Megan Crepeau and Jeremy Gorner
After being approached by a politically connected lawyer, State’s Attorney Kimberly Foxx asked Chicago police Superintendent Eddie Johnson to turn over the investigation of Jussie Smollett’s reported attack to the FBI, according to communications provided to the Tribune.
Foxx reached out to Johnson after Tina Tchen, former chief of staff to first lady Michelle Obama, emailed Foxx saying the actor’s family had unspecified “concerns about the investigation.” Tchen, a close friend of Mayor Rahm Emanuel’s wife, said she was acting on behalf of the “Empire” actor and his family. A relative later exchanged texts with Foxx.
The exchanges began Feb. 1, three days after Smollett claimed two men approached him near his Streeterville apartment building, yelled racist and homophobic slurs, hit him and put a noose after his neck. It would still be 2½ weeks before he was charged with making the story up, but some media outlets were already starting to question the actor’s account, citing unnamed police sources.
“Spoke to the Superintendent Johnson,” Foxx emailed Tchen back on Feb. 1. “I convinced him to Reach out to FBI to ask that they take over the investigation.”
The same day, Foxx texted with Smollett’s relative, whose name was blacked out in copies released by her office.
“Spoke to the superintendent earlier, he made the ask,” Foxx wrote. “Trying to figure out logistics. I’ll keep you posted.”
“Omg this would be a huge victory,” the relative replied.
“I make no guarantees, but I’m trying,” Foxx wrote back.
Kiera Ellis, a spokeswoman for the state’s attorney’s office, said Smollett’s relative was specifically concerned about leaks to the media that purportedly came from the Police Department.
“When she initially engaged in the communications, Mr. Smollett was still believed to be the victim of the crime,” Ellis said. “As the investigation started to change and it became a possibility that he could actually be a suspect, that is when she made the decision (to recuse herself).”
It is not uncommon for people to approach Foxx with information or concerns about cases, and it is “fairly typical” for her to contact Johnson directly to request updates or get information, Ellis said.
Tchen could not be reached for comment.
Chicago police spokesman Anthony Guglielmi could not verify whether Johnson and Foxx discussed turning the case over to federal agents and refused to ask the superintendent about it.
But Guglielmi noted that the FBI had been working on the case with Chicago police from the very beginning because it was reported as a hate crime. Also, a week earlier, a letter addressed to Smollett at the “Empire” studio made racial and homophobic threats against the actor — a federal offense.
Whether Foxx’s communication to Johnson was proper depends on her motivation for making the request, said Robert Loeb, a veteran attorney who also teaches at DePaul University College of Law.
“If she’s doing a favor for somebody with some influence, that would be unprofessional and she should be criticized,” he said. “If she was trying to clean up a mess that had compromised even her own office and a clean investigation from the FBI would be in the interest of truth, then what she did is laudable.”
The released texts between Foxx and the relative stop on Feb. 13, the same day a memo was sent out by Foxx’s chief ethics officer, April Perry, informing staff that Foxx “is recused” from the Smollett investigation. It did not say why. First Assistant State’s Attorney Joe Magats, the second highest-ranking official in the office, was placed in charge of the investigation.
Her recusal was not publicly announced until Feb. 19, the day before charges were filed against Smollett alleging he made up the whole story.
Foxx’s office said she recused herself “out of an abundance of caution” because she had conversations with one of Smollett’s relatives after he reported the incident, and then acted as a go-between with Chicago police.
Foxx’s office did not elaborate on those conversations with the relative, bringing a jab from Anita Alvarez, the former state’s attorney handily defeated by Foxx in 2016.
“Maybe I should have just recused myself from the difficult cases that came across my desk when I was state’s attorney,” she posted on Facebook. “I was under the impression that when the voters elected me and I took my oath of office it meant I had to do my job.”
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