Jussie Smollett's Lawyers Say He Will Not Pay Chicago $130,000 For Alleged Hoax

CHICAGO (CBS) -- Jussie Smollett's legal team has responded to a letter from the City of Chicago, which demanded the "Empire" actor pay for the cost of investigating his allegedly made-up story about a racist and homophobic attack. They say Smollett will not pay $130,000 for the cost of the investigation as it is "unconstitutional".

"Your letter is both factually and legally flawed, and Mr. Smollett will not be intimidated into paying the demanded sum," a statement signed by Mark Geragos, of the Geragos and Geragos law firm, said. "Your claim that Mr. Smollett filed a false police report and orchestrated his own attack is false and defamatory."

Read the full letter here:

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CBS 2 legal analyst Irv Miller describes the back-and-forth as a kind of "legal game of chicken".

"He's drawn a line in the sand, and he's daring the city to cross that line," Miller said. "It'll be interesting to see who crosses the line first."

Miller added he thinks the city will file its lawsuit against Smollett.

Last week, Cook County prosecutors dropped 16 counts of disorderly conduct against Smollett, after he agreed to forfeit his $10,000 bail, and performed 16 hours of community service.

Last Thursday, the mayor had the city's Law Department send Smollett a letter titled "Re: Repayment of Investigation Costs for False Police Report," requiring "immediate payment of the $130,106.15 expended on overtime hours in the investigation of this matter."

The March 28 letter said, if Smollett does not pay within seven days, the city could prosecute him for making a false statement, and take him to civil court to seek up to three times that amount as damages, plus court costs and attorney's fees.

Geragos' letter further states the "threats" in the city's letter and "the defamatory statements they rely upon" are not protected by the First Amendment.

If the city does file a civil action against Smollett, his lawyers say they will depose Mayor Rahm Emanuel, Police Supt. Eddie Johnson, the Osundairo brothers, who allegedly were paid by Smollett to conduct the attack, and attorneys Gloria Schmidt and Jorge Rodriguez.

A lawsuit against Smollett is being drafted by the City of Chicago's Law Department and will be filed in the Circuit Court of Cook County, spokesman Bill McCaffrey said Thursday, the city's deadline for the actor to pay back the $130,000.

Smollett has maintained his innocence, and said he was "truthful and consistent" from the start, but prosecutors have said they do not believe he is innocent, and Mayor Rahm Emanuel has said the actor owes Chicago an apology.

With a civil case, the standards for proving he staged the January attack would be lower than in criminal court. While a criminal trial requires proof beyond a reasonable doubt for a conviction, a civil trial would require the city to prove only that a "preponderance of evidence" – meaning it's more likely true than not – that the incident was a hoax orchestrated by Smollett.

Smollett said he was attacked by two men, who doused him with a chemical and put a noose around his neck in January.

At a news conference on Friday, Mayor Emanuel deflected questions about the case, saying "that's in the courts, it's not my focus." He said he is more focused on city job creation and public safety during his final weeks in office.

Mayor-elect Lori Lightfoot, in an interview with CBS 2's Mike Puccinelli, is also staying out of the legal scuffle.

"I have about 10,000 issues," she said. "Jussie Smollett doesn't make the list for me."

CBS 2 reached out to attorneys for both sides. The City of Chicago said, "we have a lengthy and successful track record of using the False Statement Ordinance to recover money." Geragos did not respond with additional comment.