad faith in this matter or if it fails to honour both the spirit and the detail of its agreements."
One more bad faith revelation, then, is all it will take; a disclosure that somebody in Cabinet knew something more than they were letting on and the whole thing will come crashing down."
It is now evident that Frances Fitzgerald was told more than she was letting on. The question is whether anybody else in Enda Kenny's Cabinet also knew more at the time.