Smollett OPS report

The Office of the Special Prosecutor’s summary of its final conclusions, supporting findings and evidence relating to the Cook County State’s Attorney’s Office’s and the Chicago Police Department’s involvement in the initial Smollett case — August 17, 2020

Selected quotes

The Cook County State’s Attorney’s Office engaged in a substantial abuse of discretion and breached its obligations of honesty and transparency by making false and/or misleading statements to the public regarding the nature and reasons for the dismissal of the Initial Smollett Case (specifically) when State’s Attorney Foxx made false and/or misleading statements to the public that she stopped communicating with Jurnee Smollett, Mr. Smollett’s sister, after State’s Attorney Foxx had become aware that Mr. Smollett had become a subject of the investigation.

When State’s Attorney Foxx made false and/or misleading statements to the public that she stopped communicating with Jurnee Smollett, Mr. Smollett’s sister, after State’s Attorney Foxx had become aware that Mr. Smollett had become a subject of the investigation.

After reviewing extensive evidence, including personal and business emails and text messages, and conducting 43 interviews, including of the two Cook County State’s Attorney’s Office decision-makers on the case and Mr. Smollett’s lawyer who negotiated the resolution, the Office of the Special Prosecutor determined that the Cook County State’s Attorney’s Office’s process and decision-making for resolving the Initial Smollett Case were a substantial abuse of discretion and represented a major failure of the operations of the Cook County State’s Attorney’s Office ….

State’s Attorney Foxx explained to the Office of the Special Prosecutor that she got the impression that the case was resolved in the manner it was because “they wanted this guy [Mr. Smollett] out of town.”

She said the case had brought a “flurry of activity” to the courthouse and “being able to have the case resolved would eliminate throngs of people who were coming to court..”

Therefore, she got the sense the Cook County State’s Attorney’s Office had wanted to move “expeditiously,” including “fronting the community service” before the dismissal, rather than having him complete it before a future court date (e.g., six months later), so that Mr. Smollett “could be done and go back home.” When asked by the Office of the Special Prosecutor if she agreed that trying to get Mr. Smollett out of town due to press attention might not be the right reason to come up with a disposition, she said that she agreed. She further explained, “I think the kind of negotiating, let’s get rid of that guy [Mr. Smollett] at the expense of really what his actions did to the City shortchanged, I think, the accountability that the City deserved.”

The consensus amongst the current and former Cook County State’s Attorney’s Office employees the Office of the Special Prosecutor interviewed was that the Cook County State’s Attorney’s Office typically dismisses a case without requiring an admission of guilt or participation in a diversion program (e.g., the Felony Deferred Prosecution Program) only if the circumstances change—primarily if the Cook County State’s Attorney’s Office learns of new evidence such that it believes the defendant is innocent or the Cook County State’s Attorney’s Office cannot meet its burden…. There are other changed circumstances at could lead the Cook County State’s Attorney’s Office to dismiss a case, such as if the Cook County State’s Attorney’s Office loses a major motion and evidence would be excluded or if a witness disappears or dies, which are not applicable here.

There is no indication that the Cook County State’s Attorney’s Office or the Chicago Police Department identified any new evidence after Mr. Smollett was indicted and before the Cook County State’s Attorney’s Office dismissed the Initial Smollett Case that changed the Cook County State’s Attorney’s Office’s assessment of the case.

In fact, neither Mr. Magats or Ms. Lanier—who both approved the decision to indict Mr. Smollett—identified to the Office of the Special Prosecutor any new evidence they learned of between the time Mr. Smollett was indicted and the dismissal of the indictment which changed their view that the evidence against Mr. Smollett was strong and the Cook County State’s Attorney’s Office could prove his guilt

Not only did the two Cook County State’s Attorney’s Office decision-makers—Mr. Magats and Ms. Lanier—fail to identify in their interviews with the Office of the Special Prosecutor any change in the evidence, their offered explanations of the process and factors that led to the resolution decision differed in four significant and meaningful ways:

(1) Who negotiated the terms of the resolution with Mr. Smollett’s lawyers?

Mr. Magats told the Office of the Special Prosecutor that Ms. Lanier handled the negotiations of the terms of the resolution (of which he approved). By comparison, Ms. Lanier told the Office of the Special Prosecutor that Mr. Magats handled the negotiations of the terms with Mr. Smollett’s counsel. Patricia Brown Holmes, Mr. Smollett’s lawyer who primarily handled negotiating the resolution on Mr. Smollett’s behalf, told the Office of the Special Prosecutor that she had initial discussions with Mr. Magats, who then relayed her to Ms. Lanier, with whom Ms. Holmes negotiated the terms of the resolution.

(2) When did Mr. Magats and Ms. Lanier begin discussing resolution terms?

Ms. Lanier told the Office of the Special Prosecutor that she and Mr. Magats discussed resolution terms for the first and only time at Mr. Smollett’s arraignment hearing on March 14th—at which time the Cook County State’s Attorney’s Office first discussed a potential resolution with Mr. Smollett’s counsel. Ms. Lanier further told the Office of the Special Prosecutor she had not determined what she thought would be appropriate terms for a resolution prior to the arraignment hearing. By comparison, Mr. Magats told the Office of the Special Prosecutor that he and Ms. Lanier discussed the terms of the dismissal prior to Mr. Smollett’s March 14, 2019 arraignment.

(3) Was Mr. Smollett offered the opportunity to participate in the Felony Deferred Prosecution Program?

Mr. Magats told the Office of the Special Prosecutor that he and Ms. Lanier jointly decided to offer Mr. Smollett the opportunity to enter the Felony Deferred Prosecution Program, that they made such an offer to Mr. Smollett, and that Mr. Smollett rejected that offer. By comparison, Ms. Lanier told the Office of the Special Prosecutor that she and Mr. Magats never discussed potentially offering Mr. Smollett entry into the Felony Deferred Prosecution Program and never made an offer to Mr. Smollett that he could participate in the Felony Deferred Prosecution Program. Consistent with Ms. Lanier’s memory, Ms. Holmes told the Office of the Special Prosecutor that the Cook County State’s Attorney’s Office never offered Mr. Smollett the chance to enter into the Felony Deferred Prosecution Program.

(4) Were the terms of the resolution of the Initial Smollett Case modeled after the Felony Deferred Prosecution Program?

Mr. Magats told the Office of the Special Prosecutor that the terms the Cook County State’s Attorney’s Office offered to Mr. Smollett (which he ultimately accepted) were modeled after the Felony Deferred Prosecution Program. To the contrary, Ms. Lanier said that she had
not modeled the terms, which she came up with at the arraignment hearing on March 14, 2019, after the DPP.

Contrary to Mr. Magats’ claim to the Office of the Special Prosecutor that Mr. Smollett was offered entry into the Felony Deferred Prosecution Program (an offer which Ms. Lanier and Ms. Holmes both say was not made), the Initial Smollett Case was not even screened for the Felony Deferred Prosecution Program, unlike virtually every other case that proceeds through bond court in Cook County. Specifically, the Cook County State’s Attorney’s Office’s Alternative Sentencing Unit, which typically screens cases for diversion programs, such as the Felony Deferred Prosecution Program, did not screen the case because, pursuant to its standard process, it does not screen a case if it has already been assigned to an Assistant State’s Attorney (here, Ms. Lanier). The Office of the Special Prosecutor has not identified any evidence that Mr. Magats or Ms. Lanier screened the case for the Felony Deferred Prosecution Program, and they did not even consult at any point with the Alternative Prosecutions Unit about whether the case would be eligible for the Felony Deferred Prosecution Program.

The Cook County State’s Attorney’s Office did not identify any specific cases similar to the Initial Smollett Case that the Cook County State’s Attorney’s Office relied upon when resolving the Initial Smollett Case. Specifically, in a formal written document request (which was later served via a formal grand jury subpoena), the Office of the Special Prosecutor requested the following from the Cook County State’s Attorney’s Office: “All case files of the [Cook County State’s Attorney’s Office] of cases resolved prior to the [Initial Smollett Case] that were so similar to the [Initial Smollett Case] that they were relied on by the [Cook County State’s Attorney’s Office

] to resolve the [Initial Smollett Case] on the terms presented in court in resolving the [Initial Smollett Case] on March 26, 2019.” The Cook County State’s Attorney’s Office admitted that it could not identify or produce a single responsive case file.

Similarly, during their interviews with the Office of the Special Prosecutor, Mr. Magats and Ms. Lanier both were asked what, if any, similar precedent they had in mind or relied upon when resolving the Initial Smollett Case. Neither identified any specific precedent on which they had relied.

The Cook County State’s Attorney’s Office did not consult with the CPD about the terms of the resolution and intentionally chose not to alert the CPD that the case would be dismissed until minutes before the hearing, despite all of the diligent and hard work the CPD put into investigating the case and the fact that many Cook County State’s Attorney’s Office interviewees said they would have considered the CPD a victim of Mr. Smollett’s alleged crimes and/or for purposes of restitution.

Mr. Magats, Ms. Ellis (Director of External Affairs), and State’s Attorney Foxx told the Office of the Special Prosecutor that the CPD was not given advance notice of the dismissal hearing because there were concerns that inaccurate information might have been released publicly, given the issues discussed in Section VI. concerning the alleged “leaks.” In fact, State’s Attorney Foxx told the Office of the Special Prosecutor she intentionally chose not to even alert then-Superintendent Johnson of the dismissal in advance, explaining to the Office of the Special Prosecutor that while she “had respect for Superintendent Johnson and felt that [they] had a cordial relationship, his leadership over this matter with the leaks,”—and the fact that she was told the rumor about her being related to Mr. Smollett, which according to State’s Attorney Foxx stemmed from Superintendent Johnson’s office—“did not give [her] the utmost confidence in how he could handle [] the information.” She said the Cook County State’s Attorney’s Office wanted to “give [CPD] the information in a time where we felt like it would not be compromised.”

In March 26, 2019, following the dismissal of the Initial Smollett Case, the Cook County State’s Attorney’s Office issued the following press statement (the “Dismissal Press Statement”): After reviewing all of the facts and circumstances of the case, including Mr. Smollett’s volunteer service in the community and agreement to forfeit his bond to the City of Chicago, we believe this outcome is a just disposition and appropriate resolution to this case.

In the last two years, the Cook County State’s Attorney’s Office has referred more than
5,700 cases for alternative prosecution. This is not a new or unusual practice.

An alternative disposition does not mean that there were any problems or infirmities with the
case or the evidence. We stand behind the Chicago Police Department’s investigation and our decision to approve charges in this case. We did not exonerate Mr. Smollett. The charges were dropped in return for Mr. Smollet[t]’s agreement to do community service
and forfeit his $10,000 bond to the City of Chicago. Without the completion of these terms,
the charges would not have been dropped. This outcome was met under the same criteria
that would occur for and is available to any defendant with similar circumstances.

According to Ms. Ellis (Director of External Affairs), Ms. Simonton (Chief
Communications Officer), and State’s Attorney Foxx, the purpose of the Dismissal Press
Statement was to communicate to the public that the resolution of the Initial Smollett Case was
not an outlier and was similar to how many other cases had been resolved during State’s Attorney Foxx’s tenure.

During the afternoon and evening of March 26th (the day of the dismissal), Mr. Magats gave a series of interviews to various press outlets where he stated points similar to those in the Dismissal Press Statement, including characterizing the resolution of the Initial Smollett Case as similar to 5,700 other cases. For example, Mr. Magats told NBC Chicago: “In the last two years we sent over 5,700 cases either into a diversion or some type of alternative prosecution model. It’s
not something that is unique. It’s not first time this has happened. It’s happened over 5,700 times
in the last two years. And it’s available to other defendants who are charged with other similar offenses.”

Also during his interviews on March 26th, Mr. Magats repeatedly indicated that the resolution was similar to cases resolved via deferred prosecution programs, such as the Felony Deferred Prosecution Program. For example, he stated to NBC Chicago that the Cook County State’s Attorney’s Office “[l]ooked it along lines of what is set out in the deferred prosecution statute … It was looked at on that type of model.”

State’s Attorney Foxx repeated similar points during interviews she gave to various press outlets on March 27, 2019 (the day after the dismissal). For example, according to audio recordings the Office of the Special Prosecutor obtained, she told one reporter that Mr. Smollett “got the treatment we’ve given to about 5,700 other people over the course of the last two years.” She also told a reporter that Mr. Smollett “was treated no different than the 5,700 other people who participated in similar cases.”

However, the evidence the Office of the Special Prosecutor developed makes it clear that there are fundamental facts which are inconsistent with the Cook County State’s Attorney’s Office, Mr. Magats, and State’s Attorney Foxx’s messaging:

(1) the Initial Smollett Case did not fit the criteria the Cook County State’s Attorney’s Office’s Chief Data Officer used to identify the cited 5,700 figure because it was not referred to a diversion program and, thus, it was meaningfully different from how those 5,700 cases were resolved;

(2) there were not thousands of (or, arguably any) similar cases that the Cook County State’s Attorney’s Office resolved in a similar way to the Initial Smollett Case; and

(3) as discussed above on page 15, the Cook County State’s Attorney’s Office did not identify or produce to the Office of the Special Prosecutor a single Cook County State’s Attorney’s Office case similar to the Initial Smollett Case that the Cook County State’s Attorney’s Office relied on when
determining the terms of his resolution.

i. It Was Not Accurate to Represent that Mr. Smollett’s Case Was Similar to the 5,700 Cases Referenced Because He Was Not Referred to a Diversion Program

In short, the Initial Smollett Case is different than and does not fit the criteria that was used
to identify the 5,700 figure the Cook County State’s Attorney’s Office touted as the number of cases resolved similarly to the Initial Smollett Case. In fact, the Cook County State’s Attorney’s Office’s Chief Data Officer, Matt Saniie, explained to the Office of the Special Prosecutor
that the 5,700 figure reflected only cases the Cook County State’s Attorney’s Office had referred to a diversion program—cases that were coded differently in the Cook County State’s Attorney’s Office’s data portal than the Initial Smollett Case, which was not referred to any program.14 Stated differently, if Mr. Saniie had run the same search he used to pull the 5,700 cases after the Initial Smollett Case was resolved, the Initial Smollett Case would not have been included in the cases identified. Thus, the 5,700 figure did not reflect cases resolved offenses.” Also during his interviews on March 26th, Mr. Magats repeatedly indicated that the resolution was similar to cases resolved via deferred prosecution programs, such as the DPP. For example, he stated to NBC Chicago that Cook County State’s Attorney’s Office “[l]ooked it along lines of what is set out in
the deferred prosecution statute … It was looked at on that type of model.”

State’s Attorney Foxx repeated similar points during interviews she gave to various press
outlets on March 27, 2019 (the day after the dismissal). For example, according to audio
recordings the Office of the Special Prosecutor obtained, she told one reporter that Mr. Smollett “got the treatment we’ve given to about 5,700 other people over the course of the last two years.” She also told a reporter that Mr. Smollett “was treated no different than the 5,700 other people who participated in similar cases.”

However, the evidence the Office of the Special Prosecutor developed makes it clear that there are fundamental factswhich are inconsistent with the Cook County State’s Attorney’s Office, Mr. Magats, and State’s Attorney Foxx’s messaging:

(1) the Initial Smollett Case did not fit the criteria the Cook County State’s Attorney’s Office’s Chief Data Officer used
to identify the cited 5,700 figure because it was not referred to a diversion program and,
thus, it was meaningfully different from how those 5,700 cases were resolved;

(2) there were not thousands of (or, arguably any) similar cases that the Cook County State’s Attorney’s Office

resolved
in a similar way to the Initial Smollett Case; and

(3) as discussed above on page 15, the Cook County State’s Attorney’s Office

did not identify or produce to the Office of the Special Prosecutor a
single Cook County State’s Attorney’s Office

case similar to the Initial Smollett Case that the Cook County State’s Attorney’s Office

relied on when
determining the terms of his resolution.

i. It Was Not Accurate to Represent that Mr. Smollett’s Case Was
Similar to the 5,700 Cases Referenced Because He Was Not

Referred to a Diversion Program
In short, the Initial Smollett Case is different than and does not fit the criteria that was used
to identify the 5,700 figure the Cook County State’s Attorney’s Office

touted as the number of cases resolved similarly to the
Initial Smollett Case. In fact, the Cook County State’s Attorney’s Office

’s Chief Data Officer, Matt Saniie, explained to the Office of the Special Prosecutor
that the 5,700 figure reflected only cases the Cook County State’s Attorney’s Office

had referred to a diversion program—cases
that were coded differently in the Cook County State’s Attorney’s Office

’s data portal than the Initial Smollett Case, which was
not referred to any program.14 Stated differently, if Mr. Saniie had run the same search he used to
pull the 5,700 cases after the Initial Smollett Case was resolved, the Initial Smollett Case would
not have been included in the cases identified. Thus, the 5,700 figure did not reflect cases resolved offenses.”12 Also during his interviews on March 26th, Mr. Magats repeatedly indicated that the
resolution was similar to cases resolved via deferred prosecution programs, such as the DPP. For
example, he stated to NBC Chicago that Cook County State’s Attorney’s Office

“[l]ooked it along lines of what is set out in
the deferred prosecution statute … It was looked at on that type of model.”13

State’s Attorney Foxx repeated similar points during interviews she gave to various press
outlets on March 27, 2019 (the day after the dismissal). For example, according to audio

recordings the Office of the Special Prosecutor obtained, she told one reporter that Mr. Smollett “got the treatment we’ve
given to about 5,700 other people over the course of the last two years.” She also told a reporter
that Mr. Smollett “was treated no different than the 5,700 other people who participated in similar
cases.”

However, the evidence the Office of the Special Prosecutor developed makes it clear that there are fundamental facts
which are inconsistent with the Cook County State’s Attorney’s Office

, Mr. Magats, and State’s Attorney Foxx’s messaging:

(1) the Initial Smollett Case did not fit the criteria the Cook County State’s Attorney’s Office

’s Chief Data Officer used
to identify the cited 5,700 figure because it was not referred to a diversion program and,
thus, it was meaningfully different from how those 5,700 cases were resolved;

(2) there were not thousands of (or, arguably any) similar cases that the Cook County State’s Attorney’s Office resolved in a similar way to the Initial Smollett Case; and

(3) as discussed above on page 15, the Cook County State’s Attorney’s Office did not identify or produce to the Office of the Special Prosecutor a
single Cook County State’s Attorney’s Office

case similar to the Initial Smollett Case that the Cook County State’s Attorney’s Office

relied on when
determining the terms of his resolution.

i. It Was Not Accurate to Represent that Mr. Smollett’s Case Was Similar to the 5,700 Cases Referenced Because He Was Not

Referred to a Diversion Program
In short, the Initial Smollett Case is different than and does not fit the criteria that was used
to identify the 5,700 figure the Cook County State’s Attorney’s Office

touted as the number of cases resolved similarly to the
Initial Smollett Case. In fact, the Cook County State’s Attorney’s Office

’s Chief Data Officer, Matt Saniie, explained to the Office of the Special Prosecutor
that the 5,700 figure reflected only cases the Cook County State’s Attorney’s Office

had referred to a diversion program—cases
that were coded differently in the Cook County State’s Attorney’s Office

’s data portal than the Initial Smollett Case, which was
not referred to any program.14 Stated differently, if Mr. Saniie had run the same search he used to
pull the 5,700 cases after the Initial Smollett Case was resolved, the Initial Smollett Case would
not have been included in the cases identified. Thus, the 5,700 figure did not reflect cases resolved in the same manner as the Initial Smollett Case; yet, the Cook County State’s Attorney’s Office

’s public messaging portrayed the
Initial Smollett Case as being akin to those 5,700 cases.

Notably, there was a realization within the Cook County State’s Attorney’s Office

that the 5,700 figure did not represent
what the Cook County State’s Attorney’s Office

, Mr. Magats, and State’s Attorney Foxx stated to the public and that the public
and press did not understand the Cook County State’s Attorney’s Office

’s inconsistent use of terminology relating to “alternative
prosecutions,” “deferred prosecution,” and “diversion” when describing the resolution of the Initial
Smollett Case. In fact, evidence indicates there was at least one meeting, which included Mr. Saniie, members of the executive staff, the communications team, and supervisors from the Alternative Prosecutions Unit following the dismissal of the Initial Smollett Case to discuss the fact that the Cook County State’s Attorney’s Office

was not uniformly using terminology relating to alternative prosecutions and
diversion programs, and that the Cook County State’s Attorney’s Office

needed to make sure it was using those terms accurately
and consistently when making public statements. Yet, despite these realizations that the Dismissal
Press Statement and statements made by State’s Attorney Foxx and Mr. Magats about the
resolution were, at a minimum, unclear, the Cook County State’s Attorney’s Office

did not issue any clarifying or corrective
statements.

The fact that the Dismissal Press Statement tried to equate Mr. Smollett’s resolution to
thousands of cases resolved through diversion programs (when his case was not) is particularly
problematic when, as discussed above in Section I.A., the terms of his resolution do not even
mirror the requirements of the DPP.

Therefore, the evidence shows that the Cook County State’s Attorney’s Office

issued a false and misleading statement to
the press equating the resolution of the Initial Smollett Case to thousands of cases from which it
meaningfully differs—the themes of which were also propagated by Mr. Magats and State’s
Attorney Foxx in their respective interviews with reporters. The fact that such a significant
mischaracterization could be asserted without sufficient vetting, repeated by figureheads of the
Cook County State’s Attorney’s Office

, and then never corrected or clarified—particularly in a case the Cook County State’s Attorney’s Office

knows has
captured the public attention—is unacceptable for an office that must be transparent and maintain
public confidence. Simply put, as even Jennifer Ballard-Croft, the Cook County State’s Attorney’s Office

’s Chief of Staff,
acknowledged to the Office of the Special Prosecutor, the Cook County State’s Attorney’s Office

could have asked more questions or done more diligence
before making statements to the effect of “we do this all the time.”

ii. The Dismissal Press Statement Represented Mr. Smollett’s
Resolution as Being Similar to Thousands of Other Cases When

It Had Not and Could Not Identify Similar Cases
As discussed above on page 15, Ms. Lanier and Mr. Magats did not have any specific
similar cases in mind when they resolved the Initial Smollett Case. However, after the dismissal,
the Cook County State’s Attorney’s Office

attempted to find anecdotal evidence of similar resolutions to support its public
narrative that the resolution of the Initial Smollett Case was not an outlier, but struggled to find
any similar cases resolved in a similar manner (let alone thousands as was implied by the
Dismissal Press Statement).

Specifically, on the morning of March 27, 2019 (the day after the dismissal), Ms. Lanier sent an email to ASAs who lead different branches or divisions with the following request: We are looking for examples of cases, felony preferable, where we, in exercising our
discretion, have entered into verbal agreements with defense attorneys to dismiss charges against an offender if certain conditions were met, such as the payment of restitution, completion of community service, completion of class, etc., but the defendant was not placed in a formal diversion program.

Please ask your ASAs if they have examples of these types of dispositions and we will work with them further to figure out on what case it was done. Nobody is in trouble, we are just looking for further examples of how we, as prosecutors, use our discretion in a way that restores the victim, but causes minimal harm to the defendant in the long term.

While Ms. Lanier did receive a limited number of responses to her inquiry, the Office of the Special Prosecutor believes the case examples she received are meaningfully different than Mr. Smollett’s case (e.g., misdemeanor cases rather than felony cases, defendants who paid full restitution unlike Mr. Smollett, etc.). In fact, State’s Attorney Foxx’s Chief of Staff, Jennifer Ballard-Croft, told the Office of the Special Prosecutor that Ms. Lanier’s anecdotal search for similar cases identified “nothing on point” and said that the Cook County State’s Attorney’s Office had not
been able to identify any data to support the narrative in the Dismissal Press Statement that the Cook County State’s Attorney’s Office resolves cases in the manner of the Initial Smollett Case “all the time.” Thus, the Cook County State’s Attorney’s Office was not able to identify anything close to the thousands of similar cases to which it implied the
Initial Smollett Case was similar.15

2. False and/or Misleading Statement about the Dismissal #2: The
Cook County State’s Attorney’s Office

Falsely Represented to the Public that $10,000 Was the Most

Mr. Smollett Could Have Been Ordered to Pay in Restitution Under
the Law
As part of its efforts to publicly justify the terms on which it resolved the Initial Smollett
Case, the Cook County State’s Attorney’s Office

made false and misleading statements claiming that the most Mr. Smollett could
have ever been ordered to pay in restitution was $10,000 (the amount Mr. Smollett voluntarily
released to the City of Chicago in conjunction with his dismissal).

Specifically, both Mr. Magats and State’s Attorney Foxx repeatedly stated during interviews with the press on March 26 and 27, 2019, respectively, that the maximum amount of restitution Mr. Smollett could have been ordered to pay if he were convicted after a trial or guilty plea was $10,000. However, this is false.

Although there are certain sections of the disorderly conduct statute that contain a
restitution cap,

there is no such cap for the provision under which Mr. Smollett was charged. …As a result, if Mr. Smollett had been found guilty and sentenced, Mr. Smollett could have been ordered to pay significantly more than $10,000, such as, perhaps, the $130,106.15 that the CPD claims it expended to investigate Mr. Smollett’s alleged false police report.

Furthermore, as discussed above, if Mr. Smollett had entered the Felony Deferred Prosecution Program, he would have been required to pay “full restitution.”

Therefore, the contention that Mr. Smollett’s voluntary
relinquishment of his $10,000 was the most he could have been required to pay as restitution if the
case were resolved through a diversion program or sentencing after a finding of guilt is baseless.

The Cook County State’s Attorney’s Office

repeatedly asserted this false claim despite the fact that Ms. Lanier made it
clear on the day of the dismissal to Ms. Ellis, Ms. Simonton, Mr. Foley, and Mr. Magats that there
was no $10,000 statutory cap for Mr. Smollett’s charges. Specifically, in an email on the evening
of March 25, 2019 discussing draft language for a statement about the resolution, Ms. Lanier
rejected Ms. Ellis’ suggestion that the Cook County State’s Attorney’s Office

should note that “$10,000 is the maximum amount
of restitution allowed under the disorderly conduct statute.” Ms. Lanier wrote: “I do not think we
should include the statutory language regarding restitution as he was not charged under that
subsection (a)(6).” Notably, Mr. Magats responded: “Agreed. If it’s not charged in that particular
way then we shouldn’t mention it.”17

…

False and/or Misleading Statement about the Dismissal #4: State’s
Attorney Foxx Pivoted Her Position and Falsely Represented that the
Cook County State’s Attorney’s Office

Dismissed the Case Due to Evidentiary Issues
Consistent with statements given to the press by Mr. Magats on the day of the dismissal,
State’s Attorney Foxx stated during interviews with reporters on March 27, 2019 that the case was
strong, explained that the dismissal was not an indication of any evidentiary infirmity, and asserted
that the Cook County State’s Attorney’s Office

believed it would prevail at trial. Despite this initial stance (which was consistent
with the Cook County State’s Attorney’s Office

’s Dismissal Press Statement), State’s Attorney Foxx switched her position days
later in an op-ed in the Chicago Tribune in which she falsely represented that the Cook County State’s Attorney’s Office

dismissed the case due to evidentiary problems.

Specifically, on the day of the dismissal, Mr. Magats touted the strength of the case and
made clear that the dismissal was not indicative of or because of any weakness in the evidence.
For example, Mr. Magats told the Chicago Tribune: “It’s a mistake and it’s wrong to read into the
decision that there was something wrong or that we learned something about the case that we
didn’t already know.”19 Mr. Magats similarly told the Washington Post that the decision to dismiss
the case “should not be considered by anyone as a statement, a signal, a hint, anything, that the
case is weak or the case fell apart.”20 Additionally, according to an audio recording, Mr. Magats
explained to another reporter: “There is no infirmity in the case. There is no smoking gun or secret
evidence that we found or anything like that. There is nothing that changed.” Finally, Mr. Magats
told a Chicago Sun-Times reporter: “The fact that an alternative disposition entered in this case is
not and should not be viewed by anyone as some type of admission that there was something wrong
with the case or something wrong with the investigation that the Chicago Police Department did.”

Consistent with Mr. Magats’ position on the day of the dismissal (and his position when
he was interviewed by the Office of the Special Prosecutor), State’s Attorney Foxx explained in interviews on March 27, 2019

(the day after the dismissal) that the Cook County State’s Attorney’s Office

had a strong case and would have prevailed at trial.21
For example, State’s Attorney Foxx told the Chicago Sun-Times: “I believe based on the
information that was presented before the grand jury, based on what I’ve seen, the office had a
strong case … that would have convinced a trier of fact.”22 She also told the Sun-Times, “you
can’t even engage in that conversation around an alternative disposition without believing in that
person’s guilt, or at least your ability to prove that person’s guilt.” She further told the Sun-Times
that the request for the $10,000 was made because “our office believed that we could prove his
guilt” and explained that “the notion that this was somehow exonerating or the implication that the
prosecutor’s office somehow believed in his innocence is very frustrating to the ideal of alternative
prosecution.” Consistent with these statements, she told Will Lee of the Chicago Tribune, “we do
believe in fact that we would be able to prove he is guilty of the charges that he was charged with”
and “we believe that we had sufficient evidence to make the case to prove his guilt.” State’s
Attorney Foxx similarly told Leah Hope of ABC 7 Chicago: “I cannot ask Mr. Smollett to forfeit
his $10,000 bond if I didn’t believe we could meet our ethical burden in this case.”23

Consistent with State’s Attorney Foxx’s media talking points, the Cook County State’s Attorney’s Office

She also told the Sun-Times, “you
can’t even engage in that conversation around an alternative disposition without believing in that
person’s guilt, or at least your ability to prove that person’s guilt.” She further told the Sun-Times
that the request for the $10,000 was made because “our office believed that we could prove his
guilt” and explained that “the notion that this was somehow exonerating or the implication that the
prosecutor’s office somehow believed in his innocence is very frustrating to the ideal of alternative
prosecution.” Consistent with these statements, she told Will Lee of the Chicago Tribune, “we do
believe in fact that we would be able to prove he is guilty of the charges that he was charged with”
and “we believe that we had sufficient evidence to make the case to prove his guilt.” State’s
Attorney Foxx similarly told Leah Hope of ABC 7 Chicago: “I cannot ask Mr. Smollett to forfeit
his $10,000 bond if I didn’t believe we could meet our ethical burden in this case.”

Consistent with State’s Attorney Foxx’s media talking points, the Cook County State’s Attorney’s Office

’s Dismissal Press Statement also stated that the nature of the resolution did “not mean that there were any
problems or infirmities with the case or the evidence.”

However, despite all of these statements about the strength of the case, in a matter of days,
State’s Attorney Foxx’s position changed. Specifically, on March 29, 2019, State’s Attorney Foxx
published an op-ed in the Chicago Tribune in which she wrote the following:

So, why isn’t Smollett in prison or at least on trial? There are two different answers to this,
both equally important.

First, the law. There were specific aspects of the evidence and testimony presented to the
office that would have made securing a conviction against Smollett uncertain. In
determining whether or not to pursue charges, prosecutors are required to balance the
severity of the crime against the likelihood of securing a conviction. For a variety of
reasons, including public statements made about the evidence in this case, my office
believed the likelihood of securing a conviction was not certain. (emphasis added).24

This pivot in her description of the case from “strong” to “uncertain” is false and
misleading. State’s Attorney Foxx’s statements in the March 29, 2019 Tribune op-ed falsely portrayed the Cook County State’s Attorney’s Office

(i.e., her “office”) as having dismissed the case due to specific evidentiary
problems when the decision-makers on the case believed (and told the Office of the Special Prosecutor) the exact opposite
(i.e., that the case was strong), as detailed above in Section I.A.25 As a result, State’s Attorney
Foxx’s statements in the March 29, 2019 Tribune op-ed not only contradicted the statements she,
Mr. Magats, and the Cook County State’s Attorney’s Office

had made on March 26th and March 27th, but they falsely
represented what had driven the “office’s” decision to dismiss the case.

portrayed the Cook County State’s Attorney’s Office

had made on March 26th and March 27th, but they falsely
represented what had driven the “office’s” decision to dismiss the case

—

As part of those discussions, on February 20, 2019, Mr. Spellberg prepared an email memorandum containing legal citations in which he explained that “the ability to recuse from a particular case is very broad, but it triggers the appointment of a special prosecutor by the court, not simply the transfer of authority to another attorney of her choosing.” He further explained:
“My conclusion from all of these authorities is that while the State’s Attorney has the complete
discretion to recuse herself from any matter, she cannot simply direct someone (even the First
Assistant) to act in her stead.” According to Mr. Spellberg, he stressed the significance of State’s
Attorney Foxx improperly recusing herself by telling Mr. Magats, Ms. Perry, and Mr. Foley, among other things, that, (1) if the Cook County State’s Attorney’s Office

did not seek to have a special prosecutor appointed to
replace State’s Attorney Foxx, it could invalidate the entire proceeding, and (2) he did not think it
would be possible for charges to be brought while she was recused because charges would be
brought under the name and authority of Kim Foxx as the State’s Attorney.27 Notably, Mr.
Spellberg’s legal analysis and conclusions regarding the impropriety of State’s Attorney Foxx’s
recusal and the legal requirements for recusal under Illinois law align with the analysis by and
ultimate conclusions reached by Judge Toomin in his June 21, 2019 order granting the petition to appoint a special prosecutor.

Ms. Perry explained to the Office of the Special Prosecutor that, based on Mr. Spellberg’s analysis, during a phone call on February 20, 2019 with Mr. Spellberg, Mr. Magats, and Mr. Foley after they had reviewed Mr. Spellberg’s legal analysis in his email, she laid out three potential options: (1) walk back the
recusal in the press and not recuse; (2) continue to recuse and seek appointment of a special prosecutor; or (3) “wall off” State’s Attorney Foxx from the case and not seek the appointment of a special prosecutor. Ms. Perry told the Office of the Special Prosecutor that Mr. Foley outright rejected the idea of walking back the recusal publicly, though she did not recall him offering a specific reason why. Ms. Perry told the Office of the Special Prosecutor that she recommended that the Cook County State’s Attorney’s Office seek appointment of a special prosecutor, and she proceeded to draft a petition seeking to appoint Mr. Magats as the special prosecutor,
which she emailed to Mr. Magats for his review. Ms.Perry told the Office of the Special Prosecutor her recommendation was not implemented.

according to both Mr. Magats and State’s Attorney Foxx, Mr. Magats informed State’s
Attorney Foxx that Mr. Spellberg had concluded, based on specific analysis of Illinois law, that
her recusal was legally improper. State’s Attorney Foxx said that Mr. Magats actually gave her
Mr. Spellberg’s written analysis, and, at State’s Attorney Foxx’s request, summarized it for her so
she did not have to read Mr. Spellberg’s four-page analysis.

State’s Attorney Foxx told the Office of the Special Prosecutor that she did not make any effort to talk to Mr. Spellberg—the Cook County State’s Attorney’s Office

’s go-to person on legal issues under Illinois law—or to Ms. Perry, her Chief Ethics Officer, to better understand the law on this important legal issue. Instead, she
explained to the Office of the Special Prosecutor that she told Mr. Magats that the Cook County State’s Attorney’s Office should just follow the protocols and process that had been done before with her prior recusals. She told the Office of the Special Prosecutor that Mr. Magats
agreed.28

However, the Cook County State’s Attorney’s Office

issued false statements to the press, which State’s Attorney Foxx helped draft, to cover up the fact that State’s Attorney Foxx was aware of the significant conclusion Mr. Spellberg reached, yet ignored it.

Specifically, on April 17, 2019, the Cook County State’s Attorney’s Office ’s Chief
Communications Officer Tandra Simonton emailed press outlets the following statement: “The
State’s Attorney was not included in Alan Spellberg’s email and was not aware of its existence or
content ….”

Director of External Affairs Kierra Ellis emailed other reporters a very similar
statement the afternoon of April 17th which read: “The State’s Attorney was recused at the time
of Mr. Spellberg’s opinion and thus had been not made aware of the email or its contents ….”

According to an email from Alexandra Sims, a political campaign consultant assisting State’s
Attorney Foxx, this second version was a “suggestion” from State’s Attorney Foxx.29

When shown these public statements stating that she had not been aware of Mr. Spellberg’s legal analysis,
State’s Attorney Foxx admitted to the Office of the Special Prosecutor that they were “not accurate.”

—

While the Office of the Special Prosecutor has not identified evidence showing State’s Attorney Foxx had any
involvement in any decision-making on the Initial Smollett Case, she was provided with updates
and had discussions about events in the case after her recusal on February 9, 2019. For example:

• State’s Attorney Foxx had multiple calls with Mr. Magats on February 12th and 13th, 2019,
which she told the Office of the Special Prosecutor possibly could have included discussions about the Initial Smollett
Case, though she recalled there was an evidentiary issue in the pending case against R.
Kelly that prompted most of those calls. State’s Attorney Foxx told the Office of the Special Prosecutor it was also
possible that calls she had with Cook County State’s Attorney’s Office

Senior Advisor for Intergovernmental Affairs
Robert Foley over that weekend also included discussions about the Initial Smollett Case,
but she did not recall.

• State’s Attorney Foxx had multiple calls with Superintendent Johnson between February
9th and the dismissal wherein the Initial Smollett Case was discussed.35 According to
State’s Attorney Foxx, these calls primarily involved Superintendent Johnson calling and
asking for information (and State’s Attorney Foxx told the Office of the Special Prosecutor she would refer
Superintendent Johnson to Mr. Magats). Superintendent Johnson told the Office of the Special Prosecutor he and
State’s Attorney Foxx also had calls about information in the press concerning the case.
Additionally, according to Superintendent Johnson, during a call on February 13th, State’s
Attorney Foxx and Superintendent Johnson discussed the investigation, namely the fact
that Mr. Smollett was being investigated as a suspect.

• On February 16, 2019, Mr. Foley texted State’s Attorney Foxx that Mr. Smollett had hired
a particular lawyer who does criminal defense work “so he knows he’s in trouble,” which
could be read as an update on the state of the investigation against Mr. Smollett (who had
not yet been charged On February 18, 2019, State’s Attorney Foxx texted Mr. Magats asking him to call her
because she had received a call from Superintendent Johnson. State’s Attorney Foxx and
Mr. Magats then had a phone call.

• On February 20, 2019, Mr. Foley texted State’s Attorney Foxx: “FYI Kim: Two brothers
are before the grand jury now. Anthony said the brothers[’] lawyers are holding a presser
after so they are announcing shortly he is no longer being treated as a victim. Detectives
are going to formally present tonight and we are going to approve.” According to State’s
Attorney Foxx, Mr. Magats also told her on February 20th that the two primary civilian
witnesses, Abimbola and Olabinjo Osundairo, were testifying before the grand jury and
charges would likely be approved that day.36

• On February 20, 2019, Mr. Foley texted State’s Attorney Foxx that Mr. Smollett would be
turning himself in the next day.

• On February 27, 2019, State’s Attorney Foxx sent Mr. Magats a text with a link to a story
about some tweets by one of the civilian witnesses, writing: “I know it’s not the most reputable website, but not sure if CPD reported this to us.” Mr. Magatsresponded: “First I’ve heard of that. We asked them to do a social media search and work up and they said they had someone on it and hadn’t come up with anything.”37

• On March 9, 2019, Mr. Foley had a call with State’s Attorney Foxx, following a text where she asked him if he had time for a call, in which, according to Mr. Foley, she expressed her thoughts about the indictment and, in particular, the number of counts.

• According to State’s Attorney Foxx, one week before the case was dismissed, Mr. Magats told her that the Cook County State’s Attorney’s Office was having resolution discussions and “they were trying to work
with counsel on the case to figure out or fashion sometype of alternative resolution.” She recalled him indicating that the parties might agree on some type of community service as part of a resolution deal. State’s Attorney Foxx said that she told Mr. Magats something
to the effect of: “Do what I’ve always said. Treat him like we treat others similarly situated.”38

On February 18, 2019, State’s Attorney Foxx texted Mr. Magats asking him to call her because she had received a call from Superintendent Johnson. State’s Attorney Foxx and Mr. Magats then had a phone call.

• On February 20, 2019, Mr. Foley texted State’s Attorney Foxx: “FYI Kim: Two brothers
are before the grand jury now. Anthony said the brothers[’] lawyers are holding a presser
after so they are announcing shortly he is no longer being treated as a victim. Detectives
are going to formally present tonight and we are going to approve.” According to State’s
Attorney Foxx, Mr. Magats also told her on February 20th that the two primary civilian
witnesses, Abimbola and Olabinjo Osundairo, were testifying before the grand jury and
charges would likely be approved that day.36

• On February 20, 2019, Mr. Foley texted State’s Attorney Foxx that Mr. Smollett would be
turning himself in the next day.

• On February 27, 2019, State’s Attorney Foxx sent Mr. Magats a text with a link to a story
about some tweets by one of the civilian witnesses, writing: “I know it’s not the most
reputable website, but not sure if CPD reported this to us.” Mr. Magats responded: “First
I’ve heard of that. We asked them to do a social media search and work up and they said
they had someone on it and hadn’t come up with anything.”37

• On March 9, 2019, Mr. Foley had a call with State’s Attorney Foxx, following a text where
she asked him if he had time for a call, in which, according to Mr. Foley, she expressed her
thoughts about the indictment and, in particular, the number of counts.

• According to State’s Attorney Foxx, one week before the case was dismissed, Mr. Magats
told her that the Cook County State’s Attorney’s Office

was having resolution discussions and “they were trying to work
with counsel on the case to figure out or fashion some type of alternative resolution.” She
recalled him indicating that the parties might agree on some type of community service as
part of a resolution deal. State’s Attorney Foxx said that she told Mr. Magats something
to the effect of: “Do what I’ve always said. Treat him like we treat others similarly
situated.”38

State’s Attorney Foxx explained to the Office of the Special Prosecutor that she believed all of these communications to be within the bounds of her recusal because she was, at most, in her mind, receiving updates but was
not having any influence over how the case was being handled, or she was discussing. In other words, she viewed herself as just being in “listening mode,” with information flowing only in one
direction—to her.

Ms. Perry told the Office of the Special Prosecutor that she heard State’s Attorney Foxx and Mr. Magats discussing
the Initial Smollett Case in person on potentially three different occasions after State’s Attorney

Foxx’s recusal. Ms. Perry told the Office of the Special Prosecutor she even recalled interrupting their discussion on one
occasion to tell State’s Attorney Foxx she should not be having such a discussion because she was
recused.

State’s Attorney Foxx denied that she had any in-person substantive discussions with
Mr. Magats about the case other than the discussions about potential resolution described above,
and did not recall Ms. Perry ever telling her that any discussions he was having were inconsistent
with her recusal. Mr. Magats told the Office of the Special Prosecutor that he did not have any discussions with State’s
Attorney Foxx about decision-making on the Initial Smollett Case.

Additionally, State’s Attorney Foxx was adamant in her interview with the Office of the Special Prosecutor that she
had no role in the Initial Smollett Case after her recusal, including in investigating the case,
deciding to charge the case, deciding what charges to bring, deciding what evidence to put in the
grand jury, drafting the bond proffer, negotiating the resolution, determining the terms of the
resolution, deciding to dismiss, or deciding to advance the case in order to dismiss it. Consistent
with her statements, the Office of the Special Prosecutor did not identify any direct evidence that State’s Attorney Foxx
influenced how the Initial Smollett Case was prosecuted, the decision to dismiss, or the terms of
the dismissal. In fact, when asked, no interviewee was aware of State’s Attorney Foxx having any
role in any step of the Initial Smollett Case after her recusal.

Given that there is no applicable legal standard governing the type of recusal State’s
Attorney Foxx implemented, as she was—according to Judge Toomin—required to recuse the
entire Cook County State’s Attorney’s Office

, the Office of the Special Prosecutor cannot reach any final legal conclusion regarding whether she acted
consistently with being “recused.”

Page 27

Foxx learned by February 8, 2019 that Mr. Smollett had become a suspect in the Chicago Police Department’s investigation, yet she

continued communicating with Ms. Smollett through February 13, 2019, including via five text

messages and three phone calls.

State’s Attorney Foxx then made false statements to the media

claiming she ceased all communications with Ms. Smollett as soon as she learned that Mr. Smollett

was a suspect in CPD’s investigation and no longer merely a victim.

Specifically, State’s Attorney Foxx repeatedly told the press that she cut off

communication with Ms. Smollett as soon as the case started to switch and Mr. Smollett was no

longer merely a victim. For example, in a March 12, 2019 interview with the Sun-Times, State’s

Attorney Foxx said: “In this particular case because I had been having conversations with a

member of the family while Mr. Smollett was a victim, and as the tenor of the investigation started

to change what I did not believe was appropriate was to engage in conversations where potentially

she is sharing information from him that can implicate him in a crime … Again I had conversations

with a family member while he was in fact a victim. And as he was becoming a suspect, I did not

want either for his family, or the public, to believe whatever our charging decision was going to

be because we hadn’t made a charging decision.” (emphasis added). Similarly, on March 27,

2019, State’s Attorney Foxx told the Chicago Sun-Times, “as the days progressed, as the case

continued to gather, as the investigators gathered more information that it was becoming clear that

whatever doubts were being raised by Mr. Smollett went from doubts about his credibility as a

victim to concerns about him potentially being a suspect in an actual crime. And that is when I

decided that because of that what I didn’t want because a relative might call and say have you

heard anything else I’m still concerned about leaks. I didn’t want any conversations with that

relative when I knew that there was a potential that the relative would be a suspect.” (emphasis

added). State’s Attorney Foxx told another reporter during an interview on March 27th: “The

moment that it became clear he was not [a victim], I did the right thing.”

State’s Attorney Foxx

reiterated this same position in a May 31, 2019 press statement, where she stated, “I spoke with

Mr. Smollett’s family and others while he was still considered to be the victim of a hate crime in

an effort to streamline the case and alleviate any concerns about the integrity of the investigation.”

(emphasis added).

The evidence the OSP developed makes it clear that State’s Attorney Foxx was aware by

February 8, 2019 that Mr. Smollett was a suspect.

Report of the Special Prosecutor on the Jussie Smollett case — link and selected quotes

Smollett OPS report

Selected quotes