(Bloomberg) — Former President Donald Trump’s long delay in calling for an end to last year’s assault on the U.S. Capitol could be viewed as evidence that he agreed with the rioters’ actions, a federal judge suggested.
U.S. District Judge Amit Mehta asked why it shouldn’t be seen that way during a hearing in Washington on Trump’s motion to dismiss three lawsuits alleging he conspired with other defendants to incite the Jan. 6, 2021, insurrection.
“What would you have me do with the allegation that the president did not act?” Mehta questioned Trump lawyer Joseph Sibley, adding, “You have an almost two-hour period in which the president doesn’t take to Twitter or any other type of communication and say ‘Stop, get out of the Capitol. What you’re doing is not what I wanted you to do.’”
Sibley didn’t attempt to explain the delay but argued that it can’t be used as evidence against Trump. “You cannot have a situation where failure to say something is, in itself, actionable and part of the conspiracy,” he said.
Read More: Trump Says He Didn’t Owe ‘Duty of Care’ to Rivals on Jan. 6
The plaintiffs, who include members of Congress and two police officers, allege they were traumatized or injured during the assault on the Capitol. They point to Trump’s handling of the riot as it unfolded as evidence that he was part of a conspiracy to make it happen, including by inviting his supporters to march on the Capitol and “fight.”
Donald Trump Jr., former Trump lawyer Rudolph Giuliani and right-wing groups like the Oath Keepers are also named as defendants in the suit.
Trump has sought to dismiss the suits on the grounds that his Jan. 6 speech is immune from litigation as a presidential act. Mehta asked if the speech falls into that category “even if it has nothing to do with the office of the president and the duties of the president?”
Trump attorney Jesse Binnall said it does.
“Giving a speech is something that presidents do — using the bully pulpit,” Binnall said.
Read More: Trump and Jan. 6 Rioters Face Broad Legal Threat in New Year
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