The former justice minister had to resign for many reasons — just not because she failed to stop a challenge to Maurice McCabe’s motivation in 2015, writes Michael Clifford.
Wherefore the vindication of Frances Fitzgerald?
Since the publication of the Disclosures Tribunal report last Thursday the V-word has been used unsparingly. Ms Fitzgerald, we are told, has been vindicated.
She was forced to resign as minister last November over matters surrounding her knowledge of various issues at the O’Higgins commission in May 2015.
Mr Justice Peter Charleton concludes that everyone got the wrong end of the stick.
“By the time the tribunal came to hear these matters, the Minister for Justice and Equality had selflessly decided to resign in the national interest in November 2017.”
In recent days, Taoiseach Leo Varadkar, Health Minister Simon Harris, and the Blueshirt tribe in general, have all been crying that poor Frances was done a grave disservice by the troublemakers in Fianna Fáil and Sinn Féin, not to mention Labour’s Alan Kelly.
Fitzgerald did not, as per the narrative of recent days, resign because she did anything wrong in 2015.
She resigned as a result of her handling of the fallout from those days. That is an entirely political, rather than legal, matter. It reflects not on her integrity but on her political judgment.
As such, her “vindication” in political terms is highly qualified.
Here is what we now know.
The O’Higgins commission, investigating complaints of malpractice made by Sergeant Maurice McCabe, began hearings in May 2015.
Early on, a legal strategy was deployed by An Garda Síochána to attack the motivation of Sgt McCabe. This was, as the force’s solicitor noted, “political dynamite”.
Garda Commissioner Nóirín O’Sullivan told the Disclosures Tribunal it placed her in an “almost impossible dilemma”, as she had been publicly supportive of Sgt McCabe.
The department was informed that there would be a challenge to Sgt McCabe. An email was sent to Ms Fitzgerald to that effect.
She told the Disclosures Tribunal she would have read it.
“The way I would have responded to the email was that, first of all, it was about something happening at the O’Higgins commission,” she said.
“Now I would have regarded the O’Higgins commission as quasi-judicial… it was private, it was independent. I would not have seen any role for myself in relation to the O’Higgins commission.”
Mr Justice Charleton found this approach from the minister to be entirely correct, hence the cries of vindication.
Fast-forward 12 months.
In May 2016, on publication of the O’Higgins report, the Irish Examiner reported about the attack on Sgt McCabe’s motivation.
It set off a political storm.
Mr Justice Charleton has reported that the leaking of partial transcripts to the media was “deception” that led to a “rush to judgement”.
Initially, it appeared that a tape-recording of an eight-year-old meeting had been central to Sgt McCabe’s defence of the attack on his motivation.
In the course of that storm, Ms Fitzgerald came under pressure as the Minister for Justice.
On RTÉ’s Prime Time on May 16, 2016, she certainly gave the impression that the whole matter was new to her.
Yet while she didn’t know the details of what had occurred 12 months previously, she had been told about the legal strategy.
The following day in the Dáil, she responded to a question from then Sinn Féin leader Gerry Adams on the matter.
“Neither I nor my department had any involvement in the approach taken by the Garda at the commission of investigation,” she said.
"There is no question of that. The duties of confidentiality on the commissioner imposed by the commission of investigation are not over-ridden by any duty of the commissioner to account to me in relation to the commission."
All of which are accurate statements. But the answer does give the impression that she knew absolutely nothing about what had occurred in May 2015 at the time.
Fast-forward now to November 2017.
Mr Kelly submitted parliamentary questions around what was known in the Department of Justice about what was going on at O’Higgins back in 2015.
The answers he received were vague. He kept digging. His efforts gained some traction in the media.
Fianna Fáil leader Micheál Martin jumped on board. The opposition caught the scent of political blood.
The subtext to the issue was that if Ms Fitzgerald knew about attempts to attack Sgt McCabe, why didn’t she do anything to stop it? That, as Mr Justice Charleton agreed, would have been wrong.
But a different question was now arising. Have the department and the minister anything to hide?
No, was Mr Varadkar’s answer.
When the matter was brought up in the Dáil, the Taoiseach responded that Ms Fitzgerald told him that “she had no hand, act, or part informing the commissioner’s legal strategy, nor did she have prior knowledge of the legal strategy… she found out about it after the fact, but around the time it was in the public domain when everybody else knew about it as well”.
We now know that was not the case.
She knew about it in May 2015, not May 2016, as the Taoiseach had told the Dáil. To be sure, he ordered a trawl of emails in the department.
That threw up the email which showed that she had been informed about the legal strategy at the time.
RTÉ’s Katie Hannon broke the story about the new email on November 27.
Crucially, that email and others had not been sent to the Disclosures Tribunal which had been sitting for 10 months by then. The minister resigned the following day.
In a speech marking her resignation, Mr Varadkar noted that she “had no knowledge of it [the legal strategy] until the commission’s hearings were already under way and that her knowledge of the detail was limited”.
The last sentence was at great variance to what the Taoiseach had told the Dáil previous week, inadvertently misleading the House.
Ms Fitzgerald did not have to resign because she failed to stop a challenge to Sgt McCabe’s motivation in 2015.
She was correct in how she handled that matter.
She had to resign because she misrepresented the extent of her knowledge about what went on in 2015, she was slow in answering legitimate questions, her briefing to the Taoiseach saw him mislead the Dáil, and her department failed to discover important documents to the Disclosures Tribunal.
Now Fine Gael wants to brush over that reality and claim the political high ground.
Well, there was nothing to stop Mr Varadkar restoring Ms Fitzgerald to an empty Cabinet post at the weekend.
Why shouldn’t there be second acts in Cabinet lives?
Perhaps the selective interpretation of recent history is being undertaken to deflect from the fact that there is now no room at the top table for the former minister, irrespective of her “vindication”.