Case 4:22-cv-40086 Document 2 Filed 07/27/22 Page 1 of 21

United States of America

District of Massachusetts
Suffolk, ss.

Dean Tran )
)
v. ) Docket No._____________
)
Attorney General Maura Healey )

Emergency Motion for

a Temporary Restraining Order

Now comes the Plaintiff, Dean Tran, who moves on an emergency basis for a Temporary

Restraining Order.

Background

In June 2019, Mr. Tran entered into a commercial transaction with one of his constituents

to financially assist the constituent. As related by a press release from the Attorney General, Mr.

Tran paid $1500 for several firearms. The next day the constituent’s daughter had second thoughts

and demanded the return of the firearms. The firearms were returned without incident, though

there is no indication that Mr. Tran’s money was ever returned to him.

It is alleged that Mr. Tran returned the next day, forced his way into the house and obtained

the keys to the constituent’s gun safe and took a “Colt .45.” However, the press release notes that

the “Colt .45” was later returned. The Attorney General also alleges that Mr. Tran falsified some

portion of his May 2019 firearms license renewal.

These allegations were related in a Press Release from the Attorney General’s Office on

July 1, 2022. The press release announced the same-day indictments of Mr. Tran. It came as a

surprise to Mr. Tran, whose counsel was not given notice of the indictments, or a copy of same,

until July 11, 2022. Nor, during the same 10-day period, were the indictments entered into the

electronic docketing system in the clerk’s office. Notwithstanding the lack of court documents to

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confirm the events of the press release, the Attorney General’s word was good enough to generate

national and local media coverage, on television and in newspapers, in advance of the July 4th

holiday weekend.

Mr. Tran is the first Vietnamese-American to hold elected office in Massachusetts and

obtain a seat in the Legislature. He is also the first Vietnamese American, refugee, and Asian born

American elected to the State Senate and remains the highest ranking elected Asian American in

the state. He was a prominent member of the small Massachusetts Republican legislative

delegation and held leadership positions. Mr. Tran represents one of the prominent faces of a

newer, more enthusiastic and ethnically diverse Republican party.

A month before the indictment was announced, the Fitchburg Democratic City Committee

Chairwoman commented upon Mr. Tran on a local political television show. She stated that Mr.

Tran would be in court within the month.1 The Chairwoman is a well-known political antagonist

of Mr. Tran’s, occasionally speaking of him vituperatively.

In the meantime, the prosecuting office is headed by an elected official seeking higher

office. Maura Healey, the current Attorney General, is seeking to succeed Charles Baker as the

Massachusetts Governor. In the course of her run for office, Ms. Healey has been criticized several

times for her office’s inaction on public corruption prosecutions. Her record on public corruption

prosecutions has been unfavorably compared to the U.S. Attorney’s Office, by the U.S. Attorney

himself. 2 Ms. Healey, herself, has been defensive on the topic. 3 In the FY2020 annual report for

the Attorney General’s Office, in relation to corruption prosecutions, the White Collar and Public

1
She was off by a day, July 1st for June 30th, but nonetheless this shows an incredible amount of insight into
supposedly secret grand jury proceedings.
2
Shira Schoenberg, Lelling plugs fed role on corruption probes, Commonwealth Magazine (2/21/2020).
3
Christopher Gavin, Maura Healey defends record on public corruption cases: ‘I have never looked away or stood
down.’ Boston Globe (1/31/22).

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Integrity Division boast of only 36 open investigations, with 24 charged case and 14 resolved

cases. Of the White Collar and Public Integrity Divisions highlights for the year, it boasts three

cases only one of which involved the prosecution of state officials; namely the prosecution of three

State Police Officers in relation to overtime fraud in an investigation initially lead and broken open

by the U.S. Attorney’s Office. In the FY2019 report, the same division reported, of 5 significant

disposed cases resulting in incarceration, the only public employees mentioned are an MBTA fare

collector who stole money and a probation officer who committed firearm possession offenses. In

FY2019, the White Collar & Public Integrity Division also indicted, in addition to the above State

Police Officers, two employees of a trash disposal district for theft and an employee of the Dept.

of Developmental Services for false overtime claims. In the FY2018 annual report relating to the

White Collar & Public Integrity Division highlighted four disposed cases, none of which were

against public employees or related to public integrity. Of the 9 new case, which the White Collar

& Public Integrity Division noted in FY2018, only two were against a public employee, the MBTA

fare collector and a different MBTA procurement officer, while one was for a public-adjacent role

a treasurer for a non-profit protecting a Town’s public water supply.

Mr. Tran stands an excellent chance of winning the congressional seat and this is support

by internal numbers. National polls on the generic congressional ballot indicate significant voter

dissatisfaction with party in power. In the mean time, the Massachusetts Congressional Delegation

is younger and has less name recognition than their immediate predecessors. Mr. Tran, due to his

prior municipal work and his historic firsts as an elected Asian-American in Massachusetts, has

excellent name recognition. In short, Mr. Tran is foremost among a clique of Republican

Congressional candidates which hope to return the first Massachusetts Republican Representatives

to Congress since 1997 when Peter Torkildsen and Peter Blute lost their re-election bids. Mr.

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Tran’s work with the immigrant communities in the cities of Lowell and Lawrence may see him

possess a decisive edge.

On the other hand, several elected officials and state legislators have been publicly

implicated in crimes or press reports have indicated the existence of criminal investigations.

Despite this, Mr. Tran is the only elected official to be indicted, so far as is publicly known, this

year. That is also a pattern of Ms. Healey’s office. Several state legislators were publicly

implicated in the Probation patronage scandal, yet no state action was brought against the likes of

Rep. Chris Fallon, Rep. DeLeo, and others. Yet in the same time frame, the U.S. Attorney’s Office

commenced criminal prosecutions against Rep. David Nangle, Sen. Brian Joyce, Sen. Dianne

Wilkerson, the Probation Commissioner and his deputies, and others. In 2015, the prosecution of

public corruption in Massachusetts received “D+” grade from the Center for Public Integrity,

representing a drop in public corruption prosecutions from the C it achieved in 2012.

During her seven years as Massachusetts’ chief law

enforcement officer, she has won more than 20 convictions in public
malfeasance or corruption cases. Nearly just as often, cases quietly
end without guilty verdicts, or are dropped or dismissed, according
to court records. The more than 60 public employees or leaders of
nonprofit organizations charged with crimes by Healey include
former state troopers, local police officers, and the husband of a
once-powerful legislative leader. None of the cases, though, have
been against an elected official.
In the same span of time, federal prosecutors in
Massachusetts — long considered more aggressive and better
resourced in chasing wrongdoing by politicians — have won
convictions against at least three, and charged a fourth.

Matt Stout, Maura Healey has prosecuted dozens for public wrongdoing. The results have been

mixed. Boston Globe (12/25/2021). See Also Matt Stout, For years, investigators have sent Maura

Healey evidence of illegal campaign finance activity. She’s never prosecuted any. Boston Globe

(5/24/2021).

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The overwhelming majority of crimes in Massachusetts are prosecuted by the District

Attorneys, not the Attorney General who typically only takes high profile or difficult cases

requiring the centralized resources of state government. This criminal case is not being brought

by the local district attorney but by Ms. Healey’s office in what is her first prosecution against an

elected official. Cases where there is an abuse of public trust, as alleged here, are normally brought

through the State Ethics Commission, or at least passed upon by them but there is no evidence that

that was the case in Mr. Tran’s case.

Mr. Tran’s criminal case is the first time in which Ms. Healey has ever proceeded against

an elected official. It is unusual for the timing of the charges, the incident having occurred years

ago and had been publicly investigated at the time. The fact that Ms. Healey’s office is

prosecuting, rather than a district attorney or the State Ethics Commission is also highly unusual.

The charges were announced 10 days before the indictment was filed in the Clerk’s office, which

is unusual. The leaks in grand jury secrecy, presaging the criminal charges against Mr. Tran, to

the Chairwoman of the opposing party’s city committee, and her announcement of them on live

television with social media updates, are certainly irregular. The charges were also announced a

mere 65 days before primary election, which is certain to the influence the outcome of the

elections, contrary to a bedrock principle of public integrity prosecutions.

Public integrity and corruption prosecutions have been viewed as a particularly sensitive

application of the criminal prosecution, requiring the Shakespearean standard of being beyond

suspicion, as Caesar’s wife. For decades, the federal Attorney General has put out a memorandum

to his department requiring that no prosecutions or overt investigative steps be taken which would

impact either the outcome of an election or the DOJ’s reputation for fairness and impartiality.

Simply put, partisan politics must play no role in the decisions of

federal investigators or prosecutors regarding any investigations or

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criminal charges. Law enforcement officers and prosecutors may

never select the timing of public statements (attributed or not),
investigative steps, criminal charges, or any other action in any
matter or case for the purpose of affecting any election, or for the
purpose of giving an advantage or disadvantage to any candidate or
political party. Such a purpose is inconsistent with the Departments
mission and with the Principles of Federal Prosecution.

AG William Barr, Memo on Election Year Sensitivites (May 15, 2020). A memorandum in

substantially similar language has been issued by federal Attorneys General, from both parties,

every presidential election year since 1980. Ex AG Loretta Lynch, Memo on Election Year

Sensitivities (April 11, 2016) (identical phrasing). In the U.S. Department of Justice Inspector

General Report on investigation of Secretary Clinton in advance of the 2016 election, FBI Director

James Comey is quoted as saying, “I’ve lived my entire career in the Department of Justice under

the norm, the principle, that we, if at all possible, avoid taking any action in the run up to an

election, avoid taking any action that could have some impact, even if unknown, on an election

whether that’s a dogcatcher election or President of the United States.” U.S. DOJ IG A Review of

Various Investigations by the Federal Bureau of Investigation and Department of Justice in

Advance of the 2016 Election, Oversight and review Division 18-04 (June 2018) at 372.

Argument

I. Standard of Review

Interim equitable relief is normally extraordinary, reserved for those cases where

immediate harm or incredible high stakes materials will resolve itself while the Court has the

matter sub judice. Resultingly, the standard to obtain interim relief is comprehensive. “Under this

formulation, trial courts must consider (1) the likelihood of success on the merits; (2) the potential

for irreparable harm if the injunction is denied; (3) the balance of relevant impositions, i.e., the

hardship to the nonmovant if enjoined as contrasted with the hardship to the movant if no

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injunction issues; and (4) the effect (if any) of the court's ruling on the public interest.” Ross-

Simons v. Baccarat Inc., 102 F.3d 12, 15 (1st Cir. 1996). This case is, however, mostly premised

upon the bad-faith exception of Younger. Landrigan v. City of Warwick, 628 F.2d 736, 743 (1st

Cir. 1980) (“There are, of course, circumstances where a federal court should not stay its hand so

as to allow a state prosecution to proceed. The Court in Younger v. Harris, 401 U.S. 37, 91 S.Ct.

746, 27 L.Ed.2d 669 (1971), indicated that on a showing of bad faith, harassment, or unusual

circumstances calling for equitable relief, interference with state proceedings may be warranted.”);

Brooks v. New Hampshire Supreme Court, 80 F.3d 633, 639 (1st Cir. 1996) (“a federal court may

nonetheless intervene to halt an ongoing state judicial proceeding if the plaintiff demonstrates ‘bad

faith, harassment, or any other unusual circumstance.’” Citing Younger).

There appears to be no consensus as to when and how to apply the bad faith exception to

Younger, requiring federal court intervention in constitutionally problematic state criminal

proceedings. The Plaintiff believes the best explication comes from the 10th Circuit. Phelps v.

Hamilton, 122 F.3d 885, 889 (10th Cir. 1997) (“There are three factors that courts have considered

in determining whether a prosecution is commenced in bad faith or to harass: (1) whether it was

frivolous or undertaken with no reasonably objective hope of success; (2) whether it was motivated

by the defendant's suspect class or in retaliation for the defendant's exercise of constitutional rights;

and (3) whether it was conducted in such a way as to constitute harassment and an abuse of

prosecutorial discretion, typically through the unjustified and oppressive use of multiple

prosecutions.”) (Phelps II). Typically speaking the harm presented must be “great and immediate”

(such as the threat of losing an election because of prosecutorial misconduct). Phelps II, at 889-

890. The Tenth Circuit uses a burden shifting framework, akin to that used in employment

discrimination contexts, where the Plaintiff must make a prima facie showing of retaliatory animus

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or harassment and then the prosecutor must show “legitimate, articulable, objective reasons’ to

justify the decision to initiate these prosecutions.” Phelps II, at 890.

II. The case is politically motivated to sabotage Mr. Tran’s electoral prospects

and the irregularities in the prosecution bear this out.

The criminal case against Mr. Tran, aside from its facial weaknesses as reported, is a politically

motivated prosecution of the extraordinary type which the federal court may enjoin.

a. Federal Injunctions against State Criminal Proceedings

Federal injunctions against state criminal proceedings are rare indeed. “[T]he Supreme Court in

certain cases [has] permitted federal courts to issue injunctions against state court criminal

proceedings that threatened federal constitutional rights.” Deaver v. Seymour, 822F.2d 66, 68

(D.C. Cir. 1987) citing Dobbins v. Los Angeles, 195 U.S. 223 (1904) and Truax v. Raich, 239 U.S.

33 (1915). Such an injunction requires “extraordinary circumstances” where the danger of

“irreparable loss” of the constitutional right was “both great and immediate.” Deaver, at 69,

quoting Fenner v. Boykin, 271 U.S. 240, 243 (1926). “Thus, in the past few decades, the Supreme

Court has upheld federal injunctions to restrain state criminal proceedings only where the

threatened prosecution chilled exercise of First Amendment rights.” Deaver, at 69. "Younger

stands for the proposition that a federal court should never enjoin a state criminal action except in

extremely limited circumstances involving bad faith, harassment or other unusual circumstances."

Shepherd Intelligence Sys. v. Defense Technologies, 702 F. Supp. 365, 368 (D.Mass 1998) citing

Younger v. Harris, 401 U.S. 37 (1971) (holding that federal courts will not enjoin state criminal

proceedings unless bad faith, harassment, or other extraordinary circumstances are present).

b. This Prosecution is brought in bad-faith and for purposes of harassment.

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As outlined above the criminal proceeding is audacious in its cynical attempt to poison the

criminal justice system by using it as a weapon in the political arena: to sabotage Mr. Tran’s

electoral fortunes and enhance Ms. Healey’s own. The plain facts are the irregularities which

plague the process thus far:

• Ms. Healey has never before indicted an elected official.

• Her office publicly released the existence of the indictment before it was filed in
court.
• Her office publicly released the existence of the indictment before notice of it was
given to Mr. Tran.
• Mr. Tran was not notified of the indictment until 10 days later.
• Ms. Healey released the indictment only 22 days before the Secretary of State was
due to mail absentee ballot applications.
• The news of the indictment was announced on 65 days before the primary election.
• Ms. Healey or her agents, penetrating the normal requirement of grand jury secrecy,
caused Mr. Tran’s political opposition to be aware of the pending indictment 30
days before it was returned by the grand jury.
• The leak not only furnished secret grand jury information to Mr. Tran’s political
opposition, but the opposition was able to announce it and use it for political gain
live on television.
• There is no indication that Ms. Healey’s office has sought to identify or punish the
leaker.
• Ms. Healey undertook to prosecute the case, rather than leaving it to the Worcester
District Attorney or the State Ethics Commission.
• Conflict of interest where Ms. Healey campaigned with Mr. Trans’s opponent
who endorsed Ms. Healey for Governor.

Likewise, the case is suspicious for the prosecutorial choices at issue. Leaving aside the licensing

issue, Ms. Healey alleges that Mr. Tran entered into a contract with someone and paid $1500 for

8 firearms. At face value this is simply a commercial transaction and if it were deceptive or

coercive Ms. Healey could have proceeded on a civil basis as she does in an overwhelming number

of her cases. She alleges theft, but acknowledges that Mr. Tran paid real money in the transaction.

Until Mr. Tran’s counsel received the indictments, ten days after the public announcement, it could

have been hoped that there was some misprint in the press release which mean that Mr. Tran would

be receiving his money back. Ms. Healey publicly alleges two counts of larceny, but in her own

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press release acknowledges (1) that the guns were brought back the day after the contract was

signed and (2) that the Colt .45 was also returned. Cf. Commonwealth v. Moore, 36 Mass. App.

Ct. 455, 457 (1994) (larceny taking with the intent to permanently deprive).

Ms. Healey’s press release also alleges that Mr. Tran forced his way into the victim’s house,

somehow coercively procured keys to a locked safe while the victim was hiding and stole the Colt

.45. This would ordinarily be burglary, or one of its analogs like B&E in the daytime, which is a

violent crime. It could also be viewed as robbery, the violent taking by violence or threat.

Notwithstanding either of the violent crimes which could apply to the conduct as described, either

the Attorney General did not ask for or the Grand Jury did not grant an indictment for either.

Paired with the fact that this was prosecuted by a white collar prosecutor, it looks odd that what is

alleged is a violent crime. Ms. Healey’s official press release justifies the involvement of a white-

collar prosecutor by alleging that Mr. Tran violate the public trust of his office, in some unspecified

manner. Clearly private firearm sales and allegedly violent break-ins are not in any sense remotely

related to public service. More likely, white collar prosecutors who double as public integrity

prosecutors, are more sensitive to the political currents and more likely to bend the law to a desired

political outcome.

The secrecy of the grand jury was compromised, since the Chairwoman of the Fitchburg

Democratic City Committee, almost to the day, predicted that Mr. Tran would be in court. Cf.

Mass. R. Crim. Pro. Rule 5(d)(“A person performing an official function in relation to the grand

jury may not disclose matters occurring before the grand jury except in the performance of his or

her officials duties or when specifically directed to do so by the court.”) Imagine the political

damage to Mr. Tran’s political prospects when, through abuse of the process, his political

opposition correctly announces on live public television that he will be indicted within the month.

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Such a circumstance does not highly recommend Massachusetts’ criminal justice system as

impartial and independent from political considerations.

Ms. Healey’s office also used stale (and insubstantial) criminal allegations against Mr.

Tran. The June 2019 incident occurred years ago and, through another leak from public official,

was covered by press reports in 2020. In Massachusetts state practice grand juries sit, without

extension, for 3 months and are replaced in the fourth month. Ex. G. L. c. 277 §2E (writs for grand

jurors in Worcester County are sent in January, May, and September). In essence, a new grand

jury was summoned mere day after Mr. Tran turned his signature papers for Congress to the city

clerks for a May 3rd deadline. There is nothing new known to Mr. Tran, other than electoral

politics, which would have prevented the presentation to the grand jury in 2020, 2021, or the

January 2022 grand jury. However electoral considerations do dictate that maximum impact of

criminal charging announcements should occur in the summer, early enough that the press can tag

the candidate with them everytime he opens his mouth publicly. By sheer repetition, candidate X

publicly facing charges for Y misconduct, can become unshakeable political wisdom. Its best

political effect is races where one candidate is running a surprisingly close race, or a race where a

prosecutor is being accused of being soft on crime.

The timing alone is suspicious. The Attorney General evidently did not opt to ask the

Superior Court judge, under Mass. R. Civ. Pro. Rule 5, to delay disclosure of the indictment. The

public announcement of an indictment, without notice to the accused yet unaccompanied by an

arrest is irregular. Many indictments go unannounced, even against current or former public

officials. The decision to rush the announcement, especially before the holiday weekend, is clearly

aimed at having a maximum political impact and squashing Mr. Tran’s political speech.

c. Special Impact

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To obtain an injunction against a state criminal proceeding, Mr. Tran must show a special

harm distinct from the general harms associated with criminal prosecution. “Although it is surely

true that an innocent person may suffer great harm to his reputation and property by being

erroneously accused of a crime, all citizens must submit to a criminal prosecution brought in good

faith so that larger societal interests may be preserved.” Deaver, 822 F.2d at 69. “Bearing the

discomfiture and cost of a prosecution for crime even by an innocent person is one of the painful

obligations of citizenship.” Cobbledick v. United States, 309 U.S. 323, 325 (1940).

In this case, Mr. Tran can show much more than the average citizen accused of a crime.

He is the victim of a cynical and political attempt to shut him up, to deny him both his First

Amendment rights as a candidate and his right to seek public office. This is nothing less than a

partisan attempt to use the legitimacy of the criminal justice system, under the pretense of half-

baked charges, to damage Mr. Tran’s time-sensitive political candidacy. Perhaps the most

compelling circumstances are the timing of the public announcement of the indictment and the

leak to the Mr. Tran’s political opposition. He stands on the brink of being the first Republican

congressman from Massachusetts in 30 years, becoming the first ever Asian American elected to

the U.S. Congress from Massachusetts. In the midst of all this, he is cripplingly sabotaged 22 days

before absentee ballot applications and ballots are mailed out. He appeals to significant blocks of

Asian-American voters in the district, undermining traditional Democratic strength in Lowell, but

is now fettered by facially laughable criminal charges. 4 Despite the facial warnings that everyone

is presumed innocent until proven guilty, Ms. Healey’s press release a devastating attempt, not in

4
Charging someone with larceny, which requires a intention to permanent deprive, after the property has already
been returned is, on its face, the kind of ludicrous factual scenario normally reserved for law school test
hypotheticals.

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good faith, to use her current office to leverage both her own political prospects and revive the

fortunes of Mr. Tran’s political opposition.

Elections are defined moments. The season passes quickly, too quickly for candidates.

They are also fragile things which have legitimacy because of the careful stewardship of

generations of public servants. A brazen abuse of the criminal justice system like, timed to

maximum political impact based on information in Ms. Healey’s possession for at least two years,

can only undermine the confidence in our democracy. If America is to be, and remain, a beacon

of liberty and democracy in the world, it’s public servants and prosecutors cannot go about

attempting to jail the political opposition on trumped up charges.

d. The criminal prosecution runs against the constitutional history

guaranteeing free elections and the independence of the legislative branch

As FBI Director Comey is quoted above, no stance or action of a prosecution or

investigation can be taken if there is any risk that the use of the criminal justice system might affect

the fairness of the election: be it for President or dogcatcher. Here, we are face with the prospect

of Mr. Tran’s political opposition making use of both the existence and timing of the criminal

prosecution to obtain electoral advantage. The Department of Justice has a rigid policy against

such interference as does the constitutional history of the United States.

The Kings of England were very much aware that they could arrest or imprison members

of Parliament to ensure that the legislative branch would bend to their will. Since the days of

Magna Carta, there have been prohibitions against such manipulation. First Statute of

Westminister, 3 Edw.I c.9, 1 Stat. of Realm 26, 28 (1275) (“And because Elections ought to be

free, the King commandeth upon great forfeiture, that no Man by force of arms, nor by Malice, or

menacing, shall disturb any to make free election.”). The Stuart Kings of England tried several

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times to alter the composition of the Legislature, through ginned up criminal charges allowing the

arrest of the more incendiary members of Parliament. Charles the First famously personally burst

into Parliament trying to arrest 5 members, sparking the First English Civil War in 1641. James

the Second, in 1688, arrested seven religious members of the House of Lords, when they protested

about edits to the theological texts of the Church of England he had them arrested for seditious

libel. Charles the First had arrested both the five knights, members of parliament who protested a

tax levied without legislative consent in 1627, and MP John Rolle in 1628 for refusing to pay the

tax. 5 The following years, during his personal rule of England without Parliament’s consent,

Charles the First, arrested many more of his parliamentary opponents such as Sir John Eliot. After

the Restoration, arrests of parliamentary opponents continued to be a favored executive tactic.

Charles the Second’s minister, the Earl of Clarendon, arrested many opponents including Colonel

John Hutchinson. Later the Earl of Shaftesbury was arrested, by Charles II, in 1682 for the temerity

of having introduced into Parliament a bill excluding certain religious minorities from civil office

and the line of succession. Their predecessor, James the First, had openly arrested opponents based

soley upon political and policy positions express in Parliament, most famous arresting Lord

Edward Coke and other members in 1621 for daring to propose legislation on foreign policy. The

Stuart Kings had inherited such tactics from their Tudor predecessors. 6 Such incidents caused the

settlement of the Glorious Revolution, in the English Bill of Rights, to provide protections.

Because King James II had contravened the liberties of his subjects, “By Violating the Freedome

of Election of Members to serve in Parlyament” the new monarchs, King William III and Mary II

5
The Five Knights had famously won a habeas corpus case upon being imprisoned without any legal cause other
than the King’s pleasure. MP John Rolle was, the following year, instead dragged before the Court of the Star
Chamber.
6
For example, Queen Elizabeth the First had arrested MP John Morice in 1593 for proposing two laws, one a reform
of the state religion and the other a judicial reform of the ecclesiastical court.!

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guaranteed liberty by providing, “That Election of Members of Parlyament ought to be free.” 1

William & Mary, 2nd Session, c.2 (1688).

The freedom from arrest, a parliamentary privilege, was also used to protect candidates for

election. J.R. Tanner, Tudor Constitutional Documents, 1485-1603 (Cambridge 1922) at 579

(“The duration of the privilege of the freedom from arrest has never been defined by Parliament,

but it has been generally held to extend in the case of the Commons to 40 days after each

prorogation and 40 days before the reassembling of Parliament.”) The 40-day window protected

not only those who needed to travel to the capital, but their servants as well, and extended even to

those not yet sworn on oath as Members of Parliament. Sir Thomas Erskine May, Parliamentary

Practice, at §14.12 (25th Ed. 2019); Thomas Jefferson, Jefferson’s Manual of Parliamentary

Practice (1787) at §300 (confirming that parliamentary privilege against arrest applies even in

advance of being sworn). The executive cannot, by means of the criminal justice system generally

or trumped-up charges specifically, seek to control the legislature or undermine it by picking off

the more revolutionary members of the legislature as they stand for election. These privileges

were fresh in the mind of the Framer’s generation for its recent amendments as well as their own

colonial struggles. Parliamentary Privilege Act of 1770, 10 Geo. III c.50, §2 (1770) (prohibiting

the arrest or imprisonment of any member of parliament). The repetitive arrests and re-elections

of John Wilkes, a revolutionary populist from London who supported the Colonial cause in London

during the Revolution, also provided a deep suspicion of executive arrest authority exercised

against members of the Legislature. See Powell v. McCormack, 395 U.S. 486, 527-531 (1969)

(expounding upon the constitutional historical precedent and Wilkes’ electoral and criminal-court

struggles).

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e. This is a brazen political prosecution to punish Mr. Tran’s speech and his

temerity to seek public office.

Contrary to the long constitutional history, Ms. Healey’s office has applied her

prosecutorial power against Mr. Tran for the benefit of obtaining naked partisan political

advantage. The timing of the announcement of the indictments is suspicious unto itself, derogating

from norms such the U.S. Dept. of Justice rule against announcing investigations or charges 60

days before an election. 7 The fact that the forthcoming charges suffered a leak in grand jury

secrecy which allowed the Fitchburg City Democratic Town Chairwoman to announce the charges

a month in advance shows the brazen political nature of the proceedings. Considering that Mr.

Tran is, indisputably, the first elected official pursued by Ms. Healey’s office, it becomes obvious

that he is simply a trophy skin with which she can buoy her otherwise dismal prosecution record

on public corruption issues.

The United States is not a banana republic and we do not allow prosecution of political

opponents simply because we do not like what they stand for, things they say, or fear their chances

of winning an honest election at the ballot box. Thomas P. Wright Jr. The Origins of the Free

Elections Dispute in the Cold War, 14 Western Poli. Q. 850 (1961) (“The most persistent and

publicized of the Western demands in the cold war has been for ‘free and fair elections’ in Eastern

Europe.”); Baba v. Holder, 569 F.3d 79, 87 (2nd Cir. 2009) (commenting, in asylum case, about

the practices of Togo of jailing and torturing political opponents of the government). The triad of

facts which underline the partisan and political nature of this criminal prosecution are

7
Under the Uniformed and Overseas Citizens Absentee Voting Act, as amended by the Military and Overseas Voter
Empowerment Act, ballots must be mailed out 45 days in advance of an election date. In this case the election date
is November 8 (general election) and September 6 (primary election) for Massachusetts this year. Since the rule is
designed, in part, to prevent official condemnation from tainting a election, the new adoption of universal mail-in
voting in Massachusetts has the effect of opening voting on July 23, 2022. Thus the indictments were announced,
publicly, only 22 days before balloting begins.

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undisputable: the suspicious timing of stale information being used for criminal charges a mere 21

days before ballots are mailed, the leak of the grand jury proceedings to political opponents, and

the fact that Ms. Healey has proceed against no other elected official in her entire tenure despite

several well-publicized investigations against other state legislators.

f. Ms. Healey is not a disinterested prosecutor and the criminal charges

against Mr. Tran are a quid pro quo.

The charges brought against Mr. Tran are unconstitutional. They are, among other things,

brought by a prosecutor, Ms. Healey, who is not disinterested. A prosecutor is supposed to be

disinterested and “a minister of justice and not simply that of an advocate.” Mass R. Pro. Conduct

Rule 3.8[1] comment (Special Responsibilities of a Prosecutor). Less than 5 weeks before the

indictment was publicly announced, on May 23, 2022, Mr. Tran’s opponent Congresswoman

Trahan endorsed Ms. Healey for Governor. Within two weeks of the endorsement, the Democratic

City Committee Chairwoman of Fitchburg, confidently stated live on public television that Mr.

Tran would be in court within the month. It is evident that the price of Congresswoman Trahan’s

endorsement of Ms. Healey was the criminal indictment of her opponent, Mr. Tran. Until June 17,

2022, Ms. Healey was engaged in a tough primary race with Boston City Councilor Sonya Chang

Diaz. This being a primary where the endorsement of a popular incumbent Congresswoman would

make a substantial difference. Because of the quid pro quo, Ms. Healey stands to profit

professionally, personally, financially and politically from the prosecution of Mr. Tran.

“It is fundamental that the prosecutor of a criminal charge be disinterested. Where that is

not the case, a judgment of conviction is to be reversed without the need of showing prejudice.”

Clearwater-Thompson v. Grassmuek Inc., 160 F.3d 1236, 1237 (9th Cir. 1998).

We have held that some errors "are so fundamental and pervasive

that they require reversal without regard to the facts or

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circumstances of the particular case." Delaware v. Van Arsdall, 475

U. S. 673, 681 (1986). We find that the appointment of an interested
prosecutor is such an error.

An error is fundamental if it undermines confidence in the integrity

of the criminal proceeding. Rose v. Clark, 478 U. S. 570, 577-578
(1986); Van Arsdall, supra, at 681-682; Vasquez v. Hillery, 474 U.
S. 254, 263-264 (1986). The appointment of an interested prosecutor
raises such doubts. Prosecution by someone with conflicting
loyalties "calls into question the objectivity of those charged with
bringing a defendant to judgment." Vasquez, supra, at 263. It is a
fundamental premise of our society that the state wield its
formidable criminal enforcement powers in a rigorously
disinterested fashion, for liberty itself may be at stake in such
matters. We have always been sensitive to the possibility that
important actors in the criminal justice system may be influenced by
factors that threaten to compromise the performance of their
duty…It is true that we have indicated that the standards of
neutrality for prosecutors are not necessarily as stringent as those
applicable to judicial or quasi-judicial officers. See Jerrico, 446 U.
S., at 248-250. This difference in treatment is relevant to whether a
conflict is found, however, not to its gravity once identified. We may
require a stronger showing for a prosecutor than a judge in order to
conclude that a conflict of interest exists. Once we have drawn that
conclusion, however, we have deemed the prosecutor subject to
influences that undermine confidence that a prosecution can be
conducted in disinterested fashion. If this is the case, we cannot have
confidence in a proceeding in which this officer plays the critical
role of preparing and presenting the case for the defendant's guilt.

Furthermore, appointment of an interested prosecutor creates an

appearance of impropriety that diminishes faith in the fairness of the
criminal justice system in general. The narrow focus of harmless-
error analysis is not sensitive to this underlying concern. If a
prosecutor uses the expansive prosecutorial powers to gather
information for private purposes, the prosecution function has been
seriously abused even if, in the process, sufficient evidence is
obtained to convict a defendant. Prosecutors "have available a
terrible array of coercive methods to obtain information," such as
"police investigation and interrogation, warrants, informers and
agents whose activities are immunized, authorized wiretapping,
civil investigatory demands, [and] enhanced subpoena power." C.
Wolfram, Modern Legal Ethics 460 (1986). The misuse of those
methods "would unfairly harass citizens, give unfair advantage to
[the prosecutor's personal interests], and impair public willingness
to accept the legitimate use of those powers." Ibid. Notwithstanding

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this concern, the determination whether an error was harmful

focuses only on " `whether there is a reasonable possibility that the
[error] complained of might have contributed to the conviction.' "
Chapman, supra, at 23 (quoting Fahy v. Connecticut, 375 U. S. 85,
86-87 (1963)). A concern for actual prejudice in such circumstances
misses the point, for what is at stake is the public perception of the
integrity of our criminal justice system. "[J]ustice must satisfy the
appearance of justice," Offutt, supra, at 14, and a prosecutor
812*812 with conflicting loyalties presents the appearance of
precisely the opposite. Society's interest in disinterested prosecution
therefore would not be adequately protected by harmless-error
analysis, for such analysis would not be sensitive to the fundamental
nature of the error committed.[23]

Appointment of an interested prosecutor is also an error whose

effects are pervasive. Such an appointment calls into question, and
therefore requires scrutiny of, the conduct of an entire prosecution,
rather than simply a discrete prosecutorial decision. Determining the
effect of this appointment 813*813 thus would be extremely
difficult. A prosecution contains a myriad of occasions for the
exercise of discretion, each of which goes to shape the record in a
case, but few of which are part of the record…

The case before us involves the citizen's primary adversary in a

criminal proceeding, who is armed with expansive powers and wide-
ranging discretion. Public confidence in the disinterested conduct of
that official is essential. Harmless-error analysis is not equal to the
task of assuring that confidence. It is best suited for the review of
discrete exercises of judgment by lower courts, where information
is available that makes it possible to gauge the effect of a decision
on the trial as a whole. In this case, however, we establish a
categorical rule against the appointment of an interested prosecutor,
adherence to which requires no subtle calculations of judgment.
Given the fundamental and pervasive effects of such an
appointment, we therefore hold that harmless-error analysis is
inappropriate in reviewing the appointment of an interested
prosecutor in a case such as this.

Young v United States, 481 U.S. 787, 811-814 (1987). Moreover the right to a disinterested

prosecutor is one which starts before a case begins, in the decision to prosecute. Thus Mr. Tran

has already unfairly been impacted by the denial of his right to a disinterested prosecutor without

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a conflict of interest, for a reasonable prosecutor would not have brought this case and certainly

would not have brought this in the middle of election season.

Such a conflict of interest clearly denied Ganger the possibility of

fair minded exercise of the prosecutor's discretion. Not every
criminal case goes to trial. Prosecuting attorneys frequently decline
to charge, or nol pros, criminal cases — especially ones arising out
of domestic relations. Aside from the possibility of a favorable
charge decision, including nol pros, there is always the prospect of
plea bargaining. Because of the prosecuting attorney's own self-
interest in the [] litigation…, he was not in a position to exercise
fairminded judgment with respect to (1) whether to decline to
prosecute, (2) whether to reduce the charge to a lesser degree of
assault, or (3) whether to recommend a suspended sentence or other
clemency.

Ganger v. Peyton, 379 F. 2d 709, 712-713 (4th Cir. 1965). Thus even the existence of the criminal

charges against him, brought by the political opposition and timed for maximum electoral

advantage, have already deprived Mr. Tran of the intangible benefit of a disinterested prosecutor

making discretionary decision to not charge him. Particularly for such a weak and stale case.

Conclusion

Wherefore, the Plaintiff prays for a preliminary injunction to enjoin the criminal

prosecution against him in Worcester Superior Court until after the conclusion of the election. The

Plaintiff further prays that Attorney General Maura Healey’s office be enjoined from any further

participation in the criminal matter, if it is to continue.

Respectfully Submitted,
Dean Tran,
By his Attorney
/S/ Michael Walsh
Michael Walsh
BBO 681001
Walsh & Walsh LLP
PO Box 9
Lynnfield, MA 01940
617-257-5496
Walsh.lynnfield@gmail.com

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Certificate of Service
I, Michael Walsh, hereby certify that a copy of this filing was served upon Attorney General
Maura Healey, 1 Ashburton Place, Boston, MA 02108 by first class mail postage prepaid on this
27th of July, 2022. I further certify that a copy of this will provided in hand to her office in
Worcester this afternoon.
/S/ Michael Walsh

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