President Trump suggested early Thursday that two federal agencies will look into Cook County prosecutors’ decision to dismiss the false-reporting case against “Empire” star Jussie Smollett.
“FBI & DOJ to review the outrageous Jussie Smollett case in Chicago,” the president tweeted. “It is an embarrassment to our Nation!”
Justice Department spokeswoman Kerri Kupec and FBI spokeswoman Carol Cratty each declined to comment.
The 16-count indictment stemmed from a January report about an attack on Smollett, a gay, black man. Smollett was later charged with lying to police about the assault. He claimed two men yelled homophobic and racist slurs and shouted “this is MAGA country.”
Chicago Police Superintendent Eddie Johnson, who has publicly spoken out against Smollett, said a deal was “brokered” to “circumvent the judicial system.”
On Tuesday, Chicago Mayor Rahm Emanuel (D) called the dismissal “a whitewash of justice.”
During a news conference Thursday, Emanuel said Trump should “stay out of this” when asked about the president’s tweet about a federal investigation into the Smollett case. He blamed the president for creating “a toxic environment” that allowed Smollett to commit what he called “a hoax about a hate crime.”
“The only reason why Jussie Smollett thought he could get away with a hoax about a hate crime was because of the environment that President Trump created,” Emanuel said. “It is a vicious, toxic environment and cycle. I want to break it. President Trump and his rhetoric of divisiveness does not belong in Chicago.”
Emanuel also doubled down on his attacks against Smollett, saying that the city plans to deliver a bill to him for the investigation’s costs, which are being tabulated by the police department.
Apart from the financial cost to the city, Emanuel said, Smollett took advantage “of our values as a welcoming city that welcomes people of all walks of life and all backgrounds.”
In a statement Monday, Cook County State’s Attorney Kimberly M. Foxx announced that dropping the charges against the actor was “a just disposition and appropriate resolution.” Foxx recused herself from the case before charges were filed because she had spoken with a possible witness.
From the beginning, Chicago police confirmed that the FBI would be assisting in the investigation. Smollett said he had received a threatening letter at the “Empire” studio in Chicago. Federal law enforcement has jurisdiction over offenses committed by mail or through the U.S. Postal Service.
However, Trump’s tweet appears to involve an unrelated review of prosecutorial discretion.
ABC7 in Chicago also reported Wednesday, well before Trump’s morning missive, that the FBI was looking into “the circumstances surrounding the dismissal of criminal charges.”
But legal experts are split about the breadth of a federal investigation.
Former U.S. attorney and deputy assistant attorney general Harry Litman said it’s uncommon, but not unprecedented, for the federal government to step in when it believes something went awry in state criminal processes or results.
“The federal government has a special role to play,” he said, which is outlined in a Justice Department rule called “petite policy.”
Many crimes implicate both federal and state interests. To intervene, authorities must determine that “the federal interest has been demonstrably unvindicated,” said Litman, who worked on the policy as a Justice Department employee. Most often, this occurs in civil rights investigations.
There would be a basis to look into Smollett’s case “if the prosecutor dropped it for political reasons," said Litman, who is also a contributing columnist at The Washington Post. The federal offense would be fraud, but “the federal interest implicated in Smollett’s false report” is less obvious.
“They would need to think hard about what it is,” he said.
Like Litman, former federal prosecutor Paul Butler noted that there must be “different charges” and “a federal nexus.”
Butler, now a professor at Georgetown Law Center, called Trump’s suggestion to interfere “bizarre.”
“I can’t think of another example where a president sees a result in a criminal case he doesn’t like and then directs the FBI and DOJ to intervene,” he said.
Duncan Levin, a former federal and state prosecutor, said that “there doesn’t appear to be much, if anything, for the FBI to investigate here.” This appears to be an “example of the administration politicizing” the FBI’s work.
Politics, he said, “should have no role in prosecutorial decision-making or whether to open an investigation.”
Courtroom dramatics continued Thursday morning, ABC7 reporter Ross Weidner reported, with a coalition of news outlets attempting to limit Smollett’s ability to expunge his record.
The presiding judge gave the media’s outlets a tongue lashing, saying, “There’s no nefariousness, nothing lurking in the shadows,” noting that expungement hearings are open to the public. "In Cook County we don’t destroy records!”
According to Weidner, the state’s attorney’s office agreed to inform the media if Smollett files a motion to unseal and expunge the record.
Smollett attorney Tina Glandian told NBC News on Thursday they “have nothing to be concerned about” because “nothing improper was done.”