Did former President Yoon try to provoke North Korea to attack?

The investigation into Yoon Suk Yeol has taken a dramatic turn, with special counsel Cho Eun-seok pursuing a theory that the disgraced former president may have tried to goad North Korea into taking military action that would justify his plan to declare martial law last December.

If proven, the charge would end any argument from the opposition about the martial law declaration being nothing more than a “miscalculation” and recast the entire episode as the gravest political scandal in Korea’s 40-year democratic history.

It may make Yoon’s already dire situation worse. As lead investigator into authorities’ response to the Sewol ferry accident in 2014, Cho pushed — unsuccessfully — for the death penalty for the captain of a Coast Guard vessel, on the grounds of homicide. He may have more luck this time.

At this stage, though, it is equally possible that the special counsel team may be overreaching. Given that Yoon is already on trial for insurrection, the only chance for the special counsel to justify its existence with regard to the ex-president is to come up with the more serious charge of treason.

To this end, the special counsel team on Monday conducted sweeping raids across 24 key sites, including the Ministry of National Defense, Joint Chiefs of Staff, Defense Counterintelligence Command and, most significantly, the military’s drone operations command.

They were looking for evidence that drone units stationed in Pocheon, Gyeonggi Province, carried out an unannounced surveillance or leaflet-dropping operations over Pyongyang in October 2024, allegedly under direct orders from Yoon.

At the time, Pyongyang accused Seoul of violating its airspace with unmanned aircraft and released images of what it claimed was a recovered drone. The military initially denied the claim, then refused to confirm or deny it. Speculation was further fueled after a suspicious fire broke out at the drone operations facility on Dec. 8, shortly after Yoon’s martial law declaration. The military called the incident a routine document incineration, an explanation that is now under scrutiny.

The central theory being pursued is that Yoon and aides, including then-Defense Minister Kim Yong-hyun, orchestrated the drone mission to induce a North Korean response. Such an incident, the theory goes, would have helped Yoon justify emergency powers.

But proving treason will not be easy. The most severe forms of treason typically require conspiring with or helping a foreign enemy. That definition is complicated by the fact that the Constitution does not recognize North Korea as a “foreign state.”

Prosecutors are reportedly exploring whether Yoon’s alleged actions may fall under a more limited interpretation of attempting to harm the country’s military interests or inciting an insurrection against the constitutional order.

The charges require clear evidence that the drone operation was a deliberate political maneuver coordinated by the presidential office.

There would need to be a clear directive from Yoon or military communication to that effect, which may not be forthcoming given the context of ongoing operations involving North Korea and their inherently secretive nature, as well as the challenge of isolating one action and proving it alone to be part of a martial law plot.

This evidence search helps explain the re-arrest last week of Yoon, four months after his release from detention. Politically, people may not have been too surprised or concerned, especially if they didn’t vote for his party. But legally, it was odd. First, how can a person be investigated when he is already being tried? And how can they demand he be put behind bars when he’s already been released from pretrial detention?

While in practice jailing suspects serves to aid the state’s case against them by softening them up for interrogation and making them look guilty, under the law it is only justified when there is a fear of flight or destruction of evidence. This latter concern seems to have motivated the special counsel. They want to prevent Yoon from destroying any evidence related to the new charges they are pursuing.

As new as this situation feels, we have been in similar territory before vis-a-vis North Korea. After the historic inter-Korean summit in 2000, it was revealed that Hyundai had paid $450 million to Pyongyang for their attendance. Then-President Kim Dae-jung escaped scrutiny, but his chief secretary, Park Jie-won, was later jailed for three years for his role in the matter. He incidentally was pardoned and was appointed head of the National Intelligence Service. The Hyundai chairman, meanwhile, died by suicide.

In an even more connected example, a former intelligence official revealed in 1997 that ruling party officials had secretly contacted North Koreans ahead of the 1992 presidential election to see if they might oblige them by staging a provocation on the DMZ, to make South Koreans nervous and boost the chances of their candidate, Kim Young-sam. The North Koreans refused, but Kim won anyway. Treasonous or not, this effort went unpunished.

If the special counsel can prove a coordinated attempt by Yoon to provoke war or fabricate a national emergency for political gain, it may still be a stretch to characterize it as treason. But it would seal this event as the darkest moment in the country’s post-democratization era.

On the other hand, if the case unravels under scrutiny, it will strengthen our understanding of just how much the justice system is used by whichever side is in power as a weapon against its political opponents.

Michael Breen (mike.breen@insightcomms.com) is the author of "The New Koreans.” The views expressed here are his own.