Federal prosecutors investigating former President Donald J. Trump’s attempts to quash the 2020 election have questioned several witnesses in recent weeks, including Trump’s son-in-law Jared Kushner, about whether Trump had privately acknowledged in the days after the 2020 election. election he had lost, according to four people briefed on the matter.
The line of questioning suggests that prosecutors are trying to establish whether Mr. Trump was acting with corrupt intent as he sought to remain in power, essentially that his efforts were knowingly based on a lie, evidence that could substantially bolster any case they decide. introduce. Against him.
Kushner testified before a grand jury in federal court in Washington last month, where he is said to have maintained that he was under the impression that Trump really believed the election was stolen, according to a person briefed on the matter.
Kushner’s cross-examination shows that the federal investigation led by special counsel Jack Smith continues to pierce the layers closest to Trump as prosecutors weigh charging the former president in connection with efforts to promote unsubstantiated claims of widespread voter fraud and to block or delay Congressional certification of the Electoral College victory of Joseph R. Biden Jr.
A Kushner spokesperson and a Trump spokesperson did not respond to an email seeking comment.
But others in Trump’s orbit who interacted with him in the weeks after the 2020 election, who have potentially more damaging accounts of Trump’s behavior, have recently come under fire from the special counsel’s office.
Among them is Alyssa Farah Griffin, the White House director of communications in the days after the 2020 election. Repeating an account she provided to the House select committee last year on Jan. 6, she told prosecutors this spring that Trump had said to him in the days after the election: Can you believe I lost to Joe Biden?
“I think at that point he knew he had lost,” Griffin told the House committee.
Ms. Griffin’s attorney, Charles J. Cooper, declined to comment.
Other witnesses were asked if aides told Trump that he had lost, according to people familiar with some of the testimony, another issue being explored by the House committee. Witnesses have also been questioned about things the former president was saying to people in the summer months leading up to Election Day and even in the spring of 2020 when the coronavirus pandemic began.
The question of Trump’s intent could be important in strengthening the hand of prosecutors if they decide to charge Trump in the case. It is not known what charges they might be considering, but the Democratic-controlled House select committee referred a number of possible charges to the Justice Department last year, including inciting an insurrection, conspiring to defraud the United States and obstructing a act of Congress.
Trump is already facing federal charges brought by Smith in connection with classified documents taken from the White House, and is indicted in New York on charges related to hush money payments to a pornographic film actress ahead of the 2016 election. A district attorney in Fulton County, Georgia, has been investigating efforts by Trump and his allies to reverse their 2020 election defeat in Georgia.
Legal experts and former federal prosecutors say establishing Trump’s mindset to show he knew what he was doing was wrong would give prosecutors in the Smith election-focused probe a stronger case to make to a jury if they choose to present. charges.
Prosecutors don’t need hard evidence from a defendant saying, I know I’m breaking the law. But their cases are strengthened when they can produce evidence that the defendant knows there is no legal or factual basis for a claim, but goes ahead with the filing 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 a lot of them you’re not going to hear a defendant because they’re rarely going to take the stand,” he said. “So having those words in front of a jury gives them more weight and makes them more consequential.”
Andrew Goldstein, the lead prosecutor in the Trump obstruction investigation and a partner at the Cooley law firm, said there were other benefits to having Trump’s own statements that were critical in such a potentially important case.
“Just as importantly, if the Justice Department has this kind of evidence, it could help make the case to the public why charges would need to be brought in this case,” Goldstein said.
Some advisers and allies who interacted with Trump in the days after the election previously revealed that Trump indicated he knew he had lost the election. In testimony before the House select committee, Chairman of the Joint Chiefs of Staff Gen. Mark A. Milley said that in an Oval Office meeting in late November or early December 2020, Trump acknowledged that he had lost the elections.
“He’s saying words to the effect of: Yeah, we lost, we’ve got to let it go to the next guy,” Milley said, adding, “Referring to President Biden.”
“And the whole gist of the conversation was, and it lasted, that meeting lasted for maybe an hour or so, very rational,” General Milley said. “I was calm. There was nothing, the topic we were talking about was a very serious topic, but everything seemed very normal to me. But I do remember him saying that.”
However, General Milley said that in subsequent meetings, Trump had 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 showing up,” General Milley said.
An early December 2020 text message between some of Trump’s lawyers, released Tuesday night, shows Trump currently seeking reports of how the election was stolen, if they had not been substantiated. The text was sent by one of Trump’s personal lawyers, Boris Epshteyn, to other members of the legal team, including Rudolph W. Giuliani. Epshteyn said he was relaying a direct message from Trump’s communications aide Jason Miller.
“The POTUS urgent request needs the best examples of ‘voter fraud’ which we have claimed is very easy to explain,” the text message read. “It doesn’t necessarily have to be proven, but it should be easy to understand.”
He continued: “Is there some kind of ‘greatest hits’ clearinghouse that anyone has to get the best examples? Thank you!!!”
That same day, Mr. Giuliani responded: “Only the security camera in Atlanta captures the theft of a minimum of 30,000 votes that alone would change 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 made public in connection with a defamation lawsuit filed by two Georgia poll workers against Giuliani.
Trump has continued to publicly maintain, without any credible evidence, that he lost his re-election bid due to fraud and has defended the motivations of the mob that tried to disrupt the certification of his loss on January 6, 2021.
Even if Mr. Kushner, a key White House adviser to Mr. Trump, didn’t provide prosecutors with evidence to support any charges they might bring, his testimony gives them an idea of what he might say if called on by the defense. to testify in any case. rehearsal.
The New York Times reported in February that Smith’s office had subpoenaed Kushner and his wife, Ivanka Trump, to testify before the grand jury. The special counsel’s office has yet to cross-examine her before the grand jury. Ms. Trump testified before the House committee last year.
The January 6 House committee determined that Trump’s decision to declare victory on election night despite the fact that the votes had not yet been fully counted was not spontaneous, but rather a plan.” premeditated” promoted by a small group of his advisors.
The panel found evidence, for example, that Tom Fitton, the head of the conservative Judicial Watch group, was in direct communication with Trump even before Election Day and understood that he would “falsely declare victory on election night and ask for the vote. counting to stop
Similarly, congressional investigators unearthed an audio recording made on October 31, 2020, of Stephen K. Bannon, a former Trump adviser, who told associates that the president was going to summarily declare that he had won the election.
“But that doesn’t mean it’s a winner,” Bannon said on the recording. “It’s just going to say that he’s a winner.”
Bannon received a subpoena last month to appear before the grand jury in Washington investigating Trump’s efforts to overturn the election.
Over the past two years, reports of Trump’s final months in office included his former White House chief of staff, Reince Priebus, describing to a friend how Trump had represented a script the month before the election that he planned to deliver on election night, saying he had won if he was ahead in early results.
On election night, Giuliani — who, witnesses testified before the House committee, appeared drunk — wanted Trump to go ahead with the plan to simply declare victory. Giuliani was the only adviser who encouraged Trump to go down that path, the committee found.
Among those who told Trump on election night that it was too soon to tell whether he had won or lost were his campaign manager, Bill Stepien, and Miller, the communications adviser. In the weeks that followed, Trump was told by several other aides and advisers that there was not enough evidence of fraud to change the election results, including William P. Barr, his former attorney general.
alan feuer and jonathan swan contributed reporting.