Amid Boeing safety probe, clock ticks on effort to disclose details of 2021 DOJ deal over 737 Max crashes

(NEW YORK) — An influential, deep-pocketed suspect under criminal investigation.

Secret negotiations with federal prosecutors to hammer out a deal.

A lack of consultation with victims of the crime.

Those are circumstances attorney Paul Cassell says motivate him into action.

A former federal judge who teaches law at the University of Utah, Cassell is hardly a household name. But his work pursuing justice for crime victims has achieved global notoriety.

In particular, Cassell was instrumental in pulling back the curtain on sex-offender Jeffrey Epstein’s non-prosecution agreement, by persuading a federal judge to order the U.S. Department of Justice to turn over its correspondence with defense lawyers that preceded Epstein’s so-called “sweetheart deal” in 2007.

“And then through years of litigation it became clear that it was just a monstrous deal giving immunity to all sorts of defendants and to a very significant sex trafficking organization,” Cassell said.

Now, Cassell has set his attention on a different kind of case — the DOJ’s 2021 deferred prosecution agreement with Boeing, in a criminal conspiracy to defraud case tied to crashes of Boeing’s 737 MAX aircraft. With just a few months remaining before that case could be dismissed, Cassell is pressing for public disclosure of prosecutors’ negotiations with Boeing’s attorneys.

“Here we are with another well-connected, powerful wealthy defendant who was cutting a sweetheart deal and keeping the victims out of the picture,” Cassel said. “We think that the communications between Boeing and the Justice Department will show that Boeing got concessions from the department that nobody else would ever have gotten.”

The troubled aerospace giant is facing intense scrutiny following the mid-air blowout of a door plug on an Alaskan Airways flight in January and allegations from whistleblowers, which Boeing has denied, that the company has taken shortcuts that compromised safety.

The Alaskan incident came almost three years to the day since Boeing was charged with conspiring to defraud the United States, for allegedly lying to the Federal Aviation Administration during its evaluation of the 737 MAX aircraft. More than 300 people perished in two MAX crashes, the first in Indonesia in October 2018; the second in Ethiopia five months later.

In the final days of the Trump administration, the DOJ quietly forged an agreement which fined Boeing $243.6 million and required the company to pay $1.77 billion in compensation to its airline customers and $500 million to the victims’ beneficiaries. Boeing was also required to disclose any allegations of fraud, cooperate with the government, and avoid committing any felony offense. Subject to those conditions, the DOJ agreed to defer criminal prosecution for three years on the conspiracy charge.

In a “Statement of Facts” filed in the U.S. District Court in Fort Worth, Texas, the government and Boeing pinned the deception on two Boeing technical pilots. The only technical pilot criminally charged was later acquitted by a federal jury. In reaching the agreement with Boeing, the DOJ determined that “the misconduct was neither pervasive across the organization, nor undertaken by a large number of employees, nor facilitated by senior management.”

The DOJ’s conclusions were seemingly at odds with a report on the design, development and certification of the 737 Max, published four months earlier by a U.S. House committee, which found that “design flaws,” “management failures,” and a “culture of concealment” contributed to the “chain or errors that led to the crashes.”

As with the Epstein deal, federal prosecutors neglected to consult with the victims’ families before reaching a deal, a requirement under the Crime Victims’ Rights Act.

“Epstein was a strikingly similar situation, so it was very surprising that they hadn’t learned their lesson,” Cassell said.

Michael Stumo, whose daughter Samya, 24, was killed in the Ethiopian crash, said families from around the world “exploded in outrage” when they learned of the deferred prosecution agreement (DPA). 

“When the corporation is fined, nobody’s held accountable. It’s just a check written by the corporation,” Stumo said. “We need individual accountability.”

When Cassell first appeared in December 2021 to assert the victims’ statutory rights, the DOJ initially took the position that the families had no valid legal claim, because Boeing was not charged with negligent homicide and the government did not allege that the crashes were caused by the fraudulent conduct.

Attorneys for Boeing wrote that the company “acknowledges and profoundly regrets the inestimable impact of these tragic accidents,” but agreed with the government that the victims’ had no standing to intervene.

U.S. District Judge Reed O’Connor disagreed, ruling after an evidentiary hearing that the DPA was negotiated in violation of the victims’ rights and that Boeing’s conspiracy was a direct and proximate cause of the crashes that led to their deaths. 

“In sum, but for Boeing’s criminal conspiracy to defraud the FAA, 346 people would not have lost their lives in the crashes,” O’Connor wrote.

The Department of Justice has since hosted two conferral sessions for families to express their views to prosecutors, including one meeting attended by Attorney General Merrick Garland.

Yet those positive developments for the families were tempered by Judge O’Connor’s subsequent determination that he had no authority to grant any remedies for the government’s violation of their rights, because charging decisions and DPA’s are solely within the discretion of prosecutors.

An appellate court agreed that Judge O’Connor had no authority to alter or rescind the DPA, but clarified that O’Connor retains authority to ensure that the final outcome is in the public interest and protects victims’ rights. The appropriate time for the families to object, the appellate court ruled, would be when, and if, the DOJ seeks to dismiss the case.

The government has until July 7 to decide whether to move to dismiss the criminal case, to extend the agreement, or to proceed with a prosecution.

“If they move on July 7 to dismiss the charges against Boeing, we need to be ready on July 8, to explain why that’s not the proper outcome,” Cassell said. “The families are pushing. They realize it’s an uphill battle to undo a deal that’s already been done.”

Cassell and other victims’ advocates are now engaged in a Freedom of Information Act lawsuit, trying another path to obtain the communications between the DOJ and Boeing on an expedited timeline. The government says it has so far turned up 184,000 potentially relevant emails and more than 30 terabytes of data related to its investigation of Boeing. But the DOJ says it needs another several weeks to review documents before it can make even an “initial determination” as to which records, if any, will be provided to the victims’ families.

Separately, in Chicago federal court, families suing Boeing in connection with the crash in Ethiopia have petitioned a magistrate judge multiple times for permission to share with the DOJ confidential deposition testimony and exhibits they’ve obtained in discovery from Boeing. They are seeking to provide the documents to the DOJ and Judge O’Connor prior to a final decision on the DPA. Boeing opposed the families’ motion. The DOJ, which is not a party to the civil litigation, filed a letter in support.

“These materials bear directly on the issue of whether or not it is in the public interest to dismiss the pending criminal charge … that has been filed against Boeing,” attorneys for the families argued in a February court filing.

The magistrate has so far rejected the families’ request three times, but has not closed the door on another attempt.

Prosecutors are scheduled to meet with the families of the victims and their attorneys again on Wednesday, for what may be the final opportunity for the families to press their case for criminal prosecution.

Michael Stumo plans to be there, but he says he’s keeping his expectations in check.

“I do not have high hopes,” Stumo said

Boeing and the Department of Justice declined ABC News’ requests for comment.

The Justice Department launched a criminal investigation into the door plug blowout on the Alaska Airlines flight and is examining whether the company violated the 2021 deferred prosecution agreement, three sources familiar with the situation told ABC News in February.

Boeing CEO Dave Calhoun, who announced he would step down at the end of the year, said after the January incident, “Whatever final conclusions are reached, Boeing is accountable for what happened. An event like this must not happen on an airplane that leaves our factory.”