FBI refuses to give records of its 'ongoing criminal investigation' into Jussie Smollett attack to Chicago; lawyers for actor fail to get state case dismissed

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Jussie Smollett departs after a court appearance Feb. 24, 2020, at the Leighton Criminal Court Building in Chicago, Ill. - Brian Cassella/Chicago Tribune/TNS

CHICAGO — The FBI has refused to turn over records of its investigation into the alleged hoax attack on actor Jussie Smollett to the city of Chicago, arguing that doing so could jeopardize an “ongoing criminal investigation,” records filed in federal court show.

And in Cook County court Thursday, a judge shot down Smollett’s latest attempt to get his criminal case brought by a special prosecutor thrown out.

The FBI development came as part of a lawsuit filed by the city against Smollett seeking to recoup $130,000 in Chicago police overtime spent investigating the January 2019 incident, which ignited a media firestorm after Smollett was charged with staging the racist and homophobic attack only to see the case abruptly dropped by Cook County prosecutors.

The FBI investigated a threatening letter purportedly sent to the “Empire” studios in Chicago a week before the attack that contained an unknown powdery substance as well as a homophobic epithet and a crudely drawn picture of a man hanging from a noose in a tree. The return address on the letter said only “MAGA,” a reference to President Donald Trump’s campaign slogan.

The FBI also was looking into a threatening phone call Smollett said he’d received a few days after receiving the letter.

No federal charges were filed, however, and the FBI has been silent on the status of its investigation since.

In November 2019, the city’s law department subpoenaed the FBI for any documents and communications relating to the letter and phone call, as well as any documents the agency provided to special prosecutor Dan Webb, who earlier this year re-indicted Smollett on disorderly conduct charges.

The FBI rejected the subpoena in July, saying it “would require the FBI to reveal information acquired as part of an ongoing criminal investigation,” according to records filed Wednesday by the city in U.S. District Court.

“Disclosure at this time would reveal and impair the effectiveness of investigatory records and techniques compiled for law enforcement purposes,” the July 29 letter stated. The response also said that any information the FBI possesses that was obtained via a grand jury “would present an obstacle in complying” with the subpoena since such matters are typically kept secret.

In its motion this week, the city asked U.S. Magistrate Judge Sunil Harjani to order the FBI to comply with the subpoena, arguing that the information will be crucial in taking the sworn depositions of Smollett and other witnesses in its ongoing lawsuit.

The city argued that “given the media scrutiny, multiple indictments, and public disclosure of key facts” in the Smollett case already, the need for grand jury secrecy was “uniquely minimal.”

The city also said the FBI’s claim that its investigation is ongoing “is unconvincing.”

“There have been no federal charges against Smollett despite the key events taking place almost two years ago,” city attorneys said, adding that the U.S. attorney’s office “appears to have ceded its criminal case to the special prosecutor.”

“The court should order disclosure of the materials so the city can fairly litigate its case and ensure that justice is served,” the motion stated.

Harjani ordered the FBI and Smollett’s attorneys to respond by Sept. 18.

The FBI’s involvement in the Smollett investigation has long been at issue. Communications released to the Chicago Tribune showed that State’s Attorney Kim Foxx had asked then-police Superintendent Eddie Johnson to turn over the investigation to the FBI after she was approached by Tina Tchen, a former chief of staff to first lady Michelle Obama.

Foxx later recused herself from the case. Webb was appointed special prosecutor last year after a Cook County judge found that Foxx had improperly handled her withdrawal from the case early in the process, rendering the whole case void.

Webb, brought his case against Smollett in February.

In that matter, a Cook County judge on Thursday declined to grant a request from Smollett’s lawyers for a dismissal, saying he did not have the authority to interfere with another judge’s decision to appoint Webb in the first place.

Judge James Linn also ruled that an inadvertently recorded video of a star prosecution witness talking to his attorney would be protected by attorney-client privilege and not available for use by the defense.

Smollett’s attorneys claimed that the short clip of video provides proof that the witness, Olabinjo Osundairo, colluded with his attorney to frame Smollett.

But Linn, who viewed the video in chambers, said he saw no bombshells in the footage. Attorney-client privilege is sacred, and the video should never have been recorded or turned over to prosecutors in the first place, he ruled.

“Everybody’s got it, nobody should have it, it never should have existed,” Linn said. “Nobody should have it at all.”

And the defense doesn’t need the video in order to argue that the Osundairo brothers’ lawyer may have fed them a story, Linn said.

“They can certainly talk about circumstances and timing about what was said before they talked to their lawyer and what they talked about after their lawyer,” he said.

Defense attorneys have also filed another challenge to the validity of Smollett’s second indictment. Some witnesses — including the Osundairo brothers — did not testify in person before the special grand jury that Webb convened. Instead, their testimony from the Cook County grand jury was read into the record. But the entire initial prosecution, including the grand jury matters, was ruled void, the defense notes.

Attorneys are slated to argue that matter next month.

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