By: Mark Glennon*
It’s a legal fiasco earning headlines across the world, but the Illinois Attorney General has nothing to say about the growing list of legal questions surrounding dismissal of the case against Jussie Smollett. It’s inexcusable.
Let’s be clear. Attorney General Kwame Raoul had no involvement, we hope and assume, in the decision by the Cook County States Attorney’s office to drop the case. That’s what he said on Twitter Tuesday, and it’s all he has offered on the matter:
The Cook County State’s Attorney has primary criminal jurisdiction over criminal matters in Cook County and has discretion in how it handles criminal cases.
Cook County chose to exercise its jurisdiction in this case and as a result, the Attorney General’s office had no role in this prosecution. The Attorney General’s office investigates matters of public integrity based on specific and credible allegations.
That’s it? Hiding behind such a narrow view of an Attorney General’s role is monumentally hypocritical for Raoul.
From the start, he claimed vast responsibilities. In his victory speech on election night, he said he and other attorneys general had to collaborate “because of the direction Donald Trump is taking us,” and he needs to “defend the decency of this country as we know it.” Since then, he has attempted to assert influence over a broad range of matters. For example, he said on Twitter that he “must continue to advocate for critical climate action and hold the Trump administration accountable when it disregards the plain text of the law in its quest to dismantle environmental protections.” Most recently, he issued a statement on the Robert Mueller’s Russia probe, saying Mueller should be forced to testify before Congress.
At a bare minimum, Raoul should be condemning the rank injustice that was done, just as Mayor Emanuel and other officeholders have.
More importantly, he should be pressing for answers and providing direction on at least some of the myriad, open issues in this affair, or making sure somebody else is doing so.
For example, the judge in Cook County ordered the case file sealed, but they can be unsealed. Who would do so? Who is looking at whether that can be done here? We certainly can’t count on the Cook County State’s Attorney. Could Raoul commence that process, or at least take a position on who should make a determination of whether it should be done?
Who if anybody is providing support and assistance to federal authorities who are still considering bringing their own charges? Somebody should be ensuring that all evidence earlier collected by the Chicago Police gets to the Feds, and Raoul could be assuring that is happening.
What about the serious ethical questions raised about Kim Foxx, the Cook County State’s Attorney who corresponded with Smollett’s allies about having her office duck out of the case entirely?
Most importantly, what about voiding the dismissal entirely because of Foxx’s botched “recusal” from the case? See our separate article why that should mean that her office had no authority to continue to handle the case, rendering the dismissal voidable. Clearly that’s something Raoul should be spearheading.
Then there’s the complaint by the Chicago Fraternal Order of Police, which they sent to the United States Justice Department, claiming Foxx interfered with their investigation. Surely that’s a matter for the state’s Attorney General to take an interest in.
Finally, there are questions about possible political interference. They are vague but growing. It was Michelle Obama’s former chief of staff, Tina Tchen, who emailed Foxx to say she was reaching out on behalf of Jussie’s family to express “concerns” they had with how the investigation was being handled. And Foxx said she would “not be where he is today” without Kamala Harris, the presidential candidate. If concrete allegations on political interference materialize, where do they get asserted?
Some of these matters may not be formally within the attorney general’s enforcement authority, but surely the state’s top legal officer has some responsibility for helping sort this mess out.
Why has Raoul turned his back on the case? Mark Konkol, writing in The Patch, probably has the answer:
Foxx has strong ties to the state’s top prosecutor charged with investigating elected officials accused of violating state law, rookie Illinois Attorney General Kwame Raoul. Foxx, the political protégé of Cook County Board President Toni Preckwinkle, served on Raoul’s transition team after the 2018 election. Raoul spokeswoman Vanessa James declined to comment Tuesday.
Greg Hinz at Crain’s recently summarized the consequences of the Smollett calamity perfectly:
[T]he next time police are reluctant to prosecute a case of gay-bashing . . . the next time people are afraid to testify against someone with clout . . . the next time average citizens let gang bangers go free because they’re scared to cooperate . . . the next time police just don’t want to put in extra effort because they think it’s not worth it . . . the next time people laugh when you say you’re from Chicago . . . remember this case.
Are those not matters worthy of the state’s top legal officer’s attention? Then again, given his close political ties to so many involved, maybe we’re better off if he stays in hiding.
UPDATE: State Rep. David McSweeney, a Republican from the Chicago suburb of Barrington Hills, filed a resolution Wednesday asking Democratic Attorney General Kwame Raoul to “conduct a full, prompt, and comprehensive examination” of the case.
*Mark Glennon is founder of Wirepoints.