Limitations of the Special Prosecutor's Team Led by Lawyers

"At the very least, please maintain neutrality until the first trial and wait a bit."

This was the message from Kwon Chang-young, the second comprehensive special prosecutor, to reporters during the announcement of the final investigation results on August 24. He stated that substantial physical evidence had been secured regarding the indictment controversy surrounding former National Intelligence Service Deputy Director Hong Jang-won and urged the public to await the trial results. However, nearly two months later, the narrative emerging from the courtroom is quite different.

Recently, the comprehensive special prosecutor's office has faced repeated criticisms from the judiciary regarding the cases it has indicted. In the case involving the obstruction of arrest warrants for members of the People Power Party, it was pointed out that the indictment failed to include allegations of assault and threats. In the case of former Presidential Office Civil Service Secretary Lee Si-won, the trial was postponed due to the lack of a clear distinction in the evidence list by charge. Similarly, in the case of former Capital Defense Command Chief Cho Sung-hyun, the court demanded clarification on the purpose of the constitutional violation and the instruction path.

This is not merely a matter of document organization; it raises fundamental questions about who committed what crime and how it can be proven.

During the six months of covering the comprehensive special prosecutor's office, one striking aspect was the manner in which they explained their investigation results. Kwon, a former judge and lawyer at a major law firm, along with the lawyer-turned-special prosecutor assistants, actively presented their legal arguments and did not waver in the face of criticism.

Kwon likened the insurrection investigation to a "war," emphasizing the need to "crush the capabilities of insurrection forces." When reporters referenced existing Supreme Court precedents while explaining the legal principles regarding the end of insurrection, he admonished them, saying, "That's embarrassing."

Challenging established legal principles is not inherently problematic. However, the special prosecutor's office is not a representative of clients but a state agency exercising compulsory investigative powers. Proving a crime through one's claims and objective evidence are separate matters.

The limitations of the investigation have also become evident. In the Yangpyeong Expressway case, key testimonies were not secured, leading to the case being handed over to the police. Special Prosecutor Kim Ji-mi explained, "We couldn't obtain that one crucial word regarding who gave the instructions." In the case involving the suppression of the Unification Church investigation, they also failed to confirm directives from higher-ups. The Noh Sang-won notebook case, handled by Special Prosecutor Kim Chi-hun, was left unanalyzed, necessitating further investigation.

Obstruction from defendants, loss of evidence, and limited operational periods were clear obstacles. Nevertheless, it is the leadership's role to prioritize cases and find alternative evidence when testimonies are blocked.

Operational flaws have also surfaced within the organization. A disciplinary action was taken due to the posting of photographs of defendant statements by special investigators, and the announcement regarding former President Yoon Suk-yeol's appearance was retracted. Additionally, materials submitted by a military-related informant just before the conclusion were reportedly not reviewed by Special Prosecutor Kim Jung-min during the final briefing.

Most importantly, the burden of last-minute concentrated indictments has shifted to the courtroom. The comprehensive special prosecutor's office opted for a "heavy tail" strategy, processing 22 out of 28 cases in just over two weeks before the conclusion. Given the repeated issues with specifying charges and organizing evidence across multiple cases, it raises questions about whether sufficient internal verification was conducted prior to the trials.

Kwon explained that while they did not hold accountable those who cooperated with the investigation and acknowledged their crimes, they had no choice but to indict those who denied the allegations. The denial of charges by defendants is a legitimate right to defense. The prosecution should not rely on the acknowledgment of the parties involved to prove a crime.

Being a former prosecutor does not guarantee a successful investigation. The fact that the team is led by lawyers cannot solely explain the current issues. However, the ability to construct legal arguments and persuade does not necessarily equate to the capability to secure evidence and manage an investigative organization. The comprehensive special prosecutor's office should reflect on whether they devoted as much effort to verifying indictments and evidence as they did to explaining their judgments.

This issue is not limited to a specific team, as various special prosecutor teams now include legal professionals without investigative backgrounds. Special prosecutors must be both outstanding legal experts and responsible leaders of investigative organizations.

Kwon stated that the determination of guilt or innocence is the court's responsibility and asked the public to wait for the trial results. However, there is no need to wait for a verdict to determine whether criminal acts were listed in the indictment or whether evidence was organized by charge. The special prosecutor's competence will be revealed not in briefings but in the courtroom where investigations are verified.