Todd Presnell Interviewed on MSNBC on the Role of a Special Master

Bradley attorney Todd Presnell was interviewed by Katie Phang of MSNBC about the role of a special master and the next steps in the process since former President Donald Trump’s special master request was granted. Presnell has previous experience serving as a special master, who is generally a third-party official appointed by a judge to carry out some direct action on behalf of the court.

Phang: Todd, I wanted to ask you in this specific case what kind of qualifications would this person need to have -- I mean finding somebody with the right kind of national security clearance alone has to make the possible options super limited?

Presnell: Yes, Katie, good to be with you. I agree that is the initial hurdle, which is unique in this case, where the special master will need to have, as both parties have agreed to, had some type of security clearance so they can review the documents at issue. Once that hurdle is crossed -- and I do expect it to be crossed because both sides have agreed that's a necessity and they both have to agree on a list of potential special masters -- then it becomes important for the person or attorney chosen to have some background in privilege issues, which is many times why you see judges go to retired judges, former judges to conduct this type of task.

Phang: Yeah, but what, Todd, what about this executive privilege issue? You and I both know attorney client privilege, yep… work product privilege, yep… that's routine, that comes up all the time in civil and criminal cases. But I feel like executive privilege is a little bit more unusual, putting aside the national security implications of the special master being able to review the documents.

Presnell: Yes, that's a very interesting issue that the judge picked up on here because she said, well while the question is can former President Trump claim executive privilege while we have a new president in office is an issue. And as even Justice Kavanaugh has indicated that that is a substantial issue, it's a thorny issue. And what's important to know here, Katie, is that executive privilege is a very broad term, and in this situation, the special master we will be trying to look at two different types of executive privilege. One is more of a deliberative-type privilege where executive aides have deliberated on policies or tried to come up with some recommendations to give to the president, the privilege to protect those even if the president's not involved in those communications. The second one and the one that the judge picked up on here is the presidential communications privilege, and that's the one that may survive and that involves communications by top advisors directly to the president, and the executive privilege covers those as well. The special master will have to divide between those two types of executive privilege.

The complete interview, “Former Special Master talks next steps after Trump request was granted,” appeared on MSNBC on September 8, 2022.