NEW YORK – A New York appeals court judge Tuesday rejected Donald Trump’s latest attempt to delay his hush money criminal trial, taking just 12 minutes to swat aside an argument that it should be postponed while the former president fights a gag order.
Justice Cynthia Kern’s ruling was the second time in as many days that the state's mid-level appeals court refused to postpone the trial, set to begin next week, further narrowing any plausible path to the delay that Trump’s legal team has repeatedly sought.
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Trump’s lawyers wanted the trial delayed until a full panel of appellate court judges could hear arguments on lifting or modifying a gag order that bans him from making public statements about jurors, witnesses and others connected to the hush-money case.
They argue the gag order is an unconstitutional curb on the presumptive Republican nominee’s free speech rights while he’s campaigning for president and fighting criminal charges.
“The First Amendment harms arising from this gag order right now are irreparable,” Trump lawyer Emil Bove said at an emergency hearing Tuesday in the state’s mid-level appeals court.
Bove argued that Trump shouldn't be muzzled while critics, including his former lawyer and fixer Michael Cohen and porn actor Stormy Daniels, routinely assail him. Both are key prosecution witnesses.
Bove also argued that the order unconstitutionally restricts Trump's critiques of the case — and, with them, his ability to speak to the voting public and its right to hear from him.
Steven Wu, the appellate chief for the Manhattan district attorney’s office, countered that there is a “public interest in protecting the integrity of the trial."
“What we are talking about here is the defendant's uncontested history of making inflammatory, denigrating" comments about people involved in the case, Wu said. “This is not political debate. These are insults."
Wu said prosecutors already have had trouble getting some witnesses to testify “because they know what their names in the press may lead to.” Wu didn't identify the witnesses but noted they included people who would testify about record-keeping practices.
The gag order still affords Trump “free rein to talk about a host of issues,” noting that he can comment on Judge Juan M. Merchan and District Attorney Alvin Bragg and “raise political arguments as he sees fit.” Trump has repeatedly lambasted Bragg, a Democrat, and the judge.
Barring further court action, jury selection will begin on April 15.
Merchan issued the gag order last month at prosecutors' urging, then expanded it last week to prohibit comments about his own family after Trump lashed out on social media at the judge's daughter, a Democratic political consultant, and made what the court system said were false claims about her.
Tuesday was the second of back-to-back days for Trump's lawyers in the appeals court. Associate Justice Lizbeth González on Monday rejected their request to delay the trial while Trump seeks to move his case out of heavily Democratic Manhattan.
Trump's lawyers framed their gag order appeal as a lawsuit against Merchan. In New York, judges can be sued to challenge some decisions under a state law known as Article 78.
Trump has used the tactic before, including against the judge in his recent New York civil fraud trial in an unsuccessful last-minute bid to delay that case last fall and again when that judge imposed a gag order barring trial participants from commenting publicly on court staffers. That order came after Trump smeared the judge’s principal law clerk in a social media post.
A sole appeals judge lifted the civil trial gag order, but an appellate panel restored it two weeks later.
Trump's hush-money criminal case involves allegations that he falsified his company’s records to hide the nature of payments to Cohen, who helped him bury negative stories during his 2016 campaign. Cohen’s activities included paying Daniels $130,000 to suppress her claims of an extramarital sexual encounter with Trump years earlier.
Trump pleaded not guilty last year to 34 felony counts of falsifying business records. He has denied having a sexual encounter with Daniels. His lawyers argue the payments to Cohen were legitimate legal expenses.
Trump has made numerous attempts to get the trial postponed.
Last week, as Merchan swatted away various requests to delay the trial, Trump renewed his request for the judge to step aside from the case. The judge rejected a similar request last August.
Trump's lawyers allege the judge is biased against him and has a conflict of interest because of his daughter Loren's work as president of Authentic Campaigns, a firm with clients that have included President Joe Biden and other Democrats. Trump's attorneys complained the expanded gag order was shielding the Merchans “from legitimate public criticism.”
Merchan had long resisted imposing a gag order. At Trump’s arraignment in April 2023, he admonished Trump not to make statements that could incite violence or jeopardize safety, but stopped short of muzzling him. At a subsequent hearing, Merchan noted Trump’s “special” status as a former president and current candidate and said he was “bending over backwards” to ensure Trump has every opportunity “to speak in furtherance of his candidacy.”
Merchan became increasingly wary of Trump’s rhetoric disrupting the historic trial as it grew near. In issuing the gag order, he said his obligation to ensuring the integrity of the proceedings outweighed First Amendment concerns.
Trump reacted on social media that the gag order was “illegal, un-American, unConstitutional” and said Merchan was “wrongfully attempting to deprive me of my First Amendment Right to speak out against the Weaponization of Law Enforcement” by Democratic rivals.
Trump suggested without evidence that Merchan's decision-making was influenced by his daughter’s professional interests and made a claim, later repudiated by court officials, that Loren Merchan had posted a social media photo showing Trump behind bars.
After the outburst, Merchan expanded the gag order April 1 to prohibit Trump from making statements about the judge's family or Bragg's family.
“They can talk about me but I can’t talk about them???” Trump reacted on his Truth Social platform.