By: Mark Glennon*
Contrary to countless press reports to the contrary, Cook County States Attorney Kim Foxx now reportedly did not formally recuse herself from the Jussie Smollett case. It appears clear she should have. Had she done so, Illinois law would have required appointment of a special prosecutor or independent person to replace her and her office. That didn’t happen. It therefore appears that her office had no authority to maintain control of the case and to dismiss charges against Smollett. That means the dismissal was probably unauthorized and should be annulled.
In February, Foxx corresponded with Smollett’s allies about having her office duck out of the case. Foxx then recused herself, or so she said, which was widely reported. Foxx’s spokeswoman Tandra Simonton said at that time, “Out of an abundance of caution, the decision to recuse herself was made to address potential questions of impartiality based upon familiarity with potential witnesses in the case.” Any number of legal commentators have already written that recusal was appropriate in light of contacts Foxx had earlier with Smollett’s family and allies.
Under Illinois law, in the event of a conflict of interest, the court or any interested party could have appointed an independent party or special prosecutor to take over the case. Under that same law, linked here, Foxx herself may have been obligated to do so.
But Foxx has now changed her story. As reported by Mark Konkol in The Patch,
Cook County State’s Attorney spokeswoman Kiera Ellis said in a statement that Fox “did not formally recuse herself or the [State’s Attorney] Office based on any actual conflict of interest. As a result, she did not have to seek the appointment of a special prosecutor.”
When Fox publicly announced that she had recused herself “it was a colloquial use of the term rather than in its legal sense,” Ellis said.
“Instead, in an abundance of caution, Fox informally separated herself from the decision-making over the case and left it to her Assistants, as happens in 99.9% of all cases handled by the Office.”
In other words, by not formally recusing herself, Foxx circumvented the law that probably would have taken the case out of her office’s hands.
I will defer to other lawyers, but it certainly appears to me that her office therefore had no authority to maintain control over the case and to dismiss the charges, so the dismissal should be voided and the prosecution reinstated by an independent prosecutor.
*Mark Glennon is founder of Wirepoints.