Federal prosecutors investigating former President Donald J. Trump’s attempts to overturn the 2020 election have questioned several witnesses in recent weeks — including Mr. Trump’s son-in-law, Jared Kushner — about whether Mr. Trump made private admissions in the days leading up to the 2020 election. an election he lost, according to four people briefed on the matter.
The line of questioning suggests that prosecutors are trying to establish whether Mr. Trump acted with corrupt intent as he sought to stay in power — essentially that his efforts were knowingly based on lies — evidence that could significantly strengthen any case they might decide to bring. against him
Mr. Kushner testified before a grand jury in federal court in Washington last month, where he reportedly claimed it was his impression that Mr. Trump truly believed the election was stolen, according to a person briefed on the matter.
The questioning of Mr. Kushner shows that the federal investigation led by special counsel Jack Smith continues to pierce the layers closest to Mr. Trump, as prosecutors weigh whether to indict the former president in connection with efforts to promote baseless claims about widespread voter fraud and blocking or delaying congressional certification of Joseph R. Biden Jr.’s Electoral College victory.
A spokesman for Mr. Kushner and a spokesman for Mr. Trump did not respond to an email seeking comment.
But others in Mr. Trump’s orbit who interacted with him in the weeks after the 2020 election, who have potentially more damaging accounts of Mr. Trump’s behavior, have been questioned by the special counsel’s office recently.
Among them is Alyssa Farah Griffin, the White House communications director in the days after the 2020 election. Repeating an account she gave last year to the House Select Committee on Jan. 6, she told prosecutors this spring , that Mr. Trump told her in the days after the election: Can you believe I lost to Joe Biden?
“At that point I think he knew he had lost,” Ms Griffin told the House Committee.
Ms. Griffin’s attorney, Charles J. Cooper, declined to comment.
Still other witnesses were asked whether aides told Mr. Trump he had lost, according to people familiar with some of the testimony, another issue being investigated by the House committee. Witnesses were also asked about things the former president told people in the summer months leading up to Election Day and even into the spring of 2020, when the coronavirus pandemic began.
The question of Mr. Trump’s intent could be important in strengthening the hand of prosecutors if they decide to charge Mr. Trump in the case. It is not known what charges they might be considering, but the House special committee, controlled by Democrats, sent a number of possible charges to the Justice Department last year, including inciting sedition, conspiracy to defraud the United States and obstructing action by Congress.
Mr. Trump already faces federal charges brought by Mr. Smith related to classified documents taken from the White House, and he is indicted in New York on charges related to hush money to a pornographic actress before the 2016 election. A Fulton County prosecutor, Ga., investigated efforts by Mr. Trump and his allies to reverse his 2020 election loss in Georgia.
Legal experts and former federal prosecutors say establishing Mr. Trump’s mindset to show that he knew what he did was wrong would give prosecutors in the election-focused investigation of Mr. Smith a stronger case. case to put before a jury, if they. choose to bring charges.
Prosecutors don’t need hard evidence from a defendant saying: I know I’m breaking the law. But their cases become stronger when they can produce evidence that the defendant knows there is no legal or factual basis for a claim but proceeds to make it anyway.
Daniel Zelenko, a partner at the firm Crowell & Moring and a former federal prosecutor, said being able to quote a defendant’s own words can go a long way in helping prosecutors convince a jury that the defendant should be convicted.
“Words are incredibly powerful in white-collar cases because in many of them you won’t hear from a defendant because they will rarely take the stand,” he said. “So, putting those words in front of a jury gives them more weight and makes them more consistent.”
Andrew Goldstein, the lead prosecutor for the obstruction investigation into Mr. Trump and a partner at the law firm Cooley, said there were other advantages to having Mr. Trump’s own statements, which were critical in such a potentially weighty case.
“Equally important, if the Department of Justice has such evidence, it could help justify to the public why charges in this case would be necessary to bring,” Mr. Goldstein said.
Some aides and allies who interacted with Mr. Trump in the days after the election previously revealed that Mr. Trump had indicated that he knew he had lost the election. In testimony before the House Select Committee, the chairman of the Joint Chiefs of Staff, General Mark A. Milley, said that in an Oval Office meeting in late November or early December 2020, Mr. Trump acknowledged that he had lost the election
“He’s saying things like, ‘Yeah, we lost, we’ve got to let that thing go to the next guy,'” Mr. Milley said, adding: “Like President Biden.”
“And the whole gist of the conversation was – and it went on – that meeting lasted maybe an hour or something like that – very reasonable,” General Milley said. “He was calm. It was nothing – the topic we were talking about was a very serious topic, but everything looked very normal to me. But I remember him saying that.”
General Milley said, however, that in subsequent meetings Mr. Trump increasingly discussed how the election was stolen from him.
“It wasn’t there in the first session, but then all of a sudden it starts to appear,” General Milley said.
An early December 2020 text message between some of Mr. Trump’s lawyers, released Tuesday night, shows Mr. Trump seeking reports at the time about how the election was stolen, if they were not proven. The text was sent by one of Mr. Trump’s personal lawyers, Boris Epshteyn, to other members of the legal team, including Rudolph W. Giuliani. Mr. Epshteyn said he relayed a direct message from Mr. Trump’s communications aide Jason Miller.
“Urgent POTUS request needs best examples of ‘election fraud’ which we claimed was very easy to explain,” the text message said. “It doesn’t necessarily have to be proven, but it has to be easy to understand.”
He continued, “Is there any ‘greatest hits’ clearinghouse anyone has for best examples? Thanks!!!”
That same day, Mr. Giuliani responded: “The security camera in Atlanta alone captures a theft of a minimum of 30,000 votes, which alone would have changed the outcome in Georgia.” He continued, “Remember that it will live in history as the theft of a state if it is not corrected by the State Legislature.”
The text messages were released in connection with a defamation lawsuit filed by two Georgia election workers against Mr. Giuliani.
Mr. Trump has continued to claim publicly, without any credible evidence, that he lost his re-election bid due to fraud and defended the motivations of the mob, which sought to disrupt the certification of his loss on January 6, 2021.
Even if Mr. Kushner, a key White House adviser to Mr. Trump, has not provided prosecutors with evidence to bolster any charges they might bring, his testimony gives them a sense of what he might say if called. of the defense to testify in any. an attempt
The New York Times reported in February that Mr. Smith’s office had subpoenaed Mr. Kushner and his wife, Ivanka Trump, to testify before the grand jury. The special counsel’s office has yet to question her before the grand jury. Mrs. Trump testified before the House committee last year.
A House committee on Jan. 6 determined that Mr. Trump’s decision to declare victory on election night even though the votes had not yet been fully counted was not spontaneous, but rather a “premeditated” plan advanced by a small group of his counselors
The panel found evidence, for example, that Tom Fitton, the head of the conservative group Judicial Watch, was in direct communication with Mr. Trump even before Election Day and understood that he would “falsely declare victory on election night and call for the vote .counting to quit.”
Similarly, congressional investigators unearthed an audio recording made on Oct. 31, 2020, of Stephen K. Bannon, a former adviser to Mr. Trump, who told associates that the president was about to declare that he had won the election.
“But that doesn’t mean he’s a winner,” Mr. Bannon said in the recording. “He’ll just say he’s a winner.”
Mr. Bannon was subpoenaed last month to appear before the grand jury in Washington investigating Mr. Trump’s efforts to overturn the election.
In the past two years, reported accounts of Mr. Trump’s final months in office have included his former White House chief of staff, Reince Priebus, describing to a friend how Mr. Trump had. presented a script the month before the election he planned to deliver on election night, saying he would have won if he was ahead in the early returns.
On election night, Mr. Giuliani — who, witnesses testified to the House committee, appeared drunk — wanted Mr. Trump to go ahead with the plan to simply declare victory. Mr. Giuliani was the only adviser urging Mr. Trump to pursue that course, the committee found.
Among those who told Mr. Trump on election night that it was too early to know whether he had won or lost were his campaign manager, Bill Stepien, and Mr. Miller, the communications adviser. In the weeks that followed, several other aides and advisers told Mr. Trump that there was no evidence of fraud sufficient to change the results of the election, including William P. Barr, his former attorney general.
Alan Feuer and Jonathan Swan contributed reporting.