Judge orders Google to turn over a full year of Jussie Smollett’s data

A Cook County judge has ordered Google to turn over Jussie Smollett’s emails, photos, location data and private messages for an entire year as part of the special prosecutor’s investigation into a purported attack on the actor.

Two sweeping search warrants, obtained by the Chicago Tribune, provide the first public glimpse at the direction of the probe by special prosecutor Dan Webb more than four months into the investigation.

The warrants, filed last month in Circuit Court, sought a trove of documentation from Smollett and his manager’s Google accounts — not just emails but also drafted and deleted messages; any files in their Google Drive cloud storage services; any Google Voice texts, calls and contacts; search and web browsing history; and location data.

Investigators sought a full year’s data — from November 2018 to November 2019 — even though the key events in the controversy took place between late January and late March 2019. Authorities could be looking for any incriminating remarks from Smollett or his manager, especially in the months after State’s Atty. Kim Foxx’s office abruptly dismissed disorderly conduct charges against the then-“Empire” actor just weeks after his indictment. Smollett, who is African American and openly gay, has declared the dismissal a vindication of his claims that he was the victim of a racist and homophobic attack.

The mysterious reversal by Foxx’s office — coming after Foxx herself stepped aside from overseeing the prosecution — sparked a public outcry that ultimately led Judge Michael Toomin to appoint Webb as special prosecutor in late August.

Toomin signed off on the search warrants on Dec. 6, the records show. In doing so, the judge ordered Google and its “representatives, agents and employees” not to disclose his order to turn over the records, saying to do so “may jeopardize an ongoing criminal investigation.”

It was unclear from the file if Google has handed over the data on Smollett and his manager. A Google spokesman said he could not comment on specific requests for records from law enforcement.

Toomin gave Webb a broad mandate to investigate all aspects of the case — not only its initial handling by Foxx’s office but also whether to criminally charge Smollett again.

The search warrants make clear that Chicago police are assisting in Webb’s investigation.

Anthony Guglielmi, a Chicago police spokesman, confirmed that the department is working with the special prosecutor, conducting “follow-ups” on its initial investigation. But Guglielmi declined further comment, referring inquiries to Webb’s team.

Webb declined to comment on the search warrants or his broader investigation.

Smollett reported that two men attacked him near his high-rise apartment in the Streeterville neighborhood in downtown Chicago on a frigid night last Jan. 29, slipping a noose around his neck and shouting racist and homophobic slurs.

Smollett’s manager — whose Google account information has also been ordered turned over — called 911 to report the attack and met responding officers in the lobby of Smollett’s building. He can be seen on body camera footage reaching toward Smollett to grab the noose around his neck with disdain. “The reason I’m calling [police] is because of this ...,” he said, using an expletive.

But Smollett eventually turned from victim to suspect after an intense investigation by Chicago police detectives who used two brothers’ cellphone records, internet search history and text messages to corroborate their story that the actor paid them $3,500 to stage the attack.

Prosecutors alleged that Smollett staged the attack because he was unhappy with the “Empire” studio’s response to a threatening letter he received at work a week earlier. Chicago police accused Smollett of faking the letter as well.

But just a few weeks after indicting Smollett on 16 counts of disorderly conduct, Foxx’s office made the stunning announcement that all the charges had been dropped with little explanation at an unannounced court hearing.

Smollett’s attorneys have painted the brothers, Abimbola and Olabinjo Osundairo, natives of Nigeria, as homophobic liars who carried out a real attack on Smollett with the help of an as-yet unidentified white co-conspirator. They have long alleged that the brothers’ attorney fed them a fabricated story to tell police in order to avoid charges.

The whole episode has been costly for Smollett. He now faces a lawsuit from the city of Chicago seeking to recoup $130,000 in police overtime costs for investigating the incident, and the Osundairos have sued Smollett’s attorneys for defamation. Smollett, who reportedly won’t return to his role for the final season of the Fox series “Empire,” filed a counterclaim against the city, saying he was the victim of a malicious prosecution that caused humiliation and extreme distress.

The episode has also proved damaging to Foxx, who has faced harsh criticism for her handling of the case as she seeks a second term in office. In a campaign ad in November, Foxx acknowledged she had fallen short in the Smollett matter but was vague on specifics. “Truth is, I didn’t handle it well. I own that,” she said.

It is unclear if Webb’s investigation will be completed before she faces three Democratic challengers in the March 17 primary.

Foxx recused herself from overseeing the prosecution after revealing she had contact with a member of Smollett’s family early in the investigation at the request of Tina Tchen, Michelle Obama’s former chief of staff.

Foxx declined to provide details at the time, but communications later made public showed Foxx had asked then-Chicago police Superintendent Eddie Johnson to turn over the investigation to the FBI after she was approached by Tchen, a politically connected lawyer, about the case.

But other communications released to the Tribune after public-records requests showed Foxx claiming she recused herself because of false rumors that she was related to the actor, not any communications she’d had with his relatives.

Foxx dismissed the explanation her own office gave for her withdrawal at the time, the texts show.

Sheila O’Brien, a retired Illinois appellate judge, petitioned Toomin to appoint a special prosecutor to look into the handling of the Smollett investigation. After extensive legal arguments last summer, Toomin ruled that Foxx had the right to withdraw herself from overseeing the prosecution but held no legal authority to then delegate that responsibility to her top deputy.

With that deputy holding no real authority, the Smollett case made its way through the court system without a legitimate prosecutor at the helm, the veteran judge said, indicating that it was invalid from start to finish.

Crepeau and Gorner write for the Chicago Tribune.