Body cam footage of Jussie Smollett at the time he reported the fake attack.

What Criminal Charges Could Jussie Smollett & Kim Foxx Face From Special Prosecutor?

A few days ago, the Frank Report reviewed the timeline in the Jessie Smollett case – and the reasons why Cook County Circuit Court Judge Michael P. Toomin appointed Dan Webb to serve as a Special Prosecutor in the matter.

Dan Webb

As we noted at the time, Webb was appointed to investigate allegations that Jussie Smollett staged a fake racist, anti-gay attack against himself – and to determine why the Cook County State Attorney’s Office dismissed all the charges on which he had been indicted.

So, what kinds of charges could Smollett be facing as a result of Dan Webb’s investigation – and is there anyone else that could be facing charges?

*****

Potential Charges Against Smollett

RE: State Charges

To begin with, the Special Prosecutor could ask a grand jury to reinstate the 16 felony counts of disorderly conduct that were dismissed last March by Joseph Magats, who at that time was serving as the Acting Cook County State Attorney (Kim Foxx, the Cook County State Attorney, had appointed him to that position when she recused herself from the case).

Kim Foxx

That’s because there is no “double jeopardy” issue that would prevent that from happening since Smollett was never tried on those charges – and since he never entered into any plea deal with the Cook County State Attorney’s Office regarding them.

In Illinois, a person commits the felony of disorderly conduct when they knowingly transmit – or cause to be transmitted – to any peace officer, public officer or public employee a report to the effect that an offense has been committed, is being committed or will be committed even though there is no reasonable ground for them to believe that to be true.

Based on that definition, it seems highly probable that Smollett will be re-indicted on one or more counts of felony disorderly conduct.

RE: Federal Charges

It’s also possible that Smollett could be facing a federal charge for mail fraud.

The potential mail fraud charge has to do with the letter that Smollett received on January 22nd – about a week before the alleged attack.

The letter was mailed to Smollett at the Chicago-based Cinespace Studios – which is where the show “Empire” is filmed – and contained a cartoon figure strung up by a noose and cut out letters spelling out “You will die, black fag”.

It also contained a white substance – which prompted a HAZMAT team to respond to the Cinespace Studios and remove the letter and its contents.

Hazmat Team

The white substance turned out to be crushed Tylenol.

The crime of mail fraud consists of two elements: (1) devising or intending to devise a scheme to defraud (or to perform specified fraudulent acts); and (2) using the mail system to for the purpose of executing – or attempting to execute – the scheme (or to perform specified fraudulent acts).

Per 18 U.S.C. § 1341, the penalties for committing mail fraud include a fine – and a sentence of up to 20 years in federal prison.

The FBI has been handling the investigation concerning the letter but has not released any information about its investigation.

The primary issue regarding any potential federal charges concerns the meaning of the term “scheme or artifice to defraud”.

According to several sources, Smollett sent the letter to himself as part of his attempt to get a salary increase from the producers of the “Empire” show.

Empire Cast

Whether that constitutes “fraud” is certainly open to question – and Renato Mariotti, a former federal prosecutor, has opined that “I don’t think there’s any reasonable chance that will happen”.

But don’t be surprised if Dann Webb seeks a mail fraud indictment against Smollett.

Given Smollett’s refusal to back down from his ludicrous claim that he was attacked by two men who put a noose around his neck and poured bleach on him, I’d have no problem with that whatsoever.

*****

Potential Charges Against Foxx

Numerous individuals and organizations have publicly rebuked Foxx for her handling of the Smollett case.

That includes the Illinois Prosecutors Bar Association (IPBA) – which represents over 1,000 Illinois prosecutors.

In a statement that was released shortly after the charges against Smollett were dismissed, the IPBA stated: “The Cook County State’s Attorney’s handling of the Jussie Smollett case is not condoned by the IPBA, nor is it representative of the honest ethical work prosecutors provide to the citizens of the State of Illinois on a daily basis”.

The IPBA also claimed that Foxx had violated state law when she appointed Magats as Acting Cook County State Attorney.

“When an elected State’s Attorney recuses herself from a prosecution, Illinois law provides that the court shall appoint a special prosecutor,” the IPBA’s statement read. “Here, the State’s Attorney kept the case within her office and thus never actually recused herself as a matter of law”.

Although it appears that she definitely violated the applicable state law, it’s unlikely that Foxx will face any criminal charges for doing so.

Unless, of course, Dan Webb can put together a conspiracy charge against her and the others who were involved in the charade that ended with Smollett not being prosecuted.

*****

There Oughta Be a Law

In recent years Congress – and the vast majority of state legislatures – have passed “hate crime” laws that are intended to protect people against crimes that are motivated by enmity or animus over one or more of their personal characteristics.

The only states that currently do not have such “hate crime” laws are Arkansas, Georgia, South Carolina, and Wyoming.

These “hate crime” laws usually include harsher punishments for crimes that are committed because of the victim‘s age, color, disability, ethnicity, gender, gender identity, national origin, race, religion, or sexual orientation.

While many have questioned the constitutionality of these laws, Georgia is the only state whose “hate crime” statute has been struck down by its highest court.

Based on the Smollett case, it may be time for Congress and state legislatures to start passing statutes that would impose special penalties on those who fake a “hate crime”.

Because he claimed that he was attacked on the basis of his race and his sexual orientation – and because in doing so he raised the level of tension in the City of Chicago between blacks and whites – and between straights and the LGBTQ communities – I believe Smollett deserves a harsher punishment than the average person who files a false report of a crime.

I also believe that the penalties imposed on those who make such false reports should be proportionate to the seriousness of the fake crime they reported.

Thus, for example, a person who falsely reports that they were kidnapped and sexually assaulted should face a harsher sentence than someone who falsely reports that their cell phone was stolen.

OK, Frank Report readers, this is your chance to weigh in on these issues…

About the author

K.R. Claviger

33 Comments

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  • Who put Jussie Smollett up to this fake hate crime?

    Who was organising and conspiring with Jussie to stage this crime?

    Was it perchance Kamala Harris & Cory Booker working with Smollett to raise their profiles ahead of a possible bid for the Presidency?

    There are many photos of Jussie with Kamala for instance.

    Oh yeah – and both had a completely bizarre lynching bill before the Senate just at the time this fake hate crime happened.

    Why wouldn’t Jussie turn over his phone records in the lead-up to this fake crime?

    Whatever Webb does – he must examine Jussie’s phone and social contact records in the weeks leading up to this fake crime. Subpoena them all and find out who he conspired with to stage the crime.

    And then why would Michelle Obama’s former Chief of Staff Tina Tchen get on the phone to Kim Foxx and tell her to “take it easy” on Jussie.

    Who asked her to make that call? Was it Jussie’s friend Michelle? Who was it? How do all these strands come together anyway.

    Get them all under oath and get it on the record.

    Subpoena. Subpoena. Subpoena.

    • Deborah,
      Jussie Smollett has had every break a person can get regardless of his color or gender or sexual orientation.
      He lives in one of the most expensive neighborhoods in Chicago.
      No one has the right to file a false police report.

      Jussie Smollett is just a schmuck who tried to game the system in his favor in upcoming contract negotiations.

    • Hahahahaha, HE is the one that made this about racism. what you say sounds very profound and thoughtful though. I am all full up on word salads these days.

      The more racism is not an issue, the more people want to keep it an issue.

  • He should get the maximum penalties as he’s had numerous chances to be truthful. I mean c’mon the brothers did it and he still is maintaining gis innocence. He needs to be made an example of.

  • I think what people are angriest about is the fact that Smollett sought to exploit existing tensions for personal gain, and then was both unrepentant and smug in his continuing insistence that he was attacked. He took the charade to a national audience, which made it necessary for the Chicago PD to respond by investigating his claims thoroughly and vigorously. But did his actions really lead to increased tensions? I don’t think that argument can be successfully made. Things were bad before him, and they’re still bad, but not worse. He was a distraction for a few weeks, nothing more, really. At the end of the day, he’s just a ridiculous, self-serving, arrogant jerk who tanked his career by doing something stupid. He needs to pay a fine, compensate the city monetarily, and live in shame. That should suffice in his case, considering that there are no laws currently on the books against fake hate crime claims. But, yes, there oughta be a law, for all our sakes.

  • Chicago, Detroit, Philadelphia, and Pittsburgh are nothing but mob controlled shitholes anyway.
    This case against Smollett should have been closed months ago, because of lack of evidence, but the crackers and their flunkies (P.C.) in Chicago won’t let it go.

    • Clearly your political racial identity has clouded your better judgement and sense of justice under the ignorance that you just spewed in your opinion here. The only one who made it about race was the liar and greedy fool who destroyed many lives because of his selfish and privileged lifestyle. So,get a grip and get a life trying to defend a “man” who would step over you if you were dying in the street, because he cares nothing for or about you,me,or anyone else, except who he can exploit and manipulate,and maybe his family. Real talk!!!

    • Crackers?

      The new Mayor of Chicago is a lesbian black woman.
      The County Board President (Toni Preckwinkle) is a black woman.
      The State’s Attorney is Kim Foxx, a black woman.
      Her predecessor was Anita Alvarez, a Hispanic woman.
      The new US Senator from Illinois is Tammy Duckworth who is half Asian.
      Illinois elected Barack Obama as US Senator, he is half black.
      Illinois has several members of Congress who are African American.
      Bobby Rush and Robin Kelly come to mind.
      Illinois has a Congressman who is Hindu-American.
      One can make lots of complaints about Chicago’s corruption but overt racism is not one of them.

  • Look at it this way: he killed his own self over this because of greed. No one will touch him with an acting job again. Because of this popping up! While he keeps ranting racism like Kaepernick, the majority laugh at it!

  • IF, the Feds decide to indict, that is the only way there will be an attempt for justice.

    They way I see it, Chicago is a corrupt, 50-murders-a-day scum pit. And this will not change via Pussie Smellitt, and I don’t see that changing anytime soon. Chicago is steeped, 20 feet deep in dirty politics. More crime than the common criminal could even think of pulling off.

    I hope I am wrong.

    Thanks KR, GREAT concise read.

  • Count on Dan Webb to provide credibility and special cover to the machine. Trying Just Smellit again is fraught with “Whites play the system all the time and no one says anything. Just look at the numbers of blacks in jail in prison. They don’t get the same breaks as whites and when blacks finally do catch a break,look what happens!”

    If Smellit is tried again then something must have happened in the States Attorney office to make that happen. And that something is the Foxster. As in, “Don’t worry, The Fox is in.” Followed by; “This investigation wouldn’t be happening if Smellit and the Foxster were white.”

    Webb’s conclusion? While the acts of the Foxster ran right along the edge of the judicial system and bring the Foxster’s judgment into question, there was no violation of law. Change the law. This is a problem for the legislature. Let the voters decide on Foxster and the fans decide if Smellit should work again. Case closed.

    So sayeth Dan Webb. Invoice to follow.

    • That view would carry more weight if the Chicago police chief wasn’t black and very pissed about how the Smollett case was midhandled. Not only did they waste valuable resources that could have been applied to real crimes, mostly black ones, but the (soy) boy (mixed race gay guy) who cried wolf AND got away with it are prime considerations. Plus, Trump canceled a visit to Chicago during the campaign because of unrest. The solution to racism isn’t reverse racism, it’s true color blindness. We know Foxx broke the law by not setting up a special prosecutor, but that issue may be handled by “prosecutorial discretion.” Smollett’s fake letter and fake attack should be addressed.

  • My guess is that the fix is in and nothing will happen to Juicy Smallbit. Too many big players involved … and it is Chicago. All they need is another distraction and the public will forget. Look at Trudeau — who is talking about the SNC Lavalin issue now that people are wringing their hands over his makeup issues?

  • If there is a range of punishments allowed for reporting a fake crime, then the jury and/or judge should already have the latitude to make the punishment consistent with the significance of the fake crime. I say throw the book at the guy, just don’t hurt him when you do it, or he will complain about being picked on.

  • In a recent opinion piece in the Wall Street Journal (behind a paywall) over two thirds of so-called hate crimes are hoaxes.

    Hate Crime Hoaxes Are More Common Than You Think
    A political scientist found that fewer than 1 in 3 of 346 such allegations was genuine.
    https://www.wsj.com/articles/hate-crime-hoaxes-are-more-common-than-you-think-11561503352

    This finding comes from Professor Wilfred Reilly in his book “Hate Crime Hoax.”

    Hate Crime Hoax: How the Left is Selling a Fake Race War

    In Hate Crime Hoax, Professor Wilfred Reilly examines over one hundred widely publicized incidents of so-called hate crimes that never actually happened. With a critical eye and attention to detail, Reilly debunks these fabricated incidents—many of them alleged to have happened on college campuses—and explores why so many Americans are driven to fake hate crimes. We’re not experiencing an epidemic of hate crimes, Reilly concludes—but we might be experiencing an unprecented epidemic of hate crime hoaxes.
    https://www.amazon.com/Hate-Crime-Hoax-Lefts-Campaign/dp/1621577783

    Professor Reilly happens to be black.

    In fact the only time I have seen people dressed in white hoods was in college.
    Four guys came into the college cafeteria dressed in these white robes strutting around.
    It was four black guys dressed up for Halloween.

    • Thanks, shadowstate1958, for citing up on here this reality of the more serious problem plaguing us all, and jeopardizing all of us in this corrupt political climate that we find ourselves in these days, and the facts of the matter over the emotional aspects involved in this criminal case and others like it nationwide. It’s fact-checking like this that the fake news lamestream media outlets under and/or don’t report simply because it goes against their narratives and political agendas to marginalize and keep us divided. Good for you and good job, my man!!!

      • Thank you.
        Chicago has lots of problems but overt or covert racism by the ruling class is not one of them.
        In fact the politicians here do try to help out the minority communities.
        Black, Hispanic, Asian and Gay.
        Even though I am Republican and dislike many of the local politicians, I can not call them racist or homophobic.

About Frank Parlato

About Frank Parlato

Frank Parlato is an investigative journalist.

His work has been cited in major publications all over the world, including The New York Times, The Daily Mail, VICE News, CNN, Fox News, Rolling Stone, People Magazine, and more.

Frank Report is dedicated to Frank's investigative journalism and the pursuit of truth.

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