Oh Boy: Special Prosecutor Appointed to Probe Kim Foxx's Corrupt Handling of Jussie Smollett Case;
As Kim Foxx's Fake-Recusal Sham Was Illegal, Jussie Smollett May Be Recharged and Retried

Oh boy is this great....!

So, I'm just spitballing based on the story from John Sexton at Hot Air and my basic sense of how these things work, but I think what's going on here is this:

1. From where an elected official derives his power from is important, and it's what makes us a constitutional republic. When a state's attorney is appointed by a governor, the governor is elected by the people, and invested with the power to appoint states attorneys, so the states attorneys' power to prosecute derives from the people, albeit indirectly.

In Illinois, states attorneys are elected directly, so their power derives directly from the people.

2. There is a specified procedure for recusal of states attorney and for appointing a special prosecutor for the cases the attorney has recused herself from. Kim Foxx attempted a fake, sham recusal, a non-recusal recusal, and did not follow this procedure. She tried to pretend she was recusing herself while just giving the case to her direct subordinate -- someone who cannot be said to be "independent" of her, as she's his boss. He knows her mind, and he knows what she wants him to do. And he's incentivized to please her.

3. So, when Kim Foxx executed this illegal, unconstitutional maneuver of appointing a fake special prosecutor who was really just her flunky carrying out her wishes, that fake special prosecutor did not have any actual authority deriving from the law or the people in an election.

4. Therefore, her deputy's decision to let Smollett off the hook without even an admission of guilt was done without any actual force of law. It was basically lawless, and can be, and should be, ignored.

Sexton quotes from the Chicago Tribune below. The judge who appointed the special prosecutor is named Toomin -- and you'll see, Toomin has some concerns about Kim Foxx.

"There was no duly elected state's attorney when Jussie Smollett was arrested. Ms. Foxx had already effected her recusal," Toomin said, nor was there any legally appointed prosecutor when Smollett was charged, or the charges dismissed.

Toomin expressed concerned about Foxx’s decision to delegate case to Magats.

"There isn’t an office of 'acting states attorney.' It existed only . . . in the imagination of Ms Foxx," Toomin said.

So, Foxx could recuse herself -- and she is actually ethically required to do so -- but she didn't actually recuse herself, and attempted to keep the power in her own hands by handing it off, supposedly, to a flunky, someone not appointed to the position of special prosecutor according to the law, but was only appointed by her own whim.

So everything Magats did is... legally void. He did not have any of the legal power or right to act in the name of the state.

If Kim Foxx is actually out of the case, then she has no power to oversee this case. An official can only delegate the power she actually has, and if Kim Foxx had no power, having recused herself, then she has no power remaining to delegate to her deputy.

Where did Magats' power derive from? He had no power of his own; he's not elected. He can't have derived it from Foxx, because she, supposedly, recused herself from the case. She had no remaining power in the matter.

So... with what authority was he acting?

She's being investigated for her actions, but I assume The Guild Protects Its Own -- always -- so she'll suffer no more than a Sternly Written Letter, if that.

More interesting then is what happens to Smollett. The dismissal of charges against him is void, it was done extraconstitutionally and illegally, so that's a do-over.

Though I guess he has a lot of legal arguments he can make, like the right of a citizen to rely upon the decisions made by someone acting with the (assumed, asserted) power of the state, and not be exposed to a kind of (arguable) double-jeopardy.

We'll see.

On the other hand... well, we might find out that Smollett and Foxx were in communication during this "recusal," making him a participant in all this rather than a bystander.

Let's see those emails and phone records.

Update: From Tami:

@crepeau

And now, a statement from Foxx's former Chief Ethics Officer April Perry -- Foxx has long claimed she recused herself on Perry's advice; here's Perry saying it's more complicated than that.

https://tinyurl.com/yyg5gpbf

@crepeau

essentially - Perry is saying once she became aware that the recusal might not be legally sound, she took steps to try to remedy that, but Foxx declined to follow through.

Because she didn't want it to be legally sound. She wanted it Calvinball, where she is simultaneously recused "colloquially," for public consumption, and yet not recused, when it comes to doing favors for palz.

posted by Ace of Spades at 03:56 PM

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