The newly-minted “Office of the Former President” features a logo with a striking resemblance to the Great Seal of the United States. Is it legal?
Updated on February 4, 2021 with information about Donald Trump’s letter to SAG-AFTRA below.
Per a Monday press release, Donald Trump has apparently opened an office in Florida that will handle his duties as a former president. Or, should I say (with apologies to the four other living officeholders), the former president?
It isn’t clear what sort of “official activities” are in the works for “the Office of the Former President,” although I’m sure that all involved will make many calls and have many meetings. The organization has also registered a new domain name, 45Office.com, which as of now just depicts the office’s new logo.
That logo, which was reportedly designed by Trump’s former campaign manager Brad Parscale, isn’t exactly original. It mainly copies the Great Seal of the United States, with a few elements from the shield of the Seal of the President of the United States thrown in for good measure.
Not long after the announcement, the Twitterverse began doing what it does best. No, not shameless self-promotion. Bad legal takes:
Judging from some of the reactions I saw, folks were ready to impeach former President Trump a third time for using the logo.
Legend has it that the first presidential seal was drawn by President Millard Fillmore in 1850. The current design—which depicts a bald eagle with an olive branch in its right talon, a bundle of 13 arrows in the left, and a scroll bearing the words “E pluribus unum” in its beak— was chosen by President Truman and made official in a 1945 executive order.
While it would certainly be ironic—in an Al Capone kind of way—if Trump were ultimately brought down on criminal copyright infringement charges, it’s not going to happen.
Now, that said, there is a separate federal law that regulates the use of likenesses of the Great Seal and the Seal of the President on various works. It’s part of Title 18, which is the main criminal code of the federal government.
I’m seeing a lot of people quoting only portions of the statute online. Or not quoting it at all.
In order to set the record straight, here’s the entire first section of the statute:
Whoever knowingly displays any printed or other likeness of the great seal of the United States, or of the seals of the President or the Vice President of the United States, or the seal of the United States Senate, or the seal of the United States House of Representatives, or the seal of the United States Congress, or any facsimile thereof, in, or in connection with, any advertisement, poster, circular, book, pamphlet, or other publication, public meeting, play, motion picture, telecast, or other production, or on any building, monument, or stationery, for the purpose of conveying, or in a manner reasonably calculated to convey, a false impression of sponsorship or approval by the Government of the United States or by any department, agency, or instrumentality thereof, shall be fined under this title or imprisoned not more than six months, or both.18 U.S.C. § 713(a)
Contrary to popular opinion, the law doesn’t make the mere use of the presidential seal illegal. If this were the case, all of the sellers of tacky merchandise on Amazon and D.C.-area gift shops would be going to jail.
Instead, in order to violate the law, the seal has to be used “in a manner reasonably calculated to convey a false impression of sponsorship or approval by the government of the United States or by any department, agency, or instrumentality thereof.”
This is similar to the standard used to determine liability for trademark infringement, which is primarily concerned with uses that are likely to confuse consumers about the source of a product or service. If the use of the seal doesn’t suggest the sponsorship or approval of the U.S. government, it’s not illegal.
It’s not always clear when a particular use crosses the line. In 2005 the Bush administration wrote a cease and desist letter to satirical news website The Onion demanding that the site remove a replica of the seal, asserting that it was “not to be used in connection with commercial ventures or products in any way that suggests presidential support or endorsement.” The Onion’s lawyer responded that “It is inconceivable that anyone would think that, by using the seal, The Onion intends to ‘convey sponsorship or approval’ by the president.” While the matter was never litigated, I think the Onion had the better position.
So long as Trump’s “Office of the Former President” continues to recognize that he’s the former president and doesn’t falsely suggest that he’s the current president, its use of the seal shouldn’t run afoul of the law.
I should also point out that at least two other former presidents are using versions of the seals on their websites:
While it’s probably fair to assume that Trump may push the envelope more than former Presidents Bush and Obama, it seems unlikely that anyone is going to be confused about whether Trump is still president.
At least, I sure hope not:
I really gotta get off Twitter.
UPDATE—February 4, 2021—As if to prove my “envelope pushing” point, former President Trump sent out a letter today resigning from SAG-AFTRA, in which he referred to himself as “President Donald J. Trump”:
Putting aside that Mr. Trump considers a 5 second cameo in “Home Alone 2” to be part of a body of work he can look upon with pride, does the fact that he’s calling himself by the title “President” change anything in my analysis?
Probably not. The “reasonable consumer”—and certainly Gabrielle Carteris, the intended recipient of Trump’s letter—have surely heard the news that he is in fact no longer president. Frankly, the only people who may possibly be confused, at this point, are people who aren’t reasonable.
By the way, according to Emily Post (who seems to be quite prolific for someone who’s been dead for 60 years), using terms like “President LastName” or “Mr. President” (at least in a formal setting) is technically improper, as those are terms reserved for the current head of state.
However, in reality, “many people ignore this convention and refer to former Presidents as ‘President Last Name’ when they are in settings where nearly everyone would afford them the honor of the title. Technically, this is still incorrect but there are enough former Presidents allowing this that it has become a somewhat common mistake.”
So there you go. Probably not something former Mr. President Donald Trump should be doing, but that hasn’t stopped him before.
As always, I’d love to know what you all think! Let me know in the comments below.