Fintan O’Toole: Did the Department of Justice engage in a deliberate act of subversion?

If a single word were to sum up the self-image of the Department of Justice, it would be “subversion”.

Its institutional culture has been formed around a sense of a historic mission to combat conspiracies to subvert the State. And yet we are now faced with reasonable suspicions that the department itself has engaged as a collective institution in an extraordinary act of subversion. (There is no evidence of culpability on the part of any individual.)

The withholding from the Charleton tribunal of the three crucial emails that were eventually made public on Monday night is, on the face of it, an attempt to undermine a tribunal of inquiry charged with the investigation of extremely serious and urgent matters. It is a defiance of the will of the people as expressed by the Oireachtas when it established that tribunal. Who is going to account for this?

Fine Gael Ministers have repeatedly claimed in recent days that Frances Fitzgerald, when she was minister for justice, established the Charleton tribunal. This is true only in the most narrow technical sense that she made the formal order to get it going. It was actually established on February 16th by the Dáil and Seanad, which, for all their faults, are the people’s parliament. In the past, the Oireachtas has given tribunals fuzzy or excessively broad terms of reference. But not this time. As Judge Peter Charleton put it in his opening remarks on February 27th, “the terms of reference make it crystal clear as to what is at issue”.

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Opening statement

At issue, in essence, is whether or not “senior members of An Garda Síochána attempted to entrap or falsely accuse Sergeant [Maurice] McCabe of criminal misconduct”. And an explicit demand of those terms of reference is that Charleton investigate “contacts between members of An Garda Síochána and… members of the Government” that could bear on this central question. Frances Fitzgerald was a member of the Government  all contacts she had that were relevant to the question of the alleged smearing of Maurice McCabe were unquestionably germane to the tribunal.

There are good reasons to doubt that the withholding of these documents was accidental

In that opening statement on February 27th, Peter Charleton gave an eloquent and precise account of what he required: “This tribunal is a drain on the resources of the Irish people, and it is paid for by their submission to the democratic structures of which taxation has been a central part in our tradition. Every lie told before this tribunal will be a waste of what ordinary men and women have paid for through their unremitting efforts. Every action of obfuscation, of diversion of focus, and of non-cooperation is unwelcome for that reason.” He specifically called on everyone with knowledge of the events under scrutiny to come forward and help him understand “who did what, who said what, when, in what terms, who communicated with whom, by whatever means, and in what terms.”

By then, the tribunal had already made an order requiring the department to hand over all relevant records. But, just in case there might be the slightest doubt, Peter Charleton publicly stated that “if any person has a phone, computer, electronic records or paper records, relevant to the terms of reference”, they must hand them over to him by March 13th.

It is now abundantly clear that the Department of Justice, whose then minister now claims credit for establishing the tribunal, did not comply with this crystal clear instruction. The two email chains released on Monday night, centring on three crucial emails, were withheld from the tribunal when the department sent in its cache of documents. The only question is whether this was done deliberately or as a result of neglect or accident.

There are good reasons to doubt that the withholding of these documents was accidental. These are digital records – a simple search of the email archive using the term “McCabe” would surely find them. The phrase “Sergeant McCabe” appears in the opening lines of each of the email chains. In the progress report on its implementation of reforms that the department also issued on Monday night, it boasts that “significant development has taken place in relation to… information systems and data and this work is ongoing.” It is hard to believe that this significant development has not yet reached the point where senior civil servants know how to use the search function on their computers. If a “fresh trawl” could find the emails last week, what kind of trawl can have missed them in February?

Implausible

But in any case, it is highly implausible that the only documents missed in the trawl in February happen to be the ones that are most relevant to the tribunal’s task of investigating contacts between the Garda and members of the Government on the alleged smearing of Maurice McCabe. According to Simon Coveney and other ministers, the department handed over fewer than 300 documents to the tribunal. This is by no means a massive cache – the explanation that the explosive emails were needles lost in a giant haystack simply doesn’t wash.

The suspicion of deliberation is, moreover, enhanced by subsequent events: the refusal to answer Alan Kelly’s questions in the Dáil, Frances Fitzgerald’s now discredited claim to have had no knowledge of the Garda strategy to attack McCabe, Charlie Flanagan’s extraordinary reluctance to tell his own Taoiseach that he was misleading the Dáil when he insisted that Fitzgerald knew nothing of the whole affair until it eventually became public.

Unless we hear a very good explanation, we have to assume that the withholding of the emails was deliberate. And this is an extremely serious business. If Katie Hannon had not revealed the existence of the first email last week, it seems likely that the Charleton tribunal would have proceeded on the basis of radically incomplete information – an abuse, as the judge said, of public resources, but also a defiance of the democratic will of the people as expressed by unanimous votes in both houses of the Oireachtas.

Anyone who “by act or omission, obstructs or hinders the tribunal in the performance of its functions, or fails, neglects or refuses to comply with the provisions of an order made by the tribunal” is guilty of a criminal offence. That is bad enough. But there is a reasonable fear that something even worse is involved here – a deliberate act of subversion by the very department that sees itself as the State’s bulwark against subversion. Regardless of the electoral politics, the Government must act to protect the State – even if this means protecting it from itself.