‘20 dispatched prosecutors’ for the fabricated-indictment special counsel···prosecutors: “Must avoid at all costs”, “Concerned about possibly committing the offense of legal distortion” - 경향신문

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Office of Public Prosecution in Seocho-gu, Seoul. Yonhap News

As the so-called ‘Fabricated Indictment Special Counsel Act’ passed the plenary session of the National Assembly on the 6th, procedures to select prosecutors from the Office of Public Prosecution to be seconded to the special counsel are set to proceed. However, a reluctance to accept secondment to the special counsel is palpable among prosecutors.

On that day, the National Assembly held a plenary session and passed the ‘Act on the Appointment of a Special Counsel to Investigate Allegations of Fabricated Investigations and Fabricated Indictments by state institutions such as the Prosecution Service of the Yoon Suk-yeol administration, the National Intelligence Service, and the Board of Audit and Inspection’.

The special counsel team will be composed of up to 309 personnel, including 20 seconded prosecutors, 70 special investigators, and 210 seconded public officials. The team will investigate for up to 200 days, including a 20-day preparation period.

However, among prosecutors at the Office of Public Prosecution, there are reactions such as “We must avoid being seconded to this special counsel team at all costs.” Not only is there a heavy burden in taking part in an investigation that targets fellow prosecutors, but they could also end up bearing political and judicial responsibility down the line for the direction and conclusions of the investigation.

A rank-and-file prosecutor affiliated with an Office of Public Prosecution in the capital region said, “Rather than being seconded to the special counsel and conducting investigations that strike colleagues we have known for a long time by force, many will opt to resign or take leave,” adding, “There was already a strong tendency to avoid secondment during the three prior special counsels and the second comprehensive special counsel, to the point that those now even seem relatively tolerable compared to this one.”

Another incumbent prosecutor said, “If the substance of the fabricated indictments is clear, there would be no undue strain in carrying out compulsory measures, but if not, it will be extremely difficult to reach conclusions in line with the special counsel directives,” and added, “Failure to comply with the special counsel instructions can lead to discipline, and it is doubtful whether even a single applicant for secondment to the team will emerge.”

There is also concern that prosecutors seconded to the special counsel team could later be reported and come under investigation for offenses such as legal distortion. A chief prosecutor at an Office of Public Prosecution in the capital region said, “If no definitive evidence of fabricated indictments emerges, the special counsel could still reach a conclusion of criminal liability through legal interpretation,” adding, “With the offense of legal distortion now established, an overreaching indictment could make us targets of investigation in turn if the administration changes in the future.”

Concerns were also raised that, depending on shifts in the political landscape, a repetition of cases such as a ‘special counsel on the special counsel’ could occur. Jang Jin-young, chief prosecutor at the Suncheong Branch Office, wrote on the Office of Public Prosecution internal network “e-Pros” that “Seeking to uncover alleged abuses of prosecutorial authority in cases indicted by prosecutors, not through the courts but through an investigation by another investigating and prosecuting body, the special counsel, contains obvious unconstitutional elements,” and continued, “It could become an infinite repetition of yet another fabricated-indictment special counsel, inevitably producing the absurd result of prosecutors involved in investigations and indictments endlessly investigating one another.”

Going forward, once a special counsel is appointed, procedures to second prosecutors from the Office of Public Prosecution will proceed in earnest. An official at the Office of Public Prosecution said, “The special counsel can draw up a list of hoped-for secondees through assistant special counsels and approach individuals, or request the needed personnel through the Criminal Justice Bureau of the Ministry of Justice,” adding, “If there are not enough prosecutors who consent to be seconded, as in the case of the second comprehensive special counsel, an internal notice will likely be posted.”