A New York appeals court judge on Tuesday denied former President Donald Trump's motion to pause his upcoming criminal trial, while considering arguments against a gag order.

It was the second time in two days New York's Appellate Division, First Department declined to push back his trial, slated to begin April 15. An attorney for Trump argued Tuesday that the gag order, which prevents Trump from posting broadsides against the daughter of the judge, is unconstitutional.

Counsel for Manhattan District Attorney Alvin Bragg shot back that Trump has a track record of attacking the family members of people involved in cases against him.

The sides faced off in a second hastily scheduled appellate hearing. Trump on Monday sued the judge in his case, Juan Merchan, asking a New York appellate court in sealed filings to dispense with the gag order Merchan issued April 1 and to delay the start of the April 15 trial while Trump seeks a change of venue.

A judge in New York's Appellate Division, First Department first dealt with the delay request, known as a stay, on Monday. 

Associate Justice Lizbeth Gonzalez did not weigh in on either the change of venue or gag order in her brief Monday evening ruling that denied a stay of the upcoming trial. On Tuesday, Associate Justice Cynthia Kern, also said she would not delay the trial, for now.

But even as the trial gets underway, Trump's efforts to pause it will continue.

Kern indicated in her brief ruling Tuesday that a panel of appellate judges will take up the two issues Trump raised. A briefing to the panel by Trump's lawyers is due the morning of April 15, just as potential jurors are being shepherded into the courtroom.

Emil Bove, an attorney for Trump, argued against the gag order in the case Tuesday, claiming it prevents Trump from responding to attacks by two main witnesses in the case: former attorney Michael Cohen and adult film star Stormy Daniels, whose real name is Stephanie Clifford.

"Mr. Cohen and Ms. Clifford are attacking President Trump in public in a way that is completely different than in any of the other cases," Bove claimed, saying the gag order violates Trump's First Amendment rights.

"The First Amendment harms rising from this gag order, right now, are irreparable," Bove said.

Steven Wu, an attorney for Bragg, replied that Bove was seeking to give Trump cover to hurl "insults" and make "inflammatory remarks about people involved in the case."

"The slippery slope about this constitutional argument is that he can attack anyone," Wu said, pointing to Trump's social media attacks against the family members of judges and prosecutors in several other cases.

In addition to asking for the gag order to be lifted, Trump's lawyers again asked for the trial to be delayed while the gag order appeal is under consideration by the full panel on the appeals court. 

Wu said, "There is no basis for staying a criminal trial" for this reason, and "they have cited no case record" in support of that.

Filings by Trump and Bragg in the matter are not public, but in an online court database, they appear under the headers "change of venue" and "stay." Documents for an appeal related to a criminal proceeding are initially sealed while they're reviewed for sensitive information.

Trump has also seethed at the gag order in the case, which put a halt to near-daily social media  attacks against Merchan's daughter, whom he claims is biased because of her work for a Democrat-aligned consulting firm. 

Trump has twice sought Merchan's recusal from the case, an effort that was first rejected in 2023, when Merchan cited a state ethics panel review that concluded he was not ethically compromised.

In:
• Donald Trump
• Trial
• New York

Graham Kates

Graham Kates is an investigative reporter covering criminal justice, privacy issues and information security for CBS News Digital. Contact Graham at [email protected] or [email protected]