NEW YORK (AP) — Donald Trump’s lawyers asked a New York appeals court Tuesday to lift the former president’s gag order just days before the start of his hush-money criminal trial.
Trump’s lawyers argue that banning Trump from making public statements about jurors, witnesses and others connected to the case is an unconstitutional prior restraint on his free speech rights while he’s campaigning for president and fighting criminal charges.
The state’s mid-level appeals court held an emergency hearing Tuesday morning.
The trial judge, Juan M. Merchan, issued the gag order last month at the urging of Manhattan prosecutors, who cited Trump’s “long history of making public and inflammatory remarks” about people involved in his legal cases.
Merchan expanded the gag order last week to prohibit comments about his own family after Trump lashed out on social media at his daughter, a Democratic political consultant, and made false claims about her.
It’s the second of back-to-back days for Trump’s lawyers in the appeals court.
On Monday, Associate Justice Lizbeth González rejected the defense’s request to delay the April 15 trial while Republican 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 civil fraud trial in an unsuccessful last-minute bid to delay that case last fall and again when that judge imposed a gag order on him.
Trump’s hush-money criminal case involves allegations that he falsified his company’s records to hide the nature of payments to his former lawyer and fixer Michael Cohen, who helped him bury negative stories during his 2016 campaign. Cohen’s activities included paying porn actor Stormy 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, leaning into the strategy he proclaimed to TV cameras outside a February pretrial hearing: “We want delays.”
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, whose clients have included President Joe Biden and other Democrats. They 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.
The gag order does not bar comments about Merchan, whom Trump has referred to as “a Trump-hating judge” with a family full of “Trump haters,” or about Manhattan District Attorney Alvin Bragg, an elected Democrat.
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. “That sounds fair, doesn’t it? This Judge should be recused, and the case should be thrown out.”
Trump filed a similar legal challenge last year over a gag order in his civil fraud case.
Judge Arthur Engoron had issued that order after Trump smeared the judge’s principal law clerk in a social media post. The gag order barred parties in the case — and, later, their lawyers as well — from commenting publicly on court staffers, though not on the judge himself.
A sole appeals judge lifted the gag order, but a four-judge appellate panel ultimately restored it two weeks later. The panel said Trump’s lawyers should have followed a normal appeals process instead of suing the judge. Trump’s attorneys said they had been trying to move quickly.
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