Posts
Trium Publishing House
Sub Verbis · Vera
The Monitor Clause
A federal judge blocked Boeing's guilty plea — not over anything Boeing did, but over who would get to pick the person meant to watch it, and how.
The plea agreement from Post III still needed one more signature: Judge Reed O'Connor's. He had spent three years on this case by the time it reached him again in the fall of 2024, and he had never been shy about his view of Boeing's conduct, having already called it, in a 2023 ruling, potentially the deadliest corporate crime in American history. Everyone expecting his objection to land on Boeing's conduct guessed wrong. It landed on four paragraphs about how a monitor would be chosen.
The Provision
Buried in the plea agreement's terms for installing an independent compliance monitor was a clause instructing prosecutors to make the selection in keeping with the Justice Department's commitment to diversity and inclusion. It was boilerplate — DOJ has included similar language in corporate monitor selections since roughly 2008, across administrations, in cases with no connection to Boeing. Boeing itself hadn't objected to the clause when the deal was negotiated. Nobody involved in drafting it appears to have expected it to become the reason the whole agreement failed.
In October 2024, at a hearing on the proposed plea, O'Connor asked prosecutors and Boeing's attorneys to explain, in writing, exactly how that language would affect who got picked. The judge's underlying order noted that Boeing had raised no objection to the provision at all — the question was entirely his own.
Two Objections, Not One
O'Connor's December 5 ruling rejected the deal on two separate grounds, and the coverage that followed mostly collapsed them into one story about DEI. They're worth separating, because they're different kinds of objection.
The first concerned the diversity-and-inclusion clause itself. O'Connor concluded that a fair reading of the relevant executive order and DOJ's own policies meant race would necessarily factor into the selection process. Combined with a provision letting Boeing veto one candidate from a government-picked shortlist of six, he wrote that he was concerned the company could exercise that veto "in a discriminatory manner and with racial considerations." His stated standard: "it is in the utmost interest of justice that the public is confident this monitor selection is done based solely on competency."
The second — and the one this series treats as the structurally larger finding — was that the selection process cut the court out entirely. Under the deal as written, DOJ alone chose the monitor. The monitor reported to DOJ, not to the judge. The court had no role in selecting, evaluating, or removing the person meant to police Boeing's compliance for the next three years. O'Connor wrote that this arrangement "marginalizes the Court" in a way that undermines confidence in the whole probation — a complaint that would apply to the monitor-selection process regardless of what any diversity clause said.
The Two Readings
Legal commentators split sharply on the first objection. Some corporate-governance and civil-rights scholars argued O'Connor's reading assumed something the clause didn't require — that considering diversity in a candidate pool is not the same as selecting by race, and that DOJ's language, consistent with a policy running back some sixteen years, was never applied to force a less-qualified pick. Others, including the families' own attorneys, took the opposite view: that the language, whatever its intent, created exactly the appearance problem O'Connor described, in a case where public confidence in the process mattered enormously. Both readings can be true at once — a boilerplate clause with a long, uncontroversial history landing, in this one case, inside a settlement contentious enough that any ambiguity in it became a liability.
Notably, the families pushing hardest for the plea's rejection weren't primarily animated by the DEI question at all. Their attorney, Paul Cassell, welcomed the ruling as a chance to revisit what he called a "cozy deal" that undervalued the deaths of 346 people — a substantive objection to leniency, not a procedural one about monitor selection. The ruling that resulted served two audiences with two different grievances at once: a judge concerned with process and appearance, and families concerned the whole thing was too soft regardless of who signed off on the monitor.
Thirty Days, Extended Three Times
O'Connor gave DOJ and Boeing thirty days to report how they intended to proceed — renegotiate the plea, or head to trial. That thirty-day clock stretched across the following winter and spring; the judge granted three separate extensions as the two sides tried to find language he'd accept. By March 2025, with no resolution reached, O'Connor revoked the remaining extension and set a firm trial date: June 23, 2025, in Fort Worth.
No comments:
Post a Comment