Despite her denials, Chicago State’s Attorney Kim Foxx knew it was unethical to appoint her top deputy to the Jussie Smollett case after she “recused herself” — and that a special prosecutor should have been named, according to sources and emails obtained by The Post.
On Wednesday, two spokeswomen for the Cook County State’s Attorney Office — Tandra Simonton and Kiera Ellis — claimed Foxx was never informed by her staff that she couldn’t make First Assistant State’s Attorney Joseph Magats the new lead on the Smollett case.
But a source told The Post that was not true.
Chief Ethics Officer April Perry and Magats sought legal advice on Foxx’s “recusal” and prepared a “Special Prosecutor Order” after they were told Magats didn’t have the authority to take over for Foxx, according to an email obtained through the public records request.
That order, which would’ve eliminated the conflict of interest Foxx created by talking to Smollett’s family member, was never filed.
On Friday, Simonton confirmed to The Post that Ellis was no longer with the office but would not say if she had been fired or resigned.
Foxx’s office also refused to comment on the special prosecutor order but did not deny The Post’s findings.
Thursday night, news broke that Perry would be resigning from the office, as well as Mark Rotert who worked in the wrongful conviction department. Rotert submitted his resignation the day after charges were dropped against Smollett.
Foxx’s conflict of interest began just three days after Smollett told the Chicago Police Department he was the victim of a vicious hate crime. On Feb 1, former White House advisor Tina Tchen reached out to Foxx on her personal email and asked to talk about the case on behalf of the Smollett family, emails show.
Tchen then put Foxx in touch with a Smollett family member who expressed concerns with how the CPD was handling the case and asked Foxx to see if the FBI could take over, text messages between the two show.
“Spoke to the superintendent earlier, he made the ask. Trying to figure out logistics. I’ll keep you posted,” Foxx texted the unnamed family member on Feb. 1.
“Omg this would be a huge victory,” the family member replied, according to the texts.
“I make no guarantees, but I’m trying,” Foxx replied back.
The two continued to correspond about the case until Feb. 13.
Foxx consulted with Perry about her communications and that same day, Perry sent an email to top staffers in the office saying Foxx would recuse herself from the case and appointed First Assistant State’s Attorney Joseph Magats to be the acting state’s attorney on the matter, emails show.
Foxx later said the reason for her recusal was because the conversations she had with Smollett’s family member created a conflict of interest, meaning it would be unethical for her to continue to prosecute the case.
On Feb. 19, a reporter found out about Foxx’s recusal, which hadn’t been publicly announced yet, and the next day, Perry and Magats reached out to Alan Spellberg, the county’s Criminal Appeals Division Supervisor, about the legality behind Foxx’s recusal and if there is any precedent.
“My conclusion from all of these authorities is that the [sic] 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,” Spellberg wrote to Perry and Magats.
Simonton and Ellis said Foxx never knew of this email or its existence.
An hour after Perry and Magats received that email, Perry sent an email to Magats with the subject line “Special Prosecutor Order” with a document attached that was also titled “Special Prosecutor Order,” according to records The Post obtained.
The actual email and attached file was redacted in its entirety but the subject line and attached file name was not.
On March 27 after charges were dropped against Smollett, Foxx said she had only “colloquially” recused herself and did not use recuse in the legal sense.
Foxx’s office announced Friday they’d no longer be making public comments about the Smollett case while the Cook County Independent Inspector General conducts an investigation into how it was handled. They are also probing Foxx’s recusal.
If Foxx is found to have made an ethical violation, at best she could be reprimanded and at worst, she could be disbarred.
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