Donald Trump’s lawyers ask the appeals court to lift the silence order in a criminal case involving hush money

NEW YORK — Donald Trump’s lawyers asked a New York appeals court on Tuesday to lift the former president’s silence 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 involved in the case is an unconstitutional prior restriction on his right to free speech while he campaigns for president and fight criminal charges.

The state’s mid-level appeals court held an emergency hearing Tuesday morning.

The judge, Juan M. Merchan, issued the silence order last month at the urging of Manhattan prosecutors, who cited Trump’s “long history of making public and inflammatory comments” about people involved in his lawsuits.

Merchan expanded the silence order last week to ban 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 is the second of consecutive days for Trump’s lawyers in the appeals court.

On Monday, Associate Justice Lizbeth González rejected the defense’s request to postpone the April 15 trial as Republican Trump tries to get his case out of heavily Democratic Manhattan.

Trump’s lawyers have framed their silence order as a lawsuit against Merchan. In New York, judges can be sued to challenge certain 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 a failed last-minute attempt to delay that case last fall and again when that judge imposed a silence order on him.

Trump’s hush money criminal case includes allegations that he falsified his company’s records to conceal 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 include including 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 company records. He has denied having a sexual encounter with Daniels. His lawyers argue that the payments to Cohen were legitimate legal fees.

Trump has made numerous attempts to get the trial postponed, relying on the strategy he announced to TV cameras outside the February hearing: “We want a delay.”

Last week, when Merchan rejected several requests for a trial delay, Trump renewed his request for the judge to recuse himself from the case. The judge denied a similar request last August.

Trump’s lawyers claim 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 include President Joe Biden and other Democrats. They complained that the extended gag order protected the Merchans “from legitimate public criticism.”

Merchan had long resisted imposing a gag order. At Trump’s arraignment in April 2023, he warned Trump not to make statements that could incite violence or endanger security, 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 “bent over backwards” to ensure Trump had every opportunity “to further his candidacy.”

Merchan became increasingly wary of Trump’s rhetoric that would disrupt the historic trial as it drew closer. In issuing the silence order, he said his obligation to ensure the integrity of the proceedings outweighed First Amendment concerns.

The gag order does not preclude comment about Merchan, who has called Trump “a Trump-hating judge” with a family full of “Trump haters,” or about Manhattan District Attorney Alvin Bragg, an elected Democrat.

Trump responded on social media that the silence order was “illegal, un-American, unconstitutional” and said Merchan was “wrongfully trying 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 claimed, later rejected by court officials, that Loren Merchan had posted a photo on social media showing Trump behind bars.

After the outburst, Merchan expanded the gag order on April 1 to ban 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 responded on his Truth Social platform. “That sounds fair, doesn’t it? This judgeship should be withdrawn and the case dismissed.”

Trump filed a similar legal challenge last year over a silence order in his civil fraud case.

Judge Arthur Engoron had issued that order after Trump insulted the judge’s chief clerk in a social media post. The silence order prohibited parties in the case – and later their lawyers – from commenting publicly on court personnel, but not on the judge himself.

One appeals judge lifted the ban, but a four-judge appeals panel ultimately reinstated it two weeks later. The panel said Trump’s lawyers should have followed a normal appeals process instead of suing the judge. Trump’s lawyers said they were trying to take quick action.