Washington (AFP) - The House committee probing the 2021 US Capitol assault has long argued that Donald Trump broke the law, making sensational allegations of insurrection and other crimes against the former president.
But while its nine members believe they have damned the 76-year-old Republican in the court of public opinion, building the kind of case that would stand up in a court of law is another matter.
The committee summarized the findings of its 18-month investigation in its final public meeting Monday, at which Republican vice-chair Liz Cheney pronounced Trump "unfit for any office."
The panel referred the tycoon to the Department of Justice on four charges -- obstruction of an official proceeding, conspiracy to defraud the United States, making false statements to the government and inciting insurrection.
Essentially, Trump is accused of spending months lying to supporters that the 2020 election was stolen from him, whipping up a mob to storm the Capitol in Washington and of doing nothing for hours to stop the violence.
Legal analysts have acknowledged that the case presented by the House of Representatives committee was vivid and compelling, but warn that the rules constraining prosecutors in a criminal case are more onerous.
"There is an entire set of federal rules of evidence that control what testimony a jury can hear," former US attorney Joyce Vance wrote in an analysis of the committee's work.
"DOJ would have to carefully evaluate evidence for issues like hearsay, relevance, and undue prejudice to determine whether the admissible evidence available to it is sufficient."
One-sided
Beyond smearing the committee and decrying politically-motivated witch hunts, Trump has never advanced his side of the story in any detail.
Analysts point out that the committee's presentation was one-sided and didn't address Trump's possible lines of defense, such as First Amendment protections for his speech.
Even Trump's vice-president Mike Pence, who was relentlessly targeted by his boss for refusing to help overturn the election, now defends the former president, arguing that it is not criminal to take bad advice from lawyers.
"Perhaps most crucially, Trump tended to operate elusively -- handing off tasks to subordinates, avoiding confrontation, eschewing emails -- so admissible evidence may be harder to come by than followers of the January 6th Committee might expect," Kevin O'Brien, a white-collar trial lawyer and former assistant US attorney, told AFP.
O'Brien expects Attorney General Merrick Garland to proceed with caution and isn't expecting a charging decision "any time soon," while Vance says the gap in evidentiary standards means prosecution is "not automatic."
Gerard Filitti, senior counsel at The Lawfare Project, says a hung jury would be the most likely outcome if Trump's case ever reached trial, as sufficient numbers of Americans believe he genuinely thought he was fighting the historic injustice of a stolen election.
"The DOJ is not likely to bring charges unless it feels confident in obtaining a conviction," he told AFP.
"And more detailed evidence is needed into what Trump knew and when he knew it than was made public by the January 6th committee."
'There's enough'
Committee chair Bennie Thompson has acknowledged the difference in the burden of proof between a congressional inquiry and a criminal probe, characterizing the committee's end-product as a "roadmap" for prosecuting Trump.
On the other hand, prosecutors could aim much higher than the House investigators, using powers Congress doesn't have to enforce grand jury subpoenas and obtain evidence that the lawmakers weren't able to develop.
Cheney revealed in an earlier hearing that Trump had tried to talk to a witness during the investigation -- but witness tampering is not among the charges lawmakers have asked the DOJ to consider.
Another panel member, Zoe Lofgren, said one female witness had been represented by a Trump-linked attorney who suggested she could claim falsely not to recall the answers to investigators' questions.
Lofgren said the witness had been offered a lucrative job as her testimony date approached.
"The witness believed this was an effort to affect her testimony and we are concerned that these efforts may have been a strategy to prevent the committee from finding the truth," Lofgren told the committee's meeting on Monday, its last before it wraps up its work.
The committee also pointed to White House officials, including Trump's daughter Ivanka, whose testimony was not "entirely frank or forthcoming."
Political analyst Aron Solomon, of lawyers' marketing agency Esquire Digital, told AFP charging Trump would be seen by around half of Americans as "ill-conceived" and "deeply divisive."
"But I believe the DOJ will move forward with charges because there's enough there...the DOJ may face significantly more challenging questions if they choose not to move forward."
