Kim Foxx and Prosecutor Politics

At Secure 1776 we have tried to completely ignore the Jussie Smollett hate-crime hoax circus. Why? Because it all started with a minor television actor attempting to gain notoriety for purposes of career advancement. After Smollett completes his 150 days in jail we can expect he will again be aggressively looking to ca$h in on his notoriety – although not on the exact “heroic-victim” trail he planned. Sadly, there is little doubt that his chances for career advancement have not ended.

With that said, we can move on to why we felt compelled to write at all on this topic. The answer is the latest prosecutor politics of Kim Foxx in the Smollett circus. Here is the short version. Ms. Foxx, the Cook County State’s Attorney, in the hours after Smollett’s sentencing, published an opinion piece ostensibly about the case. While with a lofty title about the justice system, the revisionist approach of the piece reveals that the true focus for Ms. Foxx is really centered on how “Kim Foxx” came out in all of this. In her “opinion,” she is a victim in this drama. Seriously? Like Mr. Smollett, Ms. Foxx is not a victim in this case.

Estimated reading time: 14 minutes

The Smollett Verdict

Before we analyze today’s opinion piece from Ms. Foxx, it is important to state the bottom-line facts, as ultimately determined by a jury and considered by the sentencing court. On a very cold Chicago winter night in January of 2019, Jussie Smollett put into motion his plan to perpetrate a hoax that would cast him in the role of hate-crime victim and hero. He had conceived the plan, and he conspired with two others to carry it out. With the plan in motion, Smollett lied to the Chicago Police Officers summoned to formalize the fraud. Smollett then lied to a sympathetic media, to his employer, to the public, and to detectives.

Despite the assistance of powerful forces, which first sought to brush quickly past Smollett’s hoax by dropping the charges against him in 2019, ultimately – after much intrigue – reinstated charges came before a Cook County Criminal Court jury in late 2021. Once caught up again in the exposure of his lies, what did Smollett choose to do next? Well lie of course – at length to the jury.

Judge Linn’s Assessment

At his sentencing, Cook County Judge James Linn described Mr. Smollett as being “arrogant” and “narcissistic.” The judge took particular note of the damage caused by hate crimes, and the harm caused by Smollett’s false claim of being a hate crime victim. In passing sentence on Smollett, the judge also spoke to the repeated lies Smollett told to the jury from the witness stand, citing them as a key aggravating factor in the case. In addition to 150 days in the county jail, Smollett was ordered to serve 30-months felony probation, pay restitution in the amount of $120,106 to the City of Chicago, and pay the maximum $20,000 fine.

ABC Chicago: Judge scolds Jussie Smollett at sentencing (Full Video) | 11 March 2022

It’s Good to Have Friends Kind of Politics

To the likely displeasure of Mr. Smollett, for us, he is a sideshow to the more important issue relative to justice and public safety in Cook County. Without question, there is a public safety crisis in much of America, and that is certainly the case in Cook County, Illinois. Yes, there has been widespread criticism of Ms. Foxx and her non-prosecution approach to a great many violations of the criminal code for which she swore an oath as Cook County State’s Attorney to seek justice. But, what is clear, the Smollett Saga was not a case centering on concerns for justice system reform. The Smollett case was both more generic (a foolish crime committed by other than a criminal mastermind), and more high profile, as the accused was a celebrity with political connections.

Early on there were strong indications that there were significant credibility issues with Smollett’s claims. We now know that then-Superintendent Eddie Johnson and then-Mayor Rahm Emanuel were not pleased that Smollett had put Chicago in the center of his hoax, and letting Smollett’s fraud stand was not an option for CPD or the mayor. The thoroughness of the case assembled by CPD detectives made its way to criminal indictments from a grand jury on 16 felony counts against Smollett in February 2019. Former Superintendent Johnson later explained his belief that, once the investigation made clear Smollett was lying, an admission and apology from him would have gone a long way to resolving the city’s drive toward prosecution.

The Celebrity Factor

To be clear, the case always involved a television actor – so celebrity was a factor from the start. The case veered off course through unusual personal intervention on behalf of Smollett and politics – big name – influential player politics. Lost for many with Jussie’s dramatics were the behind-the-scenes communications that Ms. Foxx had beginning in the first days of the case. Both with Smollett’s sister and with Tina Tchen, the former chief of staff to Michelle Obama. Tchen went so far as to ask Ms. Foxx to get the Chicago Police Department (CPD) to turn the case over to the Federal Bureau of Investigation.

Of course, outside influences played no role in the prosecutorial decisions in the initial dismissal of charges, but some people did want the case to simply “go away.” It bears noting, during the special prosecutor’s examination of the handling of the case by Ms. Foxx and her office, no similar case was found in how the charges in the Smollett case were dropped.

The Foxx Opinion Editorial

Ms. Foxx is in her second term as Cook County State’s Attorney. The good news about her office is that it is an elected one, which allows the community to have a say in this key role in the administration of justice. The bad news, by definition, state’s attorneys are active in the political process. If any Chicagoans were hoping for the sentencing of Smollett to bring an end to the saga – at least for now – they were disappointed when they checked their evening news feed. In the opinion piece Ms. Foxx prepared for release after Smollett’s sentencing, the county’s lead prosecutor declared the system had failed in the Smollett case. Ok, it would seem most Chicagoans would agree. Most likely would also agree with the opening paragraph of her op-ed which read:

“At its best, our justice system should make people safer, hold accountable those who seek to harm others and earn the trust of its citizenry. At its worst, the system can be easily manipulated in furtherance of thinly veiled political agendas.” 

The Spin

As one reads the op-ed, it is clear Ms. Foxx would have us believe that her actions – and those of her office – in this case were advancing safety, accountability, and the trust of the people in the Cook County court system. That is an interesting take on the circus that was witnessed nationally. To this point, Ms. Foxx wrote in the next paragraph:

“On Thursday, the damaging, costly, and disingenuous criminal prosecution of Jussie Smollett came to an end. As Cook County State’s Attorney, it pains me deeply to say that, in this particular case, our justice system failed. Chicagoans deserve to know how and why it can, and likely will, happen again across the country.”

It bears repeating. Ms. Foxx declared the now completed trial was a “damaging, costly, and disingenuous criminal prosecution.” To characterize the “cleanup-in-Aisle-26” efforts that the special prosecutor and court were left to work through, following the initial mishandling of the case, is in a word – astonishing. Secondly, when considering the “how” and “why” Ms. Foxx concluded the system failed, many likely will find three key areas of disagreement:

A Closer Look at the Foxx Assertions

First, Ms. Foxx contended that the “reputational price Smollett paid, the $10,000 bond we held, and the fact that he’d never been accused of a violent crime, my office made the decision not to further pursue a criminal conviction.” Well, we have yet to see how the increased fame of a celebrity will play out in the end – and certainly before the cleanup prosecution – Mr. Smollett retained his plans for future success. It bears noting, that walking out of the courthouse after the state’s attorney’s office dropped all charges in 2019 – Smollett loudly declared that the non-prosecution supported his continued claim of innocence. A claim he shouted again, as he was led from the courtroom by deputies after his sentencing.

So our question to Ms. Foxx on this point is: “how much accountability occurs when a person making a multi-million-dollar salary is able to cut his financial loses and walk away without any admission of wrongdoing?” Secure 1776 would respond: “not much.”

Deflection

Second, Ms. Foxx described the prosecution of Smollett by Mr. Webb as a “kangaroo court,” and she lamented that in bringing Smollett to trial, “taxpayers have since spent millions of dollars for the criminal prosecution of a hoax.” Secure 1776 would like to see a spreadsheet on that “missions of dollars” price tag. Particularly given that Mr. Webb provided his services pro-bono, that claim seems quite exaggerated.

However, we concur that taxpayers took on additional costs with the cleanup prosecution. And there we return to the failure of Ms. Foxx to allow the original charges to run their proper course in court. As with the accountability issue, from a cost to the taxpayers perspective, that would have been far better. We need to look no further than Ms. Foxx and her office for all additional costs – given the most responsible party, Mr. Smollett, has shown no interest in taking any responsibility for his fraud.

More Deflection

Third, Ms. Foxx changed her focus to what seemed to be her main concern – her own reputation. As with Mr. Smollett, the approach taken by Ms. Foxx was to assert that she is a victim. Ms. Foxx asserted that she and other “Black women elected prosecutors around the country” have “faced a mob mentality” questioning their discretion as prosecutors. She also asserted victim status regarding the special prosecutor’s probe of her office in this case. She called it an effort following a “playbook,” which seeks to “attack and marginalize anyone fighting to create a more just system, one that recognizes the rule of law.”

What does not wash with this approach to defending the initial deal for Jussie Smollett – the deal had nothing to do with justice reform efforts. In fact, “the celebrity who has important friends” reality of the case runs directly counter to a claim of equity. Smollett was seeking, and for a time received, favored treatment. Far from a playbook resistance to reform, Ms. Foxx simply made a miscalculation in a case with significant political overtones. Nothing more. Like Mr. Smollett, Ms. Foxx is not a victim in this case.

Moving Past the Circus

Most Chicagoans are hopeful to be rid of the Smollett Saga. With the reelection of Ms. Foxx in November 2020, she was well placed to say something on order of “the jury has spoken, and the court has passed sentence.” She could have deflected and said something about Mr. Smollett taking responsibility for his wrongdoing. A statement along the lines of “my office was cleared of all criminal wrongdoing” could also have been added without much notice.

Why then the extra theatrics in her op-ed? The word that comes to mind is – hubris. Something on order of “I am now a second-term elected official, long enough from my next election, and I too have friends in high places – so, why not?” She may be right. Time will tell whether her op-ed was her second political miscalculation in this case. Ms. Foxx clearly believes she has the politics all figured out this time.

Who actually cut the deal?

It bears stating directly. Dan Webb is a long-time former prosecutor and justice system insider. Yes, he did identify “substantial abuses of discretion” and other potential ethics concerns, including lying to the media and public. But, he also cleared Ms. Foxx and her office of any criminal wrongdoing in the handling of case. Mr. Webb, as a defender of the justice system, showed no real appetite to ruin the reputation of Ms. Foxx. Rather, the special prosecutor provided Ms. Foxx with little more than a reprimand to do better. From there, Mr. Webb sought more directly to correct the original error at hand – actually seeking to hold Mr. Smollett accountable.

In a “Chicago Tonight” television interview with WTTW, Mr. Webb drove home several key points. There are two of particular note as to the hoax. First, there were no deficiencies in the evidence against Smollett. Second, the office lied about the uniqueness of the Smollett dismissal. With the initial charges, Smollett was being allowed to avoid prosecution without even an admission of guilt. His charges were ordered expunged and the court file sealed. The state’s attorney’s office was unable to cite any other similarly dismissed cases.

No One Admitting

When WTTW‘s Paris Schutz asked “why” the state’s attorney’s office suddenly dropped the case, Webb responded: “No one wants to admit who actually cut the deal.” Hmm. So, Secure 1776 has a follow-up question for Mr. Webb. “If you don’t know who actually cut the deal, how do you know there were no outside influences in getting the charges dropped?” Like we said, Mr. Webb is a long-time justice system insider. Perhaps one or two bits of old lawyer’s courtroom examination advice applied. First: “never ask a question you don’t already have the answer to.” Second: “don’t ask questions you don’t want the answer to.” Perhaps not.

But, what we do know is: you really can’t know whether or not there were outside influences to an action when you don’t even know who made the action happen. We concur with Mr. Webb in the rest of his main points, including the fact that there was a clear public interest in bringing the matter to trail. We recommend watching the full Webb interview below.

WTTW: Dan Webb: Handling of Smollett Charges by Foxx a ‘Disgrace’ | Posted 22 December 2021

The People Have a Right to Expect Better

The people do indeed have a right to expect better from those it entrusts to seek justice in their name – or in this case when they seek to use discretion not to seek to prosecute. Setting aside all other prosecutorial and non-prosecutorial decisions by Ms. Foxx, in this case, the timeline of events do not suggest that she was most concerned about the people, or justice, or justice reform. Her actions suggest she sought to allow a case to go away under terms favorable to a celebrity with influential friends.

Mr. Smollett’s exit from the courtroom, when taken into custody following his sentencing, were not a demonstration of his best acting performance. Clearly, even while he stands convicted, he seeks to stay on script and refuses to admit his wrongdoing. Yet, Ms. Foxx’s op-ed performance is more concerning. She too is seeking to deflect from her own conduct. We would have much preferred a rewrite. Even just going with the first paragraph, with just one addition, would have been far better.

“At its best, our justice system should make people safer, hold accountable those who seek to harm others and earn the trust of its citizenry. At its worst, the system can be easily manipulated in furtherance of thinly veiled political agendas.” 

Our recommended addition: “I and my office will do better to achieve the first.”

We are interested in your thoughts, and invite you to comment below.

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