Despite recusal, prosecutor told deputy Smollett overcharged

CHICAGO (AP) — Despite recusing herself from the case, Chicago’s top prosecutor weighed in on the allegations against Jussie Smollett last month, telling a deputy that she believed her office had overcharged the “Empire” actor, according to newly released texts and emails.

The text message exchange unfolded more than two weeks before prosecutors dropped all criminal charges, the documents indicate. Cook County State’s Attorney Kim Foxx and her staff also scrambled later to explain the controversial March 26 decision to abandon the case against Smollett, who was accused of staging a racist, anti-gay attack on himself in January in downtown Chicago.

Foxx communicated in early February with former first lady Michelle Obama’s former chief of staff Tina Tchen and with a member of Smollett’s family about the Smollett investigation. She recused herself on Feb. 13, and her office cited the communications with the Smollett relative, whom Tchen had encouraged Foxx to call.

In late March — after questions were raised about the dropping of charges — Foxx and her aides sought to recast her role, with one statement saying Foxx “used the term ‘recuse'” in the “colloquial use of the term.” They said the correct description was that she had “informally separated herself from the decision-making” in the case.

Foxx nevertheless weighed in at critical points as her staff decided whether to proceed with the prosecution, which began when Smollett was charged on Feb. 20. Her input included a March 8 text to First Assistant State’s Attorney Joseph Magats, who became the final decision-maker in the Smollett case after Foxx purportedly stepped away.

Foxx texted: “Sooo …… I’m recused, but when people accuse us of overcharging cases … 16 counts on a class 4 becomes exhibit A.”

Magats responded to his boss, saying: “Yes. I can see where that can be seen as excessive.”

Smollett had faced 16 felony counts related to making a false report that he was assaulted by two men early on Jan. 29. Investigators said he made the false report because he was unhappy with his pay on “Empire” and believed such an incident would give his career a boost.

The documents included thousands of pages provided to The Associated Press and other media through open-records requests. They did not include key communications among prosecutors or with Smollett’s legal team.

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