An appeals court judge has denied former President Donald Trump’s request to delay the start of his New York hush money trial so he can challenge the gag order imposed by Judge Juan Merchan.
New York Associate Justice Cynthia Kern denied the application for an interim stay just minutes after hearing arguments on the matter Tuesday.
A full appeals court panel will still consider Trump’s petition, though it will not delay the start of the trial.
Motions are due on Monday, the day the jury selection is scheduled to start. The panel of judges will rule on whether to stay the trial after they receive briefs that day, which means in theory the trial could be paused after it starts, though that possibility appears remote. The panel will decide about the gag order itself after April 29, when submissions are due.
The panel of judges will rule on the written papers; there will be no oral arguments.
Tuesday’s petition was the second unsuccessful attempt Trump’s lawyers have made this week to try to postpone the start of the hush money trial, now six days away. Trump has been charged with 34 counts of falsifying business records over the reimbursement of hush money payments made before the 2016 election. The former president has pleaded not guilty.
It’s the first of four potential criminal trials Trump faces, although it could be the only one that occurs before the 2024 election.
During Tuesday’s arguments, Trump’s attorneys urged the appeals court judge to stop the start of the trial so they could challenge Merchan’s gag order in the New York hush money case, arguing that the former president is enduring irreparable harm from the gag order that’s infringing on his First Amendment rights.
Emil Bove, an attorney for Trump, said that the former president’s comments may be rude but that none of the parties have said they rise to the level of incitement.
Merchan put in place the gag order ahead of the trial, which barred Trump from publicly commenting on witnesses and the staff of the court and district attorney. He expanded the gag order to cover his own family after Trump went after Merchan’s daughter on social media.
Trump’s attorney argued Tuesday that Michael Cohen and Stormy Daniels, two expected witnesses in the case, are commenting on the merits of the case on a daily basis and that the gag order unfairly bars Trump from responding.
The gag order also bars Trump from commenting on his publicly filed motion for recusal that pertains to Merchan’s daughter, Bove said.
Trump’s lawyer also argued that Trump should also be able to publicly discuss prosecutor Matthew Colangelo, a former Justice Department prosecutor whom Bove said is comparable to Manhattan District Attorney Alvin Bragg, who is not protected under the gag order because he’s a public figure.
The district attorney’s office, which requested the gag order be put in place, argued Trump has a history of making threatening remarks in his cases.
Manhattan District Attorney’s Office Chief of Appeals Steven Wu said there has been a challenge getting people to testify as witnesses “because they know what their names in the press may lead to.”
Wu argued that Trump’s statements have already impacted the case and have a “significant deterrent effect” not just on the targets but also those who “understand themselves to be vulnerable if they involve themselves in this proceeding.”
“We’re talking about defendant’s uncontested history of making inflammatory, threatening, defamatory remarks,” Wu said. “This is not political debate,” he added.
Wu said that while Trump cannot comment on witnesses and their direct connection to this case and the allegations, Trump is allowed to talk about his history with witnesses like Cohen.
Trump’s lawyer argued it was a narrow request, but Wu responded that what Trump is seeking is far broader and is no basis to derail the trial.
“There is no basis for staying a criminal trial based upon a challenge to a collateral order,” said Wu. “The criminal trial should proceed regardless of any stay they’re arguing for here. That is extremely important to us.”
He also argued that Trump’s attorneys waited two weeks until after the gag order was first imposed and now bring it one week before the trial is scheduled to begin.
The documents related to the gag order are not publicly available and have been sealed.
Trump also sought this week to delay the trial so he could argue for a venue change, but an appeals court judge rejected that request on Monday.
This story has been updated with additional details and background information.
