Things could be worse for “Empire” actor Jussie Smollett. And they still might get there.
Especially if federal prosecutors get involved.
That’s according to a pair of defense attorneys who are also veterans of Chicago’s federal courthouse.
Smollett has been charged in state court with felony disorderly conduct for allegedly making a false police report. He claimed he was the victim of a racist and homophobic attack at the hands of two men Jan. 29 in Streeterville. If convicted, he could face up to three years in prison or a punishment as lenient as probation.
But it has not escaped notice that the FBI has been involved in the three-week investigation that generated international headlines. And prosecutors told a judge Thursday that the FBI is conducting a forensic analysis of a threatening letter Smollett received at the Cinespace Chicago Film Studios on Jan. 22.
Meanwhile, the comments made by police and prosecutors Thursday suggest criminal charges could be available to federal prosecutors, should they choose to pursue them, the defense attorneys said. Of course, the feds would have to make sure they could prove their case. Smollett maintains his innocence.
A spokesperson for the U.S. attorney’s office declined to comment.
Even if federal prosecutors believe they have the evidence, one defense attorney doubts the feds would choose to pursue it.
“I don’t see any benefit for the administration to do that,” defense attorney Joseph Lopez said. “It really doesn’t involve any federal officers or any federal officials.”
Chicago Police Supt. Eddie Johnson told reporters Thursday that “this stunt was orchestrated by Smollett because he was dissatisfied with his salary. So he concocted a story about being attacked.”
He also said the threatening letter, addressed to Smollett, was part of the ruse.
That could expose Smollett to a charge of mail fraud, the attorneys said.
“He used the mail,” defense attorney Michael Ettinger said. “That’s the crime.”
Lopez said Smollett could also be charged with communicating a threat through the mail or even with lying to federal authorities. And he said federal sentencing guidelines suggest such charges could put Smollett in prison for years. Because of dual sovereignty, double jeopardy wouldn’t prevent charges in state and federal court, he said.
“He could be charged in both places, theoretically,” Lopez said.
While Lopez suspects the feds won’t bring a case against Smollett, the actor’s celebrity status could pressure prosecutors. And Ettinger pointed to the many resources the Chicago Police Department deployed while looking into his claims.
“You’ve got to have a deterrent effect,” Ettinger said. “You can’t let people do this.”
Contributing: Sam Charles, Andy Grimm