Jussie Smollett: Did Top Prosecutor's Deal Break The Law?

CHICAGO, IL — Cook County State’s Attorney Kim Foxx came under fire Tuesday after prosecutors in her office deferred prosecution of Jussie Smollett on felony charges related to allegations the “Empire” actor reported a hate crime he orchestrated against himself.

On Tuesday, hours after charges against Smollett were dropped, Chicago Fraternal Order of Police president Kevin Graham rushed to the Dirksen Federal Court building to ask the feds to investigate whether Foxx violated any laws in her role as Cook County’s top prosecutor.

“There’s text messages going back-and-forth between Foxx and Smollett’s private attorney. That’s a real problem. We asked for an investigation before because something didn’t smell right. Now, a judge sealed the court records so you can’t even get a copy of the police investigation,” Graham said.

“I made sure the U.S. Attorney had a copy of our letter asking for an investigation in his hand.”

In February, Foxx, citing a conflict of interest, recused herself from the Smollett case around the time Chicago police had identified the actor as a potential target of its investigation.

Text messages, published by the Chicago Tribune, exposed details about Foxx’s conflict of interest. While police investigated the attack, Foxx traded messages with a lawyer representing Smollett.

Foxx wrote a message saying she “convinced” Supt. Eddie Johnson to talk to the FBI about taking over the case. Smollett’s lawyer at the time, Michelle Obama’s former chief of staff Tina Tchen, replied, “OMG this would (be a) huge victory.” And Foxx replied, “I make no guarantees but I’m trying.”

Smollett pleaded not guilty earlier this month to charges accusing him of staging a racist, homophobic attack on himself. He was indicted on 16 felony counts of disorderly conduct.

In a statement, the Cook County state's attorney's office said the expungement was an "appropriate resolution."

Mayor Rahm Emanuel and Supt. Johnson were blindsided by the deal to abruptly end Smollett’s criminal case. Emanuel called the move a “whitewash of justice.”

“From top to bottom, this is not on the level,” Emanuel told reporters.

Some legal experts questioned whether Cook County prosecutors should have handled the Smollett case at all after their boss, Foxx, recused herself. At least, that was the public statement at the time.

State law states that after a state’s attorney recuses herself on a case “the court shall appoint a special prosecutor.”

That didn’t happen in the Smollett case. Instead, Foxx tapped her first assistant, veteran prosecutor Joseph Magats, to take over.

Magats described the police investigation as "outstanding" and told the Tribune the fact the case was "disposed of alternatively" is not evidence that it was flawed in any way. But his predecessor told the paper he had never before seen charges dropped so quickly after an indictment.

“You could make the argument that if the state’s attorney has a conflict, her whole office has a conflict,” a former prosecutor who asked not to be named said. “I don’t know if that’s the case. But this sure seems odd.”

Determining if Foxx violated state law could be a political trick bag.

Foxx has strong ties to the state’s top prosecutor charged with investigating elected officials accused of violating state law, rookie Illinois Attorney General Kwame Raoul. Foxx, the political protégé of Cook County Board President Toni Preckwinkle, served on Raoul’s transition team after the 2018 election.

Raoul spokeswoman Vanessa James declined to comment Tuesday.

Cook County State's Attorney spokeswoman Kiera Ellis said in a statement that Fox "did not formally recuse herself or the [State's Attorney] Office based on any actual conflict of interest. As a result, she did not have to seek the appointment of a special prosecutor."

When Fox publicly announced that she had recused herself "it was a colloquial use of the term rather than in its legal sense," Ellis said.

"Instead, in an abundance of caution, Fox informally separated herself from the decision-making over the case and left it to her Assistants, as happens in 99.9% of all cases handled by the Office."

Magats, Foxx's first assistant didn't tell Foxx about the deal to drop charges against Smollett in advance of the hearing, Ellis said.

Magats did inform Ellis and police Supt. Eddie Johnson before the court hearing, according to Ellis.

"They weren't happy about it but here we are," Ellis said. "We're not trying this in the court of public opinion. The decision was made to handle this like any Class 4 felony against someone without any prior convictions."

In the last two years, the state's attorney's office referred more than 5,700 cases for alternative prosecution.

Foxx's office released this statement: "This is not a new or unusual practice. An alternative disposition does not mean that there were any problems or infirmities with the case or the evidence. We stand behind the Chicago Police Department's investigation and our decision to approve charges in this case. We did not exonerate Mr. Smollett. The charges were dropped in return for Mr. Smollett's agreement to do community service and forfeit his $10,000 bond to the City of Chicago. Without the completion of these terms, the charges would not have been dropped. This outcome was met under the same criteria that would occur for and is available to any defendant with similar circumstances."

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Mark Konkol, recipient of the 2011 Pulitzer Prize for local reporting and Emmy-nominated producer, was a producer, writer and narrator for the Chicagoland series on CNN, and a consulting producer on the forthcoming Showtime documentary "Blue Wall" about the murder of Laquan McDonald, who Chicago police officer Jason Van Dyke shot 16 times until the black teenager was dead.