What we learned from the prosecutors' texts on the Jussie Smollett case

State's Attorney Kim Foxx, who recused herself from the Jussie Smollett case after text messages showed Smollett family friend Tina Tchen reached out to Foxx on February 1, defended her office's decision in an interview with WBEZ to drop charges against Smollett.

Posted: Apr 17, 2019 4:20 PM
Updated: Apr 17, 2019 4:20 PM

Before her office dropped charges that accused actor Jussie Smollett of falsely reporting that a hate crime was committed against him in Chicago, Cook County State's Attorney Kim Foxx took issue with both the actor and the charges against him, according to texts obtained by CNN.

Foxx's office in Chicago on Tuesday released thousands of emails and text messages relating to the Smollett case, including texts between prosecutors and emails between the office and the news media.

The "Empire" actor, who is black and gay, alleged that two men attacked him near a Chicago hotel around 2 a.m. on January 29.

Police eventually alleged that he'd staged the attack to advance his acting career, and a grand jury indicted him on 16 felony counts in March, accusing him of lying to police. But weeks later, prosecutors dropped the charges.

Here are some of the things the newly released messages, obtained by CNN through an open records request, reveal:

Foxx criticized the charges -- after she removed herself from the case

On the day that a Cook County grand jury indicted Smollett on felony charges, Foxx suggested the actor had been over-charged.

"Sooo......I'm recused, but when people accuse us of overcharging cases ...16 counts on a class 4 (felony) becomes exhibit A," she wrote.

This was on March 8, more than two weeks after Foxx's office announced she was removing herself from the case. She has tied her self-removal to her interaction with a relative of Smollett or a friend of his family.

Previously released text and email messages show that Smollett family friend Tina Tchen told Foxx in early February that the actor's family had concerns about the investigation, and that Foxx communicated with a separate person -- identified by Foxx's office as another Smollett family friend -- about the case.

On March 26, less than three weeks after the indictment, her office dropped the charges against Smollett. The actor agreed to forfeit $10,000 in bail and do community service.

Foxx said in a statement released Tuesday that she had reached out to Joseph Magats, the first assistant state's attorney, after Smollett's indictment "to discuss reviewing office policies to assure consistencies in our charging and our use of appropriate charging authority."

"I was elected to bring criminal justice reform and that includes intentionality, consistency, and discretion. I will continue to uphold these guiding principles," Foxx added.

Her office has said Foxx hadn't formally recused herself from the case, but rather informally separated herself from making decisions about it. Because there was no formal recusal, she did not have to ask for a special prosecutor, her office said.

The decision to drop charges drew outrage from Chicago's mayor -- who called it a "whitewash of justice" -- and police. Chicago's police union has called on Foxx to resign, arguing she failed to follow through on charges that used significant police resources.

At Foxx's invitation, Cook County Inspector General Patrick Blanchard will conduct an investigation of how her office handled the case.

She called Smollett 'a washed up celeb who lied to cops'

In the text exchange where she suggested the charges were too much, Foxx went on to compare Smollett's case to another.

"Pedophile with 4 victims 10 counts. 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. Just because we can charge something doesn't mean we should."

"It's not who we want to be."

Two things to unpack there. First, Foxx indicates she believes Smollett lied to police.

That's consistent with what she and Magats publicly said about the case after the charges were dropped. She told CNN affiliate WLS that her office believed it could have proven Smollett guilty. Magats told WLS that "we believe he did what he was charged with doing."

Second, consider Foxx's comparison of Smollett's charges to another case. The texts don't say exactly what case she was referencing when she mentioned "pedophile with 4 victims 10 counts."

But there is a high-profile Chicago court case that lines up with the numbers. The R&B singer R. Kelly was charged in February with 10 counts of aggravated criminal sexual abuse involving four alleged victims, including three who prosecutors say were underage girls.

Kelly has pleaded not guilty to the charges and has denied allegations of abusing women or being sexually involved with underage girls.

Foxx's office did not immediately respond to a CNN question about the reference.

Her office was unprepared for the media attention the decision received

The new materials shed light into the frustrations and pressure that Foxx's office was facing as it handled the Smollett case.

As the news broke that all charges were dropped, Foxx's staff scrambled to handle media requests and faced criticism from Chicago police.

"Just wish I could have anticipated the magnitude of this response and planned a bit better," Cook County Assistant State's Attorney Risa Lanier wrote in a text message.

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