Former President Yoon Suk-yeol's side argued at the sentencing hearing on the 13th in the case over charges of leading an insurrection that the Dec. 3 martial law is not subject to judicial review. In making the case, French thinker Montesquieu and U.S. President Donald Trump were mentioned. They also blamed the special counsel investigating the insurrection case for the lengthy duration of the trial. They further argued that the indictment should be dismissed, saying the special counsel violated procedures under the Criminal Procedure Act.
The Seoul Central District Court Criminal Division 25 (Presiding Judge Jee Kui-youn) opened a sentencing hearing at 9:30 a.m. for former President Yoon on charges of leading an insurrection, and for former Minister of National Defense Kim Yong-hyun, former Korean National Police Agency Commissioner Cho Ji-ho, and five other military and police leaders on charges of engaging in important duties related to the insurrection.
The sentencing hearing was held on the 9th, but former Minister Kim's attorney spent eight hours examining documentary evidence, and the session went late into the night. The court set an additional date, and the sentencing hearing resumed on this day.
Former President Yoon entered the courtroom in a navy suit without a tie, holding a bundle of documents. Seated at the defendant's table, he conferred with his attorneys, but once the documentary evidence examination began, he watched the arguments while looking at the monitor. Nine defense attorneys appeared for Yoon's side, and 10 prosecutors, including Special Counsel Park Eok-su from the special counsel investigating the insurrection case, appeared for the special counsel.
◇"Declaration of martial law is a political decision, not subject to judicial review"
Defense attorney Bae Bo-yoon cited the separation of powers concept of French thinker Montesquieu (1689-1755). Montesquieu first argued for separation of powers in "The Spirit of the Laws," contributing to republican theory and exerting a major influence on the draft of the U.S. Constitution.
Bae argued that a declaration of martial law by the president, the head of the executive branch, is the exercise of constitutional authority and therefore "not subject to judicial review." Bae cited as examples the late former President Roh Moo-hyun's deployment of the Zaytun unit and former President Park Geun-hye's suspension of operations at the Kaesong Industrial Complex.
A U.S. Supreme Court ruling related to President Trump was also mentioned. In July last year, the Supreme Court accepted Trump's arguments regarding acts during his first term and broadly recognized presidential immunity. Korea's Constitution explicitly grants a sitting president criminal immunity except for insurrection and treason, but the U.S. Constitution does not define the scope of presidential immunity. The ruling effectively set the scope of immunity recognized for a U.S. president.
Citing this, Bae also argued that if criminal indictments of former presidents become routine, it could lead to a "vicious cycle" that weakens the presidency and the government.
◇Blaming the special counsel for trial delays… "Obstructing a speedy trial"
Yoon's side said, "The defendant has nothing to gain from delaying the trial," and called it "a malicious attack on legitimate defense activities," asserting there was no intent to delay. "We agreed to most of the 150,000 pages of evidence and digital evidence. If we wanted to delay the ruling, we would have disagreed with all of it," they said.
Attorney Lee Kyung-won for Yoon said, "There are 600 witnesses who gave statements related to this case." Lee argued that if the defense had not agreed to statements and records, witness examinations could have dragged on, but thanks to the defense's agreement to evidence, the trial is wrapping up in eight months.
They also said, "The defendant and the defense have nothing to gain by delaying the close of arguments," arguing that amid repeated warrant issuances in other cases, securing a swift acquittal in the "main case" would benefit acquittals in the other cases.
They said the special counsel is responsible for the delay. They argued that while the special counsel needed to examine witnesses directly related to the defendant, it prioritized those who were not, and selected sensational witnesses, calling it "an extension of the insurrection smear." They also said parallel proceedings led to designating the same witnesses across cases, making duplicate examinations inevitable.
◇They also took issue with the amended indictment, Noh Sang-won's notebook, and the CIO's investigative authority
Yoon's side sought dismissal of the indictment on the grounds that "the criminal procedure itself was unlawful." As grounds, they cited: ▲ that, in principle, more than three years would be needed for witness examinations ▲ that the special counsel's witness selections and questioning were sensational and unnecessary ▲ and that filing to amend the indictment right before the end of arguments was unlawful.
In particular, they said, "(The special counsel) applied for permission to amend the indictment before the close of arguments to add matters not previously addressed, and added a large volume related to Noh Sang-won's notebook," and "submitted it right before the documentary evidence examination," arguing procedural illegality or an infringement of the right to defense.
They also argued that the so-called "Noh Sang-won notebook" does not constitute evidence proving guilt on the insurrection charges. Citing circumstances suggesting the same writing instrument was used, they said it is hard to see that a long-term martial law plan was actually drafted, and that because former President Yoon did not personally write the notes, they cannot serve as a basis to prove the allegations.
Yoon's side further argued that the Corruption Investigation Office for High-ranking Officials (CIO), which arrested and detained Yoon, has no authority to investigate insurrection charges. The special counsel's position is that it recognized the insurrection allegations during its investigation into abuse of power, but Yoon's side said the investigation began with the filing of a complaint on insurrection charges, making it "clearly an unlawful investigation." They also challenged the constitutionality of the special counsel act and its political operation.