Last week, Judge Michael Toomin ruled that Kim Foxx’s ‘recusal’ in the Jussie Smollett case was “sophistry.” Then he ruled in favor of appointing a special prosecutor to examine Foxx’s office’s work in dismissing Smollett’s charges.

Judge Toomin then compared Foxx’s investigation to a ship at sea without a captain, saying that “Here the ship of State ventured from its protected harbor without the guiding hand of its captain. There was no master on the bridge to guide the ship as it floundered through uncharted waters. And it ultimately lost its bearings.”

It isn’t surprising that this investigation failed to produce justice. Consider the fact that Tina Tchen, who was once chief of staff for former first lady Michelle Obama, spoke to Foxx after Foxx’s faux recusal.

In his ruling, Judge Toomin said this:

“Curiously, public announcements that flowed from the State’s Attorney’s Office offered the rather novel view that the recusal was not actually a recusal,” Toomin wrote. “Rather, in an exercise of creative lawyering, staff opined that Foxx did not formally recuse herself in a legal sense, that the recusal was only in a colloquial sense … However, discerning members of the public have come to realize that the ‘recusal that really wasn’t’ was purely an exercise in sophistry.”

Then Judge Toomin lowered the boom:

A true recusal would have put the case under the control of a prosecutor from another county. But Foxx kept the case in the hands of her deputy the Chicago Way. That, Toomin wrote, created a “fictitious office having no legal existence.”

Since the faux recusal really just created a void in the State’s Attorney’s office, the decision to drop the charges against Smollett didn’t really happen. Double jeopardy didn’t attach because the person making the decision didn’t have the authority to make decisions.

Judge Toomin is one of the heroes in this fiasco. The other hero is retired appellate Judge Sheila O’Brien. Judge O’Brien “figured…that Foxx’s handling of the Smollett case and her office’s decision to drop the charges against him smelled like the gutters in an alley off the Chicago Way.” In an interview with John Kass of the Chicago Tribune, Judge O’Brien told him:

Thanks to Judge Toomin’s ruling, we’ll get the truth,” O’Brien told me over the phone Friday. “We’ll get the whole truth, all of it, everything and it will be under oath.” Are you happy? “Yes,” O’Brien said. “Because now we’ll have testimony under oath.”

It’s apparent that under oath is what Judge O’Brien wanted most. That eliminates political wiggle room. A Chicago lawyer can turn political wiggle room into Swiss cheese in a New York minute.

Once this fiasco legitimately makes it into the courts, political influence shrinks quickly. That’s what’s apparently happening, much to Kim Foxx’s displeasure. She’s counted on her political connections to keep her out of trouble. The judiciary has tighter controls. Spin doesn’t hold up against verifiable proof.

From this point forward, it’s clear that Mark Geragos has his work cut out for him. This isn’t a political fight anymore. It’s a legal fight, something I doubt he thought he was signing on for.

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