Boeing turns to high-powered defense attorneys in 737 MAX investigation

As Boeing responds to a federal criminal investigation related to the 737 MAX, the company has assembled a deeply connected defense team headed by one attorney who represented Vice President Mike Pence in the Russian interference investigation, another who has served as the nation’s deputy attorney general and a third who played a central role in the Russian probe and the Supreme Court nomination of Brett Kavanaugh.

The behind-the-scene roles of such powerhouse lawyers reflect the high stakes for Boeing. It is simultaneously seeking to convince regulators and the public that the 737 MAX can be safely returned to the skies, while quietly maneuvering through a legal thicket as U.S. Justice Department attorneys aggressively examine how the jet was originally deemed safe before two deadly crashes.

Through a federal grand jury sitting in Washington, D.C., prosecutors are examining the design and certification process of the 737 MAX, after one crash on Oct. 29 off Indonesia and another in Ethiopia on March 10. Those disasters killed 346 people and led to worldwide grounding of the plane. The probe is cloaked in secrecy, but some of the Justice Department’s workings have become known as prosecutors issued subpoenas for documents.

Boeing has said little about the investigation, but The Seattle Times pieced together a picture of who is handling the company’s legal response through interviews with people who revealed the company’s actions on condition of anonymity because of the sensitive nature of the inquiry.

The three attorneys leading the defense team are Mark Filip of the law firm Kirkland & Ellis, who served as deputy attorney general under President George W. Bush; Richard Cullen of McGuireWoods, a Virginia-based law and crisis-management firm; and William Burck, co-managing partner of the Washington, D.C., office of Quinn Emanuel Urquhart & Sullivan.

“These individual lawyers and their firms are a team of some of the most respected lawyers and law firms in the country,” said J. Michael Luttig, a former federal appeals court judge who is now a Boeing counselor and senior adviser overseeing legal matters arising from the crashes. That team has previously represented Boeing in various matters for more than a decade, he said.

All three have vast experience overseeing what are often described as “white-collar” cases. Within that world, the chief goal is making sure the investigation never leaves the grand-jury room; otherwise the perils of a public prosecution await, with the risk of a conviction and often a plea deal.

“As a general rule, the issue in a white-collar case, unlike a traditional street-crime case, is whether a crime was committed as opposed to who committed the crime,” said John Wolfe, a longtime criminal defense attorney in Seattle.

“As such, a primary goal of a white-collar criminal defense lawyer is persuading the government that her client did not commit a crime, in order to avoid an indictment,” Wolfe said. “Generally speaking, once an indictment is returned, it becomes very difficult for defense counsel to persuade the government to dismiss.”

Defense lawyers must conduct an investigation that “mirrors or nearly parallels the investigation being conducted by the government,” he said, calling it a “race against time to develop the necessary facts and law which demonstrate that no crime was committed.”

In high-profile criminal cases in the nation’s capital, it’s also critical for attorneys to know their way around the political and legal corridors.

Filip, in addition to serving as deputy attorney general, briefly served as acting attorney general before President Barack Obama selected Eric Holder. Earlier in his career, he sat as a federal judge.

At Kirkland & Ellis, Filip led the defense response to government investigations of BP after the 2010 Deepwater Horizon explosion and giant oil spill in the Gulf of Mexico. In 2012, BP and the Justice Department reached a settlement under which BP agreed to pay $4.5 billion, the largest agreement of its kind in U.S. history. BP also agreed to plead guilty to multiple felony counts related to the deaths of 11 workers.

McGuireWoods played a role in that matter as well, helping respond to congressional investigations.

Cullen, a longtime member of the firm, is a former Virginia attorney general and ex-U.S. attorney in that state. He was hired by Pence to represent him during former special counsel Robert Mueller’s investigation into Russian interference in the 2016 presidential election, as well as in congressional inquiries.

Burck, a former federal prosecutor who helped send Martha Stewart to prison, drew attention in the Russia investigation, too. He represented Stephen Bannon, the former White House strategist to President Donald Trump. And he counseled two other Trump insiders of interest to Mueller: Former White House chief of staff Reince Priebus and then-White House counsel Don McGahn, according to a 2018 article in Politico.

“No other lawyer involved in the multiple investigations into Russian election interference is publicly juggling three clients of such high profile,” the article said.

Burck was the subject of controversy in the release of a final batch of documents related to Kavanaugh’s stint as a senior aide in the George W. Bush White House, The New York Times reported. Hired by the former president, he supervised a team of lawyers that examined thousands of documents, a process criticized by Democrats who labeled Burck an administration ally and longtime Kavanaugh friend,  The Times reported.

That work led to the withholding of more than 100,000 pages of documents related to Kavanaugh, The Times reported.

His “whirlwind multitasking” has made him the latest incarnation of the Washington superlawyer — “a legal gun-for-hire like Edward Bennett Williams, the powerhouse of the 1970s and ’80s who liked to boast that he could represent everyone in the capital at once,” The Times wrote of Burck.

In the 737 investigation, prosecutors in the Justice Department’s Fraud Section will be looking for any evidence of the “hallmarks of classic fraud” — misrepresentation to federal regulators and customers, said a person familiar with their work who asked not to be named.

This person compared the investigation to the Justice Department’s probe of Volkswagen, which led to criminal charges in an emissions scandal. In 2017, Volkswagen pleaded guilty to three criminal felony counts and agreed to pay a $2.8 billion criminal penalty as a result of the company’s scheme to sell diesel vehicles in the U.S. by cheating on emissions tests mandated by the Environmental Protection Agency and the California Air Resources Board.

The company pleaded guilty to participating in a conspiracy to defraud the United States and VW’s U.S. customers, and to violate the Clean Air Act by lying and misleading the EPA and customers about whether certain VW, Audi and Porsche branded diesel vehicles complied with U.S. emissions standards, using cheating software to circumvent the U.S. testing process and concealing material facts about its cheating from U.S. regulators.

Boeing has not been charged with any crime related to the 737 crashes and the investigation is only in its early stages. A Justice Department spokesman declined to comment on the investigation.

An earlier version of this story misspelled the name of McGuireWoods.