Jan. 6ers already got pardoned. Will they get their money back too?

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0:20Just over five years ago, Americans and people around the world watched this unfold live on TV. As we all remember, over 2 ,000 supporters of President Trump ransacked the United States Capitol in a brazen attempt to overturn the results of the 2020 election. They pepper-sprayed, bludgeoned, stabbed, and tasered people, including police officers. They smashed windows. All told, rioters caused about$3 million in damage to the Capitol building. Seven people died. Over the next few years, rioters were charged and convicted of a host of crimes, including seditious conspiracy and assaulting federal officers.

1:06And then, in 2025, with Trump back in office... Approximately$1 ,500 for a pardon. Yes. Full pardon. Many of these 1 ,500 January 6th defendants have paid significant fines. And more than$400 ,000 of those fines have gone towards repairing the damage to the Capitol. And now that they've been pardoned, they want their money back. This is The Indicator from Planet Money. I'm Vito Emanuel. And I'm Waylon Wong. On today's show, are pardoned January 6th defendants going to get their money back? Answering that question involves over 200 years of pardon history, one Confederate soldier, and a little-known pool of money in the heart of the U.S.

1:48Treasury. Every day, NPR reports stories that keep you informed without fear or favor. That's the promise of a free press and a democracy. It's in the First Amendment. I'm Tom Bowman, and I cover the Pentagon for NPR. Stand up for independent news coverage today by donating early for public media giving days coming up on May 1st and 2nd. Give now at donate.npr.org. The pardon is a powerful tool that can't be undone. But there's a lot it doesn't do. Frank Bowman is a law professor emeritus at the University of Missouri and studies the pardon power. It doesn't make it as if you never did what you did, nor does it somehow erase magically the fact that you were convicted.

2:34It just doesn't do that. What it does do is this. If you've been convicted of a crime, a pardon wipes out the consequences of your conviction. The most familiar consequence of getting convicted of a crime is going to jail. So if the president pardons you and you're in prison, voila, you're released. But there are other kinds of consequences, too. Like in many modern cases involving financial crimes, a defendant's sentence will include paying a hefty fine, which sometimes goes to the government. When it comes to the January 6th defendants, some paid fines to the government anywhere from$500 to$2 ,000.

3:10So they've asked the courts to give them their money back. Some of them are getting the green light because of two big legal wrinkles. Here's the first. It involves pardons issued right after the Civil War. Back then... You had a whole bunch of former Confederates who had taken advantage of general pardons issued either by Lincoln or by Andrew Johnson. And lots of those guys had their property forfeited, and they wanted their property back. John Note was one of those Confederate soldiers. Back in the 1860s, his stuff was confiscated by the Union. After he was pardoned, he sued to get it back. Eventually, his lawsuit made it to the Supreme Court.

3:55And the court basically said, well, yeah, sure, a pardon does eliminate the consequences of your conviction. But we also have to consider this other, more practical question, which is, who has your property? Or, if it's a fine, who actually has the money? In Note's case, the U.S. Treasury had it. Sai Prakash is a law professor at the University of Virginia who says that's a problem because court precedent has historically held that. Once it's in the Treasury, the president can't have it refunded because the Constitution says that monies in the Treasury have to be appropriated by law. He's got a new book out about the history of the pardon.

4:32This is classic separation of power stuff. Treasury money, that's Congress's purview. So sorry, Mr. Confederate guy, you're out of luck. Sorry to this man. And for the pardoned January 6th defendants, they paid fines to a couple of U.S. Treasury accounts, including an account to pay for the damages they'd caused to the Capitol building. But some January 6th defendants are on the road to getting their money back anyway, even though their money is in the Treasury. That seems to contradict that old Civil War case. That's because of our second legal wrinkle. Many of the January 6th defendants had appealed their original convictions a few years ago.

5:08But the appellate court hadn't had time to rule yet, So their cases were in kind of a legal limbo. And then in 2025, right in the middle of limbo, Trump pardoned them. As a result, their convictions were vacated, a fancy legal word that essentially means voided, like they never existed. It's kind of like that urban college legend where if the campus burns down, everyone automatically gets a degree. Sai Prakash says this means that because they didn't get to complete the judicial process, the government doesn't get to keep the money. Okay, I hear you asking, that money is in the Treasury. Doesn't that mean they can't get their money back like that Confederate soldier?

5:50Well, things have changed in recent decades. What used to happen is that there would be a judgment against the United States. The court would say the U.S. owes these funds, and then Congress would have to pass an appropriation to fund it. And rather than passing, you know, 1 ,000 or 10 ,000 appropriations for the modern era, They just decided, well, whenever there's a judgment against the United States for money, you can use the judgment fund. Right. Congress created this judgment fund back in 1956. And as Tsai says, it was designed to avoid the historical headaches of government bookkeeping whenever the U.S.

6:26used to have to pay out a lawsuit. The January 6th lawyer says it gets around this whole separation of powers business. Like the money is already there. Just pay them back from that fund. Yeah, it's appropriated indefinitely, and it's kind of made for this dilemma. And one of the judges dealing with the refunds cases basically said, hey, look, there's another option. Even though it's in the Treasury, there's a judgment fund that allows the government to pay back fines that were improperly retained. And since your conviction was voided and your conviction was the only reason you had to pay in the first place, those fines have been improperly retained.

7:04So the courts, like, start cutting the checks, U.S. Treasury. Civil War pardons notwithstanding. And still, remember, these refunds cases are themselves currently being appealed. The D.C. appeals court could rule and say, actually, you know what? That money is off limits, so pound sand. And then the other guy would go, you're out of order. This whole court's out of order. That's from Scent of a Woman. And then they would bang the gavel. It is so ordered. But Cy thinks that's unlikely. He thinks they're going to get their money back with one caveat. Again, they have to be appealing the decision at the time of the pardon.

7:40And if they're not, they're out of luck. But not entirely out of luck because pardon January 6th defendants have also filed a class action lawsuit asking for over$18 million in damages they claim to have suffered in injuries caused by the Capitol Police. A settlement or verdict there would come out of the judgment fund, taxpayer money in other words. So some members of Congress have introduced legislation to prevent the judgment fund from paying out any money to January 6th defendants, refunds or otherwise. But that legislation looks pretty much dead on arrival. I asked Cy if the attack on the Capitol was in such a different category of criminal conduct that the court might block the refunds anyway, almost on principle.

8:24He doesn't think so. All bets are pretty much off if you're pardoned of a crime. If you can get your money back for committing financial fraud and for other sorts of offenses, it's not clear why riots or, you know, election subversion should be different. A decision is expected sometime this summer. Until then, the fines, the cases, and the refunds are back in limbo. This episode was produced by Cooper Katz-McKim and engineered by Robert Rodriguez. It was fact-checked by C.R. Juarez and edited by Kate Kincannon. The Indicator is a production of NPR.