"There was no duly elected state's attorney when Jussie Smollett was arrested," when he was charged, or when the case was dismissed, Toomin said Friday, according to the Sun-Times. "Ms. Foxx had already affected her recusal."
Toomin said the special prosecutor may charge Smollett "if reasonable grounds exist," WMAQ-TV reported. The Tribune reported others could also face charges as a result of the investigation.
Smollett was arrested in February after authorities said he faked a racist, homophobic attack against himself in downtown Chicago earlier in the year. Prosecutors abruptly dropped the case in March.
The actor had told officers he was confronted in the predawn hours Jan. 29 by a pair of men who yelled racial and homophobic slurs at him, hit him in the face, poured an unknown substance on him and wrapped a rope around his neck.
Smollett has denied faking the attack. Since charges were dropped against Smollett, police and prosecutors have said they still believe Smollett is guilty.
Authorities continue to investigate.