San Diego Union Tribune

July 1, 2005

Cunningham questioned over commercial use of congressional seal

By Marcus Stern and Jerry Kammer

WASHINGTON – Rep. Randy "Duke" Cunningham, already in legal and political hot water over his dealings with a defense contractor, might have run afoul of the law by using a likeness of the congressional seal for commercial purposes.

Cunningham, a highly decorated Navy pilot in Vietnam and former instructor at the Navy's Top Gun academy, has operated a commercial Web site for years that sells memorabilia, including a $595 "Randy 'Duke' Cunningham Fighter Ace Kalinga Style Buck Knife."

The blade of the 10-inch knife is emblazoned with three emblems etched in gold, according to the Web site, including the "Official Seal of the United States Congress."

A chorus of still-unanswered questions has been raised in Washington this week about the legality of the Rancho Santa Fe Republican's use of the congressional seal for commercial purposes.

Cunningham and his attorney have refused to comment on the matter, but, after four days of questions from Copley News Service, the Web site's commercial operations were shut down yesterday afternoon with a message stating that a new Web site is under construction.

Under federal law, any member of Congress can be fined and imprisoned for up to six months if he or she "knowingly uses, manufactures, reproduces, sells, purchases for resale . . . any likeness of the seal of the United States Congress" without the approval of the clerk of the House.

When asked if the clerk had approved Cunningham's use of the seal, his office referred calls to his attorney, Lee Blalack, who declined to comment. Numerous calls to the clerk's office this week either went unanswered or were referred to the House ethics committee. Calls to the ethics committee also went unanswered or resulted in no comment.

However, a source close to Cunningham said that the likeness of the seal on the knife wasn't, as advertised, the "Official Seal of the United States Congress."

Instead, the source said, it was an unofficial seal not subject to the criminal statute barring commercial use. The source declined to be identified because of the ongoing FBI and federal grand jury investigations into Cunningham's dealings with defense contractor Mitchell Wade, founder of MZM Inc.

Wade purchased Cunningham's Del Mar-area house in November 2003 and later sold it at a $700,000 loss. At the same time, MZM was growing its federal contracting business and Cunningham, who sits on the defense appropriations subcommittee, was supporting MZM's efforts to get tens of millions of dollars in contracts.

Questions have also been raised about Wade's purchase of a yacht that he has allowed Cunningham to live aboard while in Washington.

The Library of Congress, in a written statement that it keeps on file, confirmed yesterday that there is no current official seal of Congress. Instead, the House and Senate each have their own seals.

The official House seal depicts the House side of the U.S. Capitol. But the House also has an "unofficial" seal created for members "to use on stationery and other office-related items."

The unofficial seal depicts an eagle and stars in gold with a blue border and cream background, which is similar to the image emblazoned on the 1,000 collector knives Cunningham offered for sale.

However, congressional ethics experts expressed doubts about the legality of Cunningham's use of the likeness, even if it was the unofficial seal of the House.

"You can't use the seal for commercial purposes," said Jan Witold Baran, a Washington lawyer who specializes in ethics and has represented members of the Senate and House before their respective ethics committees.

While the issue of the seal being used on a collector's knife hasn't arisen before, as far as Baran knows, he said questions have arisen in the past over use of the unofficial seal on stationery.

"In the '80, some political party organizations used something that looked like the Great Seal (of the United States). The Justice Department said, 'Stop it,' and they did," said Baran, who served as the general counsel to the Republican National Committee from 1989 to 1992 and worked on the 1988 presidential campaign of former President George H.W. Bush.

The Great Seal of the United States, like the unofficial seal of the House, depicts an eagle.

Although the law carries criminal penalties, including fines and prison time, Baran could recall no instance in which a case was prosecuted.

"I don't know of anyone who has gone to jail for it," he said. "It is a statute that has been on the books a long time . . . I have never heard of the Department of Justice bringing a case against someone criminally under the statute."

The Web page still features a picture of Cunningham, a fighter ace in Vietnam, striking a pose in his flight jacket with his helmet under one arm and a likeness of his fighter jet underneath.

Cunningham has always listed Top Gun Enterprises on the annual financial disclosure form he is required to file as a member of Congress. During Cunningham's years in Congress, the company has always been valued on the form at up to $500,000. But the form Cunningham released recently for 2004 valued Top Gun Enterprises at up to $1 million.

Cunningham's office referred questions on the company's increase in value to his attorney, who declined to comment.

Marcus Stern:

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