Federal prosecutors plan to criminally indict Mark Forkner, the former Boeing 737 Chief Technical Pilot who is alleged to have deceived aviation regulators and airlines about a critical new flight control system on the 737 MAX, the Wall Street Journal reported Friday.

Bringing Forkner to trial could shed more light on why the flaws in the MAX flight controls that killed 346 people in two crashes were overlooked during certification.

In a Deferred Prosecution Agreement with the government in January that slapped Boeing with a relatively low fine of $244 million, the company acknowledged fraud and criminal misconduct during certification of the MAX.

The agreement called out Forkner and his deputy as being involved, though it exonerated Boeing’s senior management by specifically stating that they had not facilitated the misconduct.

However, Forkner’s defense is likely to try to deflect blame from him to those higher up in the executive leadership of the MAX program.

Internal emails show Forkner felt intense pressure to comply with a “program directive” to keep down costs and protect the jet’s development schedule by ensuring that regulators and airlines perceived the MAX as so minimally changed from the previous 737 model that pilots would find little difference.

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Forkner left Boeing to fly for Southwest Airlines in 2018, three months before the first MAX crash of Lion Air JT 610. He did not cooperate with the Department of Justice investigation into the jet’s certification and invoked the Fifth Amendment to avoid turning over documents when subpoenaed by federal prosecutors.

He left Southwest a year ago and could not be reached for comment. Forkner’s attorney did not return calls Friday. Boeing also declined to comment.

Misleading the FAA and airlines

Forkner’s role on the MAX from the jet’s launch in 2011 through its certification in 2017 was to win approval from the Federal Aviation Administration and regulators around the world for the MAX’s technical manuals and pilot training on the new airplane.

After the two deadly accidents in Indonesia and Ethiopia, the Department of Justice convened a grand jury to investigate allegations that Forkner had misled regulators by deliberately withholding information about the new flight control software — known as the Maneuvering Characteristics Augmentation System (MCAS) — that had led to the crashes.

Pressed by the Justice Department, Boeing turned over a series of emails and shocking instant message exchanges between Forkner and his deputy, Patrik Gustavsson, in which Forkner bragged about how he had “jedi mind tricked” airlines into choosing the minimum pilot training option — and so avoided the need for extensive training of pilots on full flight simulators that would make the MAX a more expensive and less competitive airplane.

To pull that off, Forkner persuaded the FAA in March 2016 to omit any description of MCAS from the pilot manuals, arguing that it would activate only in extreme circumstances — as he said in an email, “WAY outside” normal flying conditions.

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That September, Boeing gave Forkner and his team a “Service Excellence Award” for achieving this critical MAX program goal.

Forkner actively worked to the same end with regulators around the world, whom he disparaged in private messages as “fools” and “idiots.”

Tragically, Forkner even dissuaded Lion Air officials who wanted to train their pilots on MAX simulators that this was “a difficult and unnecessary training burden for your airline.”

He mocked the Indonesian airline representatives for their “stupidity” in asking for such training and boasted that his efforts to dissuade them had saved Boeing “a sick amount of $$$$.”

Yet after the Lion Air MAX was the first to crash in October 2018, killing 189 people, Boeing top executives blamed the pilots for not handling the plane properly.

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Lying to regulators

In late 2017, with certification almost complete, Forkner discovered that Boeing — based on feedback from its flight test pilots — had changed the MCAS software to make it operate at a lower speed well within the normal flight range.

“So basically I lied to the regulators (unknowingly),” he messaged Gustavsson.

Crucially, he didn’t inform the FAA or any airlines of the change. Pilots still learned nothing about MCAS until after Lion Air Flight JT 610 crashed.

The Deferred Prosecution Agreement states that Forkner and Gustavsson “intentionally withheld and concealed from the FAA … their knowledge of MCAS’s expanded operational scope” and indeed Forkner afterward reiterated to the FAA that all mention of MCAS should be removed from the pilot manuals.

That agreement with Boeing, while clearly laying out a case for charges against Forkner, was criticized for the way it explicitly exonerates Boeing’s leadership.

The case was brought by the then U.S. Attorney in the northern district of Texas, Erin Nealy Cox.

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Cox left the Department of Justice after the agreement and in June joined Kirkland & Ellis, Boeing’s lead corporate criminal defense law firm. On Kirkland’s website, she was welcomed to the firm as a partner by Mark Filip, who had signed the Deferred Prosecution Agreement on behalf of Boeing.

Because of Boeing’s intentional withholding of information from the FAA …
airplane manuals and pilot-training materials for U.S.-based airlines lacked information about
MCAS, and relevant portions of these manuals and materials were … materially false,
inaccurate, and incomplete
– Department of Justice Deferred Prosecution Agreement, January 2021

Unlike Forkner, Gustavsson cooperated with Boeing and with the Department of Justice in its investigation.

In one instant message response to Forkner that may help Gustavsson avoid prosecution, he seems to assume that the MAX flight manuals will have to be updated because of the change to MCAS.

Gustavsson left Boeing in November 2019. There is no indication at this point that he will be charged. His lawyer declined to comment Friday.

On Tuesday Forkner figured prominently in a damning PBS Frontline documentary on the MAX saga, Boeing’s Fatal Flaw.

Citing people familiar with the matter, the Journal reported that a prosecution of Forkner is expected to be filed “in the coming weeks.”