Just days after Jussie Smollett told Chicago police he had fought off a pair of attackers who targeted him in an apparent hate crime, Cook County State’s Attorney Kim Foxx tried to persuade Police Supt. Eddie Johnson to turn the investigation over to the FBI.
Foxx’s call to Johnson came after an influential supporter of the “Empire” actor reached out to Foxx personally: Tina Tchen, a Chicago attorney and former chief of staff for former First Lady Michelle Obama, according to emails and text messages provided by Foxx to the Chicago Sun-Times in response to a public records request.
Tchen passed Foxx’s number to a relative of the actor, and the ensuing conversations with the family member were cited by Foxx last month as the reason she recused herself from Smollett’s prosecution as the actor faces disorderly conduct charges for allegedly making a false police report.
Text messages show Tchen contacted Foxx on Feb. 1, three days after Smollett said he was jumped by two men as he walked home from a sandwich shop near his Streeterville home. Tchen texted Foxx to set up an early morning phone call.
“I wanted to give you a call on behalf of Jussie Smollett and family who I know. They have concerns about the investigation,” Tchen wrote in a text sent before 5 a.m., seeking to set up a call with Foxx before Tchen left on an 8 a.m. flight to New York.
A few hours later, Foxx received a text from a relative of Smollett, who said she’d received the number from Tchen.
In an interview with the Sun-Times this week, Foxx said that the family member expressed concerns about leaked information about the investigation — information that media outlets attributed to “police sources.”
“They had no doubt about the quality of the investigation, but believed that the FBI would have a tighter lid on the information,” said Foxx, adding that Johnson initially seemed receptive to the idea of turning the case over to the FBI.
Foxx said she has made similar calls to Johnson in cases involving lower-profile victims.
Police spokesman Anthony Guglielmi said the FBI was involved from the start of the investigation, as is the case in most possible hate crime investigations, but there was never a discussion of the CPD giving up the case to federal investigators. The department confirmed last week that there is an ongoing internal investigation of the unnamed sources who gave the press information.
The conversations with Smollett’s relative took place during the period of the investigation when Smollett was considered the victim of a hate crime, not a suspect in a hoax, Foxx said.
Her decision to recuse herself was based on the conversations with the family member, which included information about Smollett.
An email included with the records requested by the Sun-Times shows Foxx’s chief ethics officer sent a message to top staff announcing Foxx had recused herself from the case on Feb. 13 — about a week before Smollett was charged, and the same date as her last text message and calls with Smollett’s relative.
Foxx spokesman Robert Foley announced that the top prosecutor had recused herself and turned the case over to her top deputy, Joseph Magats, on Feb. 19, without explaining why.
The next day, Foley elaborated in a statement to reporters that 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.”
The text messages show Foxx told both Tchen and Smollett’s relative that Foxx had reached out to Johnson personally about handing the investigation off to the FBI.
“Spoke to the superintendent earlier. He is going to make the ask. Trying to figure out logistics. I’ll keep you posted,” Foxx wrote the relative that evening.
“OMG this would be a huge victory,” the relative texted in reply.
In an email message to Tchen sent the same day, Foxx wrote: “Spoke to the Superintendent Johnson. I convinced him to reach out to FBI to ask that they take over the investigation. He is reaching out now and will get to me shortly.”
Tchen did not respond to requests for comment from the Sun-Times.
Defense lawyer and Chicago-Kent College of Law professor Richard Kling said that it would not be unusual for prosecutors to reach to police during an investigation, though it is likely rare that a victim would get the state’s attorney’s personal phone number. Foxx’s decision to recuse, once it became clear that Smollett was likely to be facing charges, was appropriate, Kling said.
“I don’t think it is odd or rare for prosecutors to talk to police, or for (Foxx) herself to ask what is going on in a particular case,” Kling said. “And, once she realized she had talked to a family member who may have given her information about a pending case, recusing herself was exactly the right thing to do.”