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Judge Allows Special Investigation of Kim Foxx’s Motives in Handling of Jussie Smollett Case


Why did Cook County prosecutors decide to drop the more than a dozen felony counts against Empire actor Jussie Smollett? Why did Cook County State’s Attorney Kim Foxx say she was recused from handling the Smollett case, but remain involved? These are just a couple of questions a special prosecutor will be asking. Cook County Judge Michael Toomin on Friday decided that there will be a special prosecutor investigating the handling of this case.

The former appellate judge who petitioned for the special prosecutor, Sheila O’Brien, previously released some questions she wanted Foxx to answer about her motives. After the judge’s Friday ruling, she said “Well get the truth, the whole truth, under oath.” She also said she did this “because it had to be done.”

“Someone had to do it. I had time and a typewriter,” she added.

This special prosecutor would be allowed to “further prosecute Smollett,” Judge Toomin said. Yes — that means Smollett could be re-charged.

“There was no master on the bridge to guide the ship as it floundered through uncharted waters, and it ultimately lost its bearings,” Judge Toomin said Friday. “The unprecedented irregularities identified in this case warrants the appointment of independent counsel to restore the public’s confidence in the integrity of our criminal justice system.”

The probable questions for Foxx: What were your motives when you “recused” yourself from the Smollett case but “still communicated with your staff” about it; when you communicated with one of Smollett’s family members; when your office dropped the 16 felony charges against Smollett.

The bit about communicating with Smollett’s family members refers to former first lady Michelle Obama’s former chief of staff, Tina Tchen, emailing Foxx in early February to say Smollett’s family was concerned about the police investigation. This was before Smollett was considered a suspect and before he did that Good Morning America interview.

Foxx also reportedly texted later with a relative of Smollett’s and told them she convinced Police Superintendent Eddie Johnson to reach out to the FBI and get them to investigate the Smollett case.

“Spoke to Superintendent Johnson. I convinced him to Reach out to FBI to ask that they take over the investigation. He is reaching out now and will get back to me shortly”‘ she said. Examples of messages from Feb. 1, 4, and 12 were released.

Foxx said on Feb. 1 that she was making “no guarantees” but was “trying.” A Smollett relative had said “Omg this would be a huge victory,” referring to the FBI handling the case.

“I wanted to give you a call on behalf of Jussie Smollett and family who I know. They have concerns about the investigation,” Tchen said when she reached out to Foxx.

Foxx and Tchen each ended up addressing their communications. Foxx said that when the conversations occurred Smollett was considered a victim in the case and nothing untoward occurred.

“At the time that I spoke to the family member, the superintendent knew that I had spoken to the family member. I had shared with him the conversations that we had, and the concerns that they had, and it was the same day that the superintendent went on television and affirmed that Jussie Smollett, at the time, was a victim, and had no reason at that time to suggest otherwise,” she said.

She also denied that Tchen, a Chicago attorney, or the Obamas tried to influence her to drop the charges.

“There was no attempt, whatsoever, to influence the outcome of this case. None whatsoever,” Foxx said, emphasizing that she believed  that “the outcome […] based on the allegations, and again the class 4 felony and no background, are an outcome that we could expect with this type of case.”

Tchen would also release a statement.

“I know members of the Smollett family based on prior work together,” Tchen said, according to the Chicago-Tribune “Shortly after Mr. Smollett reported he was attacked, as a family friend, I contacted Cook County State’s Attorney Kim Foxx, who I also know from prior work together.”

”My sole activity was to put the chief prosecutor in the case in touch with an alleged victim’s family who had concerns about how the investigation was being characterized in public,” she added.

Foxx, however, previously acknowledged in a text message that she was “recused.” Still, she decided to offer an opinion about “overcharging.”

“Sooo……I’m recused, but when people accuse us of overcharging cases…16 counts on a class 4 becomes exhibit A,” she said. Foxx’s office would say the use if the term recuse “was a colloquial use of the term rather than in its legal sense.” Perhaps this will be another question raised by the special prosecutor: Who uses the word recuse colloquially?

O’Brien previously subpoenaed Foxx and first assistant state attorney Joseph Magats, the Foxx deputy who handled the case when Foxx purportedly “recused” herself. O’Brien wrote the following in an April 1 opinion piece in The Chicago Tribune:

We deserve answers. We deserve open court files. We deserve transparency in every case.

We deserve a state’s attorney who will treat the rich and the poor the same — not someone who will make decisions based upon who calls on the phone about it. Did our state’s attorney really remove herself from this case? We have a right to know.

We deserve a state’s attorney who will ask for full restitution for the money spent on cases — not someone who will waste our tax dollars.

Foxx’s office controversially dropped all 16 felony disorderly conduct charges against Smollett. It happened after it had been alleged that the Empire actor staged a hate crime and falsely reported it to the police. Smollett had claimed that he was the victim of a racist and homophobic attack perpetrated by two suspects using slurs and declaring “this is MAGA country.”

The Chicago Police Department tracked down persons of interest revealed to be the Osundairo brothers. Abel and Ola told police that the attack was staged.

Smollett was only required to do community service and forfeit his $10,000 bond to the city; the case was sealed. The aforementioned Joseph Magats previously told WLS that this wasn’t an exoneration.

“We believe he did what he was charged with doing,” he said.

[Image via Nuccio DiNuzzo/Getty Images]

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Matt Naham is the Senior A.M. Editor of Law&Crime.