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Georgetown Law professor on the Jan. 6 committee's final hearing

JUANA SUMMERS, HOST:

The final hearing of the House select committee investigating the January 6 attack on the Capitol wrapped up this afternoon, officially making Donald Trump the first former president to ever be subject to criminal referrals from Congress. The four referrals the panel made against him are obstruction of an official proceeding, conspiracy to defraud the United States, conspiracy to make a false statement and incite, assist or aid and comfort an insurrection. Committee leaders alluded to evidence and testimony from dozens of witnesses gathered over the last year about the former president's role in the attack.

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LIZ CHENEY: The Capitol was invaded, the electoral count was halted and the lives of those in the Capitol were put at risk. In addition to being unlawful, as described in our report, this was an utter moral failure.

BENNIE THOMPSON: We have every confidence that the work of this committee will help provide a road map to justice.

SUMMERS: Let's hear more about where that road map may lead with Paul Butler, Georgetown University law professor and former federal prosecutor. Thanks for being here.

PAUL BUTLER: Great to be here.

SUMMERS: So you used to respond to criminal referrals when you worked at the DOJ, and you have watched, along with all of us, the panel's investigation unfold. Is there anything that you've seen or heard that feels like a slam dunk for the Justice Department to pursue prosecution on the charges laid out?

BUTLER: There are no slam dunks when it comes to what would be the first prosecution of a former president in history. And the House referral carries no legal weight. The Justice Department is an independent agency that takes its marching orders not from Congress, but from the attorney general and, in this case, special counsel Jack Smith. Still, federal prosecutors will scour the evidence that thousands gathered, including the hundreds of thousands of documents, text messages and emails and the statements of more than 1,000 witnesses.

SUMMERS: So just walking us through this here. What could, perhaps, stop the Justice Department from pursuing prosecution?

BUTLER: You know, it's very difficult to prove criminal intent. You have to prove what's going on in someone's mind. If Donald Trump, in good faith, honestly believe that he won the election, that's a defense to many of the crimes that are - he's being consider - that DOJ is considering prosecuting him for. The government would have to prove that Trump knew that he lost and he just didn't care.

SUMMERS: Earlier, you mentioned special counsel Jack Smith, who the Justice Department already has investigating the January 6 insurrection. So how does the House committee's work come into play for Smith and his team?

BUTLER: So the evidence will inform DOJ's and special counsel Smith's decision about whether to bring criminal charges, with the caution that it's much easier to present a case in a one-sided hearing, like today, rather than in a criminal trial, where some of the evidence that the House considered might not even be admitted and where 12 jurors would have to be persuaded beyond a reasonable doubt.

SUMMERS: We've got about a minute left to gather the road map that committee Chairman Bennie Thompson mentioned. It's vast - hundreds of thousands of pages of documents and testimony from more than a thousand interviews. How long might it be before we have a sense of what the Department of Justice is going to do here?

BUTLER: The Justice Department isn't supposed to think about politics, but it's allowed to notice that there's a presidential election coming up in two years. Chairman Thompson said today he hoped the report would be a road map to justice. And a prosecution of a former president would be historic and unprecedented. But it's also a must-win case for the Justice Department because there's no guarantee it would actually win.

And - really quickly - DOJ officials also understand that declining to prosecute would be symbolic as well. It will express to some people that Trump is innocent. And under the law, that would be exactly right if there's no prosecution. But some other people would say that Trump had enough money and power to get away with criminal conduct and that DOJ would have failed to hold the president accountable. So the stakes are really high.

SUMMERS: Stakes are high.

BUTLER: And whatever DOJ does is going to be very controversial.

SUMMERS: Former federal prosecutor and Georgetown law professor Paul Butler, thank you so much.

BUTLER: Always a pleasure. Transcript provided by NPR, Copyright NPR.

Linah Mohammad
Prior to joining NPR in 2022, Mohammad was a producer on The Washington Post's daily flagship podcast Post Reports, where her work was recognized by multiple awards. She was honored with a Peabody award for her work on an episode on the life of George Floyd.
Ashley Brown is a senior editor for All Things Considered.
Juana Summers is a political correspondent for NPR covering race, justice and politics. She has covered politics since 2010 for publications including Politico, CNN and The Associated Press. She got her start in public radio at KBIA in Columbia, Mo., and also previously covered Congress for NPR.