Mariam Zuhaib/AP Photo
Boeing CEO Dave Calhoun testifies at a Senate Homeland Security Subcommittee on Investigations hearing on Capitol Hill, June 18, 2024, in Washington.
Boeing either may or may not be prosecuted for violating the terms of a settlement agreement in 2021 involving its 737 MAX planes. That’s my informed perspective after reading elite media reports.
If you read The New York Times, you’d learn that the Justice Department is “considering” another deferred prosecution agreement to replace the last deferred prosecution agreement. It could install a federal monitor to oversee Boeing’s manufacturing processes, but it would sidestep a lawsuit as “too legally risky.” If you read Reuters, you’d learn that actually, prosecutors working on the case have recommended criminal charges to senior Justice Department leadership.
These can both be correct. The prosecutors could recommend criminal prosecution for violating the settlement agreement—after all, that’s the by-the-book response to such a violation—while the leadership could decline the recommendation and instead move to a settlement again.
The initial DPA, signed the day before the January 6th attack on the Capitol in the waning days of Donald Trump’s first term, gave Boeing a reprieve for misleading regulators about fatal errors in the 737 MAX systems, which led to two crashes in 2018 and 2019 that killed 346 passengers.
Just last week, Boeing CEO Dave Calhoun received a chilly reception on Capitol Hill, from a Senate committee and families of those who died in the crashes, who demanded that DOJ pursue the maximum criminal fine of $24 billion for “the deadliest corporate crime in U.S. history,” as well as jail terms for top executives, including former CEO Dennis Muilenburg. But the Times has information on a meeting between the families and DOJ, where top leadership prepared them for the lack of a prosecution, claiming they wouldn’t be able to win a guilty verdict.
The Justice Department has a July 7 deadline to decide what sanction—another settlement or criminal prosecution—to place on Boeing for violating the settlement, which it already determined in May.
Though the Justice Department has engaged in several broad swipes at corporate power under Biden, practically all of them have come from the Antitrust Division. The Criminal Division has been far less active on corporate crime. In April, I wrote that Biden’s DOJ engaged in fewer corporate criminal prosecutions in its biggest year than in any year under George W. Bush. More than three-quarters of the corporations that DOJ prosecuted in 2023 had 50 employees or fewer; large corporations like Boeing simply are not well represented among corporate criminal actors in the Biden administration.
DOJ’s top brass—Attorney General Merrick Garland and his top deputy Lisa Monaco—simply haven’t proven that they have the stomach for challenging large companies that engage in serial violations of the law. The specter of the Arthur Andersen case, where the accounting firm was convicted of shredding documents about failed energy giant Enron in 2001 and subsequently went out of business, looms large in the minds of way too many cautious prosecutors. (The accounting industry is just as big today as it was with Arthur Andersen; fake outrage about job loss has been totally misplaced.)
With Boeing, the only major commercial aviation company in the U.S., the “too big to fail” problem is even more prominent. A criminal conviction would prevent Boeing from securing government contracts, and Defense Department funding keeps the company alive. But Boeing’s spiraling dysfunction in engineering is simply unlikely to improve if it can skate away from accountability through multiple administrations, whether Democratic or Republican. At some point, the law has to mean something, regardless of the criminal offender.
There’s a political dimension to this as well. Donald Trump’s DOJ let Boeing walk. Joe Biden’s DOJ has an opportunity to show that no corporation, along with no man, is above the law.
