Jussie Smollett, 36, is charged with felony filing a false police report in Chicago

Jussie Smollett's lawyers say he will fight the felony charge that he filed a false police report claiming two men attacked him last month, as the producers of Empire reportedly consider removing him from the show.

The Chicago Police Department announced on Wednesday night that the Cook County State's Attorney Office had approved criminal charges against 36-year-old Empire star.

His lawyers say he intends to 'mount an aggressive defense' against the class 4 felony, that could land him up to three years in prison if convicted.

Police suspect the actor, who is black and openly gay, staged a racist and homophobic assault against himself on January 29, which he claimed was carried out by white men who shouted 'this is MAGA country' as they put a noose around his neck.

As new of the charges against Smollett broke, Empire's producers were weighing whether to remove him from the Fox drama series, on which he portrays the musician Jamal Lyon, sources close to the show told Variety.

With his once bright career in seeming free-fall, Smollett is now expected to surrender for arrest and booking, police said.

'Detectives will make contact with his legal team to negotiate a reasonable surrender for his arrest,' police spokesman Anthony Guglielmi said in a statement.

Smollett is due in bond court on at 1.30pm CT on Thursday.

He was charged with filing a false police report, a Class 4 felony which carries a maximum penalty of three years imprisonment and a $25,000 fine.

In a statement to DailyMail.com, Smollett's attorneys said that he would vigorously contest the charges.

'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,' attorneys Todd Pugh and Victor Henderson said. 'Given these circumstances, we intend to conduct a thorough investigation and to mount an aggressive defense.'

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Video footage emerged Wednesday of Nigerian brothers Abel and Ola Osundairo buying ski masks, a red hat and gloves in a store the day before Smollett reported the attack

Earlier on Wednesday police announced that they were classifying Smollett as a 'suspect in a criminal investigation' and a grand jury was impaneled to hear evidence in the case.

Brothers Abel and Ola Osundairo, whom police believe participated in staging the attack, testified before the grand jury for about two and a half hours, their attorney said.

Addressing reporters outside the grand jury, attorney Gloria Schmidt said her clients had been granted no immunity deal, because they had done nothing wrong in the affair.

She said that Smollett was lying, and that she didn't know how his conscience could let him sleep at night.

The brothers' testimony came as video footage emerged of the Nigerian brothers buying ski masks, a red hat and gloves in a store the day before Smollett reported the attack.

The footage was obtained by CBS on Wednesday.

It was taken on January 28 and shows brothers Abel and Ola Osundairo inside what looks like a drug store buying the masks and one hat.

Attorney Gloria Schmidt, who is representing the two Nigerian brothers in the Jussie Smollett case, walks to a news conference at the Leighton Criminal Court Building in Chicago

Schmidt said that Smollett was lying, and that she didn't know how his conscience could let him sleep at night

Smollett told police that he was attacked by two masked assailants who punched him, poured bleach on him, tied a noose around his neck and called him 'Empire n****r f****t'.

No footage has ever emerged of the incident itself.

In the video taken inside the store the day earlier, the brothers look calm in the video as they bring the items to the register.

Abel, whose full name is Abimbola, is dressed in a blue plaid jacket. About 30 seconds into the video, he puts his hood up while standing at the register.

His younger brother Ola, who once appeared on Empire as an extra, is in a green jacket.

Once they had dumped their haul on the register, they looked at one another and waited to be served.

For four-and-a-half minutes, they stand and watch as the cashier bags up their items which included gloves, bobble hats and sunglasses.

Abel put his gloves on to leave the store and he paid cash for everything.

As they waited for the items to be bagged up, Abel got out his phone and appeared to be typing and looking through images.

He and Ola maintained conversation throughout.

The brothers were picked up by police at Chicago O'Hare Airport on Wednesday night as they returned from Nigeria.

Abel, who was dressed in a blue plaid jacket, put his hood up 30 seconds into it and then got out his phone. He appeared to type and swipe through photographs

Abel paid cash for the haul and his brother, who was wearing a purple bandanna, spoke to him as they stood at the cash register

Abel put on his gloves before he left the store. The video was taken a day before the alleged incident

The brothers walked out with two separate bags. The day after the attack, they fled to Nigeria

They flew there on January 29 hours after Smollett reported the attack and a day after they were filmed in the store.

Once in police custody last week, they reportedly told police Smollett paid them $3,500 to carry out the attack and that he also told them where to buy the rope that was put around his neck.

That was purchased in a separate store, according to police sources.

The video was shared on Wednesday as Smollett's attorneys met with prosecutors and police in Chicago.

Smollett, who claims he did not know his attackers and that it was a racist and homophobic ambush, maintains he was telling the truth.

The brothers, shown in a photo from the Instagram account they use that Smollett follows, told police he paid them to attack him

The brothers said Smollett also sent himself this letter to the Fox studio a week before the attack

Smollett follows the brothers' joint Instagram account where they post videos and photographs of themselves working out

Ola appeared on the second season of Empire as an extra. He is shown with Lee Daniels, the show's creator, on set in 2015

Police seized a red hat from the brothers' home along with ski masks when they raided it last week.

Smollett took himself to the hospital after the January 29 incident once police had left his apartment. He is shown above

Smollett said his attackers were wearing masks but there was not a description of a red hat in the initial reports.

Police have since shared their belief that at least one of them was wearing a red hat at the time of the attack.

Earlier on Wednesday, DailyMail.com learned that Kimberly Foxx, the Cook County State's Attorney in charge of the case, recused herself because she spoke with members of Smollett's family in the immediate aftermath of the attack.

'Shortly after the incident occurred in late January, State's Attorney Foxx had conversations with a family member of Jussie Smollett about the incident and their concerns, and facilitated a connection to the Chicago Police Department who were investigating the incident.

'Based on those prior conversations and out of an abundance of caution, last week State's Attorney Foxx decided to remove herself from the decision making in this matter and delegated it to her First Assistant Joseph Magats, a 28-year veteran prosecutor,' a spokesman for her office said.

Smollett being named as a suspect on Wednesday after it emerged he once lied to police by pretending to be his younger brother.

In 2007, when he was pulled over for a DUI, Smollett told the officers that he was his younger brother Jake.

Chicago PD released this image in the days after the attack which they now say shows brothers Abel and Ola on the night of the incident. For weeks, they did not know who they were but they honed in on the pair after tracking ride-sharing information from the night and the area

This was the scene after the police had 'searched' the brothers' home last week. Their relatives say they were asked about how the men knew Smollett. Police seized a number of items from their home including bleach - which was allegedly used in the attack - ski masks and a red hat

The brothers' names are included in this inventory list that police left with their relatives detailing all the items they took from the house as part of their investigation. The list included proof of residency for both brothers and bottles of LA's Totally Awesome bleach

Last Thursday, the actor wept as he said 'who the f*** would make that up' when addressing the skepticism surrounding his version of events during an interview on Good Morning America

He then wrote Jake's name on a form.

The actor, who was 25 at the time, pleaded no contest to providing police with false information, driving while intoxicated and driving without a valid license.

He was sentenced to two years probation and had to complete an alcohol awareness and education program.

Smollett's family, many of whom are also actors, have spoken out repeatedly in support of him since the January 29 attack as have many of his co-stars on Empire.

Among them is Gabby Sidibe, his roommate at one time, who said on Instagram on Wednesday: 'I know him. I believe him.'

Fox also insisted that he was not being written out of the show, as had been claimed, and called him a 'consummate professional' in a statement.

Smollett's lawyers include Mark Geragos, who has represented Michael Jackson and Colin Kaepernick, in the past.

Neither Geragos nor his other attorneys, Todd Pugh and Victor Henderson, responded to inquiries on Wednesday about the case.

Smollett being named as a suspect stands to further divide public opinion.

When news of the attack first emerged on January 29 and 30, he was inundated with support across the political spectrum.

Jussie Smollett told police in 2007 that he was his younger brother Jake (shown together) after being pulled over for a DUI

Jussie Smollett's Empire cast mate and close friend Gabby Sidibe (pictured with him on the show) supports him as does the show which said on Wednesday that he was not being written out despite the growing controversy

Among those who tweeted their condemnation of him were Democratic presidential hopefuls Kamala Harris and Cory Booker.

But as days went by with no suspects on the horizon, details about the case and the police's investigation into it began to cast doubt on Smollett's version of events.

One of the earliest sources of speculation was the fact that Smollett waited 42 minutes to call the police then refused to hand over his phone to the police for them to verify his story.

He then handed over redacted files that police described as 'insufficient'.

Cook County State's Attorney Kim Foxx has recused herself because she spoke with a member of his family immediately afterwards and 'facilitated a connection' the police

Frustrated with the coverage of his case, he hit out at the media for reporting on leaked information coming from within the Chicago police department and insisted he was the victim.

He then went on Good Morning America to protest his innocence.

In an hour-long interview with Robin Roberts, he wept as he recalled the attack and abhorred the reaction to it.

Choking back tears, he explained when asked why it took so long for him to contact the authorities: 'There is a level of pride there. We live in a society where as a gay man you are considered somehow to be weak and I am not weak. I am not weak and we as a people are not weak.'

Later, he added how desperate he was for them to find footage of the attack.

'I want that video found so badly because, for probably four reasons.

'Number one, I want them to find the people that did it.

'Number two, I want them to stop being able to say 'alleged' attack.

'Number three, I want them to see that I fought back,' he continued, welling-up.

'I want a little gay boy who might watch this to see that I fought the f*** back. They ran off,' I didn't,' he said.

After it emerged that Smollett knew the brothers and may have been involved in the staging of the attack, the celebrities and politicians who rushed to support him walked back their claims.

Nancy Pelosi deleted her tweet about it and Cory Booker said he would now be 'withholding judgement' until more information emerged.

Kamala Harris said, when questioned about her tweet that it was a 'modern day lynching', that she was 'very concerned'.