Trump maintains that he was pressing a grievance he believed was well-founded through means he thought were legitimate. That is consistent with the advice he received from Eastman, a law professor who conceded that enlisting Pence to delay or block congressional validation of the election results would violate the Electoral Count Act but argued that the statute was unconstitutional. The question is not whether Biden actually stole the election or whether Eastman was right but whether Trump honestly believed those things.

“You need to show that he knew what he was doing was wrongful and had no legal basis,” Duke University law professor Samuel Buell, a former federal prosecutor, told the Times last year. While prosecutors would not have to show that Trump understood he was committing a specific crime, Buell said, they would need to make the case that he knew he had lost the election, recognized that he did not have a valid legal argument, and decided to proceed with “a known-to-be-false claim and a scheme that [had] no legal basis.”

Trump’s private statements to advisers such as Kushner could support or undermine that case.