Update2: According to ABC7's Rob Elgas, the FBI is reviewing the circumstances surrounding the dismissal of criminal charges against Smollett.
Furthermore, according to records obtained from the Chicago police, the FBI was already involved in part of the investigation, and CPD forwarded a copy of a search warrant on Smollett's iCloud account to an FBI analyst.
BREAKING: Two law enforcement officials briefed on the matter tell @ABC the FBI is *reviewing* circumstances surrounding dismissal of criminal charges against Jussie Smollett. ABC News is told this is not an investigation. It is a "review" or "inquiry".— Rob Elgas (@RobElgasABC7) March 27, 2019
In that report it was revealed that CPD forwarded a copy of a search warrant pertaining to Jussie Smollett’s Apple iCloud account to an FBI analyst. 2/2— Rob Elgas (@RobElgasABC7) March 27, 2019
Update: Whether due to pressure from the entire world or simply deciding that her office's position would act judicially, State's Attorney Kim Foxx told ABC during an interview this evening that her "office did not ask that the court file be sealed, says it was done inadvertently and she believes it is in the process of being unsealed"
BREAKING: State’s Atrorney Kim Foxx says her office did not ask that the court file be sealed, says it was done inadvertently and she believes it is in the process of being unsealed @ABC7Chicago pic.twitter.com/ECrI70JAdG— Craig Wall ABC 7 (@craigrwall) March 27, 2019
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The outpouring of anger, disbelief, and frustration over Jussie Smollett's release debacle has brought many sides of the political spectrum together in questioning just WTF happened and how does a 16-count felony indictment get resolved with the lightest of wrist slaps? Chicago Mayor Rahm Emanuel fumed:
With all eyes focused on State's Attorney Kim Foxx:
1/ Cook County @SAKimFoxx must show us several other cases from her office in which 16 felony charges were dropped post indictment on non-celebrity defendants as she did for #JussieSmollett— John Cardillo (@johncardillo) March 27, 2019
If she cannot, there must be an investigation into her misconduct.
Chicago police are dumbfounded and furious...
WATCH: @SandraSmithFox spoke with Chicago Fraternal Order of Police President Kevin Graham as Chicago prosecutors face backlash for dropping all charges against Jussie Smollett #nine2noon pic.twitter.com/iFGj8K3tIT— America's Newsroom (@AmericaNewsroom) March 27, 2019
And even David Axelrod took to Twitter to express his disgust: "Unless some better explanation surfaces, here’s the lesson of this weird turn in the Smollett case: You can contrive a hate crime, make it a national news, get caught and-if you are a well-connected celebrity-get off for $10K and have your record expunged and files sealed."
Hate crimes are loathsome. Faking them is insidious and shouldn’t be excused. Despite Smollett’s denials, nothing the prosecutor said in dismissing the case supports that. If prosecutors have evidence that contradicts the indictment THEY brought, they should share it today.— David Axelrod (@davidaxelrod) March 26, 2019
"The fact that (Smollett) feels that we have exonerated him, we have not. I can’t make it any clearer than that." So says the lead prosecutor in Smollett case. So why allow Smollett to get off for $10K and have his records expunged and case files sealed?
Smollett repaid the city $10k, ostensibly as an offset for the investigation his phony charges ignited that cost the City of Chicago in the millions.— David Axelrod (@davidaxelrod) March 26, 2019
It really is outrageous.
Simply put, as Crain's Chicago Business' Greg Hinz fumes below, the state’s attorney must look Chicago in the eye and say justice was served.
Few things are more fundamental to democracy than the perception that the criminal justice system operates without taint or slant, that decisions as to how to protect the public and who to send to prison are made regardless of political or personal considerations.
Unfortunately, Cook County State’s Attorney Kim Foxx - a self-styled “reformer” who gained office largely by riding the wave of justified outrage over the Laquan McDonald scandal - appears to have pretty much botched that task in her office’s handling of the high-profile Jussie Smollett case. By first intervening with police on Smollett’s behalf and now allowing her top assistant to dismiss a 16-count felony indictment against the tall-tale-telling “Empire” actor with the lightest of slaps on the wrist, Foxx has endangered her political future and, more important, faith in the local justice system.
“The office owes the public an explanation,” former Foxx chief deputy Eric Sussman told me in a phone interview late today.
“I agree with the mayor. It looks like a whitewash.”
It sure does.
The Smollett case has been worldwide news since January. The country and city were rightly horrified by the actor’s story that he’d been accosted by two MAGA hat-wearing attackers he didn’t know who put a rope around his neck, poured a toxic chemical on him and yelled racist and homophobic slurs when he went out for a late-night snack in Streeterville.
Police always suspected something was not right with that story. So did I. What are the odds that an urban resident would be stupid enough to walk through an empty viaduct and just happen to run into two people in a relatively well-to-do neighborhood of Chicago who not only know him but happened to hate gays and would be Donald Trump fans to boot?
So, police went all out to find out what happened, assigning what I hear is a mind-boggling 12 detectives full time for weeks to scour tape from remote cameras and other clues. Police finally concluded that the whole thing was a fake and that Smollett’s attackers were actually two body-building acquaintances who’d been hired to do their own acting job. Foxx’s office charged him with 16 felony counts of disorderly conduct, counts that came in the form of a grand jury indictment.
By that time, the case already had taken another strange turn.
Without detailing why, Foxx recused herself from the case, turning over the matter to her top aide, First Assistant State’s Attorney Joseph Magats. Her recusal came after reports that, after receiving calls on Smollett’s behalf from former top Barack and Michelle Obama aide Tina Tchen, Foxx called Chicago Police Superintendent Eddie Johnson and urged him to turn over the case to the FBI.
That’s basically where things stood until today, when in an unexpected and nearly unreported court appearance—the press was tipped by a publicist - Foxx’s office dropped the charges and agreed to seal all of the evidence from public view.
What did Foxx's office get in return?
Not a confession or even grudging admission of guilt or regret.
In fact, Smollett thanked the state for “attempting to do what’s right” and said he has been “truthful and consistent from day one.” Smollett’s attorney bragged that Smollett's “record has been wiped clean. . . .He was a victim who was vilified and made to appear as a perpetrator as a result of false and inappropriate remarks.”
How about compensation to the city for the hundreds and maybe thousands of hours of police time—time that was badly needed to solve real crimes? Nope.
Smollett did a bit a community service—a whole 16 hours doing something or other at Operation Push—and forfeited a $10,000 bond. But Smollett’s lawyer suggested the $10,000 was a token price to uncomplicate his client’s life.
In a statement, Magats, the lawyer Foxx assigned to the Smollett case, termed the development “a just disposition and appropriate resolution to the case,” given that Smollett had no prior record. Continued the statement: “We did not exonerate Mr. Smollett. The charges were dropped in exchange for Mr. Smollett’s agreement to do community service and forfeit his bond.”
So then why did Smollett and his attorney dispute that there was any deal, and act as if, as Donald Trump might put it, he was “COMPLETELY VINDICATED"?
Why weren’t city police notified until the last minute? Why is there to be no follow through, no extended conditions to prevent another stunt?
In a later interview, Magats insisted the decision to drop the charges was his and his alone. Further, he says, the judge was required to seal the evidence once the defense so requested, state law generally caps compensation in cases like this at $10,000 and the deferred prosecution Smollett’s case involved does not require a confession of guilt.
I’m not a lawyer. But now we’ll never know all of the evidence police collected in this case because it’s locked up. And we’ll never see how Smollett would have handled himself at trial, what he would have said under oath, or how he would have explained paying the body builders thousands of dollars.
Back to Sussman, who is a lawyer and held Magats' exact job. (A Foxx press aide pointed out that Sussman, a federal prosecutor, was with the office only two years, compared to Magats’ 29).
“The prosecution says they have rock-solid evidence, and then they just suddenly drop it?” Sussman asks.
“It makes you think there’s some evidence or something that they don’t want out” - perhaps questioning from Foxx about who called her on Smollett’s behalf and what she did about it.
In all his time as first assistant, Sussman says he never saw a multiple-felony case resolved like this.
There you have it.
But the next time police are reluctant to prosecute a case of gay-bashing... the next time people are afraid to testify against someone with clout... the next time average citizens let gangbangers go free because they’re scared to cooperate... the next time police just don’t want to put in extra effort because they think it’s not worth it... the next time people laugh when you say you’re from Chicago... remember this case.
It’s time for Foxx to say lots, lots more about how and why this came down the way it did. I want her to look Chicago in the eye and say justice was served.
But we will give the final word to Georgetown Law professor Randy Barnett who asks the question everyone is considering: "None of this is normal - even for Crook County where I was an Assistant State’s Attorney. Educated guess: this hoax implicated someone very important who had pull with the State’s Attorney, and who very badly did not want to be implicated."
None of this is normal—even for Crook County where I was an Assistant State’s Attorney. Educated guess: this hoax implicated someone very important who had pull with the State’s Attorney, and who very badly did not want to be implicated. https://t.co/HyACqBMGoW— Randy Barnett (@RandyEBarnett) March 27, 2019