Is Donald Trump civilly liable for the injuries and distress caused by the January 6th riot?

That was the issue before U.S. District Judge Amit Mehta on Monday in a Washington D.C. courtroom as he considered whether three separate lawsuits filed against Trump can proceed. The suits, which also list Trump allies like Rudy Giuliani, Rep. Mo Brooks, and Donald Trump Jr. as defendants, were filed by Capitol Police officers and members of Congress.

Mehta noted that on the morning of January 6th, Trump explicitly told a group of supporters to March to the Capitol and “fight like hell.” Yet, the judge said, Trump was silent for two hours as those diehards overran the building and assaulted law enforcement personnel.

“What do I do about the fact the President didn’t denounce the conduct immediately … and sent a tweet that arguably exacerbated things?” the judge asked. “Isn’t that, from a plausibility standpoint, that the President plausibly agreed with the conduct of the people inside the Capitol that day?”

“If my words had been misconstrued … and they led to violence, wouldn’t somebody, the reasonable person, just come out and say, wait a second, stop?”

U.S. District Judge Amit Mehta

Trump’s lawyer, Jesse Binnall, rejected the idea that Trump is subject to civil lawsuits, asserting that presidents are “immune.”

“So the president, in your view, is both immune to inciting the riot and failing to stop it?” Mehta asked.

“That absolute immunity of the presidency is very important,” Binnall explained. He added that Trump’s controversial phone call with Georgia Secretary of State Brad Raffensperger – in which Trump instructed Raffensperger to “find” votes – was also protected by presidential privileges.

Joseph Sellers, a lawyer representing several congressman suing Trump, dismissed that argument. “By Mr. Binnall’s argument, the president could promote treason in a public forum and the court would be powerless to assess whether his conduct … was immune. That’s just — that’s inconceivable,” Sellers said.

Judge Mehta – an Obama appointee who is handling several January 6th cases – seems inclined to believe that Trump bears some responsibility for the riot. POLITICO reports:

In recent weeks, Mehta has made clear that he views the role of powerful actors — including Trump — as an important driver of the attack on the Capitol. During sentencing for one Jan. 6 defendant, John Lolos, Mehta said he viewed the low-level Jan. 6 defendants as “pawns” paying the price for the lies of other, more powerful players.

“People like Mr. Lolos were told lies, told falsehoods, told our election was stolen when it clearly was not,” Mehta said at the time. “We’re here today deciding whether Mr. Lolos should spend 30 days in jail when those who created the conditions that led to Mr. Lolos’ conduct, led to the events of Jan. 6 [haven’t been] held to account for their actions and their word.”

Rep. Mo Brooks – an Alabama Republican who spoke at the rally that proceeded the Capitol attack – represented himself at Monday’s hearing. He argued that his speech was part of his official duties as a congressman and therefore he’s not liable for any ensuing damages.