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Why charges against Jussie Smollett are considered a felony

Analysis: If Smollett was involved in mailing a threatening letter to the set of “Empire,” potential federal charges may dwarf the disorderly conduct charge.
Image; Jussie Smollett before the Songwriters Hall of Fame ceremony in New York on June 9, 2016.
Jussie Smollett before the Songwriters Hall of Fame ceremony in New York on June 9, 2016.Eduardo Munoz / Reuters file

Actor Jussie Smollett has been charged by the Cook County State’s Attorney office with felony disorderly conduct for allegedly filing a false police report claiming he was the victim of a hate-crime attack in Chicago.

The state alleges Smollett filed a false report with Chicago police on Jan. 29, when he claimed he was assaulted by two masked men who hurled racist and homophobic slurs.

Chicago Police Superintendent Eddie Johnson, speaking at a press conference, skewered Smollett and false police reports generally. He said that while no violent crimes went uninvestigated as a result of Smollett's claims, Johnson suggested that the hundreds of killings in Chicago represented a more serious problem deserving of national attention than a celebrity’s allegedly false police report.

Disorderly conduct is normally thought of as a low-level crime. In Illinois, however, making false reports to peace officers is actually a felony contained within the disorderly statute. A false report is a class four felony, punishable by up to three years in prison. The elements that make it such a felony are: any kind of transmission to a peace officer reporting a crime without reasonable grounds.

Smollett's attorneys said in a statement Wednesday night that “like any other citizen, Mr. Smollett 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." They added that they plan to "conduct a thorough investigation" and "mount an aggressive defense."

Meanwhile, the Chicago police superintendent also implicated Smollett in sending a threatening letter to the set of “Empire,” the show on which he worked, in the days before the supposed attack. The letter contained homophobic language and a white powder. The powder was later determined to be a pulverized, legal painkiller. Threats or hazardous substances sent in the mail fall within the jurisdiction of the federal government.

If Smollett was involved in mailing this letter to the set, potential federal charges may dwarf the disorderly conduct charge in state court in Chicago. The FBI is now investigating the letter, Anthony Guglielmi, Chicago police’s chief communications officer, said this month.

There are a broad array of federal criminal statutes that protect the U.S. mail, including mailing threatening communications, mailing injurious articles, and even a federal “hoax” statute.

Threatening communications contains three elements: First, the defendant threatened to injure someone. Second, the defendant deposited in the mail for delivery by the U.S. Postal Service the threatening communication. And third, the defendant mailed the threat knowingly.

“Nonmailable matter” includes “injurious articles,” which means the government must prove that a defendant knowingly caused to be delivered by mail something declared nonmailable, like a harmful substance, but with the intent to injure another person. If Smollett were charged under this statute, he could counter that he never sent anything harmful, and never had the intent to actually injure anyone.

That’s where the federal hoax statute would come in.

The hoax statute criminalizes “convey[ing] false … information under circumstances where such information may reasonably be believed and where such information indicates that an activity has taken, is taking, or will take place that would constitute a violation of” a number of listed statutes, including the prohibition against chemical weapons.

Smollett could not defend a hoax statute by arguing that there was never any actual threat because that’s the whole point of a hoax: It’s a false threat that causes harm in when it is believed. Nor could he claim that the First Amendment absolutely protects his right to make things up. His most viable defense may be holding the prosecution to its burden of proof.

False and misleading information indicating an act of terrorism is not a harmless lie. Diverting law enforcement to devote unnecessary resources and causing citizens to fear a fatal terrorist attack is the sort of harm that Congress has a legitimate right to prevent by restricting speech.

While the state court case is Smollett’s immediate concern, the federal investigation could lead to charges with more serious penalties.

Danny Cevallos is an MSNBC legal analyst. Follow @CevallosLaw on Twitter.