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Chief prosecutor did not officially recuse herself from Jussie Smollett case, her office says

Cook County State's Attorney Kim Foxx did not formally recuse herself from the Jussie Smollett investigation, her office said on March 28, 2019.

CHICAGO — The top prosecutor in Chicago did not formally recuse herself from the Jussie Smollett investigation, her office said Thursday.

Cook County State’s Attorney Kim Foxx only separated herself from decision-making in the “Empire” star’s case out of “an abundance of caution,” and not based on any conflict of interest, her office said Thursday.

“Although we used the term ‘recuse’ as it relates to State’s Attorney Foxx’s involvement in this matter, it was a colloquial use of the term rather than in its legal sense,” the office said in a statement.

Tandra Simonton, a spokeswoman from her office, announced last month that Foxx had been removed from the case to address potential concerns of impartiality “based upon familiarity with potential witnesses in the case.”

Foxx told CNN affiliate WLS on Wednesday that she did so when it was clear Smollett’s role in the case was changing from victim to suspect. She also noted that she consulted her department’s chief ethics officer.

Smollett was charged about a week later with 16 counts of filing a false police report, a Class 4 felony. Foxx said she was never actively involved in the case because the crime was the lowest level of felony, but she did get updates until an email from the chief ethics officer went out to her staff, instructing them not to include her in discussions about the investigation.

Text messages obtained by CNN through an open records request show Smollett family friend Tina Tchen — a former chief of staff for first lady Michelle Obama and a lawyer — reached out to Foxx on February 1. Tchen wrote the family had “concerns about the investigation.”

Foxx emailed Tchen saying in part, “Spoke to Superintendent (Eddie) Johnson. I convinced him to (r)each out to FBI to ask that they take over the investigation. He is reaching out now and will get back to me shortly.”

Later another person, identified by Foxx’s office as a family friend, asked the prosecutor whether they could talk on the phone. She says Tchen gave her Foxx’s number.

Hours later, Foxx texts the unidentified family friend that she “spoke to the (police) superintendent earlier, he made the ask. Trying to figure out the logistics.”

The person responds: “Omg this would be a huge victory.”

Foxx and the family friend exchanged text messages until February 13, Simonton, the State Attorney’s Office spokeswoman, said earlier this month.

Foxx told WLS that when she spoke to Smollett’s family members, he was still thought to be the victim of a possible hate crime, and it is not unusual for her speak to the families of victims. She thought there was a lot of misinformation in the media, and that if the FBI were to handle the case that would cut down on the number of leaks in the case.

Prosecutor ‘misled the public’

In a statement, the Illinois Prosecutors Bar Association said the prosecutors who dropped the felony charges “have fundamentally misled the public on the law and circumstances surrounding the dismissal,” an Illinois lawyers group said.

The way Cook County State’s Attorney Kim Foxx and her office resolved the case also was “abnormal and unfamiliar to those who practice law,” wrote the Illinois Prosecutors Bar Association.

The scathing statement, issued Thursday, follows claims by Foxx and her top deputy, Joe Magats, that “alternative prosecution,” like the resolution brokered in Smollett’s case, is not uncommon and is available to all defendants, celebrity or not. Smollet, 36, agreed to forfeit $10,000 bail and complete community service in exchange for the dismissal of 16 charges alleging he’d orchestrated a fake racist, anti-gay attack on himself.

Further, Foxx and her office “falsely informed the public” that sealing the criminal case was “mandatory,” the prosecutors’ organization said. And a special prosecutor should have been appointed when Foxx, citing familiarity with a potential witness, recused herself from the case, the group insisted.

Meantime, Chicago’s corporation counsel on Thursday asked Smollett to pay $130,106.15 to cover the cost of the investigation into his claims of an attack.

Calls for an investigation grow

Following the charges’ sudden dismissal this week, officials from the statehouse to the White House have demanded investigations and additional consequences for Smollett.

A state lawmaker said he’ll introduce legislation to prohibit any production involving Smollett from receiving the Illinois Film Tax Credit.

“A lot of valuable Chicago Police Department man hours and resources were wasted chasing down a bogus crime arranged by Smollett,” state Rep. Michael McAuliffe, a Republican, said. “He has cost Chicago a lot more than a $10,000 bond. Smollett should not be able to get anything more from the City of Chicago or Illinois.”

State House Republican Leader Jim Durkin asked the Illinois attorney general’s office in a letter to “complete a thorough review of the prosecution and sentencing determination in the Smollett investigation.”

Amid calls by the Chicago police union for a federal investigation to evaluate Foxx’s involvement in the case, the FBI and the Justice Department will review the Smollett case, President Donald Trump tweeted Thursday, though neither agency has commented.

“FBI & DOJ to review the outrageous Jussie Smollett case in Chicago,” Trump said. “It is an embarrassment to our nation!”

Smollett’s attorney said Thursday she’s not worried about a possible federal probe.

“We have nothing to be concerned about because … to my knowledge, nothing improper was done,” Tina Glandian told NBC’s “Today” show.

The state’s attorney defends dropping charges

Foxx said that although she’s confident her office would have landed a conviction against Smollett, a guilty verdict probably wouldn’t have led to a harsher punishment, CNN affiliate WLS reported.

“If he’s found guilty on a Class 4 (felony), the likelihood was he was going to get some type of, perhaps, restitution, community service — not prison,” she told the station. “And so if we can get to the same outcomes, if we get to the same measures of justice without going through the court process, we do that.”

For example, prosecutors frequently offer to drop drug possession charges if defendants agree to treatment and meetings, she said. Such alternate resolutions have been hashed out in thousands of cases, Magats said.

Indeed, resolutions like Smollett’s are available to “someone from the neighborhood,” Foxx said, stressing that Smollett did not get special treatment because of his celebrity status.

Backlash continues from all angles

But Chicago Mayor Rahm Emanuel insisted that if Smollett weren’t an actor with influence, he would have been held to a different standard.

Meantime, an attorney who worked with two brothers who told the grand jury they’d assisted in the fake attack told CNN’s Don Lemon that Foxx’s office did not notify her about its decision to drop the charges.

“I had just been in touch with the State’s Attorney’s Office just days ago,” Gloria Schmidt said. “They had assigned a victim advocate for each of my clients.”

In light of the case, the National District Attorneys Association released a statement on best prosecutorial practices in high-profile cases. Among its recommendations: recusals of chief prosecutors should apply to the entire office; prosecutors should not take advice from politically active friends of the accused; alternative prosecution should include the defendant admitting culpability; and Smollett’s record should not have been expunged immediately in the interest of transparency.

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