Given the roller coaster twists and turns of the Jussie Smollett case, it was perhaps appropriate that Dan Webb was at Disney World with his grandchildren when he got the call asking him to step up yet again as a special prosecutor.
“I told Judge (Michael) Toomin, ‘I’m on vacation, I’ll call you when I get back,'” Webb told reporters with a chuckle Friday, moments after he was sworn in to investigate the Smollett case.
Webb’s appointment adds more star power to a case that already has made national headlines for months and touches on issues of race, politics and celebrity, even though it stems from a low-level felony charge of disorderly conduct.
The assignment will inevitably draw comparisons to Webb’s most recent stint as a Cook County special prosecutor: the probe of the 2004 death of David Koschman during a drunken altercation with a nephew of then-Mayor Richard M. Daley.
The allegations at the center of Smollett’s case are comparatively minor. Smollett was accused of orchestrating a fake hate crime attack on himself; the charges were later dropped by State’s Attorney Kim Foxx’s office with little explanation and to great public outcry.
In signing the order for a special prosecutor in June, Toomin said Foxx overstepped her authority when she put her top deputy in charge of Smollett’s prosecution after she recused herself.
Foxx had spoken with a relative of Smollett’s in the early phases of the investigation after she was contacted by Tina Tchen, formerly Michelle Obama’s chief of staff — sparking speculation that the case’s ultimate outcome was tainted by political clout.
Webb’s appointment will open the whole matter anew, and his mandate is far-reaching. He has the power to investigate not only Smollett but any other people or agencies who touched the hot-button case since it exploded in January.
Webb’s team could reprosecute Smollett. Since he never entered a guilty plea or went on trial, new charges would not violate his right against double jeopardy, experts have said.
And Webb has the power to investigate Foxx’s handling of the case, which could put a cloud over her run for reelection in the March Democratic primary.
Unlike his previous appointment in the Koschman matter, Webb on Friday immediately said he’d likely impanel a special grand jury in the Smollett case, which could hear sworn testimony from witnesses and deliver criminal indictments.
Special prosecutors have usually been reserved for matters of undeniable weight: the Black Panthers raid that led to the killing of leader Fred Hampton and a second man; the widescale torture of black suspects in the late 1970s and ’80s; and the 2014 police shooting of 17-year-old Laquan McDonald.
Webb, 73, now the co-chairman of the powerful Winston & Strawn law firm, brings serious firepower to the table. He has investigated the conduct of numerous targets over the years, from corrupt local officials to a former president.
As a U.S. attorney, Webb led the legendary investigation of Cook County judicial corruption in the 1980s known as Operation Greylord. In 1989, he was appointed as special prosecutor to investigate allegations of fraud in a petition drive involving employees of Daley. He acted as an independent counsel in an Iran-Contra trial in 1990.
While such cases won him national acclaim, Webb has said it was his probe into the Koschman matter that he considered the most crucial.
“I spent my entire adult life here as a trial lawyer, as part of the system,” Webb told the Chicago Tribune in a 2014 interview. “I thought it was important to try to bring transparency to what happened and try to restore public confidence. And make sure the public knew that justice may be a little late here, but we were still going to make sure it occurred.”
Webb won a conviction of Daley’s nephew, Richard Vanecko, who pleaded guilty to involuntary manslaughter. But while his 162-page report made clear that the involvement of a Daley relative colored the initial investigation, in the end no one but Vanecko was charged with wrongdoing.
The results disappointed some, who criticized Webb as a Chicago insider prone to letting power players off the hook. Webb, however, said there simply wasn’t proof of a crime.
“We worked very hard to tear apart the evidence,” Webb said. “We were looking to find evidence of (improper influence by the Daleys). But as the report says, the truth is we did not find anything.”
As in the Koschman case, Webb has been tasked in the Smollett investigation to determine whether the judicial system was tainted by undue political influence.
But the similarities between the two cases largely end there.
In determining why no one was charged in Koschman’s death, Webb’s starting point was an eight-year-old police investigation fraught with problems from the very beginning. The initial detectives went on leave soon after Koschman was hospitalized, and no one else followed through by canvassing the neighborhood for potential witnesses or seeking video from surveillance cameras at nearby businesses. A police lineup wasn’t held for almost a month after the altercation.
Webb’s investigation was hindered by the time that had passed. The assistant state’s attorney who made the decision not to charge Vanecko testified before the special grand jury that he likely threw away his file on the case years before, according to Webb’s 162-page report detailing his findings. Cellphone records and emails that may have shed light on the investigation were unavailable to be subpoenaed, he said.
In all, Webb’s probe took 17 months and involved nearly 150 interviews and a review of more than 300,000 pages of records. It cost taxpayers more than $1.1 million.
In Smollett’s case, by contrast, Webb will be quickly handed the results of a meticulous police investigation that played out largely in the public eye. He will have access to previous grand jury statements by witnesses, phone records, social media activity and surveillance camera footage that pinpoint a detailed timeline of the alleged hoax attack — much of which has already been made public via records requests after the charges were dropped.
Webb could also tap information from the FBI, which investigated the origins of an alleged hate-mail letter sent to Smollett at the “Empire” studio just days before the incident.
Once he’s assembled all the available evidence, Webb could quickly decide whether or not to recharge Smollett. Or, he could use his longstanding relationship with one of Smollett’s Chicago attorneys, former federal prosecutor Ron Safer, to strike some kind of deal.
The more complicated aspect of the probe will be to determine how Foxx’s office came to its stunning decision to drop the charges. But even that would likely entail a limited sphere of evidence, from text messages, emails or other communications between Foxx and her deputies about the case to possibly putting witnesses — including Foxx herself — under oath before the special grand jury.
After his appointment on Friday, Webb told reporters that while he intends to move quickly, he “cannot let politics dictate” the timing of the investigation.
“I intend to expedite everything,” he told reporters. “But the facts will take me where they take me.”
mcrepeau@chicagotribune.com
jmeisner@chicagotribune.com
