Looks like Kim Foxx may not be in the clear after all

Pretty much all the news we’ve heard surrounding the charges against Jussie Smollett and how they were dropped has been bad. Nobody was going to be held accountable for anything and it would all fade into the history of The Chicago Way, right? That was the impression I was left with, at least. But perhaps not. One judge has apparently grown fed up with the sleazy process unfolding in the media and would like a word with the woman whose office was responsible for cutting the deal. Cook County State’s Attorney Kim Foxx has been subpoenaed. (NY Post)

Chicago’s top prosecutor, Kim Foxx, has been subpoenaed to appear at a hearing over her handling of the Jussie Smollett case, according to a new report.

The Cook County state’s attorney was slapped with the subpoena by a retired judge who’s pushing for the appointment of a special prosecutor to look into how Foxx dealt with the controversial case, the Chicago Sun-Times reported.

Ex-appellate Judge Sheila O’Brien also subpoenaed Foxx’s top deputy Joseph Magats, and filed a document requesting that Smollett appear at the hearing, the report said.

What’s not clear is where Judge O’Brien is going with this investigation. I mean, is there anything that Foxx can seriously be charged with? The judge makes a good point when she describes Foxx’s handling of the Smollett case as being “plagued with irregularities.” There also seems to be a general consensus that the proper course of action for Foxx would have been to fully recuse herself and appoint a special prosecutor, as her own top deputy urged her to do. (And he had already drawn up the paperwork to do so before Foxx shut down that approach.)

But still, as much as the whole thing stinks to high heaven and looks completely shady, Foxx was exercising prosecutorial discretion, wasn’t she? Law enforcement investigates, makes arrests and collects evidence, but in the end, it’s the prosecutor’s office that decides whether or not a case is viable. Can they really charge her with anything absent some stunning revelation that she was intentionally conspiring to thwart the law?

As we’ve discussed here in the past, Foxx is an elected official, not an appointed one or regular county employee. Unless she’s convicted of a crime there is no mechanism in place to remove her from office except for the voters to do so at the next election. And she’s clearly not the type to allow embarrassment or shame drive her towards resigning her post. We’ll keep an eye on what Judge O’Brien does with this mess going forward, but it may wind up all being for show.