Last week President Donald Trump spoke in Chicago at the annual convention of the International Association of Chiefs of Police. Trump used the occasion to call out the actor Jussie Smollett, who had been accused of filing a false police report claiming that he was the victim of a racist and homophobic hate crime. Trump said that Smollett had perpetrated a scam, and that Congress’ impeachment investigation was a scam too. 

Earlier in the year it appeared that Donald Trump and Jussie Smollett had some things in common. Each was the subject of a high profile criminal investigation and each received a huge break from prosecutors. Attorney General William Barr summarily absolved Trump of obstruction of justice, even though Special Counsel Robert Mueller had found evidence of ten questionable acts by the president. In Smollett’s case, the Chicago State’s Attorney dismissed all 16 felony counts, to the outrage of the city’s mayor and police chief.  

At the time, I was critical of the lack of transparency of both prosecutorial decisions. In an op-ed published in the Washington Post, I expressed concern that the impression created was that Trump, as president, and Smollett, as a rich celebrity, benefited from their privilege.  

But my lamentation might have come too soon. Both men are back in trouble, and subject to new rounds of investigations. Congress has authorized an impeachment inquiry focused on recently revealed evidence that Trump conditioned military aid to Ukraine on political favors. Smollett’s case is being reviewed by a special prosecutor, who has the power to prosecute him for the same conduct that the first prosecutor dismissed.  

Based on the public evidence, they are both probably guilty. But were I to return to my days as a prosecutor, it would be much easier to secure a conviction against Donald Trump, based on the evidence. It’s against federal law to solicit a campaign contribution – any “thing of value” – from a foreign national. In the transcript of a telephone conversation between Trump and Ukraine president Zelensky, Trump talks about military aid to the Ukraine, and then says “I would like you to do us a favor though.” In the prosecution business, we call this a confession. Trump’s quid pro quo has been corroborated by several witnesses in the Congressional impeachment inquiry.  

The evidence against Smollett is more circumstantial. Most incriminating is the testimony of two men who cops said the actor hired to stage an assault. Still, there would be problems persuading a jury beyond a reasonable doubt, including because the cops had first arrested those two men for assaulting Smollett. Plus the prosecutor’s theory for why Smollett would have done this – to try to get a raise on his tv show – didn’t make much sense. 

In any event, the day after the Washington Post published my op-ed, Kimberly Foxx, the Chicago State’s Attorney, wrote her own op-ed, responding to the concerns that I and many others had expressed. Like me, Foxx thinks Smollett is probably guilty, but she is a progressive prosecutor who campaigned on a platform of locking up fewer people.  As a first time, non-violent offender, Smollett was eligible for community service, which he performed. Foxx pointed to cases of other defendants, not rich and famous, who received similar dispositions. Whether or not you agreed with the decision to dismiss the charges, Foxx’s explanation was an unusual and gratifying example of prosecutorial accountability. Certainly more than William Barr, who at a press conference before the Mueller Report was released, was loquacious at defending Trump but stalked off the stage when questioned about why he had absolved the president, when the Mueller report did not. 

Prosecutors are the most powerful actors in the criminal legal process because they have virtually unlimited discretion. Or at least they used to have virtually unlimited discretion, and maybe they still do, unless they are, like Kimberly Foxx, African American, women, progressive prosecutors. 

The dismissal of the charges against Smollett pissed off a lot of people – a lot of white people, it must be said. Including the president of the United States, who tweeted it was an “embarrassment to our nation.” 

In August, in an extraordinary procedure, a random retired judge filed a petition with another judge, who then appointed a special prosecutor – a white man – to oversee and perhaps reverse the decision by Kim Foxx, the elected prosecutor. If Smollett were to say it sounds like a witch hunt, he would not be wrong.  

Meanwhile, Trump has tweeted, many times, that the impeachment inquiry is PRESIDENTIAL HARASSMENT, GREATEST WITCHHUNT IN HISTORY, and so forth.   Displaying either ignorance or disdain for African American history, the president also has claimed that he is the victim of a lynching.

Lynching was also a motif in Smollett’s case, when he claimed that his attackers had put a noose around his neck. I get that Smollett is not the best poster child for criminal justice reform. But that’s the thing about criminal justice reform. A lot of the people it helps will be…well, criminals. They will be people who have made mistakes but deserve second chances. And Foxx was elected by the citizens of Chicago to do just that.  

The judge who appointed the special prosecutor in Smollett’s case said it was necessary “to restore the public’s confidence in the integrity of our criminal justice system.” The premise is flawed. You can’t restore what you never had. I was born and raised in Chicago and I don’t know too many people of color who have any confidence in the criminal justice system. The appointment of a white prosecutor to oversee the work of the first black woman head prosecutor makes that confidence even more elusive. 

The impeachment inquiry and the Smollett re-investigation are continuing. What is likely to happen, I suspect, is that Smollett will be forced to suffer some legal consequence, and Trump will not. That is the opposite of justice. Which is why, again, it is likely to happen. As U.S. Supreme Court Justice Sonia Sotomayor wrote, until the voices of people of color matter, “our justice system will continue to be anything but.”

Today we announced that Paul Butler has joined CRIME STORY as Consulting Editor. You can read about that here.

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