Did Chicago police superintendent Eddie Johnson get out a little ahead of his skis in his press conference yesterday? The police gathered an impressive amount of evidence in their investigation, as documented in the bond proffer presented at Jussie Smollett’s arraignment yesterday. The local case is strong enough to impress Don Lemon and get him thinking that police might not be framing Smollett.
But what about the feds? Johnson asserted in the presser that Smollett had manufactured an earlier threat letter mailed to Empire‘s production offices, which contained a white powder identified later as crushed ibuprofen. Johnson said that the FBI had picked up that part of the investigation, but the proffer also stated as fact that the letter was a Smollett production:
— CBS News (@CBSNews) February 21, 2019
Today, however, TMZ reports that the FBI has not yet reached that conclusion. They are still examining the letter and the envelope, as well as cut-up magazines seized by police in a search warrant in the apartment of the Osundairo brothers. The brothers themselves have not yet admitted to participating in the letter, however, and that may mean that Johnson’s conclusion was premature, at the least:
Federal law enforcement sources tell us they’re still investigating the letter and have drawn no conclusions. Both federal and state law enforcement sources say the operating theory was that the 2 brothers — Abel and Ola Osundairo — may have mailed the letter because, when cops raided their apartment and seized magazines, there were pages missing.
We’re told authorities are trying to determine if the pages have the lettering found in the letter. They’re also checking the postage stamp against the stamps found in the brothers’ apartment. As we reported, the brothers deny sending the letter.
Obviously, if the brothers sent the letter, it comes back to Jussie — because they would have done it at his behest — but as one federal law enforcement source tells TMZ, “I think he [Johnson] went too far. We’re not there yet.”
The two brothers don’t have any criminal liability on the hoax attack, which itself was not a crime. Smollett filed the false police report, not the Osundairos. However, if they participated in sending the threat letter, they do have potential exposure to felony federal prosecution under the same statutes that would apply to Smollett. The Prosecutors might cut them a deal to testify if they took part in that hoax, but until they cooperate on that (assuming, of course, that there’s any crime on which to cooperate), they may have trouble making that stick to Smollett.
Yesterday at Law & Crime, Matt Naham sounded skeptical that the feds would bother prosecuting Smollett at all over the letter:
Jussie Smollett is already in deep trouble, but could he also have opened himself up to federal charges? Many on social media seem to think so, but is this a realistic expectation? We explain. …
A second accusation has left observers wondering if the current charge could be the least of Smollett’s problems. Police said that Smollett sent himself a racist and homophobic letter while on the set of Empire. They also alleged that Smollett was upset about his salary. … Previous reporting from CBS 2 Chicago linked the letter to the larger alleged scheme and indicated that it was, indeed, mailed. …
It’s possible, I suppose, that feds could make a case for mail fraud, but that’s not what they’re likely try. Why do all that work to prove the mens rea for fraud when federal statutes already carry five-year penalties for sending threats via the mail, and hoaxes as well? The relevant statutes in this instance don’t include 18 USC 1341, but 18 USC 876 and 18 USC 1038. There’s no need to make a complicated case on motive when dealing with threats and hoaxes; prosecutors only need to prove that the accused sent them via the mail or was part of a conspiracy to do so.
First, though, they have to get enough evidence to file those charges. They’re not there yet, TMZ’s sources say, but they wouldn’t be bothering to investigate this further if they had no plans to prosecute it later.