Chicago prosecutor shifts Smollett case recusal explanation

CHICAGO — Chicago’s top prosecutor gave a new justification in documents released Friday for why she recused herself from the investigation into “Empire” actor Jussie Smollett’s claim he was the victim of a hate crime: there were false rumors she was related to Smollett and she didn’t want any hint of a conflict of interest.

The justification from Cook County State’s Attorney Kim Foxx was contained in 2,000 pages of documents her office released Friday.

Foxx says the false rumors circulated as suspicions grew about the claim made by Smollett, who is black and gay, that he was the victim of a racist, homophobic attack. Foxx says she recused herself to avoid “even the perception of a conflict.”

The new documents, along with previous releases show a shifting justification for why the prosecutor recused herself. They also show how Foxx inserted herself in the case even though she had publicly vowed to stay out of the decision-making.

Smollett faced 16 felony counts related to making a false report that he was assaulted by two men early on Jan. 29. Investigators said he made the false report because he was unhappy with his pay on “Empire” and believed such an incident would give his career a boost. Foxx’s office dropped the charges on March 26 without any admission of guilt by Smollett, prompting a hail of criticism especially from then Mayor Rahm Emanuel and Chicago Police Superintendent Eddie Johnson.

The new documents show that, despite saying she had recused herself from the case, Foxx told a deputy in texts that she believed her office had overcharged the actor.

Foxx communicated in early February with former first lady Michelle Obama’s former chief of staff Tina Tchen, who was representing Smollett’s family, and with a member of Smollett’s family about the investigation. She recused herself on Feb. 13, and her office cited the communications with the Smollett relative, whom Tchen had encouraged Foxx to call, as the reason for the decision.

In late March — after questions were raised about the dropping of charges — Foxx and her aides sought to recast her role, with one statement saying Foxx “used the term ‘recuse’” in the “colloquial use of the term.” They said the correct description was that she had “informally separated herself from the decision-making” in the case.

As documents released earlier illustrated, Foxx nevertheless weighed in at critical points as her staff decided whether to proceed with the prosecution, which began when Smollett was charged on Feb. 20. Her input included a March 8 text to First Assistant State’s Attorney Joseph Magats, who became the final decision-maker in the Smollett case after Foxx purportedly stepped away.

Foxx texted: “Sooo …… I’m recused, but when people accuse us of overcharging cases … 16 counts on a class 4 becomes exhibit A.”

Magats responded to his boss, saying: “Yes. I can see where that can be seen as excessive.”