Mike Lindell Gets Ritually Pantsed In Minnesota Court. Twice.

Come for the Lindell smackdown, stay for the major side eye at Judge Aileen Cannon.

US-POLITICS-ELECTION

(Photo by JIM WATSON/AFP via Getty Images)

Last week, Pillow Puffer Mike Lindell and his lawyers, including one Alan Dershowitz of Harvard Law School, tried and failed attempted to amend their complaint against Speaker Nancy Pelosi, the January 6 Select Committee, and “Verizon Wireless.” Although the complaint seeking to quash a subpoena for Lindell’s phone records was filed in January, it has only recently come to the attention of the plaintiffs that the appropriate defendant is “Verizon Communications Inc.” And so, without leave of the court or opposing parties, they filed a second amended complaint, which was rejected and stricken from the record by US District Judge Eric Tostrud.

And that was only the second most embarrassing thing that happened to Lindell and his legal team in Judge Tostrud’s Minnesota courtroom last week, where the jurist was reduced to writing this sentence in an actual legal opinion:

Plaintiffs Michael J. Lindell and MyPillow, Inc., allege in this case that federal agents violated their rights under the First, Fourth, and Fifth Amendments to the United States Constitution when—pursuant to a search warrant—they seized a cellphone from Lindell in the drive-through lane of a Hardee’s restaurant in Mankato, Minnesota, on September 13, 2022.

Since the FBI seized Lindell’s phone in September, he’s been screaming bloody murder that it’s part of a dastardly plot to suppress his free speech and punish him for his public ranting about vote tabulators being hacked. In fact, as the warrant which he himself docketed shows, investigators were seeking information about a breach of voting machines by former Mesa County, Colorado election clerk Tina Peters, one of Lindell’s allies in the Big Lie movement. Peters is alleged to have engineered a bizarre plot to steal a government ID, disable the building’s security cameras, and sneak in an election denier to both copy a Dominion voting machine’s hard drive, and secretly film the company’s on-site software update.

Lindell sued FBI Director Chris Wray and Attorney General Merrick Garland, asserting what the court described as “multiple constitutional and rule-based legal theories” in support of his demand for declarative and injunctive relief.

Spoiler Alert: He’s not getting any of it.

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Judge Tostrud will not be declaring that the warrant is invalid or that serving it violated Lindell’s First, Fourth, and Fifth Amendment rights. Nor will he be ordering the government to give back the phone, destroy any data retrieved from it, or unseal the affidavit submitted to the magistrate judge who approved the warrant. As for Lindell’s claim of a due process violation because the government failed to tell the magistrate judge that the election was rigged — yes, for real, his lawyers docketed two “reports” on supposedly hacked voting machines — Judge Tostrud politely rolled his eyes, characterizing it as a backdoor request for a ​Franks​ hearing.

After in camera review of the 80-page affidavit, which “describes in considerable detail the nature, scope, and direction of the Government’s investigation and includes references to individuals and confidential informants who are not the subject of the warrant, as well as references to recorded communications obtained during the course of the investigation,” the court found that Lindell had demonstrated nothing which would override “the significant governmental interest in the integrity of an ongoing criminal investigation, as well as the privacy interests of these associated, uncharged individuals.”

And anyway, Lindell’s not under indictment, so his feint in the direction of a Franks hearing and a Criminal Rule 41(g) motion for return of property are significantly premature. But in the event that he’s ever charged with a crime (fingers crossed!), he’s welcome to have at it then.

Nor is the court going to be goaded into doing for Mike Lindell what Judge Aileen Cannon did for Donald Trump in the ongoing documents case. And indeed, there’s no way to read this opinion as anything but outright side-eye by Judge Tostrud at the disgraceful conduct of his fellow Trump appointee in Florida.

Judge Cannon mis-applied the four-factor Richey test to justify her own anomalous jurisdiction over the judicially authorized Mar-a-Lago warrant, and got slapped down by the Eleventh Circuit. The precedential case is different in the Eighth Circuit, but the four criteria are the same. And Judge Tostrud actually applied them, finding that the FBI did not act with callous disregard of Lindell’s constitutional rights; that there was no irreparable injury in the absence of relief at this stage; that Lindell has other legal remedies should he ever be charged; and that his individual need for his phone, which he admits he backed up just five days before he pulled into the Hardee’s drive through, does not override the government’s need to hang onto it.

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Where Judge Cannon ordered the Justice Department to cease using the seized materials in its criminal investigation pending special master Judge Raymond Dearie’s review, Judge Tostrud notes the “sound and well-established principle that a court should not exercise its equitable powers to interfere with or enjoin an ongoing criminal investigation when the defendant will have the opportunity to challenge any defects in the prosecution in the trial court or on direct appeal.”

Plaintiffs will have “a federal forum in which to assert their defenses—including those based on the Constitution” in the event that they, or either of them, are indicted in federal court. Their attempt to receive pre-indictment access to the search warrant materials is essentially an impermissible effort to use a federal civil injunction to direct and restrain the natural course of the ongoing federal criminal investigation.

I believe that’s Minnesota nice for “Come on, Aileen!”

“If criminal proceedings are instituted against him, Lindell will have an adequate remedy to challenge the search, such as filing a motion to suppress any purportedly improperly seized evidence,” he went on, adding that “Plaintiffs’ unsupported allegations of constitutional violations and conclusory assertions of harm” cannot be weaponized to block the government’s “significant interest in effective law enforcement and prompt resolution of criminal matters” lest every criminal litigant think he’s now “allowed to use civil litigation to collaterally attack ongoing criminal investigations and proceedings.”

It’s not subtle. But neither is Mike Lindell, so let’s go out on a limb and assume that he’ll keep trying to make this dumb thing happen until Judge Tostrud dismisses this turkey once and for all.

Lindell v. Pelosi [Docket via Court Listener]
Lindell v. US [Docket via Court Listener]


Elizabeth Dye lives in Baltimore where she writes about law and politics.