By Charlie De Mar

CHICAGO (CBS) — After recusing herself from the Jussie Smollett criminal case, Cook County State’s Attorney Kim Foxx should not have appointed her top deputy to act on her behalf, according to a review by an official in her office.

Citing case law, Alan Spellberg, supervisor of the criminal appeals division for the state’s attorney’s office, said in an email:

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“My conclusion from all of these authorities is that while the State’s Attorney has the complete discretion to recuse herself from any matter, she cannot simply direct someone (even the First Assistant) to act in her stead.”

The email is one of thousands of pages of documents obtained by CBS 2 and other media outlets following a Freedom on Information Act request on the Smollett case.

Smollett was charged and pleaded not guilty to 16 counts of disorderly conduct for allegedly lying to police about a hate crime, but Cook County prosecutors dropped the charges against Smollett after he agreed to forfeit his $10,000 bail and performed 16 hours of community service.

Foxx recused herself from the case, citing a conflict. She appointed First Assistant State’s Attorney Joseph Magats the lead prosecutor. Foxx’s office later said it was not a formal recusal. Rather, Foxx separated herself from decision-making out of an abundance of caution.

Yet, Foxx sent several texts regarding the case and expressed concern that the charges against the “Empire” actor were too severe.

“Sooo……I’m recused, but when people accuse us of overcharging cases…16 counts on a class 4 becomes exhibit A,” she wrote in one text.

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She went on to compare Smollett’s case with that of singer R. Kelly.

“Pedophile with 4 victims 10 counts. Washed up celeb who lied to cops, 16. On a case eligible for deferred prosecution I think it’s indicative of something we should be looking at generally. Just because we can charge something doesn’t mean we should.”

CBS 2 Legal Analyst Irv Miller said Foxx should have stayed away from the case altogether after recusing herself.

“She shouldn’t be even thinking about the case. She should have left it to the first assistant, because that’s what she wanted to do. That would have been the right way to do it. Obviously she was involved. Obviously, just by the number of these text messages, there was major concern going on after this thing went down,” he said.

Foxx has asked Cook County Inspector General Patrick Blanchard to review her handling of the case.

Smollett, who is black and openly gay, told police he was attacked as he was walking home around 2 a.m. on Jan. 29. He claimed two masked men – one of them also wearing a red hat – shouted racist and homophobic slurs as they beat him, put a noose around his neck, and poured a chemical on him.

Police said, in reality, Smollett had paid Ola and Abel Osundairo to stage the attack.

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Charlie De Mar