Several court battles involving Lee Jae-myung likely to be paused if elected, experts say
Liberal main opposition leader and Democratic Party of Korea Rep. Lee Jae-myung’s legal troubles have entered the spotlight again.
If a presidential election is held under a scenario where the Constitutional Court decides to remove impeached President Yoon Suk Yeol from office, Lee is likely to become the main hypothetical liberal candidate, according to opinion polls.
However, Lee’s legal challenges, tied to his current embroilment in five different court battles, currently stand as major hurdles in his road to the presidency.
Yet, the Constitution outlines presidential immunity from criminal prosecutions and convictions while in office — except for charges of insurrection or treason — meaning Lee may find ways to evade legal consequences if elected.
Lee, formerly a lawyer himself, has also recently hinted at his knowledge of the possibility that the trials could be temporarily halted if he is elected.
“It is the theory of the majority that the (trials) would be halted (as terms used in the Constitution) that refer to the indictment and the litigation process point to such meanings,” Lee said during a televised debate aired via public broadcaster MBC last month.
Presidential immunity
Article 84 of South Korea’s Constitution states that the president shall not be charged with a criminal offense during his tenure of office, barring insurrection or treason.
Because of this, Lee’s legal battles, except one involving his election law violation allegations, could be brought to a halt during the five years of his term if he is elected, according to an expert.
“It would be difficult for the country’s judicial branch to continue the criminal trials if Lee is elected,” Hwang Do-ssu, a constitutional law professor at Konkuk University, told The Korea Herald on Tuesday.
“It’s not only because of the different and even contradicting interpretations of the Constitution, but also because of the political chaos that is expected to unfold if the legal battles continue throughout Lee’s possible presidency,” he added.
At the same time, Hwang expressed concerns that the courts’ potential decision to temporarily halt trials and hearings could undermine the political authority of the country’s judicial system.
“The Constitution limits the scope of the time frame to during the president’s tenure of office, but Lee’s cases all fall before the time frame of his potential presidency,” the legal expert explained. “Not continuing the trial would challenge the authority of the judicial powers, especially the prosecutors’ right to indict a suspect.”
Another Seoul-based constitutional law expert, who requested anonymity, said that continuing the trials throughout Lee’s potential presidency would exacerbate the political turmoil. But the expert also highlighted the need to update the Constitution, which was last amended in 1987.
“The purpose of Article 84 of the Constitution is to help the president secure stability in running state affairs — if the president in office were to be summoned for questioning and attend a hearing, it would not only disrupt carrying out his or her duties, but damage the dignity of the nation,” the expert said.
“At the same time, the article assumes that a president will not be a convict or criminal suspect, which is something that needs to be considered as well.”
When asked whether Lee’s scenario would be similar to that of US President Donald Trump, who became the first US president to take office while several criminal cases against him were pending, both experts replied that it would be different for Lee. The US Constitution does not explicitly prohibit a presidential candidate from running for office while under indictment, or even while incarcerated, they explained.
Election law violations
Differing interpretations of Article 84 of the Constitution may not even matter if Lee is barred from running for the presidency due to his election law violations case.
In November 2024, the Seoul Central District Court handed down a one-year prison term, suspended for two years, to Lee on charges of making false statements during his 2022 presidential campaign. Lee appealed the ruling, saying there were errors in the fact-finding process.
The Seoul High Court, which is handling the appellate trial, carried out its final hearing of the case last week, which makes it highly likely for the Supreme Court to hand down a final verdict by late June.
The Public Official Election Act stipulates that the court must rule on appeals in election law violation cases within three months after the previous verdict. But courts have adopted different timelines depending on the fact-finding process.
If the Supreme Court confirms Lee as guilty on charges of making false statements, with a prison sentence of any length, Lee would be barred from running for any public office for the next 10 years.
With the Constitutional Court projected to deliver its ruling on Yoon’s impeachment later this month, if Yoon is removed from office an early presidential election would likely be held in May, as it is required to be held within 60 days of the verdict.
Observers say that timeline could be tricky for Lee, as the Supreme Court could speed up its ruling on the election act violation case and deliver its verdict before such an election is held. This is what the ruling People Power Party has apparently been targeting.
“The Supreme Court must deliver its final verdict by June 26 to restore the people’s faith in the country’s judicial branch. ... And even review plans to deliver the verdict by end-May,” People Power Party floor leader Kweon Seong-dong said during a party leadership meeting Tuesday.
“We propose the Democratic Party of Korea (to draft and pass) a parliamentary joint resolution calling for the Supreme Court to swiftly do so,” he added
Besides the election law violations case, Lee, who served as mayor of Seongnam from 2010 to 2018, is also being tried on charges of committing breach of trust in a land development scheme.
He has separately been indicted for third-party bribery and violating the Foreign Exchange Transactions Act in an underwear company's unauthorized remittance to North Korea from 2019 to 2020, when he was governor of Gyeonggi Province.
mkjung@heraldcorp.com
