Cook County State's Attorney Kim Foxx fought back against allegations that her office provided special treatment to Jussie Smollett, and that prosecutors petitioned for Smollett's records to be sealed — cutting off access for reporters and information seekers — but her office also now admits that Foxx did not officially recuse herself from Smollett's case, despite her claims.
In an interview with Chicago's ABC affiliate Wednesday night, Foxx claimed that the Cook County Prosecutor's Office did not persuade a judge to seal the "Empire" star's records, and that the court file was sealed "inadvertently" and was in the process of being unsealed.
BREAKING: State’s Atrorney Kim Foxx says her office did not ask that the court file be sealed, says it was done inadvertently and she believes it is in the process of being unsealed @ABC7Chicago pic.twitter.com/ECrI70JAdG— Craig Wall ABC 7 (@craigrwall) March 27, 2019
That's news to Chicago journalists who noted that Wednesday's Freedom of Information Act release, which included comprehensive case files from the Chicago Police Department, was done pursuant to a "loophole" in the seal order, exempting documents in control of the Chicago Police Department and the City of Chicago from the seal. As soon as the FOIA documents became public a second, more compehensive order was issued, closing the loophole.
Chicago Police spox @AJGuglielmi tells @ABC police records released this AM are the final Smollett records they can release. They released in response to FOIA requests, then received a court order mandating all records connected w/Smollett case be kept confidential @JoshMargolin— (@WashNews) March 27, 2019
Police spokesperson Anthony Guglielmi told reporters that the department had, in fact, recieved a second court order mandating that their records be "kept confidential," according to reporter Stephanie Wash.
Nearly 24 hours after Foxx's interview, Smollett's case is still under seal. Thursday morning, a handful of Chicago reporters appeared in court in an effort to gain access to documents in the public interest.
ALERT: Court hearing underway right now in Chicago as members of the media fight expungement and sealing of Jussie Smollett case files.— Rob Elgas (@RobElgasABC7) March 28, 2019
Foxx's office, contrary to her statements yesterday, actively opposed unsealing, and said they would provide documents to reporters on their own time.
Foxx's office was also forced to admit another egregious error late Wednesday, after National District Attorney's Association issued a scathing letter rebuking Foxx's office for their conduct during the Smollett affair. Among their complaints, a prosecutor who recuses herself from a case should pull her entire staff from involvement in that case and appoint a "special prosecutor," or she risks tainting the entire operation with her conflict of interest.
It turns out that, although Foxx claimed to have "recused" herself from the Smollett case over concerns that she'd communicated with a member of Smollett's family, she never made her recusal official. The term was used "colloquially" rather than "legally," her office told Chicago Tribune columnist John Kass.
Wow. Foxx’s office now admitting she didn’t *actually* recuse herself from the Smollett case, legally speaking. They just used that word “colloquially,” for public consumption. pic.twitter.com/b63Mhct2ln— Guy Benson (@guypbenson) March 28, 2019
“The State’s Attorney did not formally recuse herself or the Office based on any actual conflict of interest,” her spokeswoman, Tandra R. Simonton, told Kass in an email. “As a result, she did not have to seek the appointment of a special prosecutor under (state law).”
“Although we use the term ‘recuse’ as it relates to State’s Attorney Foxx’s involvement in the matter, it was a colloquial use of the term rather in its legal sense,” she continued.
That's a problem, because it could mean that Foxx was calling the shots from behind her appointed assistant, Joe Magats, even as the public thought she was acting completely "hands off."