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By Elisha Fieldstadt and Andrew Blankstein
“Empire” actor Jussie Smollett has been arrested for allegedly filing a false police report claiming he was the victim of a hate-crime attack in Chicago, a police spokesman said early Thursday.
Smollett was charged Wednesday with felony disorderly conduct for the allegedly false report he made with Chicago police on Jan. 29, according to the Cook County State’s Attorney’s Office. In it he claimed he was assaulted by two masked men who hurled racist and homophobic slurs.
The actor, 36, who is black and gay, also said his attackers poured what he believed was bleach over him and put a noose around his neck.
Chicago Police Department spokesman Anthony Guglielmi said Smollett was in the custody of detectives, who had earlier contacted Smollett’s legal team “to negotiate a reasonable surrender for his arrest.” He could face probation or up to three years in prison if convicted, a Cook County State’s Attorney office spokeswoman told NBC Chicago.
The actor is due in court for a bond hearing at 1:30 p.m. Thursday.
The announcement of charges on Wednesday night came after Smollett’s attorneys talked with prosecutors in the morning, according to police.
In a statement released after Smollett was charged, his attorneys said he “enjoys the presumption of innocence, particularly when there has been an investigation like this one where information, both true and false, has been repeatedly leaked.”
“Given these circumstances, we intend to conduct a thorough investigation and to mount an aggressive defense,” the statement from attorneys Todd S. Pugh and Victor P. Henderson said.
Meanwhile, the top prosecutor in the Chicago area, Cook County State’s Attorney Kimberly Foxx, has recused herself from the case.
The state’s attorney stepped away from the matter because she had “had conversations with a family member of Jussie Smollett about the incident and their concerns, and facilitated a connection to the Chicago Police Department,” a spokesperson for the office said.
Foxx’s first assistant prosecutor, Joe Magats, will handle the case.
Police investigated the reported attack as a “possible hate crime,” and some celebrities, including “Empire” cast members, and gay-rights advocates flocked to social media to express their support for Smollett.
But some other social media users began to question his claims when police said they were not able to find video of the incident after going through a plethora of footage from many surveillance cameras in the affluent Streeterville neighborhood of Chicago, where the attack allegedly occurred.
Guglielmi told NBC News that the investigation into the alleged attack has demanded “considerable” police resources. He said that at one point the department had 12 detectives scouring surveillance videos.
On Jan. 30, police released pictures from a surveillance camera located near where Smollett said he was attacked that showed two men who police said were “potential persons of interest.”
The two men were taken into custody on Feb. 13 and questioned. They were released two days later, on Friday, without charges. Police said the two, who are brothers, were no longer suspects in the case and were cooperating in the probe.
On Saturday, a police source said the probe had shifted into whether the actor had paid the two brothers, Ola and Abel Osundairo, to stage an assault. Investigators had discovered that the brothers had purchased the rope used in the alleged attack.
Guglielmi said then that investigators wanted to have another interview with Smollett.
Smollett didn’t talk to police on Monday or Tuesday. However, Ola and Abel Osundairo met with police and prosecutors at a criminal court building on Tuesday, according to police spokesman Tom Ahern.
The Osundairo brothers also met with prosecutors for about two and a half hours Wednesday, said their attorney Gloria Schmidt during a news conference.
She said that her clients were “getting their story out there to the police” so that investigators “could do their work.” She added that investigators would spend hours with her clients in an effort to understand just 15 minutes of a timeline around the alleged assault.
Schmidt said the brothers don’t expect to be charged in the case “because they are not guilty of anything.” She also said they haven’t negotiated a plea deal because “you don’t need immunity when you have the truth.”
Smollett has told police he was on the phone with his manager during the alleged attack, and the manager said he heard the attackers say, “This is MAGA country.” The actor refused to hand over his cellphone to police, but later gave investigators a PDF file containing a limited list of his calls.
Police said the manager, Brandon Moore, is not a suspect but is rather a “cooperating witness.”
Choreographer Frank Gatson, who made the 911 call about the alleged incident to police, is also considered a “cooperating witness,” police said.
On Wednesday, Fox responded to a TMZ story claiming Smollett’s scenes on the show were “getting slashed” from nine to four.
“Jussie Smollett continues to be a consummate professional on set and as we have previously stated, he is not being written out of the show,” 20th Century Fox Television and Fox Entertainment said in a statement.
Fox had no comment after police announced Smollett was a suspect Wednesday.
In his first interview about the incident last week, the actor told ABC’s “Good Morning America” that he was angry about the alleged attack and that people were doubting him.
“It feels like if I had said it was a Muslim or a Mexican or someone black, I feel like the doubters would have supported me a lot much more, and that says a lot about the place we are in our country right now,” Smollett said.