Mysterious ‘special prosecutor order’ email in Smollett case, records show

CHICAGO — New questions have emerged in how the Cook County State’s Attorney’s Office handled potential conflicts of interest in the Jussie Smollett hate crime hoax investigation.  As WGN Investigates previously reported, a top deputy in the office found fault with state’s attorney Kim Foxx’s alleged recusal from the case due to contact with Smollett emissaries early in the investigation.

“While the State’s Attorney has complete discretion to recuse herself from any matter, she cannot simply direct someone (even the First Assistant) to act in her stead,” wrote Alan Spellberg, supervisor of the criminal appeals division, in an email the day after the recusal became public. Records reveal Foxx’s chief ethics officer April Perry sent two emails to First Assistant Joseph Magats an hour later that same day. The subject line of one email sent February 20 at 4:04pm read: “Magats recusal petition.” A second email was sent from Perry to Magats six minutes later labeled: “Magats special prosecutor order.”

A special prosecutor was never named in the Smollett case.

Email subject line reads: “Magats recusal petition.”

Email subject line reads: “Magats special prosecutor order.”

The state’s attorney’s office declined to release the contents of both emails citing the “deliberative process” exemption of the Freedom of Information Act.

“While the [inspector general’s] review is underway, I do not intend to comment publicly on the Smollett case,” Foxx wrote in a statement responding to questions from WGN Investigates. Her spokesperson did not confirm or deny that a special prosecutor was considered after Foxx’s February recusal was found to be flawed.

A Foxx spokesperson said in late March the state’s attorney’s recusal from the Smollett case was in the “colloquial” not legal sense of the word.  Ethics advisor April Perry, who also served as Foxx’s chief deputy,” announced Wednesday she is leaving the office.

Text messages between Foxx and her top deputies released earlier this week in response to Freedom of Information Act requests revealed the state’s attorney continued to make her opinions known to her top deputies even after she claimed to have recused herself.

In at least two text messages, Foxx suggested the 16 felony disorderly conduct counts against Smollett for filing a false police report were too severe.  “So… I’m recused but when people accuse us of overcharging cases… 16 counts on a class 4 becomes exhibit A,” Foxx wrote in a text message. However, in a letter to the Chicago Tribune published March 29, Foxx noted the Class 4 felony charges were “the least serious category, which covers things like falsely pulling a fire alarm in school and ‘draft card mutilation.’”

Two prosecutors’ associations, Chicago Mayor Rahm Emanuel, the Fraternal Order of Police Lodge 2 and several suburban police chiefs have blasted Foxx and her office for how they handled the Smollett case. The National District Attorneys Association did not identify Foxx by name but issued a blistering “best practices” statement after her office dropped charges against Smollett without gaining an admission of guilt. The organization said Foxx should not recuse herself without recusing the entire office and noted “a case with the consequential effects of Mr. Smollett’s should not be resolved without a finding of guilt or innocence.”

Foxx said she’ll leave it to Cook County Inspector General Patrick Blanchard’s investigation to gather additional interviews and information about her office’s handling of the Smollett investigation.

"My goal is to promote an accurate review by the [inspector general], followed by a candid conversation with the people of Cook County about the findings of the review,” said Foxx in a prepared statement.

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