This isn’t about Jussie Smollett anymore.
A judge’s decision Friday to appoint a special prosecutor to look into Cook County State’s Attorney Kim Foxx’s handling of the Smollett case is about Foxx, the integrity of her office and the public’s faith in the criminal justice system.
In late January, Smollett, an actor, claimed two men had attacked him near his apartment in Streeterville, shouting racist and homophobic insults, pouring something on him and putting a noose around his neck. But after an intensive investigation, Chicago police concluded there had been no assault — and that Smollett had agreed to pay two brothers $3,500 to stage the attack.
The case became more controversial when it became known that Foxx had talked about it with a member of Smollett’s family at the urging of Tina Tchen, a Chicago lawyer and activist who had once served as chief of staff for first lady Michelle Obama.
Foxx also encouraged Chicago police Supt. Eddie Johnson to transfer the investigation to the FBI. And she then publicly recused herself from the case, but later characterized her recusal as only informal.
We don’t know what that means — formal recusal versus informal — if such a distinction is even valid. But it appears to be at the heart of the ethical questions in this case.
On Friday, Cook County Judge Michael Toomin ruled that once Foxx withdrew from the case, she had no legal authority to delegate the prosecution of the case to her top deputy.
The case became even more controversial when that top deputy — Foxx’s first assistant — dropped all 16 charges of disorderly conduct against Smollett. Foxx’s office required that he forfeit a $10,000 bond, but did not require that he admit he had made the whole thing up.
Chicagoans couldn’t remember another case quite like this one, and for good reason. It’s truly one of a kind.
At first, we were skeptical about retired judge Sheila O’Brien’s special prosecutor request. And we also had our doubts in March when the Fraternal Order of Police called for a federal investigation of Foxx’s handling of Smollett. Beyond that, the legal community is not unanimous as to the wisdom of re-opening the case.
But Judge Toomin on Friday made a compelling argument that a special prosecutor is needed. He’ll eventually appoint one who will have a broad mandate to investigate crimes that may have been “committed in the course of the Smollett matter” and to possibly even re-prosecute Smollett.
With luck, the probe will get to the bottom of what did and did not happen — and decide once and for all whether justice was compromised by personal relationships.
It’s possible the special prosecutor will conclude that Foxx’s mistake was simply that she did not fully step aside and did not make it clear that her “recusal” did not imply a conflict of interest.
If there was any genuine conflict of interest on Foxx’s part, Toomin ruled in his opinion, Foxx’s entire office shared that conflict and an outside prosecutor should have been called in.
Also, if Foxx did formally recuse herself, then that also created a need for a special prosecutor, Toomin wrote.
A state’s attorney’s office can’t operate under a cloud of suspicion of unethical behavior. We also need reassurances that the office is transparent in its dealings with the media and the public; Foxx provided her emails and text messages about the case to the Chicago Sun-Times only after the newspaper filed a public records request.
What we probably don’t need is to put Smollett on trial — though Toomin indicated that is a possibility.
The legal system operates on the principal that agreements with prosecutors are final. But so-called double jeopardy protections don’t apply to Smollett in this case because prosecutors simply declined to pursue the charges against him, raising the possibility that they could be re-filed.
Unless it is shown that Smollett or people connected to him illegally influenced the prosecutors’ decision in some way — which no one has alleged — we don’t think charging Smollett anew is a good idea.
Like we said, this case is more about Foxx than him.
“Here, the ship of the State ventured from its protected harbor without the guiding hand of its captain,” Toomin wrote. “And it ultimately lost its bearings.”
Let’s get the ship back on course. The sooner the special prosecutor is appointed, the better.
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