Kim Foxx’s deputy didn’t have authority to drop Smollett charges: emails

First Assistant State’s Attorney Joseph Magats, the man who decided to drop 16 felony charges against Jussie Smollett, never had the legal authority to act in his boss Kim Foxx’s stead, internal agency correspondence shows.

A trove of documents obtained by The Post and others through a public records request reveal that high ranking members of Foxx’s team sought advice on the legal authority behind her recusal after it was made public on Feb. 19.

Alan Spellberg, the county’s Criminal Appeals Division Supervisor, sent an email to Chief Deputy State’s Attorney and Chief Ethics Officer April Perry and senior adviser Robert Foley on Feb. 20 citing legal precedence behind recusals.

“My conclusion from all of these authorities is that the [sic] 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,” Spellberg wrote.

Foxx told the media she recused herself from the case “out of an abundance of caution” because of a conversation she had with one of Smollett’s family members about the investigation. She then appointed Magats to take over.

That conversation was actually between former White House advisor Tina Tchen who reached out to Foxx on the Smollett family’s behalf to ask for the FBI to get involved because they were concerned the Chicago Police Department was leaking information about the case to the press.

A legitimate recusal to avoid this conflict of interest would’ve required Foxx’s entire office to remove themselves from the case and they would’ve needed to appoint a special prosecutor.

Instead, Foxx kept it with her office and continued to meddle in the case until the charges were dropped against Smollett on March 26, other internal correspondence showed.

In a statement to The Post, the State’s Attorney Office claimed Foxx “was not included in Alan Spellberg’s email and was not aware of its existence or content.” The office said they did not tell Foxx about the email’s contents.

“The State’s Attorney was recused at the time of Mr. Spellberg’s opinion and thus had been not [sic] made aware of the email or it’s contents,” the agency said when asked why Foxx wasn’t informed of the email.

On March 27, the agency said in a statement Foxx had only “colloquially” recused herself and was not “formally recused” in a legal sense, although it’s not immediately clear how a state attorney can discuss recusals in a colloquial sense.

On April 12 following a wave of backlash over her handling of the case, Foxx asked Cook County’s inspector general to investigate her office’s handling of the case.

“The Office of the Independent Inspector General is investigating the handling of the recusal, and the ultimate disposition of the case,” a spokesperson told The Post.

“We look forward to the findings.”