Who knew what, when and how in the Justice Department about that email – from this week at the Charleton tribunal
Claim and counterclaim, email and phone calls – it has been a whirlwind of information over who knew what and when in the Department of Justice about the controversial Garda legal strategy to attack Maurice McCabe’s character. Here, based nearly entirely
MAY 15th, 2015 In the morning, Nóirín O’Sullivan’s legal team contacts her to get confirmation that it should question whistleblower Sgt Maurice McCabe’s motivation and integrity. Michael Dreelan, advisory counsel at the Attorney General’s office receives a phone call from a solicitor representing the Garda legal team, informing him of their intention to question Garda McCabe’s motives. Richard Barrett, the deputy director general at the Office of the Attorney General, is in turn called by Mr Dreelan, to tell him of the Garda legal team’s call and intention. Soon after this call, Mr Barrett telephones Michael Flahive, an assistant secretary general in the Department of Justice to inform him of events. This revelation contradicts many of the statements made by the Taoiseach and Government Ministers before Christmas. Ms O’Sullivan contacts Ken O’Leary, deputy secretary general at the Department of Justice to discuss the matter. In a statement to the tribunal this week, Mr O’Leary said Ms O’Sullivan had asked him whether, based on his experience, anything occurred to him of which she should be mindful. He says he indicated it was a matter for her, but that she should listen to the guidance of her legal advisers. Shortly afterwards, Mr O’Leary receives a call from Michael Flahive also telling him of the Garda’s strategy to handle Sgt McCabe. Mr O’Leary tells him that he has just spoken to the Garda commissioner. AT 4.10PM
The commission rises so that counsel for the commissioner can take instructions after he had been asked if his line of questioning was authorised by the Garda commissioner.
During an adjournment at the O’Higgins Commission, Ms O’Sullivan made a 15-minute phone call to the acting secretary general of the Department of Justice, Noel Waters.
Both parties now say they don’t remember this call, but phone records presented to the tribunal on Friday showed it happened.
Both parties also said that the Garda’s legal strategy wasn’t discussed, but seeing as neither remembers the actual call, it’s unclear how they know this. AT 4.34PM
After the short adjournment had ended, counsel Colm Smyth returned to confirm that the line of questioning had been authorised by the Garda commissioner. AT 4.57PM At 4.57pm, Mr Flahive, sends his infamous email to Chris Quattrociocchi, Justice’s private the secretary Minister and for CCs it to Ken O’Leary. AT 5.05PM Mr Quattrociocchi responds and says: ‘I’ll flag this to the minister.’ He then forwards the email to Ms Fitzgerald and her two special advisers, William Lavelle and Marian Mannion, and then secretary general of the Department, Noel Waters. MAY 25th, 2015
Mr Quattrociocchi, again responds to Michael Flahive, saying ‘the minister has noted the below’, confirming that ten days later, the email was still being discussed and had been read by Ms Fitzgerald. JULY 4th, 2015
Mr O’Leary writes directly to Ms Fitzgerald to tell her that ‘the Garda commissioner phoned me to let me know they had received queries’ on the Garda’s strategy from journalists. He advises her how to respond if questioned. MAY 13th, 2016
Days after the O’Higgins report is published, leaks, revealed by the Irish Examiner, suggest that Ms O’Sullivan’s legal team had a strategy of attacking Sgt McCabe’s motivation and integrity during the inquiry. Frances Fitzgerald say she knew of no such strategy.
MAY 18th, 2016 Ms O’Sullivan sends three emails to Ms Fitzgerald. In them, Ms O’Sullivan suggests that Ms Fitzgerald could tell the Dáil that at no point did the Garda commissioner instruct her legal team to accuse Sgt McCabe of malice. Ms O’Sullivan also enclosed her legal instructions, and suggested the minister could say she had full confidence in the Commissioner. However, Ms Fitzgerald appears to have ignored the instruction and instead told the Dáil that day that ‘it would be dangerous to put the commissioner’s legal instructions in the public domain’. MAY 25th, 2016 After a week of growing political crisis, Commissioner O’Sullivan eventually releases a clarifying statement where she says that she did not approve of a strategy challenging Sgt McCabe’s integrity, but his ‘motivations and credibility’, ‘I cannot see how it would be in any way unreasonable, improper or avoidable to appropriately test and cross-examine the evidence of all persons giving evidence to the Commission, including Sergeant McCabe,’ her statement reads. It works and gets her out of jail, albeit temporarily. NOV 21st, 2017
Taoiseach, Leo Varadkar tells the Dáil that Frances Fitzgerald had ‘no prior knowledge’ of the Garda commissioner’s legal strategy. ‘I can confirm once again that the Department of Justice and Equality had no hand, act or part in
the legal strategy pursued by the former Garda commissioner. The Department of Justice and Equality had no prior knowledge of it. The Tánaiste had no prior knowledge of it either, and therefore could not influence it. The Department of Justice and Equality only found out about it after the fact – after it had already happened.’ NOV 22nd, 2017
Taoiseach, Leo Varadkar again denies any collusion between the Garda commissioner and the Department of Justice over the McCabe case. ‘There is an attempt in some way to suggest .... that the State or State entities were acting in collusion. That is not the case. The Garda has its own legal team and advice, as the commissioner at the time did, and the Department has its legal team and advice.’ NOV 22nd, 2017
Frances Fitzgerald tells the Dáil that neither she nor the Government knew anything about the Garda strategy ‘to question Sgt McCabe’s motivation for his complaints’. She said she did not remember any email on the subject. NOV 28th, 2017
Frances Fitzgerald resigns when it was revealed that she had received Michael Flahive’s email of May15, 2015, outlining the Garda team’s aggressive strategy towards Sgt McCabe and ‘noted its contents’. JANUARY 2018
Testimony at the Charlton Tribunal reveals Mr Varadkar and Ms Fitzgerald to be wrong when they said the Department had no ‘hand, act or part’ in the Garda strategy in relation to Sgt McCabe. It is clear there was distinct knowledge of a potentially troublesome strategy from its inception.