Last August a judge appointed special prosecutor Dan Webb to look into Kim Foxx’s handling of the Jussie Smollett case. Today, Webb concluded that investigation and revealed he had found “substantial abuses of discretion” in Foxx’s handling of the case. However, he did not find anything that would lead to charges against Foxx or others in her office. Here are the five major findings in Webb’s report:
Overall, Webb said he found:
• Evidence establishing “substantial abuses of discretion” in prosecuting and dismissing the initial criminal charges filed against Smollett.
• Evidence “that may rise to the level of a violation of legal ethics by State’s Attorney Foxx” and other Cook County prosecutors “relating to false and/or misleading public statements made about the prosecution.”
• Evidence showing Foxx was given frequent updates about the case against Smollett following her declared recusal, though there was no evidence showing Foxx was involved in decision-making after that point.
• No evidence that would support criminal charges against Foxx or any other Cook County prosecutor.
• No evidence of “improper influence by any outside third parties” in the decision-making by Foxx’s office regarding the initial charges against Smollett.
That’s the bottom line but the details are interesting. Webb found lots of evidence that Kim Foxx absued her discretion in the case. He breaks down that first bullet point above into four separate sub-findings. The first relates to Foxx’s dismissal of the case which seems to have been very unusual. (Note that CCSAO refers to Cook County State’s Attorney’s Office.)
Almost across the board, lawyers who currently work in or previously worked in the CCSAO’s criminal division who were interviewed by the OSP—including State’s Attorney Foxx—were “surprised” or “shocked” by at least some facet of the dismissal terms.
The CCSAO decision-makers on the Initial Smollett Case (Acting State’s Attorney Joseph Magats and Lead Prosecutor Risa Lanier) did not learn of any new evidence between when the CCSAO filed a 16-count indictment against Mr. Smollett on March 7, 2019, when the CCSAO believed it had a strong case against Mr. Smollett, and March 26, 2019, when the entire indictment was dismissed, as described above…
The CCSAO did not rely upon any specific similar CCSAO cases when resolving the Initial Smollett Case.
The second sub-finding is made up of the numerous false statements Foxx’s office made to the media about the dismissal, i.e. the cover-up:
The CCSAO issued a press statement on March 26, 2019 (the day of the dismissal) that stated: “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. An alternative disposition does not mean that there were any problems or infirmities with the case or the evidence…This outcome was met under the same criteria that would occur for and is available to any defendant with similar circumstances.” State’s Attorney Foxx and Mr. Magats made similar statements during interviews with reporters on March 26 and 27, 2019 respectively. However, the evidence the OSP developed makes it clear that there are fundamental facts that are inconsistent with the CCSAO, Mr. Magats, and State’s Attorney Foxx’s messaging in at least two ways:
§ The Initial Smollett Case did not fit the criteria the CCSAO’s Chief Data Officer used to identify the cited 5,700 figure because all of those cases were referred to a diversion program, unlike Mr. Smollett’s case; therefore, the resolution of the Initial Smollett Case was meaningfully different from how those 5,700 cases were resolved.
§ There were not thousands of (or, arguably any) similar cases that the CCSAO resolved in a similar way to the Initial Smollett Case. The CCSAO could not identify any specific similar CCSAO cases it relied upon when resolving the Initial Smollett Case.
In short, the office tried to present the dismissal as business as usual but the comparisons they made were not similar to what happened in the Smollett case. There were several more lies about the dismissal, including this one.
After telling reporters on March 27, 2019 that the CCSAO had a strong case and would have prevailed at trial, State’s Attorney Foxx published an op-ed in the Chicago Tribune on March 29, 2019 where she falsely represented that the “office believed the likelihood of securing a conviction was not certain.”
The office also lied about Kim Foxx’s recusal from the case. The report says they did this apparently because they knew the action they’d taken was improper but didn’t want to admit it:
After State’s Attorney Foxx made the decision to recuse herself from Initial Smollett Case, she and the CCSAO came to realize that her recusal was legally defective in a major way—namely, that she could not simply appoint Mr. Magats to be “Acting State’s Attorney” on the case, but instead needed to recuse the entire CCSAO and petition the court to appoint a special prosecutor. Instead of implementing the proper legal course to carry out the recusal once this defect was brought to their attention, the CCSAO and State’s Attorney Foxx made the decision to ignore this major legal defect seemingly because they did not want to admit that they had made such a major mistake of judgment regarding State’s Attorney Foxx’s recusal. The CCSAO and State’s Attorney Foxx then compounded the problem by making false statements to the media on April 17, 2019 about State’s Attorney Foxx’s lack of knowledge about this major legal defect in carrying out the recusal.
That’s all from point 1, i.e. abuses of discretion. Point two is a finding that Foxx’s office lied to the media and the public so many times that it may rise to the level of a violation of legal ethics:
As summarized above in Conclusion #1, the OSP developed evidence that the CCSAO, State’s Attorney Foxx, and/or Mr. Magats made at least six false and/or misleading public statements relating to the nature and reason for the dismissal of the Initial Smollett Case and State’s Attorney Foxx’s recusal. Some of these public statements were made on more than one occasion. 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.” In re Edmonds, 2014 IL 117696, ¶ 53 (2014) (emphasis added). Furthermore, of particular relevance given State’s Attorney Foxx’s role as an elected official, the comments to Rule 8.4 state: “Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of lawyers.” As a result, the OSP has concluded that the six false and/or misleading public statements discussed above in Conclusion #1 could potentially be deemed violations of Rule 8.4(c).
The report notes that the Office of Special Prosecutor has no authority to find that an attorney has violated professional ethics, so Webb can’t do anything about this himself but he’s clearly waving a flag that maybe this conduct is worthy of some additional action by the “Illinois Attorney Registration & Disciplinary Commission.”
The good news for Kim Foxx in the report is that Webb didn’t find any evidence of a crime (finding #4):
Based on the voluminous documentary evidence gathered and witness interviews conducted, the OSP did not develop evidence that would support any criminal charges based on bribery, failure to report a bribe, official misconduct, obstruction of justice, perjury, or any other criminal statute.
Also, there was no evidence of undue influence (finding #5) after Foxx spoke to Jurnee Smollett (Jussie’s sister), Tina Tchen (Michelle Obama’s former Chief of Staff) and Sherrilyn Ifill (President of the NAACP Legal Defense Fund).
To sum all of this up, it appears Foxx’s office didn’t violate the law but it did dismiss the case with no clear precedent and then lie to the media repeatedly about its justifications. I guess we’ll have to wait and see if there is any additional fallout from this report. So far, Kim Foxx hasn’t reacted to it publicly.