Fintan O'Toole: If the Government is innocent why is it acting so guilty?

To grasp the sheer weirdness of the current political crisis, it is best to recall an experience that most parents have had at some stage. You walk into a room and your five-year-old looks up at you with a panicked expression: “It wasn’t me! I didn’t do it!”

But you can’t see any obvious damage, any evidence of a childish crime. And however hard you press, all the kid will say is “It wasn’t me! I didn’t do it.”

The Government is protesting its innocence but acting guilty – and it’s not at all clear precisely what it is guilty of. It is a bizarre way to cause a general election that nobody really wants.

In this latest twist in the interminable saga of Maurice McCabe, three of the most senior figures in the State – the Taoiseach, the Tánaiste and the Minister for Justice – have behaved like first-year students in drama school.

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The teacher announces that the instruction for today’s improvisation class is: “Act guilty. You have some dark, shameful secret and you are desperate that it does not come out.” Leo, Frances and Charlie throw various shapes: furtive, sneaky, shifty. But they’re so bad at it that the teacher has to bawl them out: “Come on boys and girls! If you ever want to make it as a professional, you’ll have to be more subtle than that.”

What we've been getting from Leo Varadkar, Frances Fitzgerald and Charlie Flanagan is a crude exercise in acting guilty. If they have been involved in wrong-doing they are extraordinarily incompetent at covering it up. They are running away from the scene in masks and stripy jumpers with a big bag marked "swag" on their backs.

But what makes the moment so peculiar is that it is hard to believe guilty people would behave so obviously like pantomime villains.

In retrospect, the outburst by Flanagan in the Dáil on November 15th looks exactly like the little kid’s “I didn’t do it!” The Taoiseach was in the course of giving what we (and he) now know to be a false account of the Tánaiste’s state of knowledge about the Garda strategy of attacking Maurice McCabe’s credibility and motivation at the O’Higgins inquiry into his allegations of Garda malpractice.

Passionate outburst

Flanagan was not being discussed at all and Labour's Alan Kelly, who has been persistently asking questions, had not spoken at all that day. Yet Flanagan suddenly intervened with a passionate outburst: "I will not have my good name, or my professional reputation traduced by deputy Alan Kelly, both inside this house and outside . . . I will ask deputy Kelly now to desist from engaging in a smear campaign against me personally and professionally."

The Ceann Comhairle was clearly puzzled: “Deputy Kelly hasn’t said anything here, in my hearing.”

Flanagan was doing an over-the-top impersonation of “man with bad conscience”. And as it happens, we now know that there was at least something for him to have a bad conscience about. His department had found the now-infamous email of May 15th, 2015, to Fitzgerald a full six days before this curious eruption. Flanagan was sitting beside his Taoiseach, who was blithely reassuring the Dáil in complete ignorance of this crucial development.

Flanagan and Fitzgerald are behaving like sinners, but as yet it is not at all clear what the great transgression is that they are so anxious to deny. The alleged crime, although no one in the Dáil is naming it explicitly, is a conspiracy by the Department of Justice to collude with the Garda strategy of attempting to destroy Maurice McCabe in the witness box at the O’Higgins inquiry.

If this happened it is, to evoke the word that did most to bring the McCabe saga to wide public attention, “disgusting”. Apart from all the questions of bad governance, it would be, at the human level, a gross betrayal of a good and brave man. The then government – including Varadkar and Fitzgerald personally – were assuring McCabe that they had his back. If they were indeed stabbing him in that back, their behaviour was revolting.

And they have certainly behaved as if they were indeed trying to cover up just such an unforgivable personal betrayal. If you were to judge the truth of this affair merely from their behaviour, they would be guilty as hell. Why else was the email from a departmental official to Fitzgerald of May 2015 withheld from the Charleton tribunal, which is investigating this whole matter?

If this was done deliberately rather than through incompetence, it is potentially a criminal offence – why would anyone take that risk?

Why is the email itself so odd, containing as it does apparently inaccurate information about the Garda legal strategy?

Explosive revelation

How could Fitzgerald possibly have forgotten reading such an explosive revelation in relation to the most politically destructive saga of recent years? Why, when the email was rediscovered on November 9th did Flanagan (according to himself) not read it?

Why did he allow the Taoiseach to repeatedly mislead the Dáil?

Why, as Katie Hannon has revealed, were the crucial pages that pointed to an effort at senior Garda levels to frame McCabe as a crank motivated by a personal grudge, left out of the transcript of evidence before the O'Higgins inquiry when they were given, on foot of a court order, to the Garda Ombudsman Commission?

All of this is not just bad behaviour – it is extremely risky behaviour. Politicians have, if nothing else, an instinct for survival. And everybody knew that messing around with McCabe was a sure route to the political scrapheap. This whole affair has been a plague on reputations and careers. Why on earth would anyone risk catching that plague unless they were something really shameful to be hidden at all costs?

And yet we have almost no evidence of this shameful conspiracy. The infamous email is highly significant but at best it speaks to what Fitzgerald knew, not what she actually did. There is, as things stand, no solid ground on which to conclude that the Department of Justice, successive ministers or the Government as a whole were parties to an attempt to stitch up McCabe at the O’Higgins inquiry. They may have been – but that is a question the Charleton tribunal has yet to answer.

No real evidence

Which brings us back to the sheer strangeness of this affair. We have a smoking gun – the email of May 15th, 2015. But we have no body and no blood on the floor. We have a rotten smell – but no dead fish. We have all the behaviour that usually signals a panicked attempt to bury a nasty secret – but we have no real evidence of what the secret is.

It is one of the great clichés of these political crises that it is not the crime that brings governments down but the cover-up. The one thing that can be said for this particular crisis is that it is in this sense not clichéd. It is so far all cover up and (as far as direct evidence of governmental conspiracy to attack McCabe’s motivation is concerned) no obvious crime.

If the Government does fall, the show will at least have the merit of ironic originality. We are used to guilty politicians getting away with murder by acting innocent. This will be the first time a government has come to grief because it has acted guilty.