Some 9 months later, Mike Lindell's still fighting to get his seized cellphone back in federal appeals court

Businessman and ardent Donald Trump loyalist Mike Lindell asked a federal appeals court on Wednesday to find the government's seizure of his cellphone unconstitutional.

Lindell's attorney Patrick McSweeney claimed that the government tried to "intimidate" his client because of his "beliefs."

The conservative three-judge panel didn't wade into his political rhetoric, but at least two of its members appeared skeptical about the government's retention of Lindell's cellphone since last September.

The Department of Justice's lawyer said that such an order would be an "extraordinary" remedy, which would remove an important piece of evidence from an ongoing investigation.

"The phone can be important in a criminal case to authenticate that a particular person was holding the phone at a particular time," the government attorney said.

The three-judge panel presiding over Lindell's appeal were all appointed by Republican presidents: U.S. Circuit Judges James B. Loken, a George H.W. Bush appointee; Steven Colloton, a George W. Bush appointee, and U.S. Circuit Judge Ralph R. Erickson, who was tapped by Trump.

On Sept. 13, 2022, the FBI seized Lindell's cellphone at a Hardee's fast food drive-thru lane in Mankato, Minnesota. The MyPillow CEO said he'd been returning from a duck hunting trip with his friend in Iowa when agents questioned him and took his company-issued phone. He sued roughly a week later.

At least two of the judges appeared troubled by the government's continued possession of the cellphone some two months later, with one noting it isn't "contraband" and can be "mirrored in 12 seconds."

"Why isn't that something that should've happened months ago?" the judge asked.

The DOJ's counsel answered that certain evidence can only be gleaned by physical possession of the phone.

In his lawsuit, Lindell alleged an array of constitutional violations, including his First Amendment rights to freely associate, his Fourth Amendment protections against unreasonable searches and seizures, and Fifth Amendment due-process safeguards. His arguments fell flat late last year in the courtroom of U.S. District Judge Eric C. Tostrud, a Trump appointee.

Rejecting each of these arguments in turn, Tostrud denied Lindell's request to order the return of his cellphone and allow him to view the materials supporting his search warrant. The judge added that Lindell could contest the constitutionality of the search if he is indicted, but not before that point.

"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," the Nov. 3 opinion stated.

When one of the appellate judges asked if prosecutors planned to indict Lindell, the DOJ attorney demurred: "The government does not generally comment on ongoing criminal investigations."

Previously known primarily for his infomercials hawking pillows, Lindell has become one of the most prominent Trump boosters pushing conspiracy theories about the 2020 presidential election. In 2021, Lindell offered $5 million to anyone able to disprove his claims to have found proof of electoral shenanigans. A conservative electrical engineer and software developer took up the "Prove Mike Wrong" challenge and won, leading a three-arbitrator panel to order Lindell to pay up earlier this year.

Now, Lindell's attorneys allege that the federal government is "targeting" their client in a "campaign to punish and deter Lindell and others from publicly speaking about election fraud."

U.S. state and federal courts more broadly have rejected election fraud claims more than 60 times, and President Joe Biden's victory has been affirmed in numerous recounts and audits.

The Department of Justice argues that Lindell is attempting a "radical" restructuring of U.S. criminal law that a federal appeals court rejected when Trump contested the seizure of classified documents from Mar-a-Lago.

"In effect, Lindell is urging this Court to 'write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant' — a rule that would represent 'a radical reordering of [this Court's] caselaw limiting the federal courts' involvement in criminal investigations' and 'violate bedrock separation-of-powers limitations,'" Civil Division Attorney Joshua Handell wrote in a 63-page legal brief.

The three-judge panel appeared more skeptical of Lindell's request to "enjoin federal criminal investigative acts."

The quotations in the brief come from the conservative 11th Circuit's lacerating ruling overturning a Florida judge's intervention in the Trump investigation.

The judges ended the hearing without a ruling.