If you were under the impression that the Biden Justice Department was going to be tougher on corporate crime than the Trump Justice Department, take a look at the Boeing criminal case.

A conservative federal judge in Texas, Judge Reed O’Connor, last month ruled that under the Crime Victims’ Rights Act (CVRA), the Trump Justice Department should have consulted with the victims of Boeing’s crimes before the Department cut a secret deferred prosecution with the company.

Boeing and the Biden Justice Department both argued that the families of those 346 killed in the two Boeing 737 MAX crashes were not crime victims. 

Now that the judge has rejected that argument, Boeing and the Biden Justice Department are both arguing even if they are victims, no remedy exists.

Boeing’s brief was written by, among others. lawyers at Kirkland & Ellis, the law firm that hired U.S. Attorney Erin Nealy Cox six months after she cut the secret deferred prosecution agreement with Boeing.

The Justice Department’s brief, signed by Criminal Division chief Kenneth Polite, mirrors Boeing’s brief – the Department agrees with Boeing that the victims’ remedies should be denied. 

The Department has agreed to meet with the Boeing’s victims this Friday November 18. 

But victims’ families are rightly concerned that the Justice Department is just going through the motions.

Among other things, the families will demand a criminal prosecution, in open court, in a big courtroom so that all the family members who want can attend.

They will demand a criminal prosecution of Boeing, Boeing CEO David Calhoun and former Boeing CEO Dennis Muilenburg, and a trial until verdict – not another secret deferred or non prosecution agreement.

(Last month, two trial lawyers representing some of the victims, Shanin Specter and Robert Clifford – posted an article on the Stanford Law School website calling for a criminal investigation of Calhoun and Muilenburg.) 

In response, the Biden Justice Department will say – okay we met with you on November 18, we conferred and we’re sticking to the same deferred prosecution agreement. 

Goodbye.

Utah Law Professor Paul Cassell is representing the families. 

This week, Cassell filed a brief to the court arguing that despite Judge O’Connor’s ruling, the Justice Department continues to disregard the rights of the families.

“Within several hours of the Court’s ruling – on October 21 – fifteen families represented by undersigned counsel contacted the government and sought to confer about the next steps in the case, including what the government’s position would be regarding remedies,” Cassell wrote in his reply brief.  

“But the government has not yet conferred with the 15 families who bring this motion, much less the more than 300 other families who are also keenly interested in conferring. Instead (and quite remarkably given this Court’s recent ruling finding a previous CVRA violation), on November 11, 2022, the government filed its remedies brief with this Court without conferring with the families.”

Cassell asks that the government’s brief be tossed and that the government start over by conferring with the families at the upcoming Friday meeting about what the remedies should be.

Cassell summarized what he called the Justice Department’s “intransigence.”

“On October 21, 2022, this court ruled that the government had failed to confer with 346 victims’ families before entering into a secret deferred prosecution agreement with Boeing,” Cassell wrote. “But rather than take decisive action to honor its legal obligations and to confer with the families about the next steps in this case, the government continued down the path of secrecy: The government filed its remedies brief without conferring with Naoise Ryan, Emily Chelangat Babu and Joshua Mwazo Babu, Catherine Berthet, Huguette Debets, Luca Dieci, Bayihe Demissie, Sri Hartati, Zipporah Kuria, Javier de Luis, Nadia Milleron and Michael Stumo, Chris Moore, Paul Njoroge, Yuke Meiske Pelealu, John Karanja Quindos, and Guy Daud Iskandar Zen S.– not to mention more than three hundred other families around the world who are keenly interested in this case. These families all want to know what steps the government is taking to hold Boeing accountable for its crime – a crime which this court has found killed 346 people.”

“To be sure, in some cases it may be difficult whether or not the government is ‘reasonably’ conferring with crime victims. But the government’s recent actions do not present a close case. Within two hours of this court’s ruling that the government had failed to confer with the families about the deferred prosecution agreement, undersigned counsel communicated with the government that the fifteen families bringing this motion – and presumably hundreds more –  wanted to confer quickly with the government about next steps in the case.” 

“Extensive discussions followed about how to arrange a meeting with the 346 families, with the government ultimately setting a date of Friday, November 18, for a video meeting with the families around the world.”

“The government also agreed, ‘in principle,’ that this meeting should take place before the government made its remedies filing. It could hardly have been otherwise. Clearly the government’s remedies filing was going to be an extraordinarily important step in this case, since it would involve the prosecutors’ position on steps that might lead to Boeing’s criminal prosecution.”

“The families had a CVRA right to confer about that step. But at the eleventh hour, without discussing the issue with the families – or their legal counsel – the government abruptly changed course. Claiming to rely on the ‘interests of all the parties,’ the government simply filed its remedies brief without talking to the 346 families.”

Now comes the Friday meeting. It will be a closed meeting, not open to the public. It will be the first time that the families get to meet with the prosecutors. 

Will the families be able to pry the Biden Justice Department out of Boeing’s grip and force a criminal prosecution of Boeing, Calhoun and Muilenberg in open court until verdict?

Don’t bet on it.