High court probes whether former state senator should be immune from conflict of interest charges

AN ATTORNEY FOR former state senator Dean Tran referenced famed attacks on the floor of Congress and 200-year-old case law as he argued before a somewhat skeptical high court that Tran should be immune from criminal ethics violation charges. 

Tran, a Fitchburg Republican, was indicted in 2023 for allegedly violating the state ethics law by directing members of his legislative staff to campaign for him during two reelection campaigns. A 2020 report from the Senate Committee on Ethics found that Tran’s senate office and campaign staff were deeply intermingled, which Tran denies, with legislative staffers knocking on doors, organizing fundraisers, and doing campaign work during normal business hours. 

“Senator Tran’s staff was reportedly so engaged with campaign activities that there was confusion over who actually worked in the office,” the Senate ethics report noted. 

This, according to Attorney General Andrea Campbell’s office, was Tran using his official position to “secure an unwarranted privilege,” which is barred by conflict of interest law in Massachusetts that prohibits public employees from using public resources in connection with political campaigns or other private political activity. 

But bringing these criminal charges at all violates the protections of “legislative immunity,” Tran’s attorney, Michael Walsh, argued before the Supreme Judicial Court on Wednesday.  

Because the activities in question involve Tran’s standing as a lawmaker and conversations with staff are quintessentially legislative in nature, Walsh said, only the Legislature can punish him. 

A lower court judge should have dismissed the case, Tran’s team argues, because of the legislative immunity and because a prosecutor dismissed a grand juror for appearing biased against Tran without getting approval from a judge. 

“Because of the co-equal branches of government,” Walsh told the justices, “the courts are not and cannot be – nor can the executive be – in a position to review the nature or decisions or acts of the Legislature.” The immunity protection, he said, is “essentially breathing room for the Legislature to act.” 

That may be significantly too broad a claim, suggested Justice Serge Georges. Prosecutors are claiming that Tran’s actions weren’t “about this bill or that bill” or decisions in an official capacity, Georges noted.  

Rather, “this was a personal thing – I want to be re-elected,” Georges said of Tran’s actions. “I want [staffers] here, helping me do that. This is entirely divorced from the acts of a legislator in terms of the Commonwealth’s citizens, isn’t it?” 

Walsh harkened back to the caning of Charles Sumner, a Massachusetts antislavery Republican who addressed the US Senate in 1856 about admitting Kansas into the union as a free state or slave state. He accused other senators in mocking personal terms of committing a “crime against Kansas.” US Rep. Preston Brooks later attacked Sumner with a cane in the chamber in front of onlookers, survived a House censure vote, resigned, and was re-elected. 

Brooks’s attack, Walsh said, was clearly not “legislative” in nature. But Massachusetts offers substantial protections under Articles 10 and 11 of the state Constitution for its own legislators, he told the justices. It is the Legislature itself that is empowered to decide its own privilege, he said, and to judge its own acts.  

Georges, calling this interpretation “troubling,” offered a hypothetical that Walsh said sits at the “absolute outer edge” of the defendant’s claim. 

“If I’m a state senator, and I have a bunch of staffers that I know that are really great carpenters, and I say, ‘Hey, you guys are going to build me a new deck,’” Georges asked, “are you saying to me that because I get to say, ‘my staffers are going to build me a new deck’ that I could somehow shoehorn that into legislative acts for purposes of getting immunity?” 

That would be a matter for the legislative body, Walsh argued. The matter would need to be referred to the House Ethics or the Senate Ethics Committee for an opinion, he said, instead of bringing an indictment. 

In Tran’s case, the Senate unanimously voted to strip Tran of his leadership position, barred him from using his physical office, and required him to communicate with his aides by email only. That did not count as lawmakers deciding to waive legislative immunity for conflict of interest charges, Walsh said. 

Walsh and Assistant Attorney General Tara Johnston referred to a seminal SJC case from more than 200 years ago, which established that state legislators are “entitled to this high immunity and privilege,” so long as “the member must be within the standing rules and orders of the house.”  

They leaned on Coffin v. Coffin for entirely different arguments. Walsh pointed to the opinion’s statement that lawmakers alone can judge their rules and orders, enforce their observance, and punish a member for any violation of them. 

Johnston argued that the case and later decisions are clear that legislators are meant to be protected from having to face civil suit from actions that are “essentially integral to the due functioning of legislative activity,” she said. “There’s no reason why a state senator cannot be prosecuted under a criminal statute.” 

The SJC is expected to deliver its decision within the next 130 days. 

The conflict of interest charges against Tran – the first Vietnamese American elected to the State House in Massachusetts – are separate from his conviction on charges of wire fraud and filing false tax returns, for which he was sentenced to 18 months in prison in February. Tran said he would appeal regardless of the sentence.  

Tran was also indicted in 2022 on charges brought by then-Attorney General Maura Healey that he stole a Colt .45 gun from an elderly constituent and then misled the investigation into the incident. 

Tran lost his bid for reelection in 2020 and saw the red district swing blue with Democrat John Cronin’s election. Two years later, Tran unsuccessfully challenged incumbent US Rep. Lori Trahan in the 3rd Congressional District. 

In a Facebook post in late 2024 Tran asked incoming President Donald Trump to pardon him. He claimed was targeted by the Democratic attorneys general – Healey and later Campbell – for being “an electable Republican in a deep blue state.” 

Tran’s lawyer also argued the prosecutor created a structural problem in dismissing a grand juror who displayed hostility toward Tran. The state argues that, even if the juror was dismissed improperly, the courts should specifically look to whether or not it created prejudice against Tran – which would depend on the facts of the case.  

“Didn’t the prosecutor do what we want prosecutors to do?” Justice Frank Gaziano asked. “When the grand jury said, ‘Hey, he’s a Trumper,’ and they basically said, ‘You take a back seat.’”  

This was something, Walsh argued, that should have been referred to a judge for approval. Prosecutors should not be dismissing jurors at the first sign signs of possible bias, he added. 

“This was done with the best of intentions,” Walsh said. “The problem is that if you say that this power exists at all, someone will later use it irresponsibly.”