In criminal investigations involving President Donald Trump and the actor Jussie Smollett, this week we witnessed the spectacle of prosecutors shutting down criminal investigations with barely a word of explanation. Prosecutors claim to represent the people, but they are not required to justify their actions to anyone, and they usually don’t.
Without detailed statements, from the prosecutors who made the decisions, of why Trump and Smollett received such great deals, the traditional markers of American inequality seem on point: money, status, power. Both Trump and Smollett hit the privilege jackpot.
In a letter summarizing the conclusions of the Russia investigation, Attorney General William P. Barr revealed that special counsel Robert S. Mueller III had not exonerated Trump on allegations of obstruction of justice. Barr then took it upon himself to evaluate the evidence — without sharing it with the American people — and pronounce it “not sufficient” to make a criminal case.
Trump frequently said he had made a mistake in appointing Jeff Sessions as attorney general, because Sessions had failed to protect him from the Russia investigation. When Trump finally ran Sessions out of the Justice Department, he did not repeat that mistake.
As a private citizen Barr had sent an unsolicited memo to the Justice Department arguing that “Mueller’s obstruction of justice theory is fatally misconceived.”
The president then selected Barr, from the 1.3 million lawyers in the United States, to be the new attorney general, and when Barr received the Mueller report, he did the job Trump hired him to do.
The television star Jussie Smollett didn’t have the luxury of being able to choose his prosecutor. But Smollett, charged with 16 felony counts of disorderly conduct for allegedly lying to the police about being the victim of a hate crime, had the wealth to put together his own dream team of defense lawyers. Smollett retained Mark Geragos, whose high-profile clients have included the late pop star Michael Jackson, and Patricia Brown Holmes, who is not only a former state and federal prosecutor, but is also a former judge on the Circuit Court of Cook County — the same court where Smollett was being prosecuted.
Smollett, who is African American and gay, does not share Trump’s extreme privileges. Indeed at the start of Smollett’s case, prosecutors threw the book at him, as if he were just a regular black defendant. The 16 felony charges were over the top, but studies show that African Americans are frequently prosecuted on more serious charges than whites for the same conduct.
In a news conference announcing the charges, Chicago Police Superintendent Eddie Johnson pronounced himself “offended” and “angry” at Smollett, in part because the chief had taken 24 detectives off other cases to investigate the alleged assault on Smollett. Johnson did not explain why, in a city in which the police solve fewer than 20 percent of murder cases, he had devoted such extensive resources to Smollett’s alleged assault which, though serious, pales in comparison to the more than 500 murders Chicago saw last year.
The designation of Smollett as Public Enemy No. 1 continued at his arraignment, where the judge told him that the conduct of which he was accused was “outrageous.”
So it was shocking news when prosecutors announced, out of the blue, that they were dropping all charges. A bare-bones news release stated that because Smollett had performed “voluntary” community service, and agreed to forfeit the $10,000 he had paid in bail, dropping the charges was an “appropriate resolution.”
Like President Trump, Smollett claimed complete vindication. His lawyers denied that any kind of deal had been made. Kim Foxx, the Cook County state’s attorney, said that defendants such as Smollett who have no record and are charged with minor crimes are eligible to have charges dismissed. But veteran courthouse observers could not recall any case in which a defendant got such a deal so quickly.
In any event, Foxx had, early in the case, recused herself, and Smollett’s lawyer said Foxx had nothing to do with the outcome of the case. Joseph Magats, the Chicago prosecutor who made the decision, maintained his belief that Smollett is guilty but said that his priority is violent crimes. For the record, his office handled more than 260,000 misdemeanor offenses last year, many of which were nonviolent.
In an emotional news conference, Rahm Emmanuel, Chicago’s mayor, repeatedly used the phrase “whitewash” in criticizing prosecutors for dropping the case. The mayor never demonstrated that level of outrage over the criminality of Jason Van Dyke, the Chicago police officer who was convicted of murder for pumping sixteen bullets into a black man named Laquan McDonald.
In the end, “whitewash” seems like the right word. Smollett got the kind of justice usually reserved for rich white dudes. Perhaps that counts as racial progress, but it must be scant comfort to the more than 2 million African Americans in the criminal justice system now, the vast majority of whom are poor.
Thinking of those people, dismissing charges in a case like Smollett’s is an appropriate resolution. People should not be incarcerated — or even pick up criminal records — for first-time, nonviolent offenses. Foxx, a self-styled progressive prosecutor, deserves credit for championing that cause. The problem is that in the Smollett case, Foxx’s line prosecutors apparently did the right thing for the wrong reason.
To be sure, Smollett’s money and fame don’t insulate him from bias. Many people who support Trump’s claim of exoneration are unlikely to extend their beneficence to Smollett — or even recognize the role that Trump’s privilege played in his case. Likewise, the FBI is reportedly investigating why charges were dropped in the Smollett case, but there is no indication that another special counsel will be appointed to examine Barr’s big favor to Trump.
Prosecutors are supposed to promote both justice and the appearance that justice is being done. When citizens lack confidence in the legal process, the consequences are disastrous, not just for the institutions of government, but also for its most important functions, such as keeping people safe. This is the relationship between Chicago’s persistently high crime rate and the Chicago Police Department’s persistently high rates of misconduct and abuse.
Whether justice was done in either the president’s or Smollett’s case, we have no way of knowing, because the prosecutors have not provided the information citizens need to make that determination.
As for the appearance of justice, it’s on life support. If you can’t, like Donald Trump, hire the person who makes the decision about whether you should be prosecuted, you can, like Jussie Smollett, hire some of the best lawyers in the country and get yourself a “whitewash.”
This week, it appears that the amount of justice you get depends on how much money and power you have, and who you know. That’s pretty transparent, even if the prosecutors are not.