Moon Jae-in’s Wednesday Night Massacre threatens the rule of law in Korea

IF ONLY HE’D MASSACRED THEM ON A SATURDAY NIGHT, the metaphor would have been impeccable. But when South Korea’s President, Moon Jae-in, directs his Justice Minister, Choo Mi-ae, to reassign 32 prosecutors as they closed in on political corruption in his office–four months before elections will decide whether his party will have a majority to pass laws or a supermajority to amend the Constitution–it should have been the biggest news since the impeachment of his predecessor, Park Geun-hye. Last night, the “liberal” “human rights lawyer” may have inflicted a death blow to the rule of law in Korea’s “vibrant democracy.” When a government ceases to be accountable, it ceases to be democratic, because the people are denied the knowledge to govern themselves intelligently.

The multiple investigations Moon just quashed center around his long-time confidant, Cho Kuk, a former Leninist pamphleteer and Blue House secretary. For five weeks last fall, Cho also served as Moon’s Justice Minister until public outrage over a series of scandals forced him to resign. The allegations include serious political corruption–that he conspired with other Blue House staff to cover up bribery allegations and rig an election. Those investigations threatened to incriminate people at the highest levels of Moon’s administration. The investigations have resulted in multiple indictments, including of Cho himself; the apparent suicide of a former Blue House staffer; and one case of a politician boarding a boat and fleeing to Japan shortly before he was to be questioned. Prosecutors have searched Blue House offices, the Prime Minister’s office, residences, police stations, government offices, a private equity fund, and universities.

One newspaper, the centrist Joongang Ilbo, has distinguished itself in reporting this story.

The Allegations

Briefly–

– Prosecutors are investigating whether the Blue House arranged for the police in the small southeastern city of Ulsan to announce a corruption investigation of a political opponent–just stop me if this sounds familiar–the incumbent opposition mayor, Kim Gi-hyeon. Its alleged motive was to help Moon Jae-in’s old friend, Song Cheol-ho, win the next mayoral election (he did). Prosecutors reviewed the evidence behind the police investigation, concluded that it was baseless, and opened an investigation that led them to Song. Last November, a former Blue House staffer was found dead three hours before he was scheduled to appear for questioning about the Ulsan affair.

– Lim Dong-ho, another member of the ruling party, was running against Song in the primary until he dropped out. Lim initially told reporters that the Blue House offered him a Consul General job in Japan if he dropped out. After prosecutors opened an investigation, Lim said he had misspoken, and that he had merely discussed the possibility informally with … Im Jong-seok–yes, that Im Jong-seok–the ardent admirer of Kim Il-sung who was Kim Jong-il’s financial agent in the South from 2005 until some unknown date that might, for all we know, be January 9, 2020. (Update: Yes, I realize Kim Jong-il died in 2011.)

[“Why didn’t you think of that?”]

– Lim now says there was no quid pro quo, and that he just “‘naturally’ suggested” where Moon might decide to put him after his term on the ruling party’s Supreme Council was up. But when Lim was due to speak with the prosecutors, he hopped on a fast boat to Fukuoka and skipped town. Prosecutors later searched his house and his car. Lim says he’ll be back in Korea by Saturday. By then, of course, Choo Mi-ae will have reassigned the prosecutors to traffic court in Wonju, and the incriminating files and e-mails may well go into the same memory hole that swallowed the transcript of Roh Moon-hyun’s 2007 summit with Kim Jong-il. The prosecutors won’t get to ask Lim if he was the one who cooked up the idea of smearing Kim GH or fabricating the evidence against him. Move along, nothing to see here.

– Prosecutors are also investigating allegations that Cho Kuk tried to cover up bribery allegations against a former ruling party Vice-Mayor, Yoo Jae-soo, of Korea’s second-largest city, Busan. They later indicted Yoo for taking bribes while at the Moon administration’s financial regulation agency. Press reports say that prosecutors have digital evidence to incriminate Yoo, and that two presidential secretaries have allegedly implicated him the cover-up. Reports say that Cho merely denies that he acted alone.

– Cho’s wife is also under indictment over allegations she and Cho rigged the admission of her daughter to medical school (this sort of thing is a really big deal in Korea). In retrospect, it was odd that a high-school student was listed as the first author of an English-language academic paper in a medical journal, citing experiments that would have begun when she was 11 years old. She later cited the paper in her medical school admissions essay.

– Prosecutors are investigating Cho’s use of a family private equity fund as a possible tax dodge. Some opposition lawmakers have even alleged that the fund held a stake in a ship that smuggled coal from North Korea to Vietnam and South Korea. Cho is now also under indictment for charges that include college admissions fraud, falsely reporting personal wealth, and obstruction of justice.

The questions about Cho were little more than a speed bump in his appointment. Cho went to the National Assembly, where he mostly denied knowing anything. For what it’s worth, we can guess how the Pyongyang delegation would have voted. It called Cho’s opposition critics “a traitorous rabble.” A confirmation vote was not a constitutional prerequisite, which meant that Moon could appoint Cho even without the National Assembly’s consent. And that’s just what he did, despite polls showing that most people opposed it. The people saw this as an overreach. Moon’s approval rating fell to 40 percent and his disapproval rate rose to 53 percent. Five weeks later, swelling public protests forced Cho to resign. Moon later apologized for the handling of the appointment, but only after he spent months trying to quash the investigations of Cho.

It’s enough to make you wonder what was so bad about Park Geun-hye, aside from her complete lack of political skill, and the emotional stunting (possibly brought on by–just spitballing here–the violent murder of both of her parents, one of them on live television) that left her unable to show empathy, a common touch, or a command presence in times of crisis.

When the “Reform” is the Cover-Up

Of course, it remains to be seen whether the prosecution can prove that these allegations are also crimes. That’s what investigations are for. That’s why democracies have independent counsel, inspectors general, and vigorously independent criminal investigators. That’s why judges have life terms and can’t be fired unless they’re impeached. That’s what whistleblower protection laws, government records laws, freedom of information laws, legislative oversight, and a boisterous and fearless press are for. Experienced democracies understand that transparency and accountability are essential limitations on the power of a Byzantine bureaucracy. In Korea’s relatively new and fragile democracy, all of those guardrails are either lacking or failing. The prosecution alone stood firm, girding the structure of laws that distinguishes democracy from mob rule and allowing for a safe, orderly, and intelligent process of self-government. Now, Moon has broken that, too.

It wasn’t the crime, but the cover-up, that brought Nixon down. Had the investigations of Cho Kuk been completed, they might or might not have proved the commission of a crime. But as of today, there is certainly a cover-up, and it begins with one of the most cynical words in the political lexicon–“reform.”

Two days after Christmas, Moon’s party rammed a prosecution “reform” law through the National Assembly. The architect of the legislation? None other than Cho Kuk. The vote passed by a narrow margin and triggered one brawl on the floor of the National Assembly and another outside the building. The new law creates a special investigation unit with the exclusive power to investigate allegations of corruption by the highest officials in the country. It allows the administration to disband the special prosecutorial units that were investigating all the allegations I’ve just discussed. It gives the Blue House a combination of direct and indirect powers to pick the prosecutors who will replace them. It requires the new prosecution unit to notify the Blue House when it begins an investigation of a top official, raising the risk that the targets would destroy evidence or exert political influence. One senior prosecutor called the new law “the ruling party’s attempt to subdue law enforcement in the country.”

And there’s little question that Moon is using his power to protect Cho. Senior Justice Ministry officials have called the prosecutors to complain about the investigation. Moon himself has publicly criticized it. The Blue House has also pressured prosecutors to shut the bribery cover-up investigation down. Moon does not conceal that his intent was to squelch the prosecution’s political independence. He declares that “[a]ll public authorities must act humbly before the people,” which required “stronger democratic controls.” He demands that the prosecution “humbly accept the people’s demands for reform.” Moon, of course, would be the subjective interpreter of the people’s will. Choo calls “democratic” control of the prosecution “a demand of the times that nobody can resist.”

And it’s not just Cho who is being protected. No sooner had the law passed than Moon pardoned several hundred other people who had been convicted of public corruption or violations of campaign finance laws.

Although Moon apologized for appointing Cho, he scapegoated the press for his downfall and issued new restrictions on the media that banned journalists from reporting on investigations of powerful politicians. The Journalists Association of Korea issued a statement condemning the new restrictions, calling them “an attempt to undermine press watch and as an excessive force of censorship through government power.” Meanwhile, Moon is trying to pack the National Assembly seats with Blue House staffers who will support his agenda. A widening investigation threatened to derail his plans.

Worries from the Korean Judiciary

This is not a partisan dispute. Moon himself appointed Yoon Seok-youl, the Prosecutor General who is leading the investigations, just six months ago. Yoon had previously stood up to political pressure from the right in 2012, when he investigated alleged election meddling by employees of the National Intelligence Service. The right-leaning opposition had strongly opposed his nomination. Yoon vows to continue investigating political corruption in the months before April National Assembly elections: “Judicial processes, including the prosecution’s probes, will determine the truth and if Cho is accountable for anything.” Previous prosecutors-general also opposed the “reform” bill, and even threatened to resign over it. Korea’s Supreme Court also warned that “the legislation must be carefully considered so as not to damage the principles of separation of powers enshrined in our Constitution and the independence of the judiciary.”

Beyond the danger that Moon will use this “reform” as a shield, there is also the danger that he will use it as a sword. Don Kirk, who watched South Korea graduate from dictatorship to democracy, has sent the clearest distress signal from the entire foreign press corps:

The controversy in Seoul over establishing a special unit to investigate corruption deepens South Korea’s left-right divide in a struggle sure to test the country’s democratic system. In his zeal to carry out his campaign pledges and sweeping reforms, President Moon Jae-in wants broader powers to solidify his regime and sublimate conservative voices.

The drive to enhance the president’s powers marks another step in a process reminiscent of how authoritarian leaders seek to solidify their positions and suppress foes. It might seem an exaggeration to compare Moon with Stalin or Mao, but it is not difficult to fear the rise of a system that stifles speech, silences critics and jails opponents.

We have already seen the beginnings of repression in South Korea in the form of strict controls over television networks and intimidation of journalists, publishers and producers. Clearly, the government fears criticism while forcing economic and social reforms, plus pursuing reconciliation with North Korea that’s going nowhere while risking South Korea’s liberal democracy.

At least one South Korean judge shares Kirk’s concern:

If the [new agency] attempts to punish judges and prosecutors with power abuse or dereliction of duty charges based on complaints filed by state-sponsored organizations or malicious entities, [judges and prosecutors] will have no choice but to lie low,” Kim Tae-gyu, a judge of the Busan District Court, told the JoongAng Ilbo. “It can especially be employed as a useful tool by the administration to remove dissenting voices in the judiciary.”

Climate Change

Choo’s decision to reassign the 32 prosecutors investigating corruption in the Blue House now confirms the worst fears about the prosecution “reform” law. At best, these are serious setbacks for transparency and the rule of law in a democracy that people of many nations, but Americans in particular, have given tens of thousands of lives and billions of dollars to cultivate. We are stakeholders in that democracy–those of us who wore America’s uniform in Korea, and who are forever bound to it by ties of love, blood, and culture most of all. At worst, they amount to law as obstruction of justice–“reform” that subordinates the only independent institution that could still hold the presidency accountable.

A normal democracy with functioning checks and balances would impeach a president for this. Firing prosecutors, after all, was exactly what brought Richard Nixon down. This story should be ringing alarm bells about the rule of law in South Korea. But then, it should have set off alarm bells that Moon appointed Im, an admirer of Kim Il-sung and later Kim Jong-il’s financial agent in the South, as his Chief of Staff. It should have set off alarm bells that in a 1992 pamphlet, Cho spoke of “our struggles against perestroika,” expressed dismay at the recent fall of the Warsaw Pact, and called for “the workers’ liberation” of South Korea. It should have set off alarm bells that Choo Mi-ae, who now holds the levers of the law in South Korea, repeatedly threatened to sue Moon’s political opponents for defamation over criticism that falls squarely within what a true democracy would call protected political speech.

Whether such people became President Moon’s closest confidants in spite of their undemocratic views or because of them may decide whether Korea’s democracy has a future. One explanation that people are understandably reluctant to reach is that these are not people who believe in democracy as we believe in it. What they are doing is not liberal. It is not normal for a democracy. This is the creation of what John Stuart Mill called tyranny of the majority–a form of “democracy” that is more nostalgia than governance, in which the state takes its mandate from the street and the minshim, rather than through the empirical measurement of the people’s will through a free and fair ballot. This is more than a changing of the seasons; this is climate change. This is what it looks like when a democracy is in distress. And were Moon not one of the most media-savvy, charming, and oleaginous politicians in the world today, he wouldn’t be getting away with half of it.

I’ll give the final word to Choi Jang-jip, Professor Emeritus at Korea University, who has written the single most thoughtful criticism of Korea’s arrested democratic development I’ve ever read. I disagree only with his call for “self-censorship,” though I would change that objection to an endorsement if he’d rephrase his call as one for rhetorical moderation and self-restraint. Read it all. And if you love Korea, speak up for her. This is the time to do it.

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Photo credit.

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Update: Brian Myers points out that I misread an opinion Professor Choi had paraphrased as his own view. In fact, his own view is:

There should be more room for public debate in the political sphere, not a place for some single-shot, lopsided opinions, but a place where logically and ideologically refined opinions can freely be shared. I don’t see why that’s not possible.

It was actually a counterpoint to the idea of self-censorship, not advocacy of it.