Cook County, Ill., State Attorney Kim Foxx told her staff that charging “Empire” actor Jussie Smollett was “excessive” at a time when she indicated publicly that she had recused herself from the case.
The March correspondence was revealed in a trove of documents released by the State’s Attorney’s Office late Tuesday.
“Sooo… I am recused, but when people accuse us of overcharging cases… 16 counts on a class 4 [felony] becomes exhibit A,” Foxx texted Joseph Magats, the first assistant state’s attorney who was responsible for handling Smollett’s case.
“Yes. I can see where that can be seen as excessive,” Magats responded to Foxx’s text.
Foxx then texted Magats, “Just because we can charge something doesn’t mean we should.”
Magats said he would get with prosecutors and see “what needs to be covered without being excessive and ultimately pointless.”
On March 26, prosecutors from the Cook County State’s Attorney’s Office dropped all charges against Smollett. Smollett was originally charged with 16 felonies after allegedly faking a hate crime attack on himself on Jan. 29.
Foxx’s office said in February she had recused herself from Smollett’s case, which began with him alleging he was a victim of a hate crime, after she had exchanged text messages with Michelle Obama’s former chief of staff Tina Tchen, who is a close friend of the Smollett family. The revelation of those texts prompted calls from the police union for an investigation.
Two days after the charges were dropped, her office said Foxx never legally recused herself.
“The State’s Attorney did not formally recuse herself or the Office based on any actual conflict of interest,” Foxx’s spokeswoman Tandra Simonton said in a statement, two days after the charges against the “Empire” actor were dropped. “As a result, she did not have to seek the appointment of a special prosecutor under [state law].”
The spokeswoman said Foxx’s office used the word “recuse” to talk about her involvement in the case as a “colloquial use” rather than the legal definition of the term.
The head of the Chicago Fraternal Order of Police Kevin Graham has called on Foxx to resign from her position. Meanwhile, Lori Lightfoot, who was elected Chicago’s next mayor earlier this month, told MSNBC that Foxx must give “a much more fulsome explanation.”
In a tweet, President Trump said the FBI and Department of Justice would review the decision to drop the charges.
Last week Chicago filed a lawsuit against actor Smollett to recoup the cost of investigating his alleged fake hate crime.
