The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yesterday I filed three motions challenging the Justice Department's secret negotiation of a deferred prosecution agreement (DPA) with Boeing in connection with the two Boeing 737 MAX crashes. My three motions–filed on behalf of fifteen families of victims of the crashes–rely on the Crime Victims' Rights Act (CVRA), which requires the Department to extend to victims the "reasonable right to confer" with prosecutors in a case. The introduction to my first motion explains why the Department's covert deal conflicts with the CVRA (some citations omitted):
It is undisputed that for more than two years Defendant Boeing conspired to impair, obstruct, and interfere with the Federal Aviation Administration's evaluation of the safety features of the Boeing 737 MAX aircraft. It knew that reporting the 737 MAX's safety issues to the FAA could cost the company tens of millions of dollars, so Boeing covered them up. The tragic results of Boeing's criminal conspiracy cannot be in doubt: As explained in detail in the DPA's admitted Statement of Facts, Boeing's concealment of safety problems from the FAA directly and proximately produced two horrific plane crashes, killing 346 passengers and crew members.
Against that backdrop, one would assume that the Government would have prioritized conferring with the 346 victims' families about its investigation and ultimate prosecution in this case. And yet, during its extended investigation into Boeing's crimes, far from conferring with the families, the Government chose to hide what it was doing. Rather than reach out to grieving crime victims' families, the Government secretly devised a favorable deferred prosecution agreement with Boeing. But the Government did not just conceal its investigation from the families. The Government also affirmatively misled many victims by denying that any ongoing criminal investigation into Boeing even existed—as it collaborated with Boeing to resolve that investigation. What is more, mere months after the DPA was executed and filed with this Court, one of the Government's lead attorneys who approved the agreement joined the lead law firm for Boeing and specifically the very legal team that represented Boeing in this criminal case.
When the Government concealed its negotiations from the families of Boeing's victims, it violated the Crime Victims' Rights Act. Congress enacted the CVRA because it found that, in case after case, victims "were kept in the dark by prosecutors too busy to care . . . and by a court system that simply did not have a place for them." 150 CONG REC. 7296 (Apr. 22, 2004) (colloquy by Sens. Feinstein and Kyl). The Act extends to victims the "reasonable right to confer" with attorneys for the Government in the case. 18 U.S.C § 3771(a)(5). By proceeding in secrecy and with deceit, the Government ignored binding Fifth Circuit precedent that, in enacting the CVRA, "Congress made the policy decision—which [courts] are bound to enforce—that the victims have a right to inform the plea negotiation process by conferring with prosecutors." In re Dean, 527 F.3d 391, 395 (5th Cir. 2008) (emphasis added). And victims have that right "before a plea agreement is reached." The act also guarantees victims' families' rights to "timely notice" of the DPA. See 18 U.S.C. § 3771(a)(9). And the CVRA promises victims that they have the right to "be treated with fairness and with respect for the victim's dignity." 18 U.S.C. § 3771(a)(8). When "a crime victim who is . . . deceased, . . . family members or any other persons appointed as suitable by the court, may assume the crime victim's rights under [the CVRA]." 18 U.S.C. § 3771(e)(2)(B).
Here, the Government violated all these rights by making no effort to confer with hundreds of family members who had loved ones taken from them in the two Boeing crashes. Even worse, the Government misled some of the victims' families by falsely telling them that no criminal investigation into Boeing even existed. Whatever else the Government may do under the CVRA, it cannot deceive victims.
The second motion asks for the Court to use its "supervisory power" over the DPA lodged on its docket to provide additional accountability for Boeing. The third motion asks the Court to publicly arraign Boeing on the felony charge (conspiracy) that has been filed against it.
Government's secrecy in negotiating the sweetheart deal with Boeing bears striking parallels to the secrecy that surrounded its negotiations of the sweetheart deal with Jeffrey Epstein, which I have blogged about a number of times. See here, here, and here. Given the fact that the covert deal with Epstein was so widely condemned, it is hard for me to understand why the Department surreptitiously cut a similar deal with Boeing here.
I hope that the Department handles this victims' rights motion differently than it handled my challenge to the Epstein plea deal. The Department should forthrightly admit that, in concert with Boeing, it violated the CVRA. The Department should then work with the victims' families to craft an appropriate remedy for that victims' rights violations.
Note: I've corrected a typo in the first paragraph.
To get the Volokh Conspiracy Daily e-mail, please sign up here.