Why Is the DOJ Treating Boeing With the Same Leniency It Gave Jeffrey Epstein?

You’ve probably seen the videos. You may have watched the first-person accounts posted on TikTok showing what it was like on Alaska Airlines Flight 1282 when the door plug on a Boeing 737 Max blew out over Portland, Oregon. It will probably come as no surprise then that lawsuits are already being filed.

Several travelers are suing Boeing for failing to ensure that the airplane was airworthy. Stockholders have filed a complaint alleging that Boeing misled them about the safety of its products.

But a legal action that deserves attention both for its origin story and for the outsize impact it seeks to achieve is one that was filed in Texas years before things went awry on Flight 1282.

Although Boeing is the subject of the case, the defendant is the Department of Justice. And these plaintiffs are not asking for money. Their goal is to make public the details of the crime committed by Boeing that led to the deaths of their loved ones on two 737 Max crashes in 2018 and 2019.

The families have challenged a plea deal negotiated in secret between Boeing and federal prosecutors. They say Boeing needs to be put on trial so the public can hear all the facts about what is now the most notorious airliner of the 21^st century.

Suing the DOJ is a tactic Paul Cassell, a University of Utah law professor and one of the attorneys representing the plaintiffs, has used before, albeit in a very different kind of case.

In 2008 the former federal judge represented the victims of convicted sex offender Jeffrey Epstein. Cassell argued that the women who had been assaulted and trafficked by the now-deceased financier were denied their right to be consulted by the prosecutors about how the case would be handled.

Under the federal Crime Victims’ Rights Act, prosecutors in both the Epstein and Boeing cases were obligated to keep the victims informed as the cases wound their way through the justice system, but that did not happen. The families learned of the agreements (called deferred prosecution agreements or nonprosecution agreements) after the fact.

“How did this secret DPA get negotiated? What is it covering up? What is involved with these later accidents and incidents?” said Cassell.

The Epstein and Boeing cases are similar in other ways. In exchange for acknowledging their crimes, Boeing and Epstein were able to avoid a trial and a prison sentence. Prosecutors limited the scope of the wrongdoing, in Epstein’s case, by granting blanket immunity to a nameless and numberless group of people who helped him sexually assault teenagers.

In the Boeing DPA, prosecutors concluded that the plane-maker’s fraud was not pervasive across the organization, carried out by many employees, or facilitated by senior mismanagement.

This was in contrast to the House Committee on Transportation and Infrastructure, which described a “culture of concealment” at Boeing and did not confine Boeing’s crimes to a limited few. The conclusion of prosecutors also defied logic, according to Jesse Eisinger, author of The Chickenshit Club, which examines the two-decade-long trend toward resolving corporate crimes with negotiated agreements.

“The idea underlying the DPA is that the FAA and the DOJ were inside this company, really examining what went wrong. But there were two crashes of this new glitzy plane, which were so serious that they needed to ground the plane because they were so concerned about safety,” Eisinger said.

“Given that, the notion that fraud wasn’t widespread or pervasive, and management was completely absolved here, was prosecutorial malpractice,” he said. “There’s no way to describe it any other way.”

Boeing’s DPA was signed on Jan. 6, 2021, in the waning days of the Trump administration. It was set to expire in three years. That turned out to be just days after the latest accident involving the Alaska flight.

With the term of the DPA expired, the Justice Department has six months to decide if Boeing abided by the terms of the agreement and earned the right to have the felony fraud charge against it dismissed. DOJ spokesman Joshua Stueve declined to answer questions about what the department was planning to do next.

As hard as it might be now to imagine a future without Boeing making news every single day, by summer it is entirely possible that the flying public may have moved the 737 Max to the part of the brain that archives, then overwrites “scary stuff heard, read, or seen.”

And while this would take the Justice Department’s deal with Boeing out from under the magnifying glass presently focused on the plane-maker, it won’t end the challenge brought by the families. Quite the opposite.

A panel of judges in Texas ruled in December that the 737 Max victims are welcome to challenge the prosecutor’s next steps because when it comes to protecting victims’ rights, the law is clear. A judge “has an ongoing obligation to uphold the public interest” and apply the Crime Victims’ Rights Act.

“That is particularly true,” judges for the U.S. Court of Appeals for the 5^th Circuit wrote, if the ultimate outcome sought by prosecutors means “no company, and no executive and no employee, ends up convicted of any crime.”

Last summer, Boeing attorney Paul Clement argued that Boeing’s deal with the government could not be set aside by a judge. To do so, he said, would be a “complete mismatch between a procedural violation” and “forcing the government to go through with the prosecution.” Clement indicated that if that happened, Boeing would likely appeal.

The Max families have often expressed frustration at being excluded from a process in which they had such a compelling emotional stake. But when the third Max came close to disaster last month, the father of a man who died on Ethiopian Airlines Flight 302 suggested that other air travelers have a stake as well.

“The U.S. Justice Department now has ample reason not to dismiss the fraud charge at the heart of the corrupt Deferred Prosecution Agreement it reached with Boeing,” Mark Pegram, whose son Sam was killed, said in a statement released to the press. “The lives of passengers should not needlessly, and once again, be put at risk.”