The headlines which proclaimed the “relief” of Fine Gaelers close to Tánaiste Leo Varadkar at the news that gardaí had passed the file on the investigation into his leaking of a confidential government document to the Director of Public Prosecutions might have overstated the case: there is nothing for Varadkar to be relieved about yet.
The already long-drawn out process now enters a crucial phase as the DPP’s office decides whether to prosecute the Tánaiste for the leak or judges that there is little or no chance of a conviction.
On first inspection the political implications of this are quite straightforward: if a prosecution proceeds Varadkar would almost certainly have to resign pending the trial. His progress towards the Taoiseach’s office in December of this year, when the leaders of Fine Gael and Fianna Fáil are due to swap places under the Coalition agreement, would halt abruptly and his party would have to elect a new leader. It would be a monumental blow to Fine Gael.
If the DPP decides there should be no prosecution, there the matter will end. While his political opponents will no doubt continue to taunt Varadkar about the controversy, its political potency would evaporate. By and large people believe in the independence and impartiality of the criminal justice system. Varadkar would almost certainly become taoiseach on December 15th.
No decision
But there is a third possibility which is currently much discussed around Government and Opposition, and was the source of prominent newspaper speculation over the weekend: that no decision is announced before December of this year. Could Varadkar then become taoiseach with the large question mark hanging over him?
There are differing views across both large Government parties on this subject. And a lack of any hard information about the likely outcome. Some Fianna Fáil TDs privately say they would not vote for Varadkar to become taoiseach unless the matter is resolved; there are some in his own party who doubt he could proceed.
What is certain is that if there is no decision by the DPP by the end of the summer then the issue will become a live political controversy in the autumn as politics orients itself towards the December change in the Coalition’s leadership. Ministers will be asked about it by the media at every outing; the Opposition will raise it constantly in the Dáil. It will be a daily question in the political discourse – and one which requires an answer.
But what is also true is that given the political implications of the decision the DPP is likely to feel obliged to come to a decision before that.
While the office is independent of and removed from politics for good reasons, it is not ignorant of politics. It is one thing for Varadkar to be disqualified from office as a result of being charged with a criminal offence; it would be quite another for him to be disqualified because the DPP cannot deliver a decision in time.
It seems highly unlikely that the DPP would allow her office to be dragged into political controversy in this way. That is the unanimous view of several high-ranking sources in both law and politics.
Prosecute
Furthermore, the idea that the DPP’s office habitually takes forever to make up its mind is not something grounded in facts. Only in a small minority of cases does the office take months and months to make a decision on whether to prosecute.
In fact the DPP reaches a decision on whether to prosecute quite quickly in most cases. Its most recent annual report available (2020) shows that the vast majority of these decisions were reached in under three months. Over half (56 per cent) were decided in under two weeks. A further 16 per cent were decided in 2-4 weeks, and another 16 per cent between four weeks and three months. That means 88 per cent of decisions on prosecutions were made in under 12 weeks.
Of course, Varadkar’s decision could take longer than that: but it would be very unusual for it still to be open in the autumn. “A case like this, I’d expect it to be done in six weeks,” says one barrister who deals with the office on a regular basis. Another source in a similar position concurs.
On whether a prosecution is likely, that of course depends on the evidence that the Garda has submitted to the DPP. Two-thirds of all files that are sent to the DPP result in prosecutions.
But all the legal sources who spoke to The Irish Times said that on the evidence of what is publicly known about the case, a successful prosecution would be most unlikely. The difficulty any prosecution would have is proving that Varadkar had a corrupt intent.
There is the possibility that gardai have uncovered some evidence that is not yet in the public domain, though given the conduct of the case so far, that seems unlikely.
“We all know what happened here,” says a legal source. “The question is: does it constitute an offence? I don’t think so.”
