President Lee Jae-myung has personally pushed back on social media against the controversy over seating the head of the Serious Crimes Investigation Agency at Cabinet meetings. His central argument: "Giving up the direction and supervision of the agency would violate the Constitution and the Government Organization Act, and would be grounds for impeachment." He went on to ask whether critics want that direction and supervision "carried out behind closed doors rather than in open meetings." His use of forceful legal terms such as "impeachment" and "dereliction of duty" signals that he has no intention of backing down in this dispute.
There is no disagreement with the president's assertion that "all ministries and agencies must be subject to the direction and supervision of the president and the prime minister." That is a self-evident principle. Yet it is doubtful that the concerns being voiced in legal circles — and within the ruling camp itself — stem from any denial of the need for direction and supervision. Reading the president's position again and again, it is hard to shake the sense that the two sides are arguing past each other. The heart of the criticism over seating the agency chief at Cabinet meetings is not direction and supervision itself, but the view that an investigative body must keep a certain distance from political power and must present an appearance that leaves the fairness of its investigations beyond doubt.
Anglo-American law has a long-standing maxim: justice must not only be done, but must be seen to be done. The point is that even when there is nothing wrong with the substance of a ruling, no appearance should be left that invites doubts about its fairness. Applied to independent investigations, the principle is much the same. Since the president and any Cabinet member could become the subject of an investigation, can anyone guarantee that the sight of the head of an investigative agency sitting down with them in the same room every week will not breed misunderstanding among the public? There is also a strong chance that the opposition will use it for political attacks whenever a major political case is under investigation.
Moreover, the Serious Crimes Investigation Agency is already an external agency under the Ministry of the Interior and Safety, and by law it is subject to the direction and supervision of the interior minister, who is a Cabinet member. The president's overall authority does not depend on seating every agency head at the weekly Cabinet meeting he presides over. If not attending amounted to abandoning direction and supervision, the logical conclusion would be that past administrations' decisions not to seat the prosecutor general at Cabinet meetings as a standing practice were likewise unconstitutional and criminal.
It is also worth looking back at how fiercely advanced democracies have designed their institutions to protect the independence of investigative bodies. The U.S. Federal Bureau of Investigation sits under the Justice Department, yet its director is guaranteed a 10-year term, far longer than the president's four years. The director is not among those who attend White House Cabinet meetings. Britain's National Crime Agency, likewise under the Home Office, has its "operational independence" set out in law. Other countries' systems cannot be transplanted wholesale, but their efforts to guarantee investigative independence are worth consulting.
A Presidential Office official countered by asking whether prosecutors were somehow not political prosecutors back in the days when the prosecutor general did not attend Cabinet meetings. But the controversy over prosecutorial neutrality in the past surely did not originate in whether the prosecutor general had a seat at those meetings. What should be discussed now is what kind of organization the newly launched agency ought to become. Nothing matters more than building public trust that it is a body capable of investigating without deferring to those currently in power.
President Lee is a politician who has embodied the idea of "power under watch," going so far as to install closed-circuit cameras in his own office during his time as Seongnam mayor. Live-streaming Cabinet meetings and bringing agency heads, including the head of an investigative body, into those meetings is surely meant in the same spirit — that everyone should be subject to public scrutiny. Even so, if the attendance of an investigative agency chief at Cabinet meetings alone risks being misunderstood by the public, the president's rebuttal does not explain why it must be insisted upon.
President Lee is a politician who enjoys debate. All the more reason, then, not to dismiss criticism from various quarters as "illogical." If his conviction is that power must be subject to public scrutiny, he should also listen to criticism from the press, the legal community and the People's Solidarity for Participatory Democracy. Scrutiny of power is not carried out only in the manner the president prescribes. Attendance at Cabinet meetings is not a duty set by law but a matter of presidential discretion. The moment terms like "impeachment" and "dereliction of duty" are brought out, what remains is not persuasion but political combat.