What’s with the disappearing executive orders? Cyber, financial orders pulled at last moment

What’s with the suddenly disappearing Presidential Executive Orders?  Perhaps the Trump administration is growing more careful with the way it rolls out new orders.  Or, perhaps there’s some other explanation for an entire day’s White House events calling attention to orders that then…seem to vaporize.

It’s happened twice in the past few days, both in areas I cover intensely.

Last week, it was the order on cybersecurity, designed to call for an immediate 60-day review of America’s critical computers.  A draft of it was widely circulated, drawing scrutiny from thousands of outlets around the world. (I was even on TV in China talking about it). There was highly-publicized “listening session,” where famous New York mayor Rudy Giuliani was trotted out as a cyber-expert.  Then, without explanation, the order signing was scrubbed just a few minutes before it was to take place.

Something even stranger happened late on Friday.  There was an entire day’s worth of events and discussion around repealing financial reforms instituted after the housing bubble collapse in 2008.  Two issues came into focus, both presumably to be the focus of executive orders on “repeal financial regulations” day. First, there would be a major review of the omnibus Dodd-Frank legislation. Second, there would be a delay of a Department of Labor rule set to take effect in April that would require financial advisers to put their clients’ interests first – they’d have to meet a “fiduciary” standard.

But the delay quietly disappeared late on Friday.

Again, drafts made the rounds indicating Trump would institute a 180-day delay in the fiduciary rule. Trump team members, like former Goldman Sachs executive Gary Cohn, flooded financial news outlets talking about the need to can the rule, as it would hurt consumer choice. Sean Spicer, press secretary, called it a “solution seeking a problem.”

Then, things got strange.

On the White House website, under speeches and remarks, there appeared a page titled “Remarks by President Trump at Signing of Executive Order on Fiduciary Rule,” which looked like a transcript of a signing ceremony. But there was no executive order on the fiduciary rule.

Later on Friday, reporters discovered that only a memorandum was signed, and that memorandum said nothing about a delay of the Labor Department rule — it only asked for a review.

“Today we’re signing core principles for regulating the United States financial system.  It doesn’t get much better than that, right?” Trump said at the executive order signing that never happened.  Rep. Ann Wagner, (R-MO), then explained what the order/not order was about:

“What we’re doing is we are returning to the American people, low- and middle- income investors, and retirees, their control of their own retirement savings.  This is about Main Street, and it’s been a labor of love for me for over four years as chairman.  And I have had — this is a big day, a big moment for America,” she said, according to the transcript.

Whatever the president signed, it wasn’t an executive order.  No fiduciary rule order appears on the White House website, but a memo is listed there.  When I called the White House press office, I was told the fiduciary rule document was indeed a memo. When I asked if the transcript of the executive order signing ceremony was in error, I was told to email someone else for clarification. I haven’t received a response yet.

(The White House page with the memo — which begins by saying the president wants “to empower Americans to make their own financial decisions” — repeats the entire first paragraph twice. That’s just a big typo, but it does appear to suggest something happened hastily. Not that I should be criticizing others about typos.)

Why the confusion? One consumer advocate I spoke to speculated that the White House got last-minute advice about the legality of delaying a Department of Labor rule — which had completed a years-long rule-making process — with an executive order. In the end, the difference might not be material.  The acting head of the department of labor, Ed Hugler, vowed to “consider its legal options” for delaying the rule.

But this back and forth might have led to a lot of confused financial advisers, who must once again prepare for an April 10 rule change that remains, as of this moment in still effect.  CNBC said the change — not just the drop from order to memo, but the removal of the 180-day delay language — left both the financial industry and consumer advocates “in limbo.”

Nevin Adams, writing in a blog post at The National Association of Plan Advisors, was also critical of the situation.

“If it’s possible, the final version of President Trump’s Executive Memorandum may have left us with more uncertainty than we had before,” he wrote.  “As things stand today, the April 10 date remains in place. As does our collective uncertainty as to its future.”

The cybersecurity industry also finds itself in limbo, awaiting an order from the executive branch about vulnerability assessments and cyber-education that may or may not materialize. I asked the White House for clarification on that, and haven’t heard back.

All in a week’s work here in Washington.

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