Justices issue orders from “long conference”

Amy Howe 

September 28th, 2017 

This morning the Supreme Court issued orders from its September 25 conference, adding 11 new cases (for a total of nine additional hours of argument) to its merits docket for the term. The highest-profile grant came in Janus v. American Federation of State, Municipal and County Employees, a challenge to the fees paid by public-sector employees who are not members of the union that represents them. The justices have already considered the question presented by the case twice without resolving it, but are almost certain to do so during this go-round – with potentially serious implications for the union.

When the justices review the case of Mark Janus, an Illinois state employee, they will not necessarily be writing on a blank slate. In 1977, in Abood v. Detroit Board of Education, the Supreme Court ruled that, even if they cannot be required to pay fees that a union would use for political activity, like union organizing, public-sector employees can be required to pay a fee to cover the costs of contract negotiations. But Janus argued that even requiring him to pay the more limited fee violates his First Amendment rights because issues related to contract negotiations – like salaries, pensions and benefits for government employees – are inherently political. Therefore, he contends, his fee is going to support speech that is intended to affect the government’s policies, even if he disagrees with it. The U.S. Court of Appeals for the 7th Circuit rejected Janus’ argument, holding that it lacked the power to overrule the Supreme Court’s decision in Abood. But, Janus told the justices in his petition for review, they do have that power and should exercise it here.

The justices did not reach the union-fees issue the first time they considered it, in the 2014 case Harris v. Quinn; instead, they ruled that the employees in that case – home-health-care workers who were paid by the state – were not “true” public employees. They returned to the question again two terms ago and heard oral argument in January 2016, but they deadlocked after the February 13, 2016, death of Justice Antonin Scalia. With Justice Neil Gorsuch now on the bench, the justices are expected to decide the issue once and for all.

Another one of today’s grants, Encino Motorcars v. Navarro, is making a return trip to the Supreme Court. In 2016, the Supreme Court threw out a decision by the U.S. Court of Appeals for the 9th Circuit, which had concluded that “service advisors” at car dealerships were not covered by an exemption in the Fair Labor Standards Act from overtime for “any salesman” “primarily engaged in selling or servicing automobiles.” The court in that case ruled that the 9th Circuit should not have deferred to a Department of Labor regulation because the department had not provided a sufficient explanation for its decision to reverse course from its earlier position treating service advisors as exempt. The justices sent the case back to the 9th Circuit, ordering it to interpret the FLSA “without placing controlling weight on” the DOL regulation. The 9th Circuit once again ruled that service advisors were not exempt from overtime, but now the Supreme Court will review that decision.

The Fifth Amendment’s “self-incrimination clause” provides that no one “shall be compelled in any criminal case to be a witness against himself.” In City of Hays, Kansas v. Vogt, the justices will consider the scope of that clause – specifically, whether the Fifth Amendment is violated when statements are used at a probable cause hearing but not at a criminal trial.

While working for the city of Hays, Matthew Vogt applied for a job as a police officer in another city. As part of his agreement with the new employer, Vogt informed the Hays police department that he had kept a knife that he had acquired on the job. Using his statements, the Hays police department found “an audio recording which captured the circumstances of how Vogt came into possession of the knife,” and the state eventually charged Vogt with two felonies. The state held a probable cause hearing – at which, Vogt says, his statements about the knife were “used against him.”

The charges were dismissed, but Vogt filed a federal civil-rights lawsuit in which he argued that the city and four officers (along with his would-be employer, which had withdrawn its offer) had violated his Fifth Amendment rights. The district court granted the defendants’ motion to dismiss Vogt’s claims, but (as relevant here) the U.S. Court of Appeals for the 10th Circuit reversed. It acknowledged that the Supreme Court had not yet weighed in on “the precise moment when a ‘criminal case’ commences” for purposes of the self-incrimination clause. But it reasoned that “the right against self-incrimination is more than a trial right,” so that it is “violated when criminal defendants are compelled to incriminate themselves and the incriminating statement is used in a probable cause hearing.” The city asked the Supreme Court to weigh in, which it agreed today to do – with Justice Neil Gorsuch, who sat on the 10th Circuit before joining the court – recused.

In Collins v. Virginia, the justices have agreed to clarify the scope of the “automobile exception” to the warrant requirement – specifically, whether it applies to a car parked on private property, close to a home. The case arose when officers looking for a motorcyclist who had eluded them saw a picture of a motorcycle on petitioner Ryan Collins’ Facebook page, found the house where Collins spent at least several nights each week, and located the motorcycle under a tarp toward the back of the driveway, near the house. A police officer walked into the driveway and removed the tarp to find the motorcycle’s Vehicle Identification Number and license tag, from which he learned that the motorcycle was stolen. When Collins was charged with receiving stolen property, he countered that evidence regarding the motorcycle should be suppressed because the police officer had entered the area around his house without a warrant, in violation of the Fourth Amendment.

The state courts rejected his argument. Although the state conceded that the police officer’s actions constituted a search under the Fourth Amendment, for which a warrant would normally be required, the Supreme Court of Virginia concluded that the “automobile exception” applied because the motorcycle was “readily mobile” and the police officer had “several reasons to believe the motorcycle was contraband.” This was true, the court continued, even though the motorcycle was on private property. At Collins’ request, now the Supreme Court will weigh in.

The Fourth Amendment is at the center of another case the justices agreed to review today: Byrd v. United States. The case arose when Terrence Byrd’s girlfriend rented a car, but did not include him on the rental agreement. On the same evening, Byrd was pulled over for a traffic violation. When police searched the car, they found 49 bricks of heroin and body armor. Byrd was arrested and charged with possession of body armor by a felon, as well as possession of heroin with intent to distribute it. At trial, he argued that the heroin and body armor could not be used against him because the search violated the Fourth Amendment. The district court disagreed, reasoning that Byrd did not have any expectation of privacy in the rental car because “he was not a party to the rental agreement and he did not pay for the rental.” The U.S. Court of Appeals for the 3rd Circuit affirmed, prompting Byrd to go to the Supreme Court.

In McCoy v. Louisiana, the justices will consider the case of Robert McCoy, who was convicted of first-degree murder for the shooting deaths of his estranged wife’s son, mother and step-father. After firing his public defender, McCoy was represented by Larry English, an attorney paid by his parents. As with his public defender, McCoy maintained his innocence in meetings with English and “emphatically opposed” English’s proposal to concede that McCoy was guilty in the hope that he would be spared the death penalty. McCoy attempted to remove English and represent himself, but the trial court rejected his request on the ground that it came too late: His trial was only a few days away.

When the trial began, English did indeed concede McCoy’s guilt, over interruptions from McCoy. McCoy was convicted and sentenced to death. He appealed (among other things) English’s concession of guilt, arguing that it violated his constitutional right to have the effective assistance of an attorney. The Louisiana Supreme Court denied his appeal, but now the Supreme Court will consider his claim.

In Rosales-Mireles v. United States, the Supreme Court will weigh in on whether the U.S. Court of Appeals for the 5th Circuit applied too harsh a standard in determining whether to correct a plain error by the district court. The petitioner in the case, Florencio Rosales-Mireles, pleaded guilty to re-entering the United States and was sentenced to 78 months in prison. On appeal, he argued that the district court had calculated his sentence wrong, and the federal government agreed. However, the 5th Circuit declined to correct the error, explaining that the kind of errors that would “seriously affect the fairness, integrity or public reputation of judicial proceedings” are “ones that would shock the conscience of the common man, serve as a powerful indictment against our system of justice, or seriously call into question the competence or integrity of the district judge” – a standard that Rosales-Mireles cannot, in its view, meet. Rosales-Mireles went to the Supreme Court, arguing that the 5th Circuit’s standard is too high; today the justices granted his petition for review.

A trio of new cases – Dalmazzi v. United States, consolidated with Cox v. United States and Ortiz v. United States for one hour of oral argument – raises interesting questions arising out of the service of active-duty military officers on the U.S. Court of Military Commission Review, an intermediate appellate court for military commissions. For nearly 150 years, Congress has (subject to limited exceptions) barred active-duty military officers from holding another, civilian post within the executive branch. The petitioners in these cases served in the Air Force until they were charged with violating various provisions of the Uniform Code of Military Justice. Their cases went to the U.S. Air Force Court of Criminal Appeals, where their panels included judges who were also serving on the CMCR. The service members challenged those judges’ continued service on the AFCCA, arguing that, because of their service on the CMCR, they should no longer be members of the military and could not review the service-members’ cases. In Ortiz’s case, the court rejected that claim on the merits, while the other service-members’ claims were deemed moot because the president had not yet signed the judges’ CMCR commissions when the decisions against them were issued. The Supreme Court today agreed to review the service members’ claims; it also directed the service members in two of the three cases (Dalmazzi and Cox) to brief and argue whether the Supreme Court has jurisdiction to review their cases.

In 2015, in Gelboim v. Bank of America, the Supreme Court ruled that when a district court dismisses the only claim in a case that has been consolidated with other actions for pretrial proceedings in multidistrict litigation, the district court’s order is final and appealable, even if there are still claims pending in other cases in the multidistrict litigation. In Hall v. Hall, a case arising out of a family dispute over property in the U.S. Virgin Islands, the Supreme Court has agreed to resolve a four-way split among the courts of appeals regarding whether the same rule announced in Gelboim also applies to cases consolidated in single-district litigation. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the lawyers for the petitioner in Gelboim, but I am not affiliated with the firm.]

Today’s grants are likely to be argued in either January or February. The justices are expected to issue more orders from the September 25 conference – which are likely to mostly be denials of review – on Monday morning at 9:30.

Trump deletes pro-Strange tweets after Roy Moore wins Alabama election

BY NICOLE HENSLEY

September 27, 2017,

President Trump deleted a round of tweets pumping Sen. Luther Strange's campaign shortly after he lost to Roy Moore in Alabama's tight runoff race Tuesday night.

The trio of tweets penned Monday and Tuesday were a last-ditch attempt to sway voters for Trump's endorsed candidate, Strange, over former judge Roy Moore.

Trump's dispatches vanished without explanation shortly after he returned to the White House. He soon called Moore to congratulate the Republican candidate on his primary election victory.

One tweet said, "Luther Strange has been shooting up in the Alabama polls since my endorsement."

"Finish the job - vote today for "Big Luther," Trump wrote, according to ProPublica’s Politwoops.

Another said Strange is "tough on crime & border - will never let you down."

The Citizens for Responsibility and Ethics caught onto Trump’s disappearing feed. The government watchdog is suing Trump, claiming he is violating the Presidential Records Act by deleting tweets.

“Trump can try to erase his support of Strange, but under the Presidential Records Act, all his tweets must be archived (we’re suing over it), the nonprofit wrote Tuesday.

A handful of pro-Strange tweets remain on Trump’s feed from August and September, including one that boasts “Alabama is sooo lucky to have a candidate like ‘Big’ Luther Strange.”

Trump first endorsed Strange in August for the state’s special election to replace a seat left vacant by Jeff Sessions, who was tapped to lead the Justice Department.

Moore will now face off with Democrat Doug Jones in December. 

Does Trump care about Puerto Rico's hurricane victims?

BBC

September 26, 2017

The warning from Puerto Rico's governor in the wake of Hurricane Maria was stark: act now, or risk a humanitarian disaster.

Those outside the capital were still struggling without power, while locals reported clean water and medicines were also scarce.,

But many in the US - of which Puerto Rico is a territory - are questioning whether their president cares about the 3.5m American citizens whose lives have been turned upside down.

A quick glance at Donald Trump's Twitter feed over the weekend - arguably the president's preferred method of communication - gave no hint of the unfolding humanitarian crisis.

Instead, his attention was firmly focused on whether or not American footballers knelt or stood during the national anthem.

It didn't go unnoticed.

Number of Trump tweets about pro sports since Friday: 20

Number of Trump tweets about Puerto Rico since Friday: 0

The president finally acknowledged the disaster on Monday evening - although his response came complete with what appeared to be a side-swipe at Puerto Rico's debt crisis.

"Really not sure how to read this other than Trump taking this opportunity to blame Puerto Rico for its misfortune..." tweeted McKay Coppins, a writer for The Atlantic.

Meanwhile, the Toronto Star's Washington correspondent Daniel Dale compared the tweets to "a paramedic gazing at a screaming man trapped in a wrecked car and saying: 'You're quite overweight.'"

Many others were also left with a bitter taste in their mouth.

But is there any merit to the claim Mr Trump cares less about what is happening in Puerto Rico than he did when hurricanes struck Texas and Florida?

The White House has denied it has abandoned Puerto Rico.

Spokeswoman Sarah Huckabee Sanders told reporters on Monday: "We've done unprecedented movement in terms of federal funding to provide for the people of Puerto Rico and others that have been impacted (by) these storms.

"We'll continue to do so and continue to do everything that we possibly can under the federal government to provide assistance."

Her words have been backed up by politicians on the island, and Jenniffer Gonzalez, who, as resident commissioner, is Puerto Rico's non-voting representative in Washington.

She praised the administration's response, telling the Associated Press news agency: "This is the first time we get this type of federal co-ordination."

But still, it is Mr Trump's personal reaction which seems to have angered social media users in the States, including singer Marc Anthony, who was born in the US but whose parents are Puerto Rican.

His ex-wife, the singer Jennifer Lopez, also of Puerto Rican descent, has donated $1m to the relief efforts already, according to the Guardian.

And when compared to Mr Trump's response to the two hurricanes which preceded Maria, there does appear to be an imbalance.

Mr Trump sent at least one tweet out a day about Texas for a week after Hurricane Harvey barreled into its coastline on 26 August, causing great damage and leaving at least 47 people dead.

By 2 September, he had asked Congress for $7.8bn (£6bn) as an initial amount to help rebuild the area.

Mr Trump also visited Texas twice within a week.

In the days after Hurricane Irma hit Florida on 10 September, Mr Trump sent a flurry of tweets - although not as many as with Texas - and visited the area within five days.

So far, no date has been set for a visit to Puerto Rico, although one is planned.

In the meantime, as Mr Trump returns to criticizing the NFL on social media, people on Twitter are keen to him know exactly where they stand on the issue.

Kushner Used Personal Email Account for Government Business

By MAGGIE HABERMAN and SHARON LaFRANIERE

SEPT. 24, 2017

Jared Kushner, President Trump’s son-in-law and a White House senior adviser, has used his personal email account to conduct official government business, his lawyer acknowledged on Sunday.

The lawyer, Abbe Lowell, said that Mr. Kushner, using the personal account, had received or sent “fewer than a hundred emails” involving his White House colleagues over the first seven months of the administration. Mr. Lowell said the emails were all forwarded to Mr. Kushner’s official account, creating a record.

The use of the personal account was first reported by Politico.

Mr. Kushner is not the only official in the Trump White House who has been found to have used private email or text messaging for government business, a situation that has raised questions about the administration’s preservation of records. But Mr. Kushner is the person closest to the president to have his personal email use become public.

As a candidate, Mr. Trump aggressively attacked Hillary Clinton, the Democratic nominee, for her use of private email while she was secretary of state. Some of Mr. Trump’s allies outside the White House are urging him to press for a prosecution of Mrs. Clinton, even though an F.B.I. investigation into her handling of classified information has been closed. At Mr. Trump’s rallies, his supporters still break into cheers of “lock her up!”

In a statement, Mr. Lowell said: “Mr. Kushner uses his White House email address to conduct White House business. Fewer than a hundred emails from January through August were either sent to or returned by Mr. Kushner to colleagues in the White House from his personal email account.”

He added: “These usually forwarded news articles or political commentary and most often occurred when someone initiated the exchange by sending an email to his personal, rather than his White House, address. All nonpersonal emails were forwarded to his official address and all have been preserved in any event.”

Two people who have exchanged emails with Mr. Kushner on his personal account said it was set up during the transition period, when he was stepping back from his real estate company and needed a new email address.

A government official, who spoke on the condition of anonymity because he was not authorized to speak about Mr. Kushner’s email habits, said that unlike in the Clinton case, Mr. Kushner had not set up a private server to house the personal email account. While Mrs. Clinton used her personal account exclusively, the official said that Mr. Kushner does use his government account.

Federal rules require that officials’ correspondence be retained as part of the government record.

Another person with knowledge of Mr. Kushner’s email use said that others in the administration, including Stephen K. Bannon, the former chief strategist, and Reince Priebus, the former White House chief of staff, had also used personal email accounts for what could qualify as government business. People close to both men have said such emails were not frequent.

But among West Wing officials, Mr. Kushner has received the most scrutiny over issues of transparency, in part because of omissions he made with reporters early in the administration and on a government form about his contacts with Russian officials during the transition.

What President Trump doesn’t get about the NFL

By Sally Jenkins 

September 23, 2017

How the NFL responds to Donald Trump’s spit-foaming is hardly a test case for whether the republic will stand. Nevertheless, the league is a maker of manners in this country, so it means something that Commissioner Roger Goodell and others are getting it right, striking the perfect calm but resistant tone in response to Trump’s gutter-mouthing, a tone that says, “We’re not your personal WrestleMania, and don’t use us for your sham body slams.” The NFL, faced with whether to play to the basest instincts of the audience, declined. It adhered to civility.

The league is apparently unifying around the notion that, whatever side you may be on in the siege-controversy over NFL players kneeling during the anthem to protest racial injustice, whether you see it as a matter of patriotism, activism or some tangled intersection of the two, it is important to talk about it without calling each other “sons of bitches.”

Who knows what Trump’s real gripe is with the NFL. Maybe he’s still angry that owners denied him entry to their club years ago. Or maybe Colin Kaepernick’s mute but unrepentant protest really arouses his spittle. Or maybe he’s just creating an “Are you not entertained!” circus-maximus spectacle by bull-baiting a wealthy league that is easy to resent by cash-strapped, job-insecure fans.

Regardless, Trump misreads what Americans love about the NFL.

It’s beloved not so much for its violence or crudity, but rather the skill that results in violence averted. It’s a game, ultimately, of restraint. As opposed to this:

“Wouldn’t you love to see one of these NFL owners, when somebody disrespects our flag, to say, ‘Get that son of a bitch off the field right now. Out! He’s fired. He’s fired!’ ” Trump roared at a rally in Alabama on Friday night. “You know, some owner is going to do that. He’s going to say, ‘That guy disrespects our flag; he’s fired.’ And that owner . . . they’ll be the most popular person in this country.”

Not content to drive one wedge, Trump also called for a fan boycott and suggested the league has gone soft, lamenting the fact that amid CTE concerns it has passed rules trying to protect players from head injuries. “Because you know today if you hit too hard — 15 yards!” Trump said. “It’s hurting the game.” As opposed to hurting, you know, the cattle.

Wisely, Goodell and other owners refused Trump’s bid to separate players from fans by playing on their economic and racial differences. “Divisive comments like these demonstrate an unfortunate lack of respect for the NFL, our great game, and all of our players, and a failure to understand the overwhelming force for good our clubs and players represent in our communities,” Goodell said in a statement. It’s at its best as a league when it has “unity,” Goodell stressed.

Now, you can quarrel over whether Zygi Wilf’s stadium tax breaks are a force for good, or what John Mara has ever really done for New Jersey. But Goodell is basically right: NFL players are a huge boon to their communities, and a unifying force.

You cannot think otherwise after watching what J.J. Watt did, raising more than $37 million for local relief in Houston after Hurricane Harvey. Or after observing scores of NFL players fundraise for everything from free mammograms for women to free books for kids.

The vast majority of the men on the field are not spoiled millionaires abusing their freedoms, as Trump charges. Rather, they have worked as hard as any farmers for their short-lived incomes and are dedicated to using their privilege to make things better for the people they play in front of. Brandon Marshall’s Project Borderline foundation combats mental illness. Doug Baldwin is raising money for a family community center in Renton, Wash. And Kaepernick has given away $1 million to various organizations.

Whether you agree with their cause, Kaepernick and his followers see themselves as activists who are simply trying to take “a reasonable and peaceful approach to something that is important to our society and the health and wellness of our communities,” according to Baldwin. Their intent is not to insult the flag but simply to call for equal treatment under it. That may offend you. But it is not un-American.

As the abolitionist senator Charles Sumner once said, “Our country, be she right or wrong: a sentiment dethroning God and enthroning the devil.”

The NFL is in a difficult state: It has a health crisis, an uncertain future in a fragmenting entertainment market, a coming labor fight. And it’s in the midst of a tough but needed conversation about race in a league in which the owners are almost universally white and the players are almost 70 percent black. Kaepernick remains unemployed and no one will admit exactly why, though suspicions abound.

Still, Trump is finding that the league is not easily fractured, even by this divisive issue. Just because owners have certain powers doesn’t mean they want to exercise them. Could an NFL owner fire a player for taking a knee? Certainly. The First Amendment only protects a citizen’s free speech from being interfered with by the government. It doesn’t protect anyone from their employer, and every NFL player is subject to “conduct” clauses. But a player could also bring a grievance and a more than viable argument that firing anyone over the anthem protest is race discrimination or unfair retaliation.

What’s interesting is that none of it has happened.

Instead, what has happened are things like Arthur Blank’s statement, the owner of the Atlanta Falcons standing with the players: “Creating division or demonizing viewpoints that are different from our own accomplishes nothing positive and undermines our collective ability to achieve the ideals of our democracy. The NFL has historically been a strong catalyst for positive change and I’m proud of the way our players, coaches and staff use that platform.”

And the statement from Giants owners Mara and Steve Tisch calling Trump’s statements “offensive and divisive,” and adding, “We are proud of our players, the vast majority of whom use their NFL platform to make a positive difference in our society.”

All of this may be because of what happened in Cleveland a couple of weeks ago. When a dozen players there took knees to earn the ire of police, ownership stepped in, not to fire players but broker talks with local authorities that resulted in players locking arms with cops and firefighters.

Owner Dee Haslam told ESPN.com, “Until we start talking about race and equality and building up neighborhoods and working together, we’re not going to be able to solve the problem.”

Underneath the splintering violence of the NFL is an underpinning of discipline and intelligence. This juxtaposition is what’s really at the heart of its appeal: It’s not a game about pure unleashed power but rather about the constraint of power for a purpose. And in this case, the league showed that it understands the difference between power for a purpose, and power to just throw weight around.

Confronted with Trump’s vulgarity, rather than take him head on, it chose simply to outclass him.

“I do believe that this will be a unifying moment in the sports world,” Baldwin said. “And with as much influence as athletes have on the younger generation, this can be an opportunity for us to change the narrative of society and point to the president as a poor example of what you can become if you remain closed-minded, ignorant and uneducated.”

Long Live the Republic.

Presidential name-calling: What 'Little Marco' has to do with 'Rocket Man' (and nuclear weapons)

By Z. Byron Wolf

September 23, 2017

"Little Marco" wasn't a despot. "Lyin' Ted" didn't have a missile program. "Crooked Hillary" wasn't trying to develop a hydrogen bomb.

But "Rocket Man," North Korea's Kim Jong Un, is, in fact, a despot with a missile program and pledges to develop a usable hydrogen bomb.

So while the stakes are new and different for President Donald Trump, his tactics remain the same.

What name-calling can get him in a standoff with North Korea is much less clear.

The bellicose US President's bravado should surprise absolutely no one; he picked fights throughout the Republican primary, doling out nicknames to his opponents, then seeking out new adversaries when the foe du jour was vanquished.

That's how we got from "Little Marco," his moniker for Florida Sen. Marco Rubio, with whom he faced off in the primary, to "Crooked Hillary," his name for Democratic nominee Hillary Clinton.

Rubio, recall, famously tried to match Trump in terms of name-calling, even criticizing the size of Trump's hands, but it ultimately backfired. Separately, a main (failed) line of attack Rubio used against Trump during the primary was that he couldn't be trusted with the nuclear codes. Clinton would follow up on this during the general election. But Trump has control of them now as he squares off with Kim. 

Name-calling, to varying degrees, helped Trump embarrass Rubio in the Florida primary, beat down Cruz on the stump and ahead of what was shaping up to be a tight delegate fight, and destroy the blue wall Clinton was banking on in the Rust Belt -- and Trump knows it. The through-line is clear. He's shown that, when under pressure, he will revert to the tactics that got him this job in the first place. 

Trump has a flair for rhetoric and for barbs. His threat of "fire and fury" if North Korea didn't cool it with the missile testing conjured dark images of military power. But it was not effective in deterring Kim from ordering additional launches.

Calling the North Korea leader "Rocket Man" at the UN and threatening to destroy his country if it endangers the US, along with the slapping of new penalties on the already heavily sanctioned nation, was met with a threat from the North Koreans to test a hydrogen bomb over the Pacific Ocean and a riposte that Trump is a dotard.

In each case during the campaign, Trump would use a nickname both on Twitter and at campaign rallies, feeding off his crowds, to build support among the faithful, and to drive home the point that his opponent was flawed -- and that he was the alpha dog.

Since taking office, he's squared off against Democrats and also Republicans in Congress on a variety of issues. He'll call out senators over a piece of legislation, like the effort to repeal Obamacare. But he keeps returning to Clinton even though he beat her last November, reveling in the comfort of his unexpected victory.

But Trump is not running against "Rocket Man." There's no simple win-loss calculation to making Kim his personal enemy. He's not trying to vanquish him at the ballot box by impugning his integrity, and he's not trying to get pressure on him to support an agenda.

He's simply trying to get Kim to stop testing missiles and seeking a nuclear weapon. But going on what's happened to date, it's looking more and more like the name-calling has had the opposite effect.

And it could end up being the real difference in Trump's foreign policy, which so far has consisted of removing the US from two large multinational agreements (The Trans-Pacific Partnership and the Paris climate agreement). He has no interest in being leader of the free world, but rather in the economic nationalism he likes to call "America First."

This is the natural progression of Trump from reality star and New York City provocateur to primary candidate and then Republican iconoclast, to now, presumably, leader of the free world. 

But there is no new prize for Trump, the presidential name-caller, in a pitched rhetorical battle with a dictator. Winning the rhetorical battle is one thing. But it could be very different than a diplomatic solution to dealing with North Korea.