CHICAGO—A special prosecutor in Chicago said Monday that Cook County State’s Attorney Kim Foxx and her office repeatedly abused their discretion and made false public statements in the case against actor Jussie Smollett last year, but he concluded they did nothing criminal.
In his findings released Monday after a monthslong investigation, special prosecutor Dan Webb sharply criticized Foxx and her staff for how they decided in March last year to toss charges that accused the former “Empire” actor of staging a racist, homophobic attack against himself. Webb also took them to task for how they sought to explain the controversial decision as public outrage grew.
Webb’s statement said his investigation “did not develop evidence that would support any criminal charges against State’s Attorney Foxx or any individual working at (her office).” But it added, it “did develop evidence that establishes substantial abuses of discretion and operational failures” in how it handled the Smollett matter.
A brief statement released by Foxx’s office later Monday said it welcomed aspects of Webb’s findings, including that no one on the staff committed a crime and that no undue outside influences affected the prosecutors’ decisions regarding Smollett.
But it took issue with the broader depiction of an office that didn’t follow proper procedures and that was quick to mislead, saying it “categorically rejects … characterizations of its exercises of prosecutorial discretion and private or public statements as ‘abuses of discretion’ or false statements to the public.”
Webb restored charges against Smollett in February this year after a first stage of his investigation focused on the evidence against the actor. In recharging Smollett, Webb said at the time that dropping the charges was unjustified, including because the evidence against Smollett was overwhelming.
The black, openly gay actor has continued to stand by his claim that two men attacked him early on Jan. 29, 2019, in downtown Chicago, shouting slurs and looping a rope around his neck. He says the attack was real and wasn’t a publicity stunt.
Among the focuses of Webb’s inquiry over the last several months was whether Foxx acted improperly by speaking to a Smollett relative and a onetime aide of former first lady Michelle Obama, Tina Tchen, before the charges were dropped, and in how she recused herself early in the investigation after news broke about those communications.
Webb portrayed a state’s attorney’s office often in disarray and unduly worried about perceptions of the office as the Smollett case quickly became headline news nationwide. He offered Foxx’s recusal as a prime example.
Once Foxx understood that she may have conflict of interest or a perception of one, Webb said Foxx she and her entire staff should have been pulled off the investigation and sought an outside special prosecutor to take over. Instead, she simply named a top assistant in her office to take over.
Her office quickly realized the serious procedural error, Webb said, but “Foxx made the decision to ignore this major legal defect seemingly because they did not want to admit that they had made such a major mistake of judgment.”
Webb on Monday also disclosed for the first time the identity of the relative Foxx spoke with multiple times: Jurnee Smollett, Jussie Smollett’s sister. Webb said Foxx began speaking to her before suspicions begin to be raised that Jussie Smollett may have staged the attack on himself. But Webb found that Foxx continued the communications with the sister even as it became clear that Smollett could be charged criminally for allegedly filing a false police report.
“State’s Attorney Foxx then made false statements to the media claiming she ceased all communications with Ms. Smollett,” Webb concluded.
The alleged false statements started to pile up.
Webb said Foxx and a top assistant prosecutor made at least six false or misleading statements regarding the dismissal of the case in possible violation of rules for professional conduct. He said a summary of his findings would be forwarded to the Illinois Attorney Registration & Disciplinary Commission, saying only it can decide it the alleged false statements amounted to serious ethical violations.
Despite alleging that Foxx misled the public about the communications, Webb said his investigation found no evidence Foxx’s conversations with Jurnee Smollett or others outside the prosecutor’s office influenced the decision to drop the charges.
Webb also criticized Foxx’s office for trying to keep the decision to drop the charges from public for as long as possible. And he said the office didn’t even give the Chicago Police Department a heads up about the decision until minutes before a court hearing formalizing the dismissal.
Foxx, the first black woman to hold Chicago’s top law enforcement job, defeated her Democratic primary opponents earlier this year even as they made her handling of the Smollett case central to their campaigns. In overwhelmingly Democratic Chicago, the primary invariably determines who wins the general election.
Reform advocates have hailed reforms that Foxx pushed through—often over the angry objections of Chicago’s police union and chiefs of police across Cook County—including treating certain nonviolent crimes, like shoplifting, as lower priorities.
By Michael Tarm