Finger-pointing, misleading statements, “substantial abuses of discretion” and a “major failure" of operations were among the findings included in a special prosecutor’s investigation into Cook County State’s Attorney Kim Foxx and her office’s handling of the Jussie Smollett case.
Judge Michael Toomin on Monday allowed for the public release of a 60-page summary report from Special Prosecutor Dan Webb and his team, which examined how and why Foxx and her office dismissed an initial set of criminal charges against former “Empire” star.
Toomin appointed Webb as the special prosecutor in this case after Foxx’s office dismissed an initial set of 16 criminal charges against Smollett, who was accused of orchestrating a hoax hate crime against himself in Chicago in January 2019.
Webb was tasked both with reinvestigating the Smollett case and with determining whether Foxx or any other person or office involved in the case “engaged in improper conduct or committed any criminal offenses.”
The special prosecutor eventually filed new charges against only Smollett, who was convicted this month on five of six disorderly conduct charges.
Webb’s team published a brief report last year of the highlights of its probe, including the discovery of “substantial abuses of discretion and operational failures” in the state’s attorney’s handling of the initial prosecution.
‘They wanted this guy out of town’
Prosecutors dismissed the initial 16-count indictment against Smollett in March 2019 after he agreed to forfeit the $10,000 he paid in bond and complete 16 hours of community service.
In the report, Webb states he and his team “thoroughly investigated” whether Foxx or anyone in the state’s attorney’s office had committed any crime regarding the prosecution or the eventual resolution of that case.
Throughout that process, they interviewed 43 people, including Foxx, her then-first assistant Joseph Magats, prosecutor Risa Lanier and former Chicago police Superintendent Eddie Johnson.
Webb’s team also talked to Tina Tchen, the previous chief of staff to Michelle Obama, who served as a Smollett family representative in 2019 and spoke to Foxx about the case before it was dismissed.
While no evidence to support any criminal charges against anyone but Smollett was ever found, the special prosecutor did find the case’s resolution represented a “major failure of the operations” of Foxx’s office.
Foxx was under oath during her interview with Webb’s team when she told them she believed the initial case was resolved the way it was because prosecutors in her office “wanted this guy out of town,” due to the “flurry of activity” the case had brought to the Leighton Criminal Court Building.
According to the report, she agreed this might not be the correct reason to dispose of a case.
“I think the kind of negotiating, let’s get rid of that guy at the expense of really what his actions did to the City shortchanged, I think, the accountability the City deserved,” Foxx is quoted as saying in the report.
Several other current or former members of the state’s attorney’s office also told Webb’s team they were “surprised” or “shocked” by the way Smollett’s initial case was resolved. Some said the amount of community service required of him was low, while others said the speed with which the case was disposed of — just 19 days after Smollett was indicted — was “ridiculous.”
Prosecutors within Foxx’s office said the fact that the case was dismissed so quickly and without any substantial new evidence coming to light was something they’d never seen before.
Beyond even substantial new evidence, Magats and Lanier — who were in charge of the case — each told the special prosecutor that no new evidence had been discovered at all between Smollett’s indictment and the dismissal of those charges.
And according to the report, Magats and Lanier gave conflicting reports as to how the case was settled. Each pointed the finger at the other when asked who negotiated the settlement with Smollett’s legal team. Smollett’s attorney said she had initial conversations with Magats, but worked with Lanier to handle the settlement, the report states.
Magats and Lanier also gave conflicting dates for when they began discussing the case resolution and contradicted each other as to how the resolution was crafted and what it included.
Webb's investigation also found Foxx and Magats repeatedly mischaracterized the resolution of the case and misled the public about how and why that decision came to be in at least a half-dozen statements to the media, which may represent a violation of legal ethics.
Per the report, the special prosecutor said it did not find evidence that Foxx was involved in the decision-making of the case after she recused herself, though she was provided with “frequent updates” on the matter.
While several people interviewed by Webb’s office felt that recusal meant she could have no involvement in the case at all, including receiving updates, Foxx said she viewed herself as being in “listening mode,” only receiving information but not acting on the case.
Ultimately, Webb’s team determined it had no evidence that Foxx or anyone in her office could be criminally charged for “bribery, failure to report a bribe, official misconduct, obstruction of justice, perjury, or any other criminal statute.”
“Specifically, the (Office of the Special Prosecutor) also explicitly asked 37 interviewees who could potentially have information about criminal activity by the (Cook County State’s Attorney’s Office) if they were aware of any actions by anyone at the (office) that might constitute criminal conduct,” Webb’s team said in the report. “Across the board, everyone asked responded that they were not aware of any potential criminal conduct.”
In a statement Monday evening, Foxx’s office said it “remains committed to honesty and transparency” and it “respectfully disagree(s)” with Webb’s findings of abuse of prosecutorial discretion.
“Though State’s Attorney Kim Foxx was not involved with the initial disposition of the Smollett case, she and the (State’s Attorney’s Office) remain steadfast that the office acted within its broad prosecutorial discretion,” the office said in the statement.
Restoring public confidence
Webb previously sought the release of this summary report during a hearing in August 2020. But Toomin rejected that request, finding the special prosecutor had not demonstrated a “particularized need” for its release as it contained protected grand jury materials and could affect Smollett’s right to a fair trial.
In a new motion filed last week, Webb noted “the public release of the (Office of the Special Prosecutor's) Summary Report will not interfere with Mr. Smollett’s right to a fair trial because the trial in that case has concluded and a verdict has been rendered.”
Speaking after the hearing Monday, Webb told reporters he was “very pleased” with Toomin’s decision.
“I do believe that getting my report helps restore the public’s confidence in our criminal justice system,” he said. “That’s what I was asked to do. I’ve done it and now I’m glad the report is going to be released.”