Former prosecutor explains how it will work if Trump is referred to the Justice Department for prosecution

The House Select Committee investigating the Jan. 6 attack on Congress and the attempt to overthrow the 2020 election will announce their referrals to the Justice Department this coming week. It has been leaked that the committee is going to vote on whether to refer Trump for criminal prosecution along with others, Politico reported Friday.

The concern is that the DOJ will see the demand as a political one and ignore it or that it would look as if the Justice Department special counsel was taking direction from Congress, even if he isn't.

Speaking to MSNBC on Saturday, law school professor and former federal prosecutor Joyce White Vance explained that it depends on how the committee views its role.

"Will they take on the role of prosecutors to decide whether there is admissible evidence to prove each of these charges beyond a reasonable doubt?" she posed as a question. "I think that is hard for that committee to do, and it is really not their purpose. It is more likely that they are thinking about our evidence in general terms, and whether there is, to use a legal term, probable cause to believe that these crimes have been committed. They won't really have to deal with the legal issues DOJ would have to deal with to decide whether to indict. They will simply view their evidence in a common sense sort of approach."

It's possible, given that, that they could recommend Trump for prosecution on all three of the charges, including insurrection. She explained that it is the most difficult of the three to decide because it requires proof of intent to interfere with the government.

MSNBC host Yasmin Vossoughian cited the Feb. 2022 ruling by Judge Amit Mehta, who said that Trump's rhetoric could prove the intent to incite violence. Since that ruling, it was revealed that Trump knew the crowd was heavily armed and that they weren't there to attack him.

Judge David Carter was even stronger in his ruling, saying that Trump's Jan. 6 was a "coup in search of a legal theory."

In the end, the DOJ will make its own decision and assessments regardless of what Congress recommends.

"I know this is awfully Law School 101 sort of stuff, but these burdens of proof, what prosecutors have to prove, that is the critical point here," Vance explained. "In civil cases, the burden is much lower. Plausible, more likely than not. In a criminal case, you have to convince a unanimous jury that the defendant is guilty beyond a reasonable doubt. That doesn't mean beyond speculation, as anyone who's ever sat on the criminal jury knows that the judge will tell them, it is not any conceivable doubt, it is a reasonable doubt that is still a very high burden DOJ has to."

She noted that inside the DOJ the belief is that "you're damnded if you do and you're damned if you don't, so you might as well do it."

Beyond the Jan. 6 problems, Trump also faces serious legal issues over stealing documents from the White House.

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