Boeing Top MAX Pilot Takes The Fifth Over Document Subpoena


The former chief technical pilot on the Boeing 737 MAX has invoked his Fifth Amendment rights and refused to turn over documents subpoenaed by the Justice Department as part of its broad investigation into the crashes in Indonesia and Ethiopia. Mark Forkner played a key role in the development of the aircraft and worked for Boeing from 2011 to 2018. He’s now a first officer for Southwest. As chief technical pilot, Forkner’s job would have been to “provide flight operations, safety and technical support to Boeing internal and external customers at multiple levels” according to a job posting for a chief technical pilot on another airframe.

While “taking the Fifth” is often perceived as an admission of guilt, its use to avoid supplying documents is relatively rare and may just imply some legal wrangling between Forkner and the Justice Department, according to experts consulted by the Seattle Times. The Times has previously reported that it was Forkner who suggested to the FAA that the maneuvering characteristics augmentation system (MCAS) at the center of the probes not be included in the pilot flight manual for the MAX. He, his lawyer and officials with the Justice Department all declined to comment on the legal move.

Russ Niles
Russ Niles is Editor-in-Chief of AVweb. He has been a pilot for 30 years and joined AVweb 22 years ago. He and his wife Marni live in southern British Columbia where they also operate a small winery.

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  1. WHY is the DOJ involved with Indonesia and Ethiopia?
    The 737 was approved into service by the FAA.
    Let Indonesia and Ethiopia low-cost airlines investigate WHY their air crews were unable to miss hitting the planet.

  2. I wonder what sort of “documents” a FORMER Boeing employee would have in his possession other than maybe logbooks? When I left the employ of a large aerospace company, I had to turn everything in and sign a document that I didn’t take anything and won’t blab any proprietary secrets.

    So lemme see if I have this all right One arm of our Gov’t — the FAA — screws up certification of a jet that likely should have been considered a ‘new’ model. As a result of that lack of proper supervision by the folks that hide behind “safety” everything but can’t boil water, the Company doesn’t tell anyone they’ve installed a system aboard the airplane that could take over in certain circumstances. (Lets discount the poor design for a moment). Foreign air crews then manage to crash a couple of ’em because they don’t know anything about the system and haven’t been properly trained. Then, another arm of our Gov’t — the “Justice” Dept (is that now an oxymoron?) comes in to strong arm a former employee of a company that the first arm of Gov’t should have managed better. A third arm of our Gov’t — the Congress — gives lip service to looking into the matter and suddenly goes silent. This whole thing is starting to look like a Keystone Kops episode. Does anyone know who’s on first and what’s on second? It’s no wonder foreign governments no longer trust the FAA to solve this dilemma.

    So who is gonna prosecute the FAA for giving carte blanche ODA authority to Boeing … aka known as the party of the first part? Is some poor SWA pilot gonna swing so the mythical “they” can say they did something? “What a revoltin’ development!” Cunningham Aircraft woulda done a better job.

    • I tend to particularly agree with your first paragraph, Larry. As a current employ of one aerospace company and a former employee of numerous other aerospace manufacturers, I as well do wonder what sort of documents he would have in his position?

      According to the linked job position provided in the article, the position of “Chief Technical Pilot” does not even include FAA DER qualifications or duties. So there would be no notes to collect from his activities conducted while wearing his “DER hat.” This particular action by the U.S. Justice Department smells to me like a stunt conducted by government minions of a banana republic.

      Am I mistaken in feeling that the Justice Department is stepping out of bounds with their subpoena of documents from a former Boeing employee – as well as their whole “broad investigation into the crashes in Indonesia and Ethiopia?” It seems to me that Mr. Forkner, at this time, owes the Justice Department nothing more than a polite but firm referral to the Boeing Company of Chicago, Illinois (and perhaps a strongly worded request to get off his lawn).

  3. Larry I don’t quite agree. We underfund the FAA, so the civil servants do what they can to hold it together with duct tape. Something fails, and then we blame them. It’s a self-licking ice cream cone.

    The problem is that many citizens don’t want to pay the true cost of government. This is the natural consequence. I’m not making a judgment on it, as I certainly don’t want to pay for certain arms of government whose function I disagree with. But this is the result of underfunding things.

      • I KNEW someone would challenge my FAA comment, Yars, and YOU are correct.

        When I addressed acting Administrator Elwell at Airventure 2019, he had the gaul to say in no uncertain terms that the FAA is slow. One reason for that, folks, is INERTIA !! They have SO many sub-bureaucracies and SO many people doing things that it’s a lot like steering a herd of cows with mice. AND … someone I knew was just gloating about getting promoted to GS-14 … to push paper around in a circle. Give me a darned break! Sorry … no empathy here.

        The FAA needs to lead, follow or get the heck out of the way.

        • “I KNEW someone would challenge my FAA comment” – and why not.
          I wonder if we’re asking the right questions here. Such as why aren’t these much-needed ‘geniuses’ lining up to go into those government positions? Why only ‘morons’? I might be biased here by my own experience, which is that those ‘geniuses’ we so desire are sufficiently genius to go into something more rewarding than those thankless, under-resourced, no-win, damned-if-you-do, damned-if-you-don’t government positions.
          Similarly, if we believe our political leaders and contenders are ‘morons’, where are those ‘geniuses’, and why aren’t they standing for election?

          • The Swamp has erected very effective barriers-to-entry to invasive species.

            Doubt that? Try to get congressional term limits passed – or even debated. “Responsive government” has become an OXYmoron.

  4. This entire mess started with congress inserting provisions in the latest FAA authorization bill strongly “encouraging” the FAA to expand the ODA program so Boeing could get the MAX certified in a hurry. Does little good for any congressional investigation since they are the ones that created this problem. Some of the issues brought up by Thomas S. reminds me of the Republican issue in the 1990’s of unfunded government mandates. Too bad that was all but forgotten when Bush became president. If that test pilot is actually prosecuted, it will set back safety reporting programs in aviation in this country 100+ years.

  5. So, the Seattle Times incriminated a former Boeing employee by publishing “salacious” information – “hearsay evidence” – as Perry Mason would say, if he was on Forkner’s defense team.

  6. It is a darn weird world out there, where FAA employees eventually went on strike, due to the pressure they were exposed to, from manufacturers and their own boss, who should support the employees, not the other way round.

    And it is the politicians who have forced the FAA to turn over the control of the certification to the interested party/parties, believing that commerce has no interest in cutting corners, even if they can without being found out.

    Why not let China super-bureaucrats take over, can’t get much worse, can it?!

  7. Why not take the 5th. After watching the last few years of how the FBI, DOJ, IRS and Mueller investigation will create a legal case against you I would take the 5th even if I was in an accident. I don’t trust any government agency after the last few years, including he FAA. Anything you say will be used aganst you.

  8. News Flash … the Seattle Times is now reporting that EASA may not accept the final FAA re-certification of the Max and is considering sending it’s own pilots and engineers over to do their own independent testing of the airplane after the FAA “blesses” the changes. Further, they’re not sold on the notion that adding a second AOA vane as standard required equipment is enough. They’re saying they may want a third system and all three to agree in any final design changes.

    So beyond the issue of what will satiate all involved parties before allowing renewed operation of the airplane, the FAA has now very seriously tarnished their credibility and reputation before the world ‘court’. Congratulations, FAA (and Boeing) … good job. But hey … I’m certain that dozens of AC’s, SAIB’s, SAFO’s, AD’s, FAR’s, SFAR’s and other “guidance” will be forthcoming on the issue because — well — “they’re here to help.”

    Seems to me that the “Justice” Dept and the FAA / DOT are now in a race to see which is the bigger oxymoron. One thing IS for sure … both organizations move SO slow — due to bureaucratic “inertia” — as to make them borderline irrelevant. But I’m sure they’re building the gallows for the Technical Pilot as we speak? Someone has to pay.