Cook County prosecutors approved disorderly conduct charges against “Empire” star Jussie Smollett on Wednesday on allegations he staged a hate crime against himself — capping a tumultuous series of turns in a case that has garnered worldwide headlines.
Smollett is expected to appear in bond court Thursday. Chicago Police expect Smollett and his legal team to arrange the actor’s surrender ahead of his bond hearing.
The announcement by prosecutors comes almost three weeks to the day from when Smollett — who is black and openly gay — called police to report he had been the victim of an attack by two men who hurled racial and homophobic slurs at him as he walked home from a Subway restaurant in Streeterville.
The Cook County state’s attorney’s office approved the charge minutes after two men, who had been suspects in the purported attack on the actor, left the grand jury room at the Leighton Criminal Court Building.
A lawyer for the two men, who are brothers, including one who served as Smollett’s personal trainer, declined to comment on what they said after spending more than two hours in front of a grand jury. The two men did not have an immunity agreement for their testimony and do not expect to face any charges for their role in the alleged hoax.
“You don’t need immunity when you have the truth,” lawyer Gloria Schmidt told a throng of reporters in the courthouse lobby.
She said the brothers, who served as extras on “Empire,” decided they needed to lay out exactly what happened in the incident. She said the truth was “different than the narrative that’s out there.”
“There was a point where this story needed to be told, and they manned up and said ‘You know what? We’re going to correct this,’” she said.
She urged Smollett to do the same.
“I think Jussie Smollett should come clear, because the truth will set him free,” Schmidt said.
She said the brothers received money from Smollett, but declined to say the amount or when it changed hands.
The charge of disorderly conduct is a Class 4 felony, the lowest felony classification, that carries a potential sentence of one to three years in prison. The act that triggers the disorderly conduct charge would simply be calling the police and allegedly filing a false report of being attacked. Smollett likely will go free on bond after a short hearing Thursday.
Smollett’s attorneys, Todd Pugh and Victor Henderson, released a statement Wednesday evening saying they would actively fight the charges.
“Like any other citizen, Mr. Smollett enjoys the presumption of innocence, particularly when there has been an investigation like this one where information, both true and false, has been repeatedly leaked,” the statement reads. “Given these circumstances, we intend to conduct a thorough investigation and to mount an aggressive defense.”
Defense attorneys not connected to the case said the charges were unusual.
Attorney Joe Lopez said a more typical case where someone would face a similar disorderly conduct charge would be when someone crashed their car, then fled the scene and reported the vehicle had been stolen. Seldom is the charge prosecuted alone.
“The charge is so minuscule, they almost never charge it,” said Lopez, who said the outsized publicity around the case is surely the only reason prosecutors are pursuing the charges.
Jail time is unlikely for a first-time offender, but Smollett could be charged to pay restitution to the state — which could include the cost of an extensive investigation by police and prosecutors. Defense lawyer William Wolf said additional charges, such as obstruction of justice, would be harder to bring.
“If anyone is upset about the resources expended in this case, as opposed to other hate crimes, or anything else, that is a choice the police made,” Wolf said. “When people have fame and power, law enforcement reacts differently.”
The state’s disorderly conduct law includes acts such as making a bogus call to police or the fire department, Wolf said. Smollett’s emotional statements during an interview on “Good Morning America” last week about the attack might be used by prosecutors in some form, should the case go to trial, but technically have little to do with the disorderly conduct count he faces.
Smollett himself spoke several times to police but never to a grand jury, so counts of perjury — lying under oath — wouldn’t apply, said Lopez. Police also have reported that Smollett refused to sign a formal complaint against the two brothers.
Smollett had previously told police that he was walking in the 300 block of East North Water Street about 2 a.m. Jan. 29 when two men came up to him, yelled racial and homophobic slurs, hit him in the face, poured a substance — possibly bleach — on him and put a “thin, light rope” around his neck.
He claimed his attackers also yelled “This is MAGA country” — an acronym for President Donald Trump’s signature phrase “Make America Great Again.” The incident was initially investigated as a hate crime.
Police worked the case virtually around the clock, at one point releasing a grainy image of two men who were in the area. Their investigation led them to the brothers, who were arrested and questioned by police for two days last week after they returned from a trip to Nigeria. Their North Side home was also raided and police recovered personal effects, including cell phones, a source said.
After questioning, the two were released without charges. Police spokesman Anthony Guglielmi said last week that information gleaned from the interview “has, in fact, shifted the trajectory of the investigation.”
That trajectory shifted to Smollett, and sources said police were investigating whether the attack was staged. The two brothers met with police and prosecutors Tuesday and Wednesday, officials said.
Throughout the investigation, the actor has publicly expressed outrage at speculation that he may have set up the attack, including the lengthy interview with GMA host Robin Roberts during which he called out “haters” who doubted his account of what happened.
“Who the f— would make something like this up?” Smollett told Roberts.
The latest development in the already dizzying case came just hours after Smollett’s lawyers met with police and Cook County prosecutors. In addition to local attorneys Henderson and Pugh, Smollett has retained Los Angeles-based attorney Mark Geragos, whose clients have included Michael Jackson and former NFL quarterback Colin Kaepernick.
Cook County State’s Attorney Kim Foxx recused herself from the investigation, citing “potential questions of impartiality based upon familiarity with potential witnesses in the case.”
One of her aides elaborated on the decision Wednesday, saying the recusal was prompted after that the decision was made after “Foxx had conversations with a family member of Jussie Smollett about the incident and their concerns, and facilitated a connection to the Chicago Police Department who were investigating the incident.”
It remained unclear what prompted Foxx to get involved in the case earlier and when those conversations happened.
As criticism of his account was mounting Tuesday, two of Smollett’s siblings took to Instagram to defend their brother.
The two shared a photo of Malcolm X next to a tweaked quote of his in which he derided the news media.
“This is the media, an irresponsible media,” the photo reads. “It will make the criminal look like he’s the victim and make the victim look like he’s the criminal.”
Contributing: Frank Main, Nader Issa