CHICAGO — Hours after a 16-count indictment was unsealed last month against “Empire” actor Jussie Smollett, the Chicago area’s top prosecutor — who had recused herself from the case — texted her top deputy to grumble that the indictment of the “washed up celeb” for filing a false police report was overkill.
“Sooo…...I’m recused, but when people accuse us of overcharging cases...16 counts on a class 4 (felony) becomes exhibit A,” Cook County State’s Attorney Kim Foxx wrote to her top deputy, Joe Magats, on the evening of March 8.
She also appeared to compare Smollett’s case to her office’s handling of another hot case, the indictment of R&B singer R. Kelly on 10 charges of aggravated criminal sexual abuse.
“Pedophile with 4 victims 10 counts. Washed up celeb who lied to cops, 16 (counts),” she wrote. “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.”
Magats replied to Foxx that he "agreed" and the office would take a "hard look at how we charge the cases and get it to something that covers what needs to be covered without being excessive and ultimately pointless."
The communication between Foxx and Magats was among hundreds of texts and emails released Tuesday evening by the Cook County State’s Attorney’s Office in response to Freedom of Information Act requests from USA TODAY and other media outlets.
Foxx had recused herself from the case in February, prior to Smollett being charged with disorderly conduct for filing a false police report. Police alleged he paid two brothers to carry out a hoax attack that was attended to make him look like a victim of a hate crime.
Smollett, who is black and gay, told police that white masked men yelled homophobic and racist slurs at him as they assaulted him and yelled "This is MAGA country," a reference to President Donald Trump's 2016 campaign slogan
She stepped away from taking part in the Smollett investigation, because she had been in communication with a member of the actor’s family as well as Tina Tchen, a former chief of staff to first lady Michelle Obama, about the case.
Foxx in a statement defended her decision to communicate with Magats about her concerns, even after recusing herself from the case.
“After the indictment became public, I reached out to Joe to discuss reviewing office policies to assure consistencies in our charging and our use of appropriate charging authority,” Foxx said in a statement. “I was elected to bring criminal justice reform and that includes intentionality, consistency, and discretion. I will continue to uphold these guiding principles.”
Tchen first contacted Foxx by text on Feb. 1 and said the actor's family had concerns about the Chicago Police Department investigation and wanted the FBI to take over the case, according to communications previously released by the State’s Attorney’s Office.
Tchen, a Chicago-based attorney, is also the co-founder of the Times Up Legal Defense Fund.
Less than three weeks after Foxx's text to her deputy in which she expressed concerns about “overcharging” the actor, prosecutors abruptly announced that they were dropping charges against Smollett.
The actor did not admit any wrongdoing as part of the deal, but he agreed to forfeit $10,000 that he put up in bond money to secure his release following his February arrest.
Smollett paid two brothers, Abel and Ola Osundairo, $3,500 to carry out the attack in hopes of raising his profile and TV salary, Police Superintendent Eddie Johnson said.
For weeks after the Jan. 29 attack, police investigators treated Smollett as a victim, and were on the verge of charging the Osundairo brothers in the assault.
The brothers, who were arrested more than two weeks after the incident upon returning to O’Hare International Airport from an overseas trip, reportedly laid out for investigators how they worked with Smollett to carry out the attack as they were on the cusp of being charged.
After the brothers’ statements, police charged Smollett with filing a false police report.
Last week, the city of Chicago filed a civil lawsuit to attempt to recoup the more than $130,000 they say the police department spent on overtime for officers and investigators working on the Smollett case.
Foxx and her office say they stood by the police investigation, but felt that the deal was an appropriate way to dispose of an offense in which the alleged perpetrator had a limited criminal history.
She has faced criticism from the National District Attorneys Association’s and the Illinois Prosecutors Bar Association over her handling of the case as well as calls from more than two dozen suburban police chiefs and the Chicago Fraternal Order of Police to resign. The Cook County Inspector General's Office is also investigating her office's handling of the case.
Johnson, the police superintendent, said he received little notice from the prosecutor’s office and expressed frustration by the decision to drop the charges. Mayor Rahm Emanuel called the decision a “whitewash” of justice.
But texts released from the State’s Attorney suggest that Johnson was OK with the resolution of the case.
“Eddie just called,” Foxx texted Magats on the morning of the March 26 before a hearing where the charges were formally dropped. “(He) needed to know how to answer questions from press.”
“He seemed satisfied with the explanation,” Foxx added.
This article originally appeared on USA TODAY: Jussie Smollett case: Prosecutor Kim Foxx questioned charging 'washed up celeb' in text