CHICAGO (CBS) — A Cook County judge has ruled State’s Attorney Kim Foxx’s office may continue to use taxpayer money to hire a private attorney amid a special prosecutor’s investigation of its handling of the Jussie Smollett case.
Retired appellate judge Sheila O’Brien, who successfully petitioned for the special prosecutor’s probe, had asked Judge Michael Toomin to bar Foxx from hiring outside counsel to represent her office at taxpayer expense, arguing the Illinois attorney general must represent the state’s attorney in such matters.
However, Foxx’s office has argued she has explicit legal authority to hire private attorneys to assist them in handling complex matters. Her office has retained former federal judge Ruben Castillo and a team of attorneys from law firm Akerman LLP to aid them as special prosecutor Dan Webb investigates the entire Smollett case. Foxx also has hired attorney Michael Bromwich at her own expense to represent her personally
On Friday, Toomin ruled it was appropriate for Foxx’s office to hire a private attorney on the taxpayers’ dime.
Toomin also ruled that O’Brien would no longer be able to file any further requests in the case unless she can prove she has grounds to do so.
“I respect the court’s ruling. Judge Toomin’s an excellent judge,” O’Brien said after the ruling.
O’Brien said Toomin’s decision essentially means special prosecutor Dan Webb “will be the person who’s to take this ball and to run with it.”
Foxx’s office said O’Brien’s request to bar her from hiring outside counsel was “inappropriate, unwarranted, and without merit.”
The state’s attorney’s office said it is fully cooperating with Webb’s investigation.
Last August, Toomin appointed Webb, a former federal prosecutor, as a special prosecutor in the Smollett case; tasking him to not only investigate Foxx’s handling of the case, but to decide if Smollett should be further prosecuted for allegedly staging a fake hate crime against himself.
Earlier this week, a special grand jury indicted Smollett on six counts of disorderly conduct, accusing him of filing false police reports claiming he was the victim of a racist and homophobic attack last year.
In a statement, Webb’s office said Smollett filed four separate false police reports claiming he was the victim of a hate crime.
“The grand jury’s investigation revealed that Jussie Smollett planned and participated in a staged hate crime attack, and thereafter made numerous false statements to Chicago Police Department officers on multiple occasions, reporting a heinous hate crime that he, in fact, knew had not occurred,” Webb said in a statement.
Cook County prosecutors last year dropped 16 disorderly conduct charges against Smollett, just over a month after Chicago police had accused him of orchestrating a hoax because he was upset with his salary on the TV show “Empire.”
Webb said his investigation of the case led him to disagree with how Foxx’s office resolved the case.
Webb said the Cook County State’s Attorney’s office could not provide him with any evidence that the decision last year to dismiss the charges against Smollett was handled similar to other cases.
“The CCSAO has been unable to provide the [Office of the Special Prosecutor] with documentary evidence that shows that, in dismissing the Smollett case on the terms presented in court on March 26, 2019, the CCSAO relied on other dispositions of similar cases prior to the Smollett case that would justify this disposition,” Webb wrote.
In March 2019, Foxx said, “This case was handled like the other cases that have gone through our alternative prosecution model.”
Webb asked for examples of those similar cases, and so did CBS 2. We couldn’t find any, and neither could Webb.
However, Webb said his office has not reached any conclusions about whether anyone in Foxx’s office engaged in wrongdoing, and said that part of his investigation remains open.