Posted on March 27, 2019

Smollett Is Still the Subject of Federal Investigation

Valerie Edwards and Jennifer Smith, Daily Mail, March 26, 2019

State’s Attorney Kim Foxx has been accused of being ‘behind the decision’ to drop the charges against Jussie Smollett, who could still face federal charges as the FBI and the US Postal Inspection Service investigate whether or not the Empire star sent a racist and homophobic letter to himself three months ago.

Foxx recused herself from the case because she had exchanged text messages with a member of Smollett’s family in the days after the incident.

She has been accused of trying to wrestle the case out of the hands of the Chicago Police Department and have the FBI take it over at the request of Smollett family friend Tina Tchen, who is Michelle Obama’s former chief of staff.

The police union in Chicago says it should have gone to a special prosecutor and believes it is especially suspicious given Tuesday’s outcome.

‘Recusing herself, but not her administration, is a distinction without a difference,’ Fraternal Order of Police Second Vice President Martin Preib told The New York Post. ‘What underling is going to go against their boss’s wishes?’

Last week, the union called for Foxx to face investigation from the Attorney General for her handling of the investigation.

Among their concerns are text messages exchanged between Foxx and Smollett’s relatives.

One, written by Smollett’s relative after Foxx told them she was trying to convince the police to hand over the probe, is of particular worry.

Smollett’s relative, who was not identified when the texts became public earlier this month, replied: ‘OMG this would be a huge victory’ when Foxx said she was ‘trying’ to get it handed over.

The union says her recusing herself from the probe once Smollett was charged was not enough.

Kevin Graham, the union’s president, said: ‘In order for Ms. Foxx to properly charge and try this case, her entire office should have recused itself and a special prosecutor been appointed.’

Meanwhile, the FBI will continue investigating a threatening letter that Smollett received at the studio in Chicago where Empire is filmed on January 22, just days before he was attacked.

Chicago police later said that they believed Smollett sent the letter himself. No photographs of it emerged until after the alleged attack on January 29.

On Tuesday, First Assistant State’s Attorney Joe Magats, the prosecutor who decided to drop the charges against Smollett, admitted that he does not believe the actor is innocent. Magats claimed he dropped the case because the actor has no criminal background.

‘I do not believe he is innocent,’ Magats told CBS on Tuesday afternoon.

Magats said that he thought Smollett was guilty but that ‘based on the facts and circumstances’ of the case and his ‘lack of criminal background’, the decision was made not to pursue the 16 felony disorderly conduct charges that a grand jury returned.

It came after a furious press conference from Mayor Rahm Emanuel and Chicago Police Superintendent Eddie T. Johnson who decried it as a ‘whitewash of justice’ and said Smollett got off ‘scot-free’ because he is famous.

As Magats spoke out, more details of Smollett’s ‘deal’ with prosecutors emerged.

Between Saturday and Monday, he spent 16 hours performing community service at Rainbow PUSH Coalition, a civil rights organization in Chicago where he ‘worked in bookstores, sold merchandise, stuffed envelopes, spoke to students and helped in the video department’.

Smollett’s family has claimed that even though he forfeited $10,000 in bond money and completed community service, they did not make a deal with prosecutors. They claim he has been completely vindicated by the outcome and that it proves he was telling the truth all along.

Magats also dismissed the mayor’s criticism, saying: ‘Not true, it’s just not. It’s not a whitewash, he did community service, he has forfeited his bond, it’s just not a whitewash.’

The attorney also insisted that Foxx did not impact his decision.

Mayor Emanuel said the sudden decision to drop the charges proved there is ‘one set of rules for the powerful and influential’ and another for others which he said sent a ‘clear’ and ‘wrong’ ‘message’.

He and Johnson were blindsided by the announcement which they learned of while attending a police academy graduation ceremony.

‘Without a doubt this is a whitewash of justice and sends a clear message that if you are in a position of influence and power, you’ll be treated one way. It is wrong,’ Mayor Emanuel said.

‘Not only do I support the hard work of the police department, I’d like to remind everybody a grand jury indicted this individual based on only a piece of the evidence the police had gathered,’ he said.

He went on to condemn Smollett for speaking out after the court hearing and protesting his innocence.

‘Mr. Smollett is still saying that he is innocent, still running down the Chicago Police Department… how dare him. How dare him after everybody saw. Is there no decency in this man?’

‘He did this all in the name of self promotion. And he used the laws of the hate crime legislation.’

Johnson, who publicly condemned Smollett last month and said his lies were ‘despicable’, also slammed the star for asking that the evidence be sealed.

‘I would want my day in court to clear my name.

‘They wanted their day in court with TV cameras,’ he said, referring to Smollett’s team’s eagerness to allow cameras in the courtroom.

‘[Now] they chose to hide behind secrecy. You all know what the bond proffer said.

‘We all know what it said if they want to dispute those facts the place to do that is in court not in secrecy,’ he said.

‘Our job as police officers is to present them with the evidence.

‘If you want to say you are innocent of a situation then you take your day in court

‘I would never, if someone falsely accused me, I would never hide behind a brokered deal and secrecy,’ he said.

Emanuel added: ‘This is not on the level. From top to bottom’ when asked if they had been told about the decision.

Smollett was indicted on 16 felony counts that were returned by a grand jury which Emanuel said it proved that it was not just the police department which thought he was guilty.

‘This is not the superintendent’s word against his.

‘The grand jury saw a sliver of the evidence and they came to a conclusion,’ he said, adding that the judge’s decision to grant make all of the evidence sealed meant that the truth would never come out.

‘This is a person now who has been left off scot-free with no sense of accountability of the moral and ethical wrong of his actions, from top to bottom.

‘This sends an unambiguous decision that there is no accountability and it’s wrong,’ Emanuel said.

He also slammed Smollett’s $10,000 bond forfeiture which is a tiny fraction of the amount spent trying to investigate the case, he said.

‘This $10,000 doesn’t even come close to what the city spent in resources to actually look over the cameras, gather all the data, get all the information that actually brought the indictment by the grand jury.

‘Where is the accountability in the system? You cannot have, because of a person’s position, one set of rules apply to them and another set of rules apply to everybody else,’ he added.

He compared the incident to the college bribery scandal and said: ‘You have a person because of their position and their background who is getting treated in a way that nobody else would ever get close to this type of treatment.’

Magats said it had decided not to pursue the charges because his office prioritized ‘violent crime’ and that Smollett’s alleged wrongdoing did not fall into that category.

On Tuesday morning, a State’s Attorney’s Office spokesman told it was confident in the police investigation into him and still satisfied with its decision to bring charges but would not say why then he was not being prosecuted to the full extent of the law.

‘After reviewing all of the facts and circumstanced of the case, including Mr. Smollett’s volunteer service in the community and agreement to forfeit his bond to the City of Chicago, we believe this outcome is a just disposition and appropriate resolution to this case,’ they said.

Smollett said in his statement that he would ‘not be his mother’s son’ if he was capable of ‘even a drop’ of what he had been accused of.

He promised to continue to ‘fight for the marginalized’ in society and said he had been truthful ‘on every single level since day one’.

His lawyers refused to answer reporters’ questions about whether Smollett would sue the city and admitted that Smollett had agreed to forfeit his bond in order to ‘move on’.

‘I have no idea what occurred in this case or why it occurred. I can just say that things seem to spiral somewhat out of control.

‘We’ve gotten to a result that is the right result and we are happy for that,’ his lawyer, Patricia Brown Holmes said.

She said that brothers Abel and Ola Osundairo were the ones who attacked Smollett but gave no explanation as to why they did it.

There was confusion over whether or not the decision was part of a deal.

Smollett’s attorneys insisted that it wasn’t.

Police also said it was not usual for someone who has been vindicated and had the charges against them dropped to still give money to the city.

The Fraternal Order of Police, which represents 8,000 cops, has already called for the Attorney General to investigate Foxx for her handling of the case because she tried to have it turned over to the FBI at the request of Smollett’s family in the days after the attack.

She was contacted by Tchen, Michelle Obama’s former chief of staff, on February 1, on behalf of the Smollett family.

Tchen wanted her to convince Chicago PD to hand the investigation over to the FBI and Foxx agreed to try to.

On Tuesday, Smollett’s family welcomed the news and said they were ‘looking forward to bringing the real perpetrators to justice’.

‘Our son and brother is an innocent man whose name and character has been (sic) unjustly smeared. Jussie is a son, a brother, a partner, a champion for human rights, and a genuine soul who would never be capable of what he was falsely accused of. ‘He was the victim of an assault and then falsely blamed for his own attack. This morning the truth has prevailed and he has been vindicated.

‘All charges have been dismissed and his record expunged.

‘The painful incidents we’ve witnessed him endure over the past 7 weeks have been heartbreaking and unjust to say the least.

‘While many were quick to rush to judgement before hearing the actual truth, we are grateful that the truth about Jussie has come to light.

‘We look forward to bringing the real perpetrators to justice. We thank God and our village for standing by us during this trying time,’ their statement said.

The case never went to the FBI and Chicago PD came down heavily on Smollett once he was arrested.

Smollett was initially indicted by prosecutors with just one charge but a grand jury added another 15 on to it for every time he allegedly lied.

The actor was accused of paying Abel and Ola to attack him on January 29 outside his apartment at around 2am as he walked home from a Subway.

He claimed that he did not recognize the attackers but said they called him a ‘f****t’, n****r’ and shouted: ‘This is MAGA country!’

For weeks, police insisted Smollett was still the victim but gradually, suspicion grew as details of the probe were leaked, including the fact that he had not agreed to hand over his phone for police to search.

Eventually, on February 21, Smollett was arrested.

In a blistering press conference, he was eviscerated by Chicago Police Superintendent Johnson who accused him of lying about the attack to leverage it to get a raise on Empire.

They even claimed he gave himself facial injuries to try to make the attack more believable. Smollett denied it angrily and posted bail but prosecutors were confident.

They took the unusual step of publishing his full bond proffer which detailed all the evidence they said they had against him, including phone calls between him and the brothers before and after the attack.

They also used a check he’d given them, purportedly for personal training, as apparent proof that he paid them for the attack.

Smollett was excluded from the final two episodes of Empire as a result of the scandal.

The brothers are who told police that he paid them to stage the attack, but police insisted vociferously to have other evidence that backed up their claim.

Johnson even went on Good Morning America himself to say the state had more evidence against Smollett that had not been presented in an appearance after Smollett’s arrest.

In a statement on Tuesday morning, Smollett’s lawyers revealed the news that the charges had been dropped.

‘Today, all charges against Jussie Smollett were dropped and his record has been wiped clean of the filing of the complaint against him.

‘Jussie was attacked by two people he was unable to identify on January 29th.

‘He was a victim who was vilified and made to appear as a perpetrator as a result of false and inappropriate remarks made to the public causing an inappropriate rush to judgement.

‘Jussie and many others were hurt by these unfair and unwarranted actions. This entire situation is a reminder that there should never be an attempt to prove a case in the court of public opinion.

‘That is wrong. It is a reminder that as a victim, in this case Jussie, deserves dignity and respect. Dismissal of charges against the victim in this case was the only just result.

‘Jussie is relieved to have this situation behind him and is very much looking forward to getting back to focusing on his family, friends and career.’

The State’s Attorney who intervened in the Jussie Smollett investigation by trying to get it handed over to the FBI after his family asked Michelle Obama’s former chief of staff to contact her has come under fire for her handling of the case.

The Fraternal Order of Police (FOP), which represents 8,000 cops, sent a letter to John Lausch, the US Attorney for the Northern District of Illinois, last week asking him to review Foxx’s conduct.

In its letter, the union asked who she was working for and why it would have been a ‘victory’.

‘Victory of what? For whom? Why?’ the union’s president, Kevin Graham, asked.

The union says her recusing herself from the probe once Smollett was charged was not enough. They emphasized their suspicions on Tuesday after the charges were dropped.

‘The conduct of her office from the very beginning of this case was highly, highly suspicious.

‘The entire country is outraged by it. The evidence is overwhelming that he was legitimately charged in this case.

‘This decision [to drop the charges] appears to be utterly arbitrary, capricious and suspicious,’ Martin Preib, the Fraternal Order of Police’s vice president said.

On February 1, Kim Foxx received a text message from Tina Tchen, a lawyer who worked for Michelle Obama during her years as First Lady, saying she was working on behalf of the Smollett family.

‘I wanted to give you a call on behalf of Jussie Smollett and family who I know. They have concerns about the investigation,’ she said in her first text which was obtained by The Chicago Sun Tribune.

Hours later, Foxx received a text from one of Smollett’s relatives.

Over the course of the next two weeks, she tried to have the case handed over to the FBI.

‘Spoke to the superintendent earlier. He is going to make the ask. Trying to figure out logistics. I’ll keep you posted,’ she said in a February 13 text.

By then, there had been questions surrounding Smollett’s cooperation with the investigation but Smollett was, officially, still being treated as a victim.

The relative responded: ‘OMG this would be a huge victory.’

Foxx replied: ‘I make no guarantees but I’m trying.’

Later that day, she emailed Tchen saying: ‘Spoke to the 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 to me shortly.’

The police department claims that Smollett only became a suspect after brothers Abel and Ola were pinned down at the airport on February 20.

However, Foxx recused herself from the probe a week earlier, after her text conversation with his relative and with Tchen.

In an email to top staff, her chief ethics officer informed them of her recusal however it was not announced until February 19.

On February 20, Foxx’s office told that she had stepped down because of her interaction with Smollett’s relatives, but they would not give further information.

[Editor’s Note: The original story includes a detailed timeline of the case.]