CHICAGO (CN) — A special prosecutor’s investigation into how the Cook County State's Attorney's Office handled the 2019 indictment of former “Empire” actor Jussie Smollett found the office did not break any laws but may have violated legal ethics.
"The CCSAO's process and decision-making for resolving the initial Smollett Case were a substantial abuse of discretion and represented a major failure of the operations of the CCSAO," according to the investigation report released by court order Monday.
Accusations of malfeasance in the Smollett case have been levied at the prosecutor's office, and Cook County State's Attorney Kimberly Foxx herself, since early 2019. On March 26 of that year, prosecutors dropped all 16 felony disorderly conduct charges Smollett faced for falsely reporting a hate crime. Foxx had also recused herself from the case by that point, with her office citing "an abundance of caution" in avoiding a conflict of interest, given that she had previously spoken to Smollett's sister about the accusations against the actor. Text messages obtained by public records requests later that year revealed Foxx called Smollett a "washed up celeb, who lied to the cops," and that she believed he had been overcharged.
In response to the criticism Foxx's office subsequently faced, Cook County Judge Michael Toomin commissioned attorney Dan Webb of the Chicago law firm Winston & Strawn to act as a special prosecutor in the case in August 2019. Toomin tasked Webb with two directives: First, to purse further prosecution against Smollett if Webb deemed it warranted, and second, to investigate the public offices involved in Smollett's initial case to see if anyone in those offices behaved unethically or criminally.
"The case was dismissed under, at best, unusual or mysterious circumstances," Webb said Monday morning in a hearing before Toomin on whether his investigation report should be made public.
Webb told the judge it would be inappropriate to release the results of his investigation into the first directive now, as Smollett still faces sentencing after being found guilty on Dec. 9 and will likely appeal that guilty verdict. However, with Smollett's trial out of the way, Webb and Toomin agreed that it was now in the public interest to release Webb's 60-page investigative report on the second directive.
"Disclosure may be needed not just in the interest of justice but when the law so directs... The court will so rule," Toomin said.
The Cook County State's Attorney's Office did not contest the release of Webb's findings. An aide present at the hearing said the office had fully cooperated with the investigation.
Webb's investigation found evidence that the office mishandled the initial case on multiple levels, but the report dedicates over a dozen pages to prosecutors' apparent dishonesty. In March 2019 for example, a statement from the office claimed dropping Smollett's initial 16 charges was a routine alternative to trial proceedings, not an exoneration.
"In the last two years, the Cook County State’s Attorney’s Office has referred more than 5,700 cases for alternative prosecution. This is not a new or unusual practice... We did not exonerate Mr. Smollett. The charges were dropped in return for Mr. Smollett’s agreement to do community service and forfeit his $10,000 bond to the city of Chicago," the office said at the time.
But Webb's report characterized this as a misrepresentation of the office's actions. The special prosecutor noted the 5,700 cases mentioned in the statement all involved defendants being referred a diversion program consisting of community service or counseling, but Smollett was never referred to any such program. The report says members of Foxx's office were aware of this inconsistency at the time they made their statement to the public and the press.
"Notably, there was a realization within the CCSAO that the 5,700 figure did not represent what the CCSAO, Mr. [First Assistant State’s Attorney Joseph] Magats, and State’s Attorney Foxx stated to the public and that the public and press did not understand the CCSAO’s inconsistent use of terminology relating to 'alternative prosecutions,' 'deferred prosecution,' and 'diversion' when describing the resolution of the initial Smollett case... Yet, despite these realizations that the dismissal press statement and statements made by State’s Attorney Foxx and Mr. Magats about the resolution were, at a minimum, unclear, the CCSAO did not issue any clarifying or corrective statements," the report states.
Perhaps most damning, Webb's report also states that lawyers in the office and Foxx herself may have violated the Illinois Rules of Professional Conduct in making the misleading statements. Violating these rules can have serious consequences for attorneys, up to and including disbarment.
"Some of these public statements were made on more than one occasion," the report states. "The Illinois Supreme Court has stated that the language in Rule 8.4(c), which prohibits lawyers from engaging in 'conduct involving dishonesty, fraud, deceit, or misrepresentation,' is 'broadly construed to include anything calculated to deceive, including the suppression of truth and the suggestion of falsity.'"
The report goes on to state that these potential violations could be all the more serious given Foxx's status as an elected official. It notes that cited Rule 8.4(c) states that a lawyer in public office who commits professional misconduct may "suggest an inability to fulfill the professional role of lawyers."
However, the report also states that it is the responsibility of the Attorney Registration & Disciplinary Commission, not the Office of the Special Prosecutor, to determine whether attorneys have violated professional conduct rules and mete out discipline accordingly. Though the report states that the OSP will submit its findings to the ARDC so it can determine if any ethical violations actually occurred, Webb declined to comment on the issue on Monday.
The Cook County State's Attorney's Office did not immediately return a request for comment on the report's findings.
In statements to the press on Monday, Webb did say that he was pleased to have been able to finally release the 60-page report, adding that he hopes it, along with Smollett's conviction, will help restore public faith in the legal system. He said it often seems like there are two justice systems in Cook County, "one for the ordinary person and one for privileged people like Mr. Smollett."
"We cannot have two systems of justice in Cook County," Webb said.
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