James D. Zirin, a former federal prosecutor, is the author of the book Supremely Partisan — How Raw Politics Tips the Scales in the United States Supreme Court.”





COVID Vaccination Passes--Is this 1984 All Over Again?   6/7/21

By James D. Zirin


In Hollywood movies of a certain vintage, the Nazi functionary barks at the frightened citizen, “May we see your papers?” as he demands production of an identification card.

ID cards are the hallmark of the police state. They allow the government to collect personal data, who we are, where we live, where we were born and our entire medical histories, including whether we have been vaccinated.

National IDs are required in many countries such as Russia, China, Germany and France. France has had them since 1940 when the national identity card helped the Vichy authorities identify 76,000 for deportation to the death camps.

We have never had national IDs in America. A driver’s license is the closest thing to it, but not everyone drives. A passport is close, but not everyone travels.


The COVID crisis has caused the issue to resurface. How convenient it would be for the government to require a vaccine passport to be produced upon checking into a hotel, entering a restaurant or attending a sporting event.  Of course, not everyone has been vaccinated, and not everyone is required to be vaccinated. But, roughly 41% of America’s population  are reported to have received the COVID-19 vaccine. Those failing to produce the card might be lodged in a separate wing of the inn or received in a segregated section of a restaurant or seated in the back of the bus behind a guard-all shield.


New York has showcased a prototype domestic ID for COVID, called an “Excelsior Pass.” Excelsior is the Latin motto of New York State. It means “ever upward.” They are the words Governor Andrew Cuomo uses to close  his daily COVID briefings. In a passing nod to diversity and inclusion, the Excelsior Pass is available on a voluntary basis in nine languages besides English and Yiddish. A real tzimmes! That’s Yiddish for stew if you are uninitiated. Possession of the pass is voluntary.


The Excelsior Pass, according to the state website, “provides a free, fast and secure way to present digital proof of COVID-19 vaccination or negative test results.” I have an Excelsior Pass stored on my smartphone with the “Excelsior Pass Wallet app.,” available free of charge from your favorite app store. It states my name, date of birth, and attests that I have been vaccinated. My pass expires August 9, six months after my vaccination date.


What this entitles me to, is not yet clear. No one has ever asked me to present it to prove I have been vaccinated. I tried to use it the other day to meet a friend for lunch at  the Harvard Club, but the man at the door didn’t seem to know what it was. At the moment it is a road to nowhere. Will it get me into a Yankee or Knicks game or to go to Jones Beach this summer? I doubt it, but all will be revealed.


In all the Nazi flicks I ever saw, someone always has forged papers, so the pass has stern instructions from the state, as follows: “Please have photo ID available when presenting your pass for verification.” I guess this means that the pass is non-transferable.


The American Civil Liberties Union is opposed to national identity cards, concluding that it diminishes the freedom and privacy of law-abiding citizens. We have learned over the course of time to beware the opening wedge. If you have to prove you have been vaccinated against COVID-19 to get into a rock concert or the theater, will you also have to prove that you are free of other contagious diseases like HIV/AIDS, stomach flu or hand, foot and mouth disease?


True, it is essential to revive the economy and get Americans back to work and play. In April 2020, Trump said: "You know, they [Americans]want to see basketball and baseball and football and hockey. They want to see their sports. They want to go out onto the golf courses and breathe nice clean, beautiful fresh air. No, I can't tell you a date, but .. it's going to be sooner rather than later." Sadly, it was to be later rather than sooner.


But, what are the legal and ethical obstacles for the government  to amass personal data on citizens and input the data into a scannable card? Or for that matter, for businesses to require employees, suppliers or customers to show digital proof of vaccination as the pre-condition to doing business or for colleges to demand that students provide an ever upward pass before they can matriculate. Rutgers, Brown and Cornell have already done this.


The Supreme Court held in 1905 that states could require residents to be vaccinated against smallpox or pay a fine. The first Justice John. Marshall Harlan said in Jacobson v. Massachusetts that “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Whether the present Court would extend this protection to digitizing the health records of citizens so they can go to the movies is another question.


Meanwhile, the whole idea may be a non-starter. Republican Governors Greg Abbott of Texas and Ron DeSantis of Florida have issued executive orders barring those doing business with their states from requiring proof of vaccination. And White House Press Secretary Jen Psaki has said flatly that there will be no federal vaccinations database and no requirement that everyone “obtain a "vaccination credential.”  Our government is divided and dysfunctional. But, is that surprising news to anyone?




The curious case of the COVID-19 origin   May 17, 2021, The Hill

Now that unmasking time is here, perhaps it’s time to explore the origin of COVID-19. The virus has killed almost 3.5 million people worldwide, and we all would like to have some answers. 

As Winston Churchill said of Russia, "It is a riddle, wrapped in a mystery, inside an enigma," meriting an investigation by Sherlock Holmes or Hercule Poirot. 

Investigation of the case began in China, where the first cases involving humans emerged in December 2019 in Wuhan City, the sprawling capital of Hubei province in the central part of the country. Unfortunately, the investigation began there, and ended there. Or maybe not. 

A large proportion of the initial cases apparently had a direct link to the Hunan Wholesale Seafood Market in Wuhan, but that was hardly conclusive. True, the virus could have been introduced to the human population from an animal source in the market; but equally plausible, a human being infected elsewhere could have propagated the virus among the crowd of patrons. 

In February 2020, a team of international scientists commissioned by the World Health Organization (WHO) visited Wuhan to determine the origin of the virus. The problem is that the investigation was a non-investigation. The investigators had 28 days in China of which 14 days were spent in quarantine. Their hasty conclusion was that the virus took a tortuous route. It started with a bat, and the bat either passed it onto another animal or to humans. But humans don’t regularly fraternize with bats, and most of the animals they come in contact with do not frequent bat caves. A WHO report issued last week concluded that more study is necessary.

The WHO also looked into the possibility of a laboratory accident. The team briefly visited the Wuhan Institute of Virology in an effort to test the theory that the pandemic originated with a lab leak. Much research has been conducted at the Wuhan lab in recent years on, guess what, bat coronaviruses. Chinese scientists have said that the virus was never present in any China labs — the defense of alibi. But they could be lying. 

The WHO issued a report in April that took the mainstream line that the virus had originated with a bat, which passed it on to an animal, which in turn passed it on to humans. It assessed the probability of this zoonotic source of COVID-19 as “likely to very likely,” and the probability of a lab leak as “extremely unlikely.” The WHO report, which had the advance approval of the China government, was a slam dunk for the Chinese. It permitted speculation that the virus might even have originated in another country in southeast Asia or perhaps in Europe.

Dr. David A. Relman, a Stanford scientist, said that the “WHO investigation appears to be biased, skewed and insufficient.” The WHO chief, Dr. Tedros Adhanom Ghebreyesus, noting calls in the scientific community for a more thorough investigation, said that, although the possibility of lab leak was “the least likely hypothesis,” the WHO investigation was not “extensive enough.” Groups of scientists have called for further action and a more comprehensive investigation. They claim that “critical records…remain inaccessible.” Could it be that China suffers from a lack of transparency?

Conspiracy theories abound about the origin of the virus. In her excellent new book entitled “Virus,” Nina Burleigh tells of a retired government scientist she met in the Midwest who claimed that “dark human forces” were behind the pandemic. Big name elites had concluded that the world’s population had to decrease by about 80 percent. We had to get down to a sustainable number of human beings or the earth would fry like Venus. Thankfully, no one has asked the WHO to investigate this possibility.

Pandemics tend to take on xenophobic finger-pointing. President Trump, who initially praised China’s response to the virus, later called it the “China virus,” and blamed China for the COVID-19 pandemic. Of course, it was China on Jan. 10, 2020 that posted on Virological.org, an online site for data that might assist in public health activities and research, the announcement that it had isolated and fully sequenced the virus. Without this information, no vaccine would have been possible.

The Spanish flu of 1917 did not originate in Spain. The Journal of Transnational Medicine reported in 2004 that the most likely site of origin was Kansas. As historian John M. Barry sagely said: “When you mix politics and science, you get politics. “




Biden and ghost guns May 11, 2021, The Hill

Biden and Ghost Guns


By James D. Zirin


I went online this morning, and Googled “How to Make a Glock at Home” in the search. In a trice (.50 seconds), I came up with 26.4 million hits for websites offering all the component parts, together with assembly directions.  Some of the companies offering do it yourself kits accept payment in bitcoin or some other crypto currency.

It is perfectly legal under federal law to make your own gun at home, you just can’t sell it. You may use it to stir your coffee, but you certainly can’t use it to commit a crime. Some states make possession of an unlicensed handgun illegal outside the home. The Supreme Court in its wisdom held there to be a personal Second Amendment right to possess an unlicensed gun at home. Whether the right extends to carrying unlicensed guns in the street or on the subway awaits further decision.

A New York Times reporter last year assembled in a Virginia garage a gun kit for a Glock 19 which he had purchased online. It took him six hours, but he said he could have done it more quickly the second time. He picked Virginia as the place of assembly since it was the nearest state where he could legally take the unlicensed gun to a range for testing. The gun functioned perfectly.

 The difference between a homemade Glock and one you buy in a gun shop is the absence of a serial number. Since 1934, when the Congress passed its first gun law, assigning a unique serial number to every imported or manufactured gun assumed mythic importance.

Law enforcement cannot easily trace guns, assembled with 3D-printed components, or from kits and parts available online. Gun kits are unregulated, and there is no record of the sales. They are called “ghost guns.”

But it is unclear how much serialized guns help law enforcement bring criminals to justice. The Bureau of Alcohol, Tobacco, Firearms and Explosives claims it used serial numbers to “process” requests to trace 450,000 guns in 2019, it has never released figures on how many gun serial number traces have led an arrest.

President Biden last month sought to fulfill a campaign promise on ghost guns by proposing a set of regulations requiring retailers to run background checks before selling the kits for homemade manufacture, and to include a serial number on the gun’s frame or receiver. The proposed rule provides that anyone selling a ghost kit must first log the kit into an Acquisition & Disposition book, give the kit a unique serial number, require that the buyer fill out a form and pass a background check. The Justice Department justifies the rule by citing 23,906 reports of ghost guns being connected to crimes during the five-year period ending December 31, 2020. How many of these guns were stolen, how many once had serial numbers but the numbers were rubbed off, no one knows. The proposed rule must go through lengthy public comment before it is finalized; and, quite predictably, there is strong opposition from the NRA which has launched a $2 million campaign to oppose the Biden gun agenda.  

What problem the proposed regulation would solve is mystifying. How likely is it that a criminal will purchase a serialized gun and leave it at the scene of a crime so the gun can be traced back to him? Not very likely. He might as well leave an engraved calling card. Many guns used in criminal acts are stolen. The FBI estimates that roughly 1.8 million guns were stolen in the past five years. Knowledgeable criminals know how to remove serial numbers from guns. All it takes is a file.

There are no reliable statistics  on how many privately made firearms are being recovered in crimes, but we do know from data that these firearms are increasingly common. Some guns used in crimes have no serial numbers, but in many cases the serial number has been removed or else the gun was stolen. In the past five years, the ATF connected 24,000 ghost guns (guns without serial numbers) to crimes, and these figures are possibly underreported Nevertheless,  counting homicides, armed robberies and aggravated assaults, it is fair to say that most serious crimes committed each year are with serialized guns.

The importance of ghost guns in law enforcement may well be overblown. But let’s throw some more regulation at the problem anyway.

As Ronald Reagan put it: "The nine most terrifying words in the English language are: I'm from the Government, and I'm here to help. "



Is the antidote to bad speech more speech or more regulation? April 19, 2021, The Hill

The internet needs reform. Section 230 of the Federal Communications Decency Act insulates internet companies from content liability. Its famous 26 words are that: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

The immunity is not specific. If your teen-age daughter is the target of internet bullying, “slut shaming,” a sex crime or even murder, the platform on which she met her tormentor is immune from responsibility. If you are the victim of fraud on the internet, cyberstalking, blackmail or extortion, the vehicle for criminal communication is immune from responsibility. If your privacy is invaded because you have given Facebook or Google too much data, it’s on you. You traded your data for a free membership.

Section 230 has its roots in common law principles. The proprietor of a kiosk or bulletin board was never liable for defamatory content tacked or pasted to its surface. Only when the distributor authored or edited the posted content did it become liable as a publisher. The principle sired Section 230. Courts have indicated that if the platform regulates or edits content, it will lose its immunity. But if it does not, case dismissed.

Everyone agrees that internet companies should not lose immunity if they regulate violence, terrorism, child pornography or sex trafficking. That’s a no-brainer. But what about filtering their content for truth?

Can the inscrutable algorithms of Twitter, Google or Facebook regulate lies without losing their immunity? The courts have never definitively decided the issue.

So, who wants to amend Section 230? Such anomalous proponents of free speech rights for unpopular ideas as Sens. Ted Cruz (R-Texas) and Josh Hawley (R-Mo.) claim that Facebook, Google and Twitter are biased against conservative views. They have introduced curative legislation that would dilute Section 230 immunity. The proposed legislation is unlikely to go anywhere in the foreseeable future. And even Democrats have talked about amending Section 230, arguing that the immunity disincentivizes preventive action against those plotting violence.

The regulation, censorship or prohibition of speech by the government would obviously raise free speech issues. But the internet platforms are not agencies of the government. They have the right to regulate speech on their platforms in accordance with their user agreements.

Following the November election, when Trump falsely claimed he had won, Twitter and other social media companies marked these posts as potentially misleading. Trump was so incensed that he vetoed the defense spending bill for 2021 because it did not contain language to repeal Section 230. Both Houses of Congress overrode the veto without adding any Section 230 provisions.

After Jan. 6, Twitter and Facebook shut down Trump's accounts entirely on account of the possibility of further violence. Although Trump loves to bring lawsuits, can you imagine him suing the internet companies, claiming he had a First Amendment right to incite violence? The First Amendment was intended to protect the people from the government, not the other way around.

So, what are the contours of internet free speech? The First Amendment, ratified in 1791, guarantees that Congress shall make “no law abridging the freedom of speech, or of the press.” Judges have stated that the Constitution guaranteed a “marketplace of ideas” where the truth would win out. The antidote to bad speech and false statement is more speech, not suppression of speech. Or as Justice Holmes put it, “free thought—not ... for those who agree with us but freedom for the thought that we hate.” 

The First Amendment is narrowly qualified in its application to free speech. For example, child pornography, copyright infringing speech, speech involved in illegal conduct like conspiracies, defamation and calls for imminent violence receive no First Amendment protection. 

Hate speech, generally defined as "public speech that expresses hate or encourages violence towards a person or group based on something such as race, religion, gender or sexual orientation" is generally okay in the United States, although the protections have had their limitations. 

It is banned, however, in many countries, including Canada, England, Germany and Russia. The Canadian Supreme Court said why: “The Holocaust did not begin in the gas chambers,” said the court, “it began with words.”

An action for defamation may not be predicated on the expression of an opinion, only upon the falsity of a factual assertion. But what is fact and what is opinion? Was it an expression of fact or political opinion when Rep. Marjorie Taylor Greene (R-Ga.) promoted the conspiracy theory that no airplane hit the Pentagon on 9/11 or that the horrific school shootings in Parkland, Fla., were faked?

Some of the most horrific crimes can occur using the facilitates of the internet: election fraud, disinformation, child sex trafficking, child pornography, insurrection and even murder. We can crack down on the internet companies or we can rely on them to self-regulate. There are perils in either course. Is the antidote to bad speech more speech or more regulation?


The knives are out for Cuomo April 9, 2021, New York Daily News

  Joe Biden has reserved judgment on Andrew Cuomo, pending the outcome of an “independent” investigation into whether he harassed female aides. Others have not been so judicious. Because sex sells newspapers, the sexual harassment allegations have moved to and stayed at center stage, with the charges of fudging nursing home statistics off to the side.

New York’s Attorney General Letitia James took charge of an “independent” investigation. She appointed two lawyers from the private sector to conduct it: Joon Kim, who took over as U.S. attorney for the Southern District when Preet Bharara was fired, and employment lawyer Anne Clark. James called Kim and Clark “independent, legal experts who have decades of experience conducting investigations and fighting for the rule of law.”

  Not quite. Kim has decades of experience investigating Andrew Cuomo. He almost put the hat on Cuomo when he was in the U.S. attorney’s office. Kim directly participated in Bharara’s investigation of Cuomo’s early disbanding of a supposedly independent anti-corruption panel, which cleared Cuomo after “thorough investigation of interference with the operation of the Moreland Commission and its premature closing.”

There are a plethora of former prosecutors in New York highly qualified to investigate Cuomo’s conduct who could start afresh without the optics of bias.

 Polls say most New Yorkers do not want Cuomo to step down. He is a considerable governor by any standard. He completed the Second Ave. subway; he was instrumental in the renovation of LaGuardia Airport. He brought both projects and many others in substantially on time by substantially kicking butt.

Most recently, Cuomo proved himself to be a beacon of hope in a terrible crisis. He restored confidence and trust as the pathogen ran amok nationwide, and cases overwhelmed the hospitals. And he was humane, empathizing with the virus’ victims. All the while, the president was denouncing fears of the pandemic as a liberal “hoax,” calling COVID a version of the flu as corpses piled up behind hospitals, touting unproven remedies and making light of the basic need to wear face coverings.

  Like Icarus, Cuomo flew too close to the sun. He was elected chair of the National Governors Association, the majority of whose members are Republican. He was mentioned as presidential timber, although he disclaimed interest in running.

Many of Cuomo’s critics have ulterior motives.

  The mainstream media want to topple Cuomo to show they are as hard on a Democrat as they were on Trump. The Washington Post recently opined that he is “on his way down.”

Cuomo has throughout his career pushed back hard against the far left, and there are politicians of that stripe in Albany and City Hall with old scores to settle. The most recent budget cycle shows that a weakened Cuomo can yield big wins for the state’s progressives. From their perspective, an ousted Cuomo would be ever better.

Bill de Blasio, perhaps the most undisciplined mayor in the history of the City of New York, wants to bring Cuomo down to be the clear victor in their long-running feud, while perhaps furthering his own political ambition to become the next governor.

New York’s senators and Speaker Nancy Pelosi want to bring Cuomo down because they need street cred with the far left, aligning themselves with Alexandria Ocasio-Cortez, who has piled onto the “dump Cuomo” scrum. Their position is pious in tone but pernicious in impact. Democrats like to eat their young. Kirsten Gillibrand was successful in ousting Al Franken from the Senate, and should’ve lived to regret it.

The Trumpist Long Island Republican congressman, Lee Zeldin, who refused to certify the results of the Electoral College in Arizona and Pennsylvania, wants to bring down Cuomo so he can become governor.

 Cuomo may be a mixed bag, but Zeldin or de Blasio would be a disaster.

If Cuomo runs again in 2022, the voters can decide whether he, de Blasio or Zeldin — or maybe, don’t laugh, Andrew Giuliani — is the best candidate. Election, yes; impeachment, no.

Make no mistake, I believe that sexual harassment is a serious thing, although based on much of what has come out so far, there is only a frisson of harassment, not anything close to what, say, Bill Clinton did in the Oval Office.

Bad nursing home statistics are plainly not enough to finish Cuomo, so suddenly we have a lineup of eight women (one anonymous) who say Cuomo was putting the moves on them or thinking about putting the moves on them or “grooming” them for a sexual encounter or hiring them for their looks. Even by today’s standards, the punishment has to fit the crime.


Can Derek Chauvin possibly be acquitted? March 31, 2021, The Hill


Will diplomacy work with Iran? March 24, 2021, The Hill


Incitement and the First Amendment January 12, 2021, BillMoyers.com


The Putsch of January 6, 2021 January 5, 2021, Bill Moyers.com


Death Is Different December 24, 2020, The Hill


Beyond Court Packing: The Supreme Court Has Always Been Political November 2, 2020, Time.com


Ruth Bader Ginsburg, a tiny woman with a vast mind, left an ‘indelible’ mark on the law

New York Post, September 19, 2020 | 10:53pm



Supreme Court Justice Ruth Bader Ginsburg died Friday at age 87 due to metastasized pancreatic cancer.


Ruth Bader Ginsburg was a daughter of Brooklyn, a child of middle-class Jewish immigrants.


She attended James Madison High School, named after our fourth president, one of the principal authors of the Constitution.


A Virginian, Madison was a white male whose father gave him one of his slaves as a manservant to attend him when he went to Princeton. Yet, he crafted words that would protect the liberties of Americans for the ages. RBG knew the pain and indignity of discrimination.


She was one of nine women in a class of 550 at Harvard Law School. When the dean called upon her to justify why she was there taking the place of a man, the only answer she could muster was that she wanted to understand her husband’s work. Her husband, Martin Ginsburg, was going to become a lawyer.


A brilliant student and legal thinker, Justice Felix Frankfurter denied her a clerkship on the Supreme Court, and refused even to interview her for the position.

The government withdrew its offer of an entry-level civil service job when she disclosed she was pregnant.


When she wanted to teach law at prestigious NYU and Columbia, she was refused, and accepted a position at Rutgers Law School where she made a mark.


Her brilliance as a legal thinker eventually brought her to the attention of the appointing authority.


She went on the DC Circuit bench in 1980, and in 1993 scaled the heights to the Supreme Court.


She was the second woman after Sandra Day O’Connor to be seated on the Court. She would be followed by two more. When asked, “When will there be enough [women on the Court]?” she said, “My answer is: “When there are nine.”


Her life’s experience convinced her that, contrary to the original understanding, the Constitution’s guaranty of “equal protection of the laws” outlawed discrimination, not just against blacks and other racial minorities, but against women as well.


Outmanned, usually 5-4, by a conservative majority, she did get to write the majority opinion in the case ordering Virginia Military Academy to admit women, and voted with the majority in cases outlawing capital punishment of juveniles and the mentally challenged.


In dissent, she was eloquent. She even made it a fashion statement by wearing a “dissenting collar” when she took the bench.


The collar, available at Banana Republic, was a dark, beaded number composed of long, metallic, finger-like projections, resembling a piece of medieval armor.


She famously said: “It helps sometimes to be a little deaf (in marriage and in) the good job I have now.” She thought that “the greatest dissents do become court opinions and gradually over time their views become the dominant view. So that’s the dissenter’s hope: that they are writing not for today, but for tomorrow.”


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