Special prosecutor undermined by its own law — consultation clause looms over prosecution phase

The second comprehensive special prosecutor team — led by Special Prosecutor Kwon Chang-young and tasked with investigating allegations left unresolved after the three earlier special prosecutors covering insurrection, Kim Keon Hee and the Marine — wraps up its investigative activities Sunday and moves into the prosecution maintenance phase in earnest.

The special prosecutor act contains a provision requiring the team to consult in advance with the three earlier special prosecutors before making decisions that differ from theirs or that could affect the maintenance of indictments, but critics say no meaningful consultation took place. Legal observers expect the clause to become a central point of contention during the prosecution maintenance phase.

According to legal circles Saturday, the special prosecutor team indicted former President Yoon Suk Yeol on Aug. 12 on charges of abuse of authority and obstruction of the exercise of rights, and separately indicted former National Security Office chief Shin Won-sik on the same charges along with an additional count of playing a key role in insurrection. Both indictments were filed without detention. It was the first indictment of Yoon by the special prosecutor team since its launch. The team believes Yoon directed civil servants to carry out duties they were not obligated to perform — specifically, conveying messages to allied nations justifying the martial law declaration immediately after emergency martial law was imposed — and that Shin was also involved.

With the new indictment, the number of trials Yoon faces rose again to eight. One case had already concluded: in July, the Supreme Court handed down a final sentence of seven years in prison for Yoon's use of the Presidential Security Service last January to obstruct the Corruption Investigation Office for High-ranking Officials' execution of an arrest warrant during the investigation into the emergency martial law incident.

On Tuesday, the special prosecutor team also indicted Yoon's wife, Kim Keon Hee, on charges of abuse of authority, obstruction of the exercise of rights, and violation of the Act on the Aggravated Punishment of Specific Crimes — specifically bribery through solicitation — alleging she led the selection of an unqualified company, 21 Grams, during the relocation of the presidential residence. The team concluded that Kim had granted preferential treatment to 21 Grams during the relocation process and received high-value goods in return. The indictment added to the number of trials Kim already faces.

As Sunday's deadline approached, the special prosecutor team pursued a "heavy tail" strategy — securing custody of key suspects or filing charges in the final stretch of its mandate. In the closing days of its activities, the team indicted a string of major suspects in rapid succession.

Critics warn, however, that the wave of last-minute indictments could come back to haunt the team during the prosecution maintenance phase. The "consultation" clause with the earlier special prosecutors could emerge as a significant legal flashpoint.

The special prosecutor act — formally titled the Act on the Appointment of a Special Prosecutor to Investigate the Truth Behind Insurrection, Foreign Interference and State Affairs Manipulation by Yoon Suk Yeol and Kim Keon Hee — was amended last July. The revision added Article 21, Paragraph 3, which requires the team to consult in advance with the three earlier special prosecutors on any matter involving a decision that differs from theirs on investigations or indictments, or that could affect the maintenance of prosecutions.

Divergences between the teams had already drawn attention during the investigation phase. The insurrection special prosecutor had previously dismissed certain individuals as witnesses or cleared them without charges, but the comprehensive team later expanded its scope to investigate those same individuals as suspects on charges of playing a key role in insurrection — a visible gap in approach. Calls had grown for the team to align its investigative findings and coordinate with the personnel of the three earlier special prosecutors to ensure consistency across the probes. With the team now transitioning to the prosecution maintenance phase, that concern has only sharpened.

In one concrete example of the divergence, the comprehensive special prosecutor team — unlike the insurrection special prosecutor — indicted former National Intelligence Service First Deputy Director Hong Jang-won on Wednesday on charges of playing a key role in insurrection. Hong had been widely regarded as a whistleblower in the immediate aftermath of the emergency martial law declaration. Former NIS Director Cho Tae-yong, former NIS Second Deputy Director Hwang Won-jin and former NIS Planning and Coordination Office chief Kim Nam-woo were also indicted alongside him.

Particularly notable was the team's determination — again diverging from the insurrection special prosecutor — that the insurrection ended not on Dec. 4, 2024, when the lifting of emergency martial law was formally proclaimed, but on Dec. 14 of the same year, when the impeachment motion against Yoon passed and his presidential powers were suspended. On that basis, the team applied insurrection charges broadly to a large number of suspects, including indicting former Korea Policy Broadcasting Service president Lee Eun-woo on charges of insurrection propaganda.

It has since been confirmed, however, that the comprehensive team sought the insurrection special prosecutor's input only on the question of whether to indict Colonel Cho and on a separate complaint of mutiny filed against the team itself — and did not consult the earlier special prosecutors on any other matters. In response, the insurrection special prosecutor said Aug. 5 that "consultation is not simply a matter of hearing opinions — it requires genuine cooperation and deliberation," adding that the provision "does not mean a formality of listening; it means substantive consultation," signaling clear displeasure.

The insurrection special prosecutor's deeper concern centers on an amendment to the Code of Criminal Procedure the Cabinet approved Tuesday. The revision added two new grounds for dismissal of indictments: when a prosecution is brought on the basis of a seriously unlawful investigation, and when the prosecution represents a gross abuse of discretionary charging authority. If the comprehensive team's failure to consult — or other procedural defects in its investigation — is deemed a serious procedural flaw, indictments could be dismissed outright.

Beyond the consultation dispute, the two teams clashed on individual cases as well. A prominent example was the conflict over the transfer of the case against former Justice Minister Park Sung-jae for alleged violations of the Act on the Prohibition of Improper Solicitation and Provision of Money and Valuables. After the case resulted in a dismissal ruling, the insurrection special prosecutor said it would hand the matter over to the comprehensive team — which promptly rebuffed the move, saying the case was not subject to transfer.

Legal observers say courts would be unlikely to dismiss a large batch of insurrection indictments outright, but they expect defense teams to raise the failure to comply with the consultation clause as a key argument at trial. The team's decision to extend the end date of the insurrection is also expected to trigger fierce legal battles ahead.

"It would not be easy for a court to dismiss the indictments wholesale, but the fact that the team failed to consult despite a clear statutory requirement is something that can absolutely become a courtroom issue," one legal official said. "If dismissals do occur, the question of who bears responsibility will also have to be addressed."