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A Tragedy Still Isn’t A Crime

Boeing 737 MAX airliner on the assembly line.
photo by Paul Thompson

In the wake of the second tragic crash involving a Boeing 737 MAX airliner, everyone wants to fully understand what went wrong. But while an investigation is necessary, there was no reason to assume a criminal probe would be.

The Wall Street Journal reported on Sunday that the Transportation Department’s inspector general has begun looking into the process by which the Federal Aviation Administration approved the 737 MAX series. In fact, the inquiry was launched in the wake of the Lion Air accident in October, though it had not been publicly reported. This is not a surprise. Nor is it a problem, since the inspector general will be looking for deficiencies in systems or processes that led to the FAA to deem the aircraft safe, potentially overlooking some flaw in doing so. As a starting point, the inspector general has asked relevant offices to preserve records.

But on Monday, the Journal broke the news that the Justice Department may have already launched a criminal investigation as well. Perhaps the department received a tip (credible or otherwise) that some undeniably criminal behavior, such as bribery, occurred in connection to the MAX series. While that is possible, it is not very likely. From outside, this investigation has the look of someone trying to build a prosecutorial career out of this double tragedy.

Based on current information, it is not clear whether the Justice Department probe is related to the Transportation Department’s investigation or is an entirely separate action. The prosecutor involved works for the fraud section of the DOJ’s criminal division, the Journal reported. Whether or not the inquiries have been coordinated, however, it is highly unusual for a criminal probe to involve the dealings between a major aircraft manufacturer and the FAA.

Not only is this approach wrong, it’s dangerous. Overlaying a criminal probe on top of what will doubtless be extensive investigations of what went wrong and who made mistakes makes it much less likely that everyone with relevant information will voluntarily talk to safety investigators. The Fifth Amendment applies, and now the DOJ has given people reason to invoke it.

The FAA did itself no favors in its initial response to the Ethiopian Airlines crash, and, according to a report from The Seattle Times, the agency may have pushed engineers to rush through their safety assessment of the 737 MAX. Under these circumstances, close scrutiny from the Transportation Department is certainly warranted. Yet the FAA’s enforcement policy, which focuses on cooperation with airlines and aircraft manufacturers, still contrasts favorably with the approaches of foreign governments such as France, which have sometimes brought criminal charges against airplane manufacturers or those companies’ individual executives after high-profile crashes. Collaborating with industry leaders and encouraging a free flow of information is the best way to make sure regulators can prevent future crashes. The safety of future flights, not finding a scapegoat, should be investigators’ main priority.

As I have written before, the fact of a tragedy does not necessarily indicate criminal wrongdoing. Accidents can lead to horrible consequences, even when no one involved broke the law. Human beings make mistakes, sometimes serious ones, despite our best efforts. The Transportation Department’s inspector general presumably hopes to identify what went wrong with the 737 MAX, regardless of whether that answer is an error chain, a systemic flaw, corporate recklessness or none of these. Yet the existence of the DOJ’s criminal probe means that anyone who may have made an honest mistake has no reason to volunteer information and every reason to stay quiet.

Getting in the way of the Transportation Department’s review ultimately compromises the safety of all of us who fly on commercial aircraft. To err is human, not criminal. Misuse of prosecutorial authority generally is not a crime, either – but maybe it should be.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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