Lindsey Wasson/AP Photo
An Alaska Airlines Boeing 737 MAX 9 with a door plug awaits inspection at the airline’s hangar at Seattle-Tacoma International Airport, January 10, 2024.
Late on the evening of January 7, 2021, beneath 20 headlines on the Capitol Riot and another five on the COVID-19 pandemic, a story appeared on the Washington Post website announcing that the Justice Department had closed its investigation into Boeing’s development and subsequent cover-ups of the deadly self-hijacking software that crashed two brand-new 737 MAX 8 jets three years earlier. Family members of the 346 people who died and aviation geeks were universally flabbergasted by the terms of the deferred prosecution agreement (DPA), which let Boeing off with a $244 million fine and what amounted to three years’ probation. (The DOJ press release attempted to take credit for another $2.27 billion in payments Boeing would make to its customers and families of the crash victims, as though those parties’ own lawyers hadn’t been toiling for years to get those payments.) With air travel still down nearly two-thirds from pre-pandemic levels, and the news cycle preoccupied with familiarizing readers with the 25th Amendment and the “QAnon shaman,” virtually no one outside the airplane business even heard about it. An outraged tweet from Leeham News, a must-read source of information on the MAX crashes, garnered all of 14 likes.
Just over a year earlier, Sen. Ted Cruz (R-TX) stopped just short of calling the company’s then-CEO a murderer to his face, during a riveting hearing that dozens of family members had traveled to attend in public. In most of the world, 737 MAX 8 planes had not even been cleared to return to service. “Then one day they woke up and on Facebook they’re seeing this deal that gives Boeing a free pass,” says Paul Cassell, a former federal judge who calls the MAX crashes “the deadliest corporate crime in U.S. history” and represents 15 families pro bono.
Cassell is the country’s pre-eminent expert on the federal Crime Victims’ Rights Act, a 2004 statute that requires federal prosecutors to “confer” with victims throughout criminal investigations, and ensure those victims are invited to participate in “any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding” concerning their perpetrators. In Boeing’s case, federal prosecutors had not only refused to confer with grieving families, but they repeatedly and falsely told them that Boeing was not under investigation at all, then implausibly denied they even counted as “victims” of the crimes the agency had been probing.
“The Justice Department is gaslighting our families and inflicting new wounds,” the wife of a United Nations World Food Program engineer killed in the Ethiopian Airlines 302 crash said of the “sweetheart agreement.”
The CVRA is a weird statute, almost more of an etiquette guide than a legitimate law. The wording very explicitly states it cannot be used as grounds to demand a new trial, seek damages from the government, supersede state law, or “impair the prosecutorial discretion of the Attorney General.” Cassell, a former protégé of Antonin Scalia and card-carrying Federalist Society member, had failed in the past to use the government’s failure to consult victims to overturn wrist-slap Bush administration plea bargains over a BP oil refinery explosion that killed 15 in 2005 and a Citgo refinery leak that sickened 15 residents of Corpus Christi over the course of a decade.
But two years before Boeing’s DPA, Cassell had wielded the law to functionally—if not jurisprudentially—defenestrate perhaps the most appalling plea deal of all time, the September 2007 non-prosecution agreement between then-U.S. Attorney Alexander Acosta and the late pedophile sex trafficker Jeffrey Epstein. While the Miami Herald has been broadly credited for exposing Epstein’s shocking deal in its award-winning “Perversion of Justice” series, it was Cassell and his fellow attorney Brad Edwards whose CVRA litigation forced the Justice Department, starting in 2014, to hand over their internal emails on the agreement. And while Epstein’s deal was never formally thrown out, he was arrested on new charges within months of a scathing 33-page ruling in which federal judge Kenneth Marra detailed the mind-bending deference Acosta, Palm Beach County DA Barry Krischer, and others observed toward Epstein’s defense attorneys.
Epstein’s attorneys claimed the second arrest violated the terms of a deal that had been endorsed by the highest-ranking law enforcement officials in the land, including Deputy AG Mark Filip. By that point, though, Filip had returned to the private sector, and was running the team representing Boeing in the criminal investigation of the MAX crashes.
Boeing’s victims wondered if the “Epstein deal” Filip had scored for his client might be similarly cast aside if the gory details behind it were exposed. But the clock was ticking: The DPA had been set to expire three years after it went into effect, after which the DOJ would spend another six months assessing Boeing’s compliance before moving to either extend the agreement or, more likely, dismiss it altogether with prejudice. That meant that for practical purposes, the victims could only hope to exert any influence over the DOJ’s treatment of Boeing until June 2024.
But for nearly two years, Cassell tried and failed to extract information about how Boeing had landed its sweetheart deal. Finally in December, he found a Freedom of Information Act attorney named Greg Lipper to sue DOJ for stonewalling the victims’ families. Then, two days before Boeing’s DPA was set to expire, another brand-new Boeing 737 MAX experienced a bizarre and terrifying malfunction just a few minutes after takeoff, when a door plug flew clean off the fuselage and landed fully intact in some guy’s Portland backyard.
This time, the plane landed safely and everyone on board survived. But by the time passengers disembarked the flight, America was madder than ever at Boeing.
THE PUBLIC FURY OVER ALASKA AIRLINES Flight 1282’s flyaway door plug has been so uniquely and righteously intense that it’s easy to forget how downright wholesome failing to install four bolts in a door is when graded on the tsunami-grade curve set by the crashes of Lion Air 610 and Ethiopian Airlines 302, and the campaign of corporate fraud and disinformation that caused them.
In those cases, of course, the planes were compromised not by a few machinists’ negligence but by a software program called MCAS that caused each and every 737 MAX to nosedive repeatedly and irrefutably in response to input from a small, highly malfunction-prone sensor. Boeing concealed MCAS from the FAA when the MAX was being certified to avoid the need for extra pilot training, and continued to hide its existence even after the software killed all 189 on board Lion Air 610 in October 2018, instead deflecting blame for the crash onto the dead pilots. Only the second nosedive, killing 157 on Ethiopian Airlines 302 in March 2019, led international counterparts to force the FAA to ground the plane and make Boeing fix it once and for all.
Amid all this, Boeing was very much beset by the same reports of rampant corner-cutting, supply chain dysfunction, shoddy workmanship, record falsification, and chronic customer complaints that have become trending topics in light of Alaska 1282. Whistleblowers from the commercial plane assembly lines painted a picture of delusional production demands and, especially at the company’s un-unionized plant in North Charleston, South Carolina, woefully poor training. The company’s government product lines were comically behind schedule.
National Transportation Safety Board via AP
This photo released by the National Transportation Safety Board shows a gaping hole where the paneled-over door had been at the fuselage plug area of Alaska Airlines Flight 1282.
Then as now, all those problems shared a common root cause: While Boeing is in the business of designing and manufacturing unimaginably complex machines, the people who control its purse strings are tyrannically simple-minded men who view airplanes as a necessary evil toward achieving the higher purpose of dividends and stock buybacks. In a tradition that began at Jack Welch’s General Electric, where three of Boeing’s last four CEOs trained to be bosses, Boeing maintained a kind of affirmative action for executives and board members who lacked an engineering background and were subsequently less likely to oppose savage budget cuts or promote developing new planes. When the first MCAS crash happened, Boeing’s 13-member board of directors boasted just a single engineer, then-CEO Dennis Muilenburg; today, there are four engineers on the Boeing board, though its CEO David Calhoun is an accountant by training, and his apparent protégés, chief operating officer Stephanie Pope and chief financial officer Brian West, also lack engineering backgrounds. (They also lack an affinity for going into the office: Neither Calhoun nor West lives anywhere near Boeing’s factories or its Northern Virginia corporate headquarters, though the CEO has used Boeing’s private jets more than 400 times in his three years at the company.)
Ignorance is useful in those roles: It can immunize bosses and board members from culpability for the harrowing consequences of their greed-based decisions. While the first MCAS crash was very obviously the result of Boeing’s preference for shortcuts over safety, it would have been challenging for prosecutors to pin blame for it higher up the food chain.
Following the Lion Air crash, however, everyone at Boeing knew MCAS was the cause, and that it would almost inevitably cause another. Pilots had reported similar random jerks down on both test and simulator flights; an internal statistical analysis calculated, using a unreasonably fast anticipated reaction time for the average pilot, that the software glitch would crash a plane every two to three years even if Boeing never delivered another one. (Boeing had only delivered a couple hundred MAXes at that point.)
That’s when Muilenburg and other Boeing insiders, namely then-lead director Calhoun, elected to repeatedly and emphatically lie to employees, investors, pilots, and reporters about the nature of the problem with MCAS and the risk it presented to the flying public, issuing a press release pronouncing the MAX “as safe as any airplane that has ever flown the skies” and insisting that the MCAS malfunction was a “pseudo problem invented by” The Wall Street Journal, which published details on MCAS a month after Lion Air 610 went down.
In January 2019, Muilenburg and others were briefed on messages the legal team had found from two years earlier in which Boeing pilots expressed shock and dismay that MCAS was “running rampant” and causing unexpected crashes during their simulator sessions; while the company sent those exchanges to the DOJ in February, still no one who read them was apparently moved to ground the planes. Asked months later by The Washington Post to explain the board’s decision in the wake of the Lion Air disaster to keep the planes in the air and authorize another $20 billion stock buyback, Calhoun insisted: “I don’t regret that judgment. And I don’t think we got it wrong at that time and that place.”
It was a monstrous thing to say, given that an additional 157 people were dead as a result of “that judgment.” But by that point, Boeing was the subject of a rapidly widening criminal investigation over its certification and marketing of the MAX, and it’s possible Calhoun was merely trying to keep his story straight.
IN THE EPSTEIN CASE, THE PALM BEACH COUNTY sheriff’s department opened a criminal investigation into the elusive pedophile’s sex trafficking in 2005, with some 40 victims identified while Epstein toiled to hide or destroy evidence. The investigation was transferred to a federal prosecutor in 2006, and by the end of the year the feds were spending most of their energy catering to the wild demands of Epstein’s lawyers. They had sought to move the case to federal jurisdiction to ensure access to the cushier incarceration possibilities afforded white-collar criminals, but once the case was moved federal prosecutors had trouble settling on a federal crime with which to charge him, so they instead agreed to have him plead guilty to the state crime of “procurement of minors for prostitution” (a dubious charge for many reasons we’ll get to). Epstein signed this extraordinary deal in September 2007, but for nearly a year afterward prosecutors and FBI agents continued to communicate with Epstein’s victims under the premise that the investigation remained ongoing, sending one victim a letter in January 2008 requesting her “patience while we conduct a thorough investigation.” When her lawyer finally sued the government to ensure her CVRA rights were enforced before prosecutors worked out a plea deal, neither he nor any of the victims had the faintest inkling that it was already done.
Similarly in the Boeing case, the DOJ lied repeatedly to victims’ attorneys, only instead of maintaining that the investigation was ongoing when it had been shut down, they insisted repeatedly to victims’ attorneys that no criminal investigation even existed, despite an overwhelming volume of news accounts that depicted not just a criminal probe but an “expanding” one. In another echo of the Epstein case, DOJ prosecutors went to implausible lengths to ingratiate themselves to the perpetrator, despite the latter’s flagrant attempts to obstruct the investigation. As Epstein removed computers and other evidence from his house before authorities searched it, so Boeing stymied prosecutors by suspending their cooperation with the investigation for six months after the second crash in 2019. As Epstein’s attorneys convinced prosecutors to move the investigation outside the jurisdiction of the original investigators, so Boeing somehow convinced the Trump DOJ to move its investigation from the New York–based criminal fraud section to the supervision of a cybercrime specialist named Erin Nealy Cox working out of Fort Worth, Texas, a district with no apparent significance other than the existence of a federal judge known for having ruled the Affordable Care Act unconstitutional.
Jacquelyn Martin/AP Photo
Nadia Milleron holds a sign depicting those killed in the Ethiopian Airlines Flight 302 crash, including her daughter, Samya Rose Stumo, during a congressional hearing with Boeing executives.
Both shady deals also required the government to explicitly advance a grotesque contortion of reality as its official narrative of the crimes committed. In Epstein’s case, while none of his victims had been prostitutes when he began abusing them—and even if they had been, federal law does not recognize pandering as a crime children can consensually commit—the tortured charge of soliciting minors for prostitution suggested that his victims, none of whom were sex workers when Epstein began abusing them, were somehow complicit in their own victimization. And in Boeing’s case, the official “statement of facts” enumerated in the DPA embraced an alternate-reality version of events whereby the entire scheme that resulted in the two crashes was perpetrated by one rogue patsy, technical pilot Mark Forkner, who had no involvement in the design of the plane, did not work at Boeing at the time of the MAX crashes, and was described by an internal FAA presentation as a “scapegoat.”
Most shamefully of course, both Epstein and Boeing’s sweetheart deals gratuitously immunized dozens of wealthy and powerful individuals from accountability. Epstein, in exchange for his plea, wrangled immunity from future prosecution not only for himself but “any potential co-conspirators”; while Boeing’s DPA theoretically allows the agency to prosecute individuals for the 737 MAX frauds, it also explicitly stated that “misconduct was neither pervasive across the organization, nor undertaken by a large number of employees, nor facilitated by senior management,” essentially giving the finger to anyone who had cooperated in the investigation because they knew otherwise.
Cassell, the family members’ lawyer, suspects the official “Statement of Facts” accompanying Boeing’s DPA was ghostwritten by Boeing attorneys, in the same clubby fashion with which Epstein prosecutor Alex Acosta (later Trump’s labor secretary) traded drafts of the non-prosecution agreement with his attorneys Ken Starr and Jay Lefkowitz, who also happened to be Acosta’s former colleagues at the mega-firm Kirkland & Ellis. Notably, Kirkland was Boeing’s criminal defense firm as well, in addition to the former and/or current employer of virtually every high-ranking official in the Trump DOJ, from Attorney General Bill Barr, with whom Boeing general counsel J. Michael Luttig was reportedly very close, on down. (Erin Nealy Cox, for her part, resigned from public service to become a partner in Kirkland’s Dallas office six months after the Boeing DPA was announced.)
THUS FAR, THE BIDEN DOJ HAS SHOWN no appetite for revisiting the matter of the 737 MAX, going so far as to argue in 2022 (unsuccessfully) that family members of passengers who died in the crashes were not victims of Boeing’s fraud conspiracy under federal law. The agency has also failed to respond in any meaningful way to a Freedom of Information Act request Cassell filed in March 2022, seeking 34 categories of documents on the Boeing investigation, including correspondence between the agency and the company, memos detailing the charges prosecutors had considered filing against the company or its executives, and information on the case’s transferal to Cox and her subsequent hiring at Kirkland.
He never heard back.
So last fall, Cassell retained a criminal defense attorney and FOIA specialist, Greg Lipper, to sue the DOJ for the documents, and following the Alaska Airlines door plug escape in January, Lipper filed a preliminary injunction demanding the DOJ immediately process the request and further expedite the furnishing of a few specific categories of requested documents, with a focus on answering lingering questions, some of which he listed in the filing:
Why did Boeing belatedly agree to cooperate with the criminal investigation? To what extent did Boeing’s lawyers draft the DPA’s Statement of Facts? Why did the DPA fail to recognize the causal connection between Boeing’s crimes and the deadly crashes, and why did if fail to address the conduct and culpability of the company’s leadership? Was the DPA negotiated or approved by DOJ officials with ties to Boeing’s law firm? Why did the parties rush to complete the DPA before President Biden was inaugurated? Why was the case filed in the Northern District of Texas? And to what extent did Boeing urge DOJ to exclude the victims’ families from the process and otherwise violate the CVRA?
To which we might add, “And why has a Justice Department that has otherwise shown considerable relish for probing the crimes of the Trump administration demonstrated such curious reluctance to scrutinize that same administration’s sweetheart deal with one of the most reviled corporate villains of the 21st century?”
We can think of one half reason. Since the DPA was signed on January 6th, Boeing’s longtime general counsel Luttig, an ultra-connected and archconservative former federal judge who mentored most of the lawyers in Trump’s first DOJ, has remade himself as a darling of Never Trump conservatism, testifying before the January 6th Committee, producing copious op-eds about the danger Trump represents to democracy, and composing an amicus brief urging the Supreme Court to uphold Colorado’s decision to bar the ex-president from its November ballot based on a textualist interpretation of the Constitution.
Luttig resigned from Boeing at the end of 2019, but the Trump administration was littered with his former clerks—nicknamed “Luttigators”—and his formidable influence doubtless motivated the DOJ’s deference to the company. It’s certainly possible Luttig’s influence now within D.C. establishmentarian circles has dissuaded the Biden DOJ from going out of its way to antagonize him. But if Luttig is the reason for Merrick Garland’s reluctance to revisit the Boeing DPA, one presumes Alaska 1282 blew the proverbial doors off that reservation.
As Lipper points out in his most recent motion, the “public interest” case for airing the dirty laundry behind Boeing’s scummy DPA is “uncommonly strong” in light of the accident and the shocking string of quality control lapses it has exposed. At the same time, the political case for Democrats to reopen the deal is stronger than ever, giving the Biden administration an unusual opportunity to simultaneously burnish its own populist credentials while reminding voters that Trump is a crony-capitalist swamp creature.
John Coffee, a Columbia University professor who authored a 22-page paper dissecting what he called “one of the worst” DPAs he had ever seen, says that the quality and documentation lapses that have come to light since the door plug incident—such as, perhaps, Boeing’s continued failure to furnish the National Transportation Safety Board with documentation detailing its removal of (and subsequent failure to reinstall) the missing bolts that caused the door plug to fly off—should give the agency ample grounds to extend and add new controls to the agreement. But Coffee was not optimistic about the possibility of exploiting the collective outrage over the incident to force genuine reform at Boeing. “Anyone who advocates for [going tougher] on Boeing will be accused of working to the benefit of Airbus in Europe,” Coffee said in a recent interview. “That’s the kind of way Washington talks about this.”
True to form, while Republicans hijacked a Tuesday air safety hearing widely expected to focus on Boeing to discuss apocryphal reports of “illegal foreign nationals” camping out in airports and Taylor Swift’s “supersonic jet,” the aviation subcommittee’s ranking Democrat Rick Larsen (D-WA) dumped cold water on the notion of so much as scheduling a Boeing-specific hearing to address the manufacturer’s continued descent into dysfunction. “It’s going to end up a circus, and that’s not what we need,” Larsen told reporters. I hate to break it to him, but if it takes another Epstein-style media circus to force official Washington to reckon seriously with the shocking devolution of the nation’s biggest exporter, I know a few dozen grieving families that are ready to bring it on.
