Burn Before Reading: A Dispatch from the Memory Hole

The memo dropped earlier this month like a shark fin in a kiddie pool — a crisp Office of Legal Counsel document, footnoted to the hilt, arguing with a straight face that the Presidential Records Act of 1978 has been unconstitutional this entire time and nobody noticed for forty-eight years. A document so brazenly revisionist it reads like a TripAdvisor review left by a pharaoh. Five stars, would erase again.

This is how empires rewrite themselves: not with tanks but with a lawyer named T. Elliot Gaiser and a Microsoft Word footnote function.

The law in question was passed the year John Travolta released Grease. Jimmy Carter signed it and said, in one of those Peanut Farmer earnestness moments, that it was about making sure the government was “not above the law.” This was 1978. Fleetwood Mac’s Rumours was still on the charts. Americans owned their presidents’ papers because Richard Milhous Nixon had tried to walk out the back door with his, and Congress — briefly possessed by the spirit of civic responsibility — said No.

Now the Office of Legal Counsel has decided Nixon had a point.

The new DOJ memo, signed by Gaiser as head of the OLC, declares that the Presidential Records Act

unconstitutionally intrudes on the independence and autonomy of the President guaranteed by Article II

and establishes

a permanent and burdensome regime of congressional regulation of the Presidency untethered from any valid and identifiable legislative purpose.

Which is a lot of syllables to say: our boss wants to keep his stuff.

Gene Hamilton, who served as deputy White House counsel last year and now runs a nonprofit called America First Legal, put it more bluntly.

The notion that the United States Congress gets to tell the President of the United States what he gets to do with his paperwork is, from a constitutional perspective, insane.

America First Legal published a white paper making this exact argument back in 2023 — months after Trump was indicted on obstruction of justice charges for allegedly stockpiling classified documents in a bathroom, a ballroom, and an office at Mar-a-Lago. The timing is not what you’d call subtle. The memo is legal arsenic and the historians can smell it from three zip codes away.

What’s actually at stake here is twofold, and both parts are grim. Part one: millions of emails, texts, Signal screenshots, briefings, and handwritten napkin notes documenting what this administration has actually done. Every back-channel call to a foreign capital. Every Situation Room moment where somebody said are we really doing this. Part two: the future. If this memo stands, every president going forward gets to decide which papers exist and which don’t — a Snapchat presidency whose official record auto-deletes in twenty-four hours.

The historians, those poor bookish souls who still think truth matters, have filed suit. The American Historical Association and the watchdog group American Oversight went into federal court in Washington last week and asked a judge to block the White House from trashing anything. Their lawyer, Dan Jacobson, reading the OLC memo aloud, noted something that should terrify anyone still paying attention:

They just say we just think the Supreme Court is wrong and they use the word ‘wrong’ several times. So the executive branch is taking for itself the authority to declare the Supreme Court got it wrong and they can ignore a law based on that disagreement.

That’s the play. The Supreme Court is wrong. Congress is insane. The presidency is a sovereign unto itself, answerable to no one.

Matthew Connelly, a history professor at Columbia who has spent his career digging through declassified documents to figure out what the government was actually doing during the Cuban missile crisis, put the thing bluntly. Trump is trying to make the presidency

answerable to no one, not even the court of history.

Pause on that sentence. Not even the court of history. Not the watchdogs (fired), not the Supreme Court (he’s betting they fold), not the press corps (progressively defanged), and now not even the historians fifty years from now trying to piece together what happened.

There is an 87% chance the people writing this memo know exactly what they’re doing, and a 13% chance they’ve been microdosing in the OLC conference room since March. I would bet both lines on Kalshi if Kalshi had the guts to take them.

The memo cites the Constitution the way a crypto influencer cites “the blockchain.” It deploys Article II like it’s the last remaining constitutional article and the others got canceled during the Great Rebrand. It uses the phrase “untethered from any valid and identifiable legislative purpose” about a law that was passed specifically because a previous president tried to steal his own paperwork. The tethering is literal. The purpose is in the name of the bill. This has the structural integrity of a screen door on a submarine, and the OLC has declared the submarine unconstitutional.

Timothy Naftali, who used to run the Nixon Presidential Library — a man who has built his entire career on Presidents Behaving Criminally — cut through the legal pretense.

His attack on the Presidential Records Act is an attempt at post facto vindication for having taken public property to Mar-a-Lago.

Meaning: Trump took the documents. He got indicted. He won reelection. The Justice Department he now runs dropped the case. And now his lawyers are time-traveling to make the indictment itself illegal. It’s the legal equivalent of winning a Monopoly game and then flipping the board so nobody can remember the score.

The court battle begins next month in a Washington D.C. federal courtroom. Naftali, asked what the long-term question really is, said what every historian has been saying since 1974:

This is about whether we can hold our most powerful leader accountable and I don’t know how you hold them accountable if they can destroy the record of their actions in government.

White House spokeswoman Abigail Jackson issued a written statement saying Trump is

committed to preserving records from his historic Administration

and will maintain a “rigorous records retention program.” The lawyers for the historians noted one small detail: the document-preservation training the White House is rolling out does not appear to apply to Trump or Vice President Vance. The two men making all the decisions are not required to attend the workshop on keeping those decisions in writing.

Somewhere in a subbasement at 1600 Pennsylvania, a shredder is warming up. Somewhere in a storage unit in Florida, there are boxes. Somewhere the past is becoming a suggestion. The pharaohs are sanding the hieroglyphs off their own tombs in real time, and the lawyers are billing by the hour.

Burn before reading. Consult your local historian, while they’re still legally permitted to exist.