The Daily Signal - #427: Former Prosecutor Explains How Jussie Smollett Could Still Be Charged

Episode Date: March 27, 2019

Former prosecutor and Heritage Foundation legal expert Cully Stimson joins us to unpack what the police documents show about the Jussie Smollett case, analyze how the case was handled and the possible role a former Obama aide played, and share how there still might be one way to charge Smollett. We also cover these stories:•President Donald Trump wants Republicans to tackle health care again.•The Trump administration is gearing up to send another man to the moon.•Speaking about Anita Hill hearings, Joe Biden laments “white man’s culture.”The Daily Signal podcast is available on Ricochet, iTunes, SoundCloud, Google Play, or Stitcher. All of our podcasts can be found at DailySignal.com/podcasts. If you like what you hear, please leave a review. You can also leave us a message at 202-608-6205 or write us at [e-mail]. Enjoy the show! Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit megaphone.fm/adchoices

This is the Daily Signal podcast for Thursday, March 28th. I'm Kate Trinko. And I'm Daniel Davis. Chicago cops are furious after the city prosecutor dropped all charges against Jesse Smollett, the actor who faked a hate crime. The question on everyone's mind is why? Why was such a miscarriage of justice allowed to happen? Today we'll be joined by Coley Stimson, a senior legal fellow at the Heritage Foundation, to discuss the possibilities.

Plus, the Mueller report has cleared Trump on collusion, but almost half the country country still thinks he colluded with Russia in the 2016 election. We'll discuss that. And if you're a fan of the podcast, please consider leaving a review or a five-star rating on iTunes and please subscribe. Now, onto our top news. President Trump doubled down on health care Wednesday, stressing the importance of taking action on it. Look, look, we're not talking about health care right now, but I will. The Republican Party is the report, and you will see this very soon, because Obamacare is a disaster. It's too expensive by far.

People can't afford it, and the deductible is horrible. So the premiums cost too much. The deductible is horrible. The only difference between now and the other administration is that we're administering Obamacare very well. So we've made it better, but it's still horrible, no good. it's something that we can't live with in this country because it's far too expensive for the people

not only for the country but I'm not even thinking about for the country it's too expensive the premiums are too expensive people are going broke trying to pay for it and the deductibles are averaging over $7,000 so you have to spend $7,000 before you get anything that's a very unusual circumstance so the deductibles are way too

Obama care is a disaster. So we're going to be the part, and I said it yesterday, and I mean it 100%. I understand health care now, especially very well. A lot of people don't understand it. We are going to be the Republicans, the party of great health care. Well, President Trump wants America back on the moon, and NASA is ready to make it happen. Vice President Mike Pence announced on Tuesday a new initiative to put U.S. astronauts back on the moon by 2024. The vice president was chairing a meeting of NASA's National Space Council in Huntsville, Alabama, when he made the announcement.

He said, we're in a space race today, just as we were in the 1960s. NASA's top official immediately embraced the plan. NASA has struggled to resume human spaceflight since the shuttle program ended in 2011, prompting criticism from some former astronauts, including Buzz Aldrin. President Trump presented the Medal of Honor to Staff Sergeant Travis Atkins, who died in 2007, at age 31, saving at least three other soldiers because he fought a suicide bomber in Iraq. Atkins' family went to the White House to receive the award. Here's what Atkins' son, now 22 years old, Trevor Oliver, said about his dad in a U.S. Army video.

Him to be remembered as the best father that anyone could ask for, and also at the same time being the best soldier that anyone could ask for. That's the main message. Well, the U.S. has hit a breaking point at the border. That's according to America's top border official, Kevin McAleenan. McAlean is Commissioner of U.S. Customs and Border Protection. He urged lawmakers this week to provide more resources to border patrol in light of a huge surge in migration.

Border officials are now facing the highest immigration levels in more than a decade, with upwards of 66 border apprehensions just in the month of February. McAleenan said he now has 13,000 migrants in his custody and that border stations are so crowded that Border Patrol is now releasing migrants into the United States for the first time in over a decade. He blamed the U.S. asylum policy, which he called a broken system. U.S. asylum laws allow migrants to enter the country in order to apply for asylum and then be released into society pending a court date, which many migrants fail to attend. Senate Majority Leader Mitch McConnell gave Democrats, many of whom have endorsed the Green New Deal, the chance to vote for the left's favorite proposal this week. Well, turns out most of them don't actually want to vote for it.

Not a single Democrat, or Republican for that matter, voted for the ambitious plan put forward by Senator Ed Markey, Democrat of Massachusetts, and Representative Alexandria Ocasio-Cortez, Democrat of New York. Four Democrats voted against it, and the rest, voted present. Ocasio Cortez tweeted that she'd asked Democrats to vote present and added, quote, the real question we should be asking, why does the Senate GOP refuse to hold any major hearings on climate change? Teresa May is vowing to quit as British Prime Minister in exchange for Parliament backing her Brexit deal. The embattled Prime Minister has now twice failed to get her Brexit deal

through Parliament and now has just two weeks left to succeed before the UK automatically crashes out of the European Union. Leaving without a deal means the UK would return to trading on World Trade Organization rules. The Prime Minister's move comes amid British anxiety over Parliament's failure to pass Brexit on terms of the EU will agree to. The EU has insisted on strict and costly terms, which would help deter future exits from the EU. Facebook will no longer allow expressions of white nationalism. The company posted a note stating, quote, today we're announcing a ban on praise, support, and representation of white nationalism and separatism on Facebook and Instagram, which will start enforcing next week. It's clear that these concepts are deeply linked to

organized hate groups and have no place on our services. Our policies have long prohibited hateful treatment of people based on characteristics such as race, ethnicity, or religious. and that has always included white supremacy. We didn't originally apply the same rationale to expressions of white nationalism and separatism because we were thinking about broader concepts of nationalism and separatism, things like American pride and vast separatism, which are an important part of people's identity, end quote. It's not clear what kind of content exactly would constitute white nationalism.

Well, on Tuesday, Joe Biden lamented what, he called white man's culture. He was speaking at the Biden Courage Award ceremony in which he expressed regret over the fact that in 1991, Anita Hill had to testify before a committee of white men. She alleged sexual harassment against Clarence Thomas, who was later confirmed to the Supreme Court. But in a strange line of reasoning,

Biden then seemed to draw a direct line from that committee to 13th century Britain. Back to the late 1300, so many women were dying as the hands of their husband, because they were a chattel, just like the cattle or the sheep, that the court of common law decided they had to do something about the extent of the death. So you know what they said? No man has a right to chastise his woman with a rod thicker than the circumference of his thumb. This is English jurisprudential culture, a white man's culture. It's got to change. It's got to change.

Next up, we'll talk to Cully Stimson about the Jesse Smollett case. Want to get up to speed about the Supreme Court? Then subscribe to SCOTUS 101, a podcast about everything that's happening at the Supreme Court and what the justices are up to. The news that Empire actor Jesse Smollett, accused by a grand jury of faking a hate crime, had his charges dropped, has created some unusual alliances. For instance, Chicago mayor and former Obama aide, Rahm Emanuel was among the aims. We cannot have because of a person's position, one set of rules apply to them, and another set of rules apply to everybody else. In another way, you're seeing this play out in the universities where people pay extra to get their kids a special position in universities. Now you have a person because of their position and background who's getting treated in a way that nobody else would ever, sorry about that, don't get near, I'm doing near my sermon here.

that would ever get close to this type of treatment. Chicago Police Superintendent Eddie Johnson was also furious. Do I think justice will serve? No. Do I think justice is? I think this city is still older in apology. And let me digress for a month. When I came on this job, I've been to cotton out for about 31 years.

And I came on this job, I came on with my honor, my integrity, and my reputation. If someone accused me of doing anything that would circumvent that, then I would want my day in court, period, to clear my name. I've heard that they wanted their day in court with TV cameras so America could know the truth, and though they chose to hide behind secrecy and broker a deal to circumvent the judicial system. My job as a police officer is to investigate an incident,

gather their evidence, gather their facts, and present them to the state's return. That's what we did. I stand behind the detective's investigation. And David Axelrod, a former top advisor to President Obama, tweeted, unless some better explanation surfaces,

here's the lesson of this weird turn in the Smollett case. You can contrive a hate crime, make it national news, get caught, and if you are a well-connected celebrity, get off for 10,000 and have your record expunged and files sealed.

Joining us today to discuss is Cully Stimson, a senior legal fellow at the Heritage Foundation. Cully is also an experienced prosecutor having worked at the local, state, and federal levels, where he concentrated on violent crimes such as homicide, sexual assault, and domestic violence. So, Collie, what did you think about this charge being dropped? It's bizarre, frankly. And I am even in a more bizarre position when I agree with David. But Axelrod, every word he said is true. I mean, this is the sweetheart deal of the century.

This is not a who done it. He did it. And the fact that he can claim he didn't do it, which he has a First Amendment right, he can do that, shows you how stinky this plea deal was because he should have either gone to trial or been forced to plead guilty. So we saw recently that the police, following this announcement, the police then released files on the investigation. And how would you respond to those files and information contained there? Yeah, so I've read thousands of police reports, and naturally I read this one, at least the two bits that have been released so far. They're apparently more.

And they lay out a very thorough, dispassionate investigation, one that they should be proud of, and they are proud of. And it points to one person and one person alone, Jesse Smollett, that he orchestrated this scheme. that he paid with a personal check of $3,500, check number 1603 from his bank account, that he's caught on video. This is not a tough one. This is not a whodunit. This is clearly one person who did this, and why the state's attorney's office would give him this sweetheart deal stinks to high heaven. So about the deal, a lot of people are especially calling out the fact that he didn't even need to apologize or admit guilt. No, obviously you as a former prosecutor, no, not all cases go to trial.

Is there any way to look at this where it makes sense that this one didn't and that this was the deal they gave? Well, most cases don't go to trial. Otherwise, the criminal justice system would come to a grinding halt. 95% of cases get pled out. This was going to plea out one way or the other because, again, the defense attorney, and I've been a defense attorney, the first thing I would have said to this young man after I saw all the evidence is, dude, you're guilty. And we got to make this thing go away. So I expected this to go away, just not this way.

And so am I surprised it went this way? Yeah. Typically an apology is not part of a plea deal. But a guilty finding is, or a guilty plea is, if you look at the original indictments, all right, there are, I think, 16 or 17 charges that came out of the grand jury. I think it was overcharged, frankly. It's basically the same charge four different times. basically talking to four different cops about the same thing. Eventually it was going to get bargained down, right?

He orchestrated a hoax. It was pathetic. It could have caused race riots. It could have caused all sorts of problems. The police did a very thorough job investigating it. And so the only question was, how is the case going to end up? And here, it was going to end up, should have ended up, with a finding of guilt, either accepting guilt himself

or being found guilty at the hand of a judge or a jury. But that's not what happened. So we do know a little bit about what happened behind closed doors. We know that a former Obama aide, Tina Chen, texted the Cook County State's attorney Kim Fox during the beginning of this investigation. And she texted, quote, I wanted to give you a call on behalf of Jesse Smollett and family, who I know they have concerns about the investigation, end quote. And then after that, the text message, Fox asked the police to transfer the case. to the FBI. What does that suggest to you? Does she need to be investigated for her role in this? Well, that and that alone suggests that she did the right thing, that she was attempting to recuse

herself from the case. Because remember, at the time that text happened, as I understand it, he was still considered a victim, not the defendant, right? And so if she, the prosecutor, was getting information, positive information about a potential victim, that's pretty normal. I mean, when you're a prosecutor, you're going to get information about victims of crimes, good and bad. If it's bad, you're going to have to turn it over to the defense because of potentially exculpatory. I think we don't know the rest of the story. What involvement, if any, did she have in the case? You see in these police reports numerous instances soon after the investigation started,

where the defense attorneys then requested meetings with the assistant state's attorneys. Those are the line prosecutors handling the case. And you see all of a sudden, and you remember from the news, that right before the grand jury, right before those two dudes who helped beat him up at his request were going to be put in the grand jury, that all of a sudden their appearance before the grand jury was delayed because the defense attorneys were asking for a meeting with the prosecutors. So we don't know, by the way, that's very normal. Defense attorneys and prosecutors meet all day, every day. That's their job. So there's nothing untoward about that. There's nothing untoward about delaying an appearance before a grand jury. It happens today in grand juries all around the country. The question is, how did the prosecution come to realize that they would seal the record? That's bizarre. Why would they agree to that? And then why would they null-pros the case, which essentially means they're not going to move forward? Their explanation is that,

this is a resource issue. It's essentially a serious misdemeanor. He already agreed to forfeit his $10,000 bond. That's essentially a fine now. And he's already done community service. That may all be true. And also we should know that the community service was for Jesse Jackson and I believe 18 hours. Right.

So that's a drop in the bucket. Usually we're talking two, three, 400 hours of community service. That actually helps the community, right? That's why it's called community service, not hanging out with my buddy and have him gun deck the record and say, He was here for 16 hours listening to music or whatever they were actually doing. So this was a sweetheart deal. The lack of transparency is disturbing.

The lack of coordinating or at least giving the police the courtesy of a heads up that a plea was in the works. Further puts tension between the state's attorney's office and the police force, which is not helpful. So, as I believe we've said, Kim Fox, the prosecutor, did recuse herself from this case when it became evident that he was going to be charged, just the victim. A Chicago Police Union, the Fraternal Order of Police, issued a statement saying, quote, since Kimberly Fox has taken office, she has transformed the prosecutor's office to a political arm of the anti-police movement. We renew our call for a federal investigation of her role in this case and expect the media to conduct a thorough investigation. Should she be investigated? Well, they think so.

What do you think? Well, I don't have enough facts. I know that there are rare instances where a person who is anti-prosecution ends up as the elected prosecutor, and they take a very dim view of going aggressively after certain types of cases. It's hard not to go after murders. It's hard not to go after child sexual abuse and child abuse cases, elder abuse type cases. But here, if what they say is true, true, and I have no independent way of knowing that, then they have every right to demand an investigation. There's a nerdy legal point, too, and that is that if she recused herself, which was proper for her to do so, if it turns out that she then reasserted herself into the case, after walling herself off from the case, there may be an instance may, and I don't know what the facts are, where somebody could complain to the Illinois State Bar that she violated her ethical duties under the bar ethics rules. And so remember, prosecutor's job is not to convict.

A prosecutor's job is to do justice. And so you have a higher duty than any other attorney, and you should because you can deprive people of their most important right, which is their liberty interest. So obviously there's a lot of will right now, pent up will to somehow find a way to punish Jesse Smollett for what appeared to be a fake hate crime. You see that we heard that from the mayor of Chicago, from the police chief. Do you think there's a chance that federal prosecutors will now take up this case against him? Well, not this particular case because he did what he did, in my opinion, and in the police commissioner's opinion and running most other people's opinion, and what he did in Chicago at 2 a.m. at night, if anything, is a state law crime.

Now, I can see creative prosecutors on the federal level, where I used to work as well, think that perhaps this somehow triggers a federal crime. I think more likely, though, I think this case is over. I think more likely if the feds are going to get involved, it will be in the activity that took place before this, and that's the mailing of the letter through the U.S. Postal Service, which invokes federal law, when the letter, remember, is alleged to have contained white powder, it was sent to Fox Studios, I believe in California, threatening Jesse. Now, whoever did that could be under the microscope by the feds, and if it's Jesse Smollett, who sent. to Fox threatening himself to draw attention to himself, he could get brought into another investigation. And this would be a federal investigation. So look for them to be testing the letter for DNA. Look for them to look for latent fingerprints. Look for surveillance of him or other people mailing the letter on his

behalf. Look for emails. Look for his bank account. A search warrant was done of his apartment, I think, according to the police report. And so maybe there's a white substance that is exactly the same white substance that was found in the letter, whether it's talcum. It was not toxic. It was, you know, something inert like talcum powder or something like that, baking soda or something. But if the feds determine who did that and if it's Jesse Smollett, then he's not out of legal jeopardy. Would you be concerned at all that him getting off like this could lead to copycat? crimes or more hate crime hoaxes? It's a good question. I think you're always concerned just as a

citizen, not necessarily a former prosecutor or somebody involved in the criminal justice system, that when a case draws national attention, whatever the person is alleged to have done, that other people may copycat it. For example, we know that in some of the horrible cases where mothers have drowned their children or murdered their children, future. cases happen where mothers did the same thing and they talked about the previous horrible incident where a mother did that. Will we see a copycat where a knucklehead like this guy who wants to draw attention to himself or herself creates a fake hay crime? I certainly hope not. Is it a possible? Yeah, it's possible. Colley Stimson, thanks so much for being in and discussing. Always a pleasure.

Are you looking for quick conservative policy solutions to current issues? Sign up for Heritage's weekly newsletter, The Agenda. In the agenda, you will learn what issues Heritage Scholars on Capitol Hill are working on, what position conservatives are taking, and links to our in-depth research. The agenda also provides information on important events happening here at Heritage that you can watch online, as well as media interviews from our experts. Sign up for the agenda on heritage.org today. President Trump has been vindicated regarding collusion.

This week, he tweeted, quote, the fake news media has lost tremendous credibility with its corrupt coverage of the illegal Democrat witch hunt of your all-time favorite duly elected president, me, end quote. But the damage done to President Trump by the investigation could potentially be irreversible, at least in the mind of the public. A new Reuters-Ipsos poll finds that nearly half of Americans still believe Trump colluded with the Russians, despite Mueller's findings to the contrary. 48% now believe that Trump or someone from his campaign colluded with the Russians. That's down only six points from last week. Moreover, some Democrats are doubling down. California Congressman Eric Swalwell said he still believes Trump, quote, works on Russia's behalf.

And Congressman Adam Schiff, chairman of the House Intelligence Committee, says, quote, undoubtedly there is collusion. So, Kate, a lot of stock for two years was put into the Mueller investigation. was going to be the verdict on Trump. Why are so many people now seemingly throwing it out? I was pretty upset by all of this. And I think what Schiff and Swalwell is doing is extremely irresponsible and unfair. And they are clearly trying to promulgate a false understanding unless they are really stupid. Yeah, I think you have what happens is I don't remember the exact numbers, but Media Research Center found that basically, I think an average of three minutes a day was spent by

ABC, CBS, and NBC on Russia collusion. This was around the clock. Another site Newswip found, I think, over 500,000 articles were written about the alleged Russia collusion. This was wall-to-wall coverage. And now that the report has come out, I think what we're finding out is, one, it's not getting as much coverage. It is getting a good amount of coverage, but it's not getting as much.

And two, it just seems like this isn't about the facts. This is just, you know, if Trump's not guilty for this, he's guilty for something else, Like obviously Russia, and I think part of the problem with this is it never should have been covered this much in the first place when we knew nothing. There was no there there. There was the meeting between Don Trump Jr. and the Russians. Okay, sure, report that. But like almost everything else was anonymously sourced, confusing and wrong. And, you know, you had analysts like John Brennan, the former CIA director.

James Clapper. Yeah, just saying this nonsense that now we know doesn't appear to be verified by facts that Mueller, you know, Mueller, the great Mueller, who people. had tattooed and all sorts of things and they've got like prayer candles to Mueller and all this nonsense. He found there was no collusion and yet they won't believe it. And that that's terrifying to me. Well, to your point that this wasn't really about the facts, Bill Maher said that he doesn't really need Mueller to tell him that Trump is a traitor. He says, I have a TV. I can tell that Trump's a traitor from everything he says. But that just shows you that the belief in, Trump hasn't said anything that suggests he's a traitor that proves he's a done.

anything traitorous. So, I mean, it really just kind of proves that the animus is there from the start. Right. And arguably, Trump's Russia policy has been harsher than Obama is. Like, first of all, let's not forget how Obama made fun of Mitt Romney for saying that Russia, you know, is a serious threat or whatever that phrase was in 2012. Secondly, you know, I know that the mainstream media doesn't really bother to cover Ukraine, but the U.S. has been aiding Ukraine in their war against Russia, you know, all throughout Trump's tenure. And yes, before, but more aggressively now. Yeah, I didn't like the press conference Trump did with Putin and Helsinki. Trump has made some comments. I'm not a big fan of about Russia. But when you look at the actual policy actions, it doesn't suggest he's some

Russia traitor. I mean, this was an exhaustive investigation that interviewed a gazillion people that was done by supposedly the top professionals. I mean, they should have found it. And we should all be happy that the president or that the then candidate Trump did not collude with the Russians. Like, that is good news. Right. And I think it's something that, you know, is troubling. Like, conservatives had a lot of issues with Obama, but there was no, you know, there was no accusation that he was secretly working with Iraq or like doing, you know, this other, like there was no traitorous accusations there. That's a really serious charge. And that's something that, yeah, we should be grateful, didn't occur. And also, like, you shouldn't be throwing

that around. Well, to the point of this poll, a 48% of Americans post Mueller report, still assuming that most people have heard about it, that there was no collusion, still believe there was some kind of collusion between the Trump campaign and Russia. Do you blame the media for kind of making that indelible charge against Trump? I mean, the media, yeah, I think, as I said, they way overreported it. Like, before it was known, they kept the focus on it so much that I think a lot of news consumers are not necessarily sitting down every morning to read the internet or read the newspaper. They don't catch the evening newscast every night. They tune in occasionally. And so, but if you tune in occasionally and every single time Russia collusion comes up, you start

to think it's a thing. So there may be people who still haven't cracked open a newspaper or, you know, opened up their webpage or whatever the correct terminology is for that. They may not be aware of it. You know, both, I believe, the New York Times and the Washington Post did have front page stories saying there was no collusion, as I recall. That is to their credit. But, you know, I don't think it's a good faith effort by Democrats right now to go around, you know, still asserting collusion or refusing to take back claims that he was a Russian agent.

Yeah. I just think it's sad that 48% of the country still says there was some kind of collusion when you should just be able to say, I don't like the president. Or I think, you know, I'm going to vote against him, but you don't have to say that he committed a crime that clearly he didn't commit. Right. I mean, that's the thing. I mean, just, yeah, hate him for what he's actually done. Well, that is a good place for us to leave it today. Thanks for listening to The Daily Signal podcast.

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