The “Empire” star claimed he was beaten up on Jan. 29 by two men who used racial and homophobic slurs. Smollett’s co-stars and colleagues on “Empire,” celebrities such as Ellen Page and Zendaya, and public figures such as Sen. Kamala Harris rallied behind the actor, releasing statements of support. However, Smollett’s account is now being challenged, with police investigating whether or not he paid two acquaintances, Olabinjo and Abimbola Osundairo, to stage the attack.
Chicago police confirmed on Tuesday that they received a tip from someone claiming to have seen the three men together in an elevator of Smollett’s apartment building on the evening of the attack. However, later in the day, police spokesman Anthony Guglielmi tweeted that the tip was unfounded.
If Smollett falsified a police report, the charge is a Class 4 felony in Illinois, and carries a potential sentence of one to three years in prison. Smollett could also be ordered to pay restitution to compensate for the cost of the Chicago Police Department investigation.
“It’s a very, very, very serious situation,” said Phil Turner, a former federal prosecutor who now works in criminal defense in Chicago. “He’s got some very significant exposure.”
Smollett told police that two men attacked him at 2 a.m., poured bleach on him, and put a noose around his neck. He also claimed they told him that it was “MAGA country,” a reference to Donald Trump’s campaign slogan. Chicago investigators are now seeking to speak with Smollett.
Federal investigators are also probing a threatening letter that was sent to the “Empire” set. The letter included homophobic language and contained a white powder, which was later determined to be a crushed painkiller tablet. Should that letter turn out to be fake, federal prosecutors could also pursue a mail fraud charge, legal experts say.
Andrew Weisberg, a former prosecutor in the Cook County State’s Attorney’s Office, said Smollett could get probation, assuming that he has a clean record. Update: NBC News reported Tuesday, and Variety confirmed, that Smollett pleaded no contest in 2007 to three misdemeanor counts stemming from a DUI incident in Los Angeles, including one count of giving false information to the police. According to the criminal complaint filed by the L.A. City Attorney’s office, Smollett gave a false name, pretending to be his brother Jake. He was sentenced to three years of probation.
Weisberg also said prosecutors may face pressure not to be lenient.
“It’s a very high-profile case,” he said. “Prosecutors tend to be tougher because everybody’s watching. … I think they may come down hard, in terms of not reducing it to a misdemeanor.”
Steve Greenberg, a Chicago defense attorney, said prosecutors could also file a charge of obstruction of justice. He said it was likely, though, that Smollett would be allowed to plead to a misdemeanor, and not serve jail time.
“They’re not going to ruin a guy’s life over this,” Greenberg said. “People make false reports all the time to the police. They get in a DUI, they call police and say, ‘My car was stolen.’ Ninety percent of the time, even if they’re charged with a felony, those people end up pleading to a misdemeanor.”
Smollett has retained two criminal defense attorneys, Victor Henderson and Todd Pugh. They have denied that Smollett staged the attack, and said he will continue to cooperate.
“His lawyers may be having a psychiatrist examine the guy so they could prepare some kind of psychiatric defense,” Turner said.
Smollett, like celebrity fabulists such as Lance Armstrong and Ryan Lochte, may see endorsement opportunities and roles dry up if he is found to have been untruthful. Public relations experts say he will need to demonstrate that he’s learned a lesson.
“If he made this up, he broke the trust of a lot of his fans,” said Ray Drasnin, founder of Purple Penguin PR. “Say you lied and you’re sorry for that lie. Apologize to the people who have supported you, promise to make it up, and find a cause that’s near and dear to your heart and devote yourself to it.”
Richard Levick, chairman and CEO of LEVICK, said people shouldn’t rush to judgment regarding Smollet and cautioned that there are still, in the words of former Secretary of Defense Donald Rumsfeld, “too many unknown unknowns.” Yet if Smollett did fabricate the attack, Levick says he needs to be more proactive.
“He needs to get ahead of this as much as he can,” he said. “He needs to go see the police. He needs to apologize. He needs to make the announcement about what happened instead of letting the facts leak out. If he lied, there’s no excuse, but there may be some explanation.”