State's Attorney Kim Foxx had no authority to appoint her top deputy to act on her behalf after recusing herself from the Jussie Smollett case, according to an official from within her own office.
Foxx 'recused' herself from the case after it emerged she had exchanged text messages with a member of Smollett's family in the days after the incident.
She then handed the case over to her deputy Joe Magats and weeks later the 16 grand jury charges against Smollett were suddenly dropped.
But the supervisor of the criminal appeals division for the state's attorney's office, Alan Spellberg, said in an email a day after news of her recusal was made public that appointing Magats after recusing herself was not allowed.
Thousands of texts and emails about the case were made public and given to CBS Chicago by State's Attorney Kim Foxx's office Tuesday as criticism of her handling of the case grew.
Citing case law Spellberg wrote: '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 was sent to Chief Deputy State’s Attorney and Chief Ethics Officer April Perry and senior adviser Robert Foley on February 20 - a day after Foxx announced she was recusing herself.
The State’s Attorney office told The New York Post Foxx 'was not included in Alan Spellberg’s email and was not aware of its existence or content'.
They said: '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.'
State's Attorney Kim Foxx, left, had no authority to appoint her top deputy Joe Magats, right, to act on her behalf after recusing herself from the Jussie Smollett case, according to an official from within her own office
The supervisor of the criminal appeals division for the state's attorney's office, Alan Spellberg, said in an email that appointing Magats after recusing herself was not allowed
While she announced at the time that she was recusing herself, she has since said she meant it in a 'colloquial' sense rather than a 'legal sense' and that it was more an informal decision to 'step away from the decision making' rather than remove herself entirely from it.
And messages now show that weeks after that decision Foxx continued to meddle in the case, calling Smollett a 'washed up celeb who lied to cops' and telling Magats that the actor was being overcharged.
In messages sent to Magats she also appeared to compare Smollett's charges to those leveled at another celebrity defendant, R. Kelly.
She said: 'Pedophile with 4 victims 10 counts. Washed up celeb who lied to cops, 16.'
Foxx was referring to the 16 count grand jury indictment Smollett was hit with for allegedly staging a hoax attack on himself on January 29.
She went on: '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.'
'Agreed', Magats replied.
Kim Foxx sent these text messages to her deputy on March 8 after a grand jury indicted Smollett on 16 counts of lying to police. She had already 'recused' herself for speaking to Smollett's family but continued to interfere in the case by telling her deputies that the charges were excessive. The charges were dropped two weeks later
The case against Smollett, 36, was suddenly and unexpectedly dropped last month by Foxx's office in questionable circumstances and questions surrounding Foxx's alleged role in that decision have run rampant since.
Magats said during an interview afterwards that he still believed Smollett was guilty. Foxx claimed it was never her decision to have the charges dropped in exchange for Smollett surrendering $10,000 in bail money or completing community service.
Newly public messages also reveal
