The disgraced “Empire” star Jussie Smollett is demanding that a court in Chicago, Illinois drop the new wave of charges against him, claiming that the grand jury testimony used in his second indictment is invalid.

Smollett was hit with new charges earlier this year related to him allegedly staging a hate crime against himself back in January of 2019. At the time, he claimed that he was jumped by two men who hurled racist and homophobic slurs at him while also shouting “this is MAGA country.” Police, however, concluded that he had staged the attack and hired two friends, brothers Abel and Ola Osundairo, to jump him in the hopes of securing a pay raise for himself on “Empire.”

Page Six reported that it is the Osundairo brothers’ testimony against Smollett that the actor is trying to use to get his case dismissed. Though initial charges against Smollett were dropped in March of 2019, Judge Michael Toomin later appointed a special prosecutor to look over the case, which led to new charges being filed against the actor back in February of this year.

Smollett’s attorneys are arguing that the new charges based on “illegal and incompetent evidence” should be thrown out.

“The OSP cannot have it both ways. It cannot convene a special grand jury based on Judge Toomin’s Order but then rely on the transcripts from those ‘void’ proceedings to secure a new indictment,” Smollett’s motion stated.

“Furthermore, there is no legitimate reason why the Osundairo brothers were not called to provide live testimony to the special grand jury, particularly when they live locally in Chicago, were available and cooperating with the OSP, and reportedly met with the OSP for hours only one month earlier,” the motion continued

Smollett’s lawyers went on to say that “the only conceivable reason for not producing them” is because the “OSP did not want to suborn further perjury by the Osundairo brothers, it did not want to risk having the brothers make additional contradictory statements prior to trial, and it did not want to allow the jurors their statutory right to question the Osundairo brothers about the incident.”

The lawyers argued that the omissions are “substantial and prejudicial,” asking the court to drop the charges on the grounds Smollett wasn’t granted his due process rights as required by the Fifth Amendment. They also alleged that the special prosecutor’s team ignored a statutory requirement to inform the grand jurors they had the right to demand their live testimony if they wanted to.

“Thus, based on the record available to the defense, the grand jurors were not aware that they could subpoena and question the Osundairo brothers instead of relying on their one-sided testimony presented by the OSP from proceedings which have been invalidated by the court. The grand jurors were also not advised that they had the power to make their own investigation unaided by the special prosecutor or the court,” the motion explained.

“The OSP’s failure to inform the special grand jury at the commencement of the proceedings, before each witness testified, and before a true bill was requested, misled the grand jury and deprived Mr. Smollett of his right to the due process of law,” it added.

A hearing about this is scheduled to take place on October 14.

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