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Special prosecutor finds ‘substantial abuses of discretion’ in Jussie Smollett case as he concludes investigation

Special Prosecutor Dan Webb did not find evidence to support filing criminal charges against Cook County State’s Attorney Kim Foxx or any other prosecutor.

Jussie Smollett leaves court after charges were dropped in March 2019.
Jussie Smollett leaving court in March 2019 after charges were dropped.
Sun-Times file

Special Prosecutor Dan Webb laid out a series of “operational failures” — and several false statements by Cook County State’s Attorney Kim Foxx — as he announced on Monday the end of his investigation into the handling of hate crime claims by actor Jussie Smollett.

Webb said Foxx and her staff made false or misleading statements about her declared recusal from the case, about how the Smollett case compared to others in the court system, about the certainty of a conviction for Smollett, and about her contacts with Smollett’s sister, actor Jurnee Smollett.

But Webb also said he did not find evidence that the case was improperly influenced by third parties such as Tina Tchen, the onetime chief of staff to former first lady Michelle Obama, nor did he find evidence that would support criminal charges.

In a statement, Foxx’s office said Webb’s announcement “puts to rest any implications of outside influence or criminal activity on the part of the Cook County state’s attorney’s office.” It also denied that the false statements referenced in Webb’s announcement were “deliberately inaccurate.”

Smollett attorney Mark Geragos said in a statement Monday, “This so called “report” on Kim Foxx and the timing of the recharging of Jussie reveals the real political electoral motivation of Dan Webb and his cohorts. It’s a blatant attempt to take down a black, progressive, female prosecutor who does not fit within the white power structure. Jussie, a black, gay man who maintains his innocence, continues to be used as a pawn.

“Today’s report confirms what the defense has said all along—there was no wrongdoing or undue influence by Jussie or the defense in the dismissal of all charges against him and the second wave of charges is a blatant constitutional violation.”

Still, there are more shoes left to potentially drop. Webb said Monday he would seek permission “as soon as possible” from Cook County Judge Michael Toomin to release a 60-page report that supports his findings with evidence. He also said he intends to forward the report to Illinois’ Attorney Registration and Disciplinary Commission.

Foxx’s Republican challenger in November’s election, Pat O’Brien, called on Foxx to resign.

Smollett told police in January 2019 that he had been jumped by two white men near his Streeterville home. Smollett wound up being accused of faking the attack. But a 16-count indictment filed against him in March 2019 was tossed just weeks later, and how it was done raised suspicions.

Webb was later appointed special prosecutor, and he filed a new six-count indictment against Smollett in February. He was also tasked with looking into any wrongdoing in the handling of the case, and he said Monday his investigation uncovered “substantial abuses of discretion and operational failures” in Foxx’s office.

In his announcement, Webb wrote that lawyers who currently or previously worked in the criminal division of the state’s attorney’s office were “surprised” or “shocked” in some way by how the initial charges against Smollett were handled. He also wrote that the decision-makers in that initial case “have significantly and meaningfully divergent explanations for how the resolution was reached, including who negotiated the terms.”

Additionally, Webb pointed to untrue statements made by Foxx and her staff. For example, Webb said Foxx and others in her office made false statements in April 2019 about whether she realized she had improperly recused herself from the Smollett case.

Foxx appointed an “acting state’s attorney” to handle the case rather than ask the judge to appoint a special prosecutor. Once Foxx and her staff realized the error, Webb wrote that they “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 also pointed to an op-ed from Foxx published by the Chicago Tribune on March 29, 2019, in which he said Foxx “falsely represented that the ‘office believed the likelihood of securing a conviction was not certain.’ ”

Finally, Webb said Foxx made an untrue statement when she told the media she had stopped communicating with Smollett’s sister, Jurnee Smollett, as soon as she learned Jussie Smollett had become a suspect in CPD’s investigation. He wrote that Foxx had learned by Feb. 8, 2019, that Jussie Smollett was a suspect, but she continued to communicate with Jurnee Smollett for five more days.

As part of his investigation, Webb said he looked into whether there was any improper outside influence on the original case against Smollett, including by Tchen, Jurnee Smollett or Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund, Inc. Webb said he did not find evidence they influenced the outcome of the original Smollett case.

“However, conversations with these three people did deepen concerns State’s Attorney Foxx had regarding information being released to the public, seemingly by the CPD, about the ongoing investigation,” Webb wrote.

Though Webb said in his announcement there were unauthorized “leaks” of information in the case by members of the Chicago Police Department, he said the sources of the leaks could not be identified and evidence would not support criminal charges in that matter, either.