Byron York's Daily Memo: A Capitol riot story

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A CAPITOL RIOT STORY. The Justice Department calls the Capitol riot investigation "one of the largest in American history, both in terms of the number of defendants prosecuted and the nature and volume of the evidence." Some of the more than 600 defendants are charged with serious offenses, having broken into the Capitol building and engaged in ugly hand-to-hand battles with badly-outnumbered police.

But as FBI Director Christopher Wray said, a much larger group was involved in less serious behavior. They "may have come intending to just be part of a peaceful protest," Wray told Congress last March, "but either got swept up in -- in the motive, or emotion, or whatever, engaged in kind of low-level criminal behavior. Trespass, say, on the Capitol grounds, but not breaching the building. [It's] still criminal conduct, still needs to be addressed, but more on the fly, in the moment, opportunistic." (Wray contrasted their behavior with that of what he called "the most serious group -- those who breached the Capitol grounds and engaged in violence against law enforcement.")

Now, consider the case of Karl Dresch. Forty years old, from the Upper Peninsula of Michigan, Dresch came to Washington -- his first time ever in the city -- for the January 6 "Stop the Steal" rally. He listened to President Donald Trump's speech and then joined a crowd heading down the Mall toward the Capitol. And when he got there, he...walked in through an open door. He wandered around for perhaps 20 or 25 minutes, and then left.

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Dresch was arrested and jailed on January 15. He was charged with five crimes: Obstruction of an Official Proceeding; Entering and Remaining in a Restricted Building or Grounds; Disorderly and Disruptive Conduct in a Restricted Building or Grounds; Disorderly Conduct in a Capitol Building; and Parading, Demonstrating, or Picketing in a Capitol Building.

Prosecutors knew that Dresch, in the words of one Justice Department memo, "did not engage in physical violence or destruction of property, nor join others attempting to enter the U.S. Capitol in physical violence." Yet the Department pushed to keep Dresch behind bars from the moment he was arrested. First he was jailed in Michigan, then briefly transferred to a jail in Oklahoma, then to Washington, DC.

Dresch was confined to his cell 23 hours a day. As he awaited trial, he was kept behind bars through January, February, March, April, May, June, July, and part of August -- more than six months in all.

Early this month, Dresch and the Justice Department came to a plea deal. He pleaded guilty to one charge -- Parading, Demonstrating, or Picketing in a Capitol Building. It was a misdemeanor carrying a maximum sentence of six months. Dresch was quickly sentenced to time served, fined $500, and set free.

Reading the Justice Department's sentencing memorandum, it's clear Dresch did not break into the Capitol, did not engage in any violence, and pleaded guilty to a single misdemeanor for which some defendants would likely receive no jail time at all. So prosecutors tried hard to stress the seriousness of the misdemeanor -- the parading charge -- by noting that other people, although not Dresch, had engaged in violence during the Capitol riot. By his very presence that day, prosecutors argued, Dresch helped make that possible.

"The defendant's conduct on January 6...took place in the context of a large and violent riot that relied on numbers to overwhelm law enforcement, breach the Capitol, and disrupt the proceedings," prosecutors wrote. "But for his actions alongside so many others, the Capitol would not have been breached..."

On another occasion, prosecutors pointed to Dresch's social media posts -- among other things, he had posted that "We the people took back our house...now those traitors know who's really in charge" -- to argue that he verbally supported the violence, even though he did not participate in it. "Although [Dresch] did not engage in acts of physical violence or destruction, or remain in the U.S. Capitol for a lengthy time period," prosecutors wrote, "his reaction to the events of the day and statements on social media show his support for the riot and his encouragement of the rioters through his own participation."

The argument left Dresch baffled. "Sometimes it feels like the judges are just making up their own laws here to keep people in," Dresch said in a recent YouTube interview with Jerrod Sessler, a Republican congressional candidate in Washington state. "They say they're not, but they're using their thoughts or things they've said against them to hold them in here, even when they're here on peaceful charges. Whether they're guilty or not, they're not accused of any violence." (In Dresch's case, prosecutors also stressed that he had a record, a felony conviction from 2013 for leading police on a high-speed chase.)

But the bottom line was that Dresch was jailed for more than six months in a case that ended with a single misdemeanor plea with a maximum sentence of less than time than he already served. He was never charged with any crime of violence. He was originally charged with one felony, Obstruction of an Official Proceeding, which was dropped. There seems little doubt that Dresch served more time in jail than others charged with similar offenses.

Go back to what Christopher Wray said. Dresch appears to have been in that group of people who "got swept up" in the moment and engaged in "low-level criminal behavior." It was not the sort of charge that justified behind held in jail before trial, nor was it likely to result in a long prison sentence. And yet there was Karl Dresch.

I recently wrote about the case of Dane Powell, an anarchist who pleaded guilty to felony assault on police during the January 20, 2017 protests in Washington DC against the inauguration of President Trump. Powell was "among the most violent" of the protesters, prosecutors said. "On at least three separate occasions, [Powell] threw a brick, large rock, or piece of concrete at uniformed law enforcement," court papers said. Powell was sentenced to four months in jail.

One big challenge in a politically charged case like the Capitol riot is for prosecutors and judges to keep each defendant's offenses in perspective. No matter how angry those prosecutors might be about what took place on January 6, each defendant has to be tried for his own actions, and not those of others.

For a deeper dive into many of the topics covered in the Daily Memo, please listen to my podcast, The Byron York Show -- available on the Ricochet Audio Network and everywhere else podcasts can be found. You can use this link to subscribe.

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