Will Jussie Smollett Be Prosecuted? – Will He Ever Work Again?

As was noted in a prior Frank Report story, former U.S. Attorney Dan Webb has been appointed as a Special Prosecutor to investigate the circumstances surrounding the sudden dismissal of all charges against Jussie Smollett by the Cook County State Attorney’s Office earlier this year.

So, what are the odds that Smollett – and perhaps others – will end up facing new criminal charges sometime in the future?

Based on the known facts in the Smollett case – and Webb’s experience as a Special Prosecutor – I’d say pretty damn high.

To begin with, this is the sixth time that Webb has been appointed to serve as a Special Prosecutor or in a similar role. All of the other cases resulted in indictments – and either guilty pleas or convictions.

In the Smollett case, Webb has been tasked to do three things:
(1) Investigate if any person or office involved in the Smollett case engaged in wrongdoing;
(2) Determine if reasonable grounds exist to further prosecute Mr. Smollett; and
(3) Submit a final report to the Court and for the benefit of the Cook County Board of Commissioners detailing the progress and ultimate results of the investigation and any criminal prosecutions commenced.

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Timeline of the Smollett Case

The Smollett case has been going on for almost eight months. Here are the key dates, the key events, and the latest news:
– January 29th: Smollett told Chicago police that he was attacked around 1:30 AM by two masked men he believed to be white while on his way back from a run to a local Subway store. According to Smollett, the two men started off with homophobic and racial slurs – and then went on to tie a noose around his neck and pour bleach on him.

– January 30th: Investigators located a surveillance tape that showed two “potential persons of interest”.

– February 1st: Smollett released a statement acknowledging that several skeptics had raised questions about the alleged attack on social media – and made the following statement: “I am working with authorities and have been 100 percent factual and consistent on every level. Despite my frustrations and deep concern with certain inaccuracies and misrepresentations that have been spread, I still believe that justice will be served”.

– February 2nd: Smollett made his first public appearance since the alleged attack – and told the crowd at his concert: “I have so many words on my heart that I want to say, but the most important thing I can say is, thank you so much, and that I’m O.K.”.

– February 11th: Smollett refused to turn over his phone to Chicago police and instead, provided them with redacted records that they say “…do not meet the burden for a criminal investigation”.

– February 13th: Chicago police detained two brothers, Olabinjo and Abimbola Osundairo, when they arrived back in Chicago on a flight from their native country of Nigeria.

– February 14th: Smollett appeared on Good Morning America – and told Robin Roberts: “I have so many words on my heart that I want to say, but the most important thing I can say is, thank you so much, and that I’m OK”.

– February 15th: The Osundairo brothers were identified as suspects by the Chicago police – but then were released without any charges being filed against them. Later in the day, investigators announced that the brothers were no longer considered to be suspects but did not explain why.

– February 16th: Chicago police indicated they want to speak with Mr. Smollett again amidst reports on numerous media outlets that the Osundairo brothers had told investigators that they were paid by Smollett to take part in a fake attack against him.

– February 19th: Cook’s County State Attorney Kim Foxx announced that she was recusing herself from the Smollett case because of a potential conflict-of-interest – and appointed her First Deputy, Joseph Magats, to serve as the Acting Cook County State Attorney in the case.

– February 20th: Smollett was charged by the Cook County State Attorney’s Office with one felony disorderly conduct charge.

– February 21st: Smollett was arrested by Chicago police who indicated that he staged the fake assault because he was unhappy with his salary on the “Empire” TV show. He posted a $10,000 cash bond and was released.

– March 8th: Smollett was indicted by a grand jury on 16 felony counts of disorderly conduct.

– March 26th: The Cook County State Attorney’s Office dismissed all the pending charges against Smollett. In doing so, it released the following 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”.

– April 11th: The City of Chicago filed a civil lawsuit against Smollett in U.S. District Court in which it seeks to recover the more than $130,000 it claims to have spent investigating Smollett’s false claims. Smollett has moved to have the lawsuit dismissed – and a hearing will be held next month to consider his request.

– June 21st: Cook County Circuit Court Judge Michael P. Toomin ordered that a Special Prosecutor be appointed to independently investigate charges that Smollett staged the fake attack – and to determine why the Cook County State Attorney’s Office dismissed all the charges against him.

– August 23rd: Judge Toomin appointed Dan Webb as the Special Prosecutor.

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Why Did Judge Toomin Appoint a Special Prosecutor?

Judge Toomin’s appointment of Webb came about after a retired judge petitioned the Cook County Circuit Court to assign a Special Prosecutor to get to “the whole truth” of what happened in the Smollett case.

At the time he ordered that a Special Prosecutor be appointed, Toomin indicated that there were “unprecedented irregularities” in how Cook’s County State Attorney Kim Foxx handled the case.

Toomin noted among other things that Foxx had appointed Magats to a “fictitious office” because there is no such position as Acting Cook’s County State Attorney. What she should have done Toomin noted is ask the Cook County Circuit Court to appoint a Special Prosecutor – which is exactly what he did.

“Here the ship of the State ventured from its protected harbor without the guiding hand of its captain. There was no master on the bridge to guide the ship as it floundered through uncharted waters”, Toomin noted in his ruling.

As a result, Toomin noted, there was effectively no State’s attorney when Smollett was arrested, charged, indicted and arraigned – nor when the charges against him were ultimately dropped. Thus, all of those decisions were invalid.

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What Happens Next?

Webb and the team of lawyers that he has assembled from Winston & Strawn will have broad access to all the records concerning the Smollett case (By the way, the firm is undertaking this work on a pro bono basis).

They will also be able to subpoena key witnesses – and question them under oath à la Robert Mueller.

If the circumstances warrant, they will be able to recommend that new charges be brought against Smollett because there is no “double jeopardy” issue since Smollett never went to trial.

They will also be able to recommend that charges be brought against anyone else who acted illegally in terms of dismissing the charges against Smollett.

So, what happens next?

Liars lie…

Players play…

Runners run…

Singers sing…

And prosecutors – especially Special Prosecutors – prosecute.

In the end, I think they will only bring charges against Smollett.

But those charges may well be more serious than the felony disorderly conduct charges that he was originally facing.

Congratulations, Jussie Smollett…you are about to move on to a very serious new role: convicted felon!

Yep – Jussie Smollett will likely never work again as an actor or musician.

K.R. Claviger