New York's Highest Court Declines to Take Up Trump Gag Order Appeal...for Now

AP Photo/Mark Schiefelbein

Weeks after the conclusion of his Manhattan trial for falsified business records, former President Donald Trump remains subject to the gag order imposed by Judge Juan Merchan in that matter. And New York's highest court has now declined to take up his appeal of the order on an expedited basis. 


New York’s top court on Tuesday declined to hear Donald Trump’s gag order appeal in his hush money case, leaving the restrictions in place following his felony conviction last month. The Court of Appeals found that the order does not raise “substantial” constitutional issues that would warrant an immediate intervention.


Trump’s attorneys filed a notice of appeal with the state’s high court on May 15, during the former president’s landmark criminal trial. They argued that the gag order restricted Trump’s “core political speech on matters of central importance at the height of his Presidential campaign.”

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Bear in mind, this isn't a final, substantive ruling on the merits of the matter, but rather the court declining to take up the appeal in expedited fashion. (As noted above, the appeal in question was filed by Trump's attorneys while the trial was ongoing.) 

The Court of Appeals order simply reads: 

Appeal dismissed without costs, by the Court sua sponte, upon the ground that no substantial constitutional question is directly involved. Chief Judge Wilson and Judge Halligan took no part.

This does not preclude the matter from being raised when/if Trump's legal team appeals his conviction. 

The Manhattan district attorney’s office had urged the Court of Appeals to reject the appeal. In their own letter, prosecutors noted the question about whether the order should be lifted could be dealt with through post-trial court filings.


Moreover, from a practical standpoint, it may soon be moot, as Merchan is expected to rule on the post-trial request by Trump to lift the gag order shortly. 

Trump’s lawyers have argued that he should be entitled to fully address the case, given the continued public criticism of him by his ex-lawyer Michael Cohen and Daniels, both key prosecution witnesses.

Days after the verdict, they sent a letter to Merchan asking him to lift the gag order. They followed up last week with a formal motion requesting that the restrictions be rescinded. Prosecutors have until Thursday to respond. Merchan is expected to rule soon after that, possibly before Trump’s June 27 debate with President Joe Biden.

“It’s a little bit of the theater of the absurd at this point, right? Michael Cohen is no longer a witness in this trial,” an attorney for Trump, Todd Blanche, told the AP earlier this month. “The trial is over.”

Nevertheless, for the time being, Trump remains subject to the gag order. Theater of the absurd sounds about right. 


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