The prosecutor, Kim Foxx, had delegated the case to a deputy. But text messages released this week show that Foxx remained closely engaged with the case — and worried that her office was being too harsh on Smollett, who has a prominent role on the show “Empire” and who was accused of orchestrating a fake hate crime and lying to the police.
“Sooo……I’m recused, but when people accuse us of overcharging cases…16 counts on a class 4 becomes exhibit A,” Foxx, the Cook County state’s attorney, wrote in a text message to a colleague in March.
Her message went on, with what many assumed was a comparison to sexual abuse charges she had announced against R. Kelly, the R&B; star. (Kelly’s lawyer has said his client is innocent.)
“Pedophile with 4 victims 10 counts,” Foxx said in the message. “Washed up celeb who lied to cops, 16. On a case eligible for deferred prosecution I think it’s indicative of something we should be looking at generally.”
She added: “Just because we can charge something doesn’t mean we should.”
Since January, the peculiar, roller coaster case involving Smollett has exposed an array of divisions and disagreements among Chicago’s leaders, and hundreds of text and email messages released this week from and to Foxx only underscored those tensions. The messages involving Foxx and her office also suggested that Foxx remained aware of developments in the case even as she publicly distanced herself from it.
The messages also paint a picture of a prosecutor’s office that failed at first to grasp the level of attention on the case, appearing overwhelmed by the criticism it faced when it abruptly announced in late March that it was dropping all of the criminal charges against Smollett.
Foxx, who was elected as Cook County’s state’s attorney three years ago amid criticism of her predecessor’s handling of a police shooting case, has faced her own firestorm over the Smollett case, and lingering questions about her role in it and about her office’s handling of it.
In February, Eddie Johnson, the Chicago police superintendent, held an impassioned news conference to accuse Smollett, who is black and gay, of staging an attack on himself on Jan. 29 to seek publicity. Smollett had told detectives that two men placed a rope around his neck, poured a chemical on him and used the phrase “MAGA country,” referencing President Donald Trump’s campaign slogan. But Johnson said the report was faked, flatly stating: “Mr. Smollett is the one who orchestrated this crime.” Smollett has maintained his innocence.
Only weeks later came the prosecution’s announcement that the charges against Smollett had been dropped, setting off fierce criticism from Johnson and from Chicago’s mayor, Rahm Emanuel. Not long after, dueling protests took place outside Foxx’s office. Members of a police union called for Foxx’s resignation, while counterprotesters denounced the police union. The county inspector general is now reviewing the handling of the case.
And the debate has reached beyond Chicago.
“The more we learn about this, the more it stinks,” Herman Cain, the conservative commentator and former presidential candidate, said in a Facebook post about the release of Foxx’s text messages this week.
DeRay Mckesson, an activist, said on Twitter, “Venom directed at Kim Foxx is about taking down an African American reformer.”
Foxx’s role in the case had always been complicated. She said that she was removing herself from the case and assigning it to one of her deputies once it became clear that Smollett was a suspect. Before that point, Foxx had contact with a representative for the actor: She told a family member that she had asked that the FBI take over the investigation, The Chicago Tribune reported.
Ultimately, the prosecutor’s office offered shifting explanations for why it had dropped the charges against Smollett. At first, prosecutors in Foxx’s office said they were exercising discretion in part because Smollett’s crime was a relatively low-level felony. Later, Foxx said there were doubts about whether the evidence was strong enough for a conviction.
The messages, released through an open records request, showed that prosecutors were aware of Smollett’s case long before he was charged and were frustrated by apparent leaks from Chicago police officials to local news outlets.
“Here is the leak from detectives,” wrote one aide, Robert Foley, before charges were announced. He sent along a link to a news article.
And, the text messages show, Foxx continued to follow the case closely and speak about it with Johnson, though she had turned the handling of it over to a deputy.
“On plane awaiting takeoff,” Foxx texted March 8. “Eddie just called. Did we indict Smollett on any additional charges today? Need to know ASAP. He’s about to do an interview.”
Later that month, when the charges had been dropped, more text messages showed prosecutors scrambling to explain their decision and respond to criticism, including from Trump. Those messages revealed surprise when reporters turned up at the courthouse for the dismissal hearing, and a scramble to accommodate interview requests from local and national outlets.
“Just wish I could have anticipated the magnitude of this response and planned a bit better!” one employee of the state’s attorney’s office texted. Another responded: “There’s really no planning for this.”
This article originally appeared in The New York Times.