A Trial Structure Where President Lee Jae-myung Appoints a Special Prosecutor for His Own Case

A special prosecutor bill that could affect President Lee Jae-myung's trial has passed the National Assembly. It is officially the "Special Prosecutor Act to Uncover the Truth About Fabricated Investigations and Indictments," shortened to the Fabricated Indictment Special Prosecutor Act. The bill's core aim is to determine whether the Yoon Suk-yeol government's prosecution fabricated investigations and indictments in cases related to the president, but because sitting presidents' cases are included in the scope of investigation, legal controversy has flared up.

Passed After Breaking a 24-Hour Filibuster

On the afternoon of the 6th, the Democratic Party held a plenary session at 4 p.m., forcibly ended the People Power Party's unlimited debate, known as a filibuster, by vote after about 24 hours, and put the bill to a vote. With People Power Party members walking out, approval votes prevailed, and the bill passed the plenary session under the leadership of the ruling coalition. The opposition condemned the move as a railroading.

The heart of the bill is tasking an independent special prosecutor with investigating suspicions of fabricated investigations and indictments by the prosecution under the Yoon Suk-yeol government. The problem is that President Lee Jae-myung's own cases are included among the subjects of investigation. With the president appointing a special prosecutor for cases involving himself, constitutional unconstitutionality disputes have been raised.

A Structure Where the President Appoints the Special Prosecutor for His Own Case

Under the current Special Prosecutor Act, the president in principle appoints the special prosecutor. Yet this bill includes the appointing president's own cases among those the special prosecutor will investigate. This is why critics point out that the special prosecutor's findings could work in President Lee's favor at trial. Seo Young-kyo, chair of the Legislation and Judiciary Committee, brushed aside these conflict-of-interest claims as "nonsense," defending the bill's legitimacy.

Concerns have also emerged within the ruling camp. Chung Sung-ho, a Democratic Party lawmaker who served as the first justice minister of the Lee Jae-myung government, expressed the view that proving fabricated indictments through a special prosecutor's investigation alone would not be easy and that the bill contains legal contradictions. The analysis is that having the special prosecutor judge the legality of indictments in cases before final rulings could collide with the judiciary's authority.

Another point of contention is the withdrawal-of-indictment clause. Withdrawal of indictment is a system by which a prosecutor retracts an indictment after it is filed but before the judgment is finalized; if the special prosecutor uses it during the investigation, the trial itself could disappear. The opposition has raised suspicion that this clause is a step toward effectively terminating the president's trial.

Cross-Party Sparring and Rep. Jung Chung-sik's Counterattack

The Democratic Party argued that "prosecutorial power is not the private property of any administration" and that uncovering suspicions of prosecutorial misconduct amounts to restoring the rule of law. In contrast, Jung Chung-sik, the People Power Party's floor leader, claimed on the 8th that "the case of the fisheries official shot in the West Sea is included among the subjects of the withdrawal-of-indictment special prosecutor act that the Democratic Party rammed through," asserting political revenge in the composition of the special prosecutor's investigative team. The People Power Party has called the bill "the president's personal law firm" and is weighing whether to demand re-deliberation or reject it.

Once the requested bill is transferred to the government, the president can demand re-promulgation. If the ruling and opposition parties fail to agree, the National Assembly must process it again, and if the president exercises a veto, the bill goes through a revote in the Assembly. In this process, the very situation in which President Lee must decide whether to sign or veto a bill affecting his own interests is likely to constitute a constitutional burden.

Remaining Procedures and the Shockwaves

As debates over constitutionality continue, led largely by constitutional scholars, the opposition could file a jurisdictional dispute or a constitutional review petition with the Constitutional Court even if the law takes effect. Battles are also anticipated over the process of recommending special prosecutor candidates and composing the investigative team.

The bill's stated purpose of uncovering fabricated investigations carries the rationale of prosecutorial reform. However, three overlapping issues—the political skewing of the investigation's targets, the potential for abuse of the withdrawal-of-indictment clause, and the president's conflict-of-interest structure—are causing the bill's passage to amplify political conflict instead. The president's decision after the bill is transferred to the government, along with the Constitutional Court's judgment, are expected to determine the law's fate.