If there is any truth to the adage that the definition of insanity is doing the same thing over and over and expecting a different outcome, then there are some very crazy folks in the United States Department of Justice.

How else to explain the willingness of the government to consider once again, allowing Boeing to avoid a criminal trial for behavior that led to the deaths of 346 people in the crashes of two 737 Max aircraft?  We will know later this week what kind of a juicy deal Boeing gets in its latest scandal; the 5-year saga of the lethal Boeing 737 Max.

But let’s be clear; should Boeing accept a plea deal and avoid a trial, it will be a familiar course for the company. Over the past fifty years, Boeing has played the get-out-of-jail-free card four times.

I’ll touch lightly on the most recent arrangement, the one granted to Boeing in 2021. That’s when it acknowledged it committed fraud by withholding critical safety information from the Federal Aviation Administration. The subterfuge, according to prosecutors, contributed to the Indonesian and Ethiopian crashes in 2018 and 2019.

The deferred prosecution agreement (or DPA) absolved higher-ups in the company of responsibility, pinning the blame on two low-level pilots. It gave the planemaker 3 years to pay a fine and fix its ways.

Rather than do that, however, Boeing did not improve safety and accountability, as demonstrated by a near disaster over Portland, Oregon when a door blew out on an Alaska Airlines flight. It is this failure the DOJ is ostensibly trying to address now with yet another plea deal that will keep Boeing out of a courtroom. But will it work?

The last time the company was caught engaging in federal criminal behavior, only reputations were slaughtered. It was the early 2000s and Boeing’s Chief Financial Officer, Michael Sears was caught having convinced Darleen Druyun, a top Air Force weapons buyer to share confidential information about Boeing’s competition for military contracts. She also steered high-value contracts to Boeing, including one worth $20 billion dollars. In return Druyun was given jobs at Boeing for herself and her children.

The evidence was overwhelming. Sears served 4 months in prison and Druyun served nine. But Boeing as a company escaped any criminal charges by agreeing to pay a fine and behave better. Because the company was not convicted of a crime, its business relationship with the defense department continued uninterrupted. (Read the full agreement here.)

Why, one wonders, didn’t the prosecutors in 2000 consider previous chicanery by Boeing? A decade earlier the company presided over the theft of classified documents, employing a former Air Force procurement officer to gather tens of thousands of secret documents that gave Boeing an advantage over its competition. So many purloined papers were slipped from the Pentagon to Boeing, that a separate library had to be created at Boeing’s Washington state headquarters to house them.

When Richard Fowler, the Boeing employee responsible for the document theft ring was arrested, Boeing executives claimed they had no idea what he was up to. Fowler was out of federal prison when another Pentagon scandal erupted, dwarfing all others. At its head was Melvyn Paisley, undersecretary of the Navy and a former Boeing executive.

Former Boeing executive Melvyn Paisley

For the full details of what has been billed as the Pentagon’s largest procurement scandal, I recommend Andy Pasztor’s excellent book, When the Pentagon Was For Sale.

Let’s just say that Pasztor, an accomplished journalist formerly with the Wall Street Journal, is scratching his head over the DOJ’s obliviousness to the nature of the company with which it is once again negotiating.

“The Justice Department should have a longer memory of the history of violations and admitted illegal behavior,” he said. “A company’s history is supposed to factor in the disposition.”

Instead, prosecutors seem to be pandering even more to the storyline Boeing has been putting out since the eighties, when laws are broken at Boeing, its lowest-level folks are to blame.

In the 2021 DPA, prosecutors went so far as to document that position by inserting in the deal a caveat that the misconduct for which Boeing was charged “was neither pervasive across the organization, nor undertaken by a large number of employees, nor facilitated by senior management.”

“The DOJ never explicitly exonerates anyone in a high-profile case of white-collar fraud,” Pasztor told me. “The court documents simply indicate those who are charged; who are the co-defendants; and who are either indicted or unindicted co-conspirators. No mention, even in summary of those who weren’t found to be complicit.”

That the last plea deal with Boeing was unnecessarily explicit, is no mystery to Peter Reilly, a lawyer and professor at Texas A&M School of Law. These deals are the product of elaborate behind-the-scenes negotiations leading to a compromised set of agreed-upon details.

“The set of facts is the result of a highly skilled dance,” involving lawyers from both sides, Reilly said. “Are those the set of facts you’d get if you were a jurist at a trial? Probably not. Some people might say, ‘Well that’s not a complete picture of what happened.'”

That a more complete picture could emerge at trial is the reason Boeing wants to avoid a trial and the reason Max crash families want a trial very much.

The prosecutors reportedly told the families “the DOJ couldn’t prove charges by a reasonable doubt.” Curiously that didn’t stop the feds from prosecuting Boeing technical pilot Mark Forkner in 2022 with the ludicrous claim that but for his alleged deceptive conversations with a counterpart at the FAA, the Max disasters would have been averted.

But get this, after hearing the more complete story at trial, the jury acquitted Forkner in just 2 hours. Three days of testimony made public new facts about the design of the Max including that the information Forkner was accused of withholding from the FAA had been on the agenda and discussed at four separate meetings between Boeing and the regulators.

“The thing about trials is they tend to get to a greater truth,” Reilly said. “If what we want to find out is what happened, what’s the full story, that’s what we want. If I compare how well does a DPA get to that, versus how well does a trial get to that? It’s a world of difference.”

Boeing customers and the global flying public and especially the Department of Justice ought to be siding with the families to get the full story of what’s going on with Boeing and its troubled but bestselling airliner, the 737 Max.

But if I expected that to happen following the company’s repeated go-rounds with the DOJ, well, that would be the definition of insanity.

Boeing Hides Behind Pilots as Gross Manslaughter is Attached to 737 Max Deaths

Christine Negroni

Author of The New York Times bestseller, The Crash Detectives, I am also a journalist, public speaker and broadcaster specializing in aviation and travel.