In what circumstances will the attorney general not be able to call the witnesses he relied on to persuade him to change his mind?

Instead, the district court suggested that if dissatisfied with the record, the state should call these witnesses, a natural corollary to his finding that Cole had sustained his burden of persuasion. Of course nothing can be more clear than that Cole never sustained his burden or attempted to do so; he failed to call the very witnesses whose testimony was crucial to establishing his claim. In any event, at the misguided behest of the district judge, the attorney general did attempt to call them. But the attorneys involved indicated to the state that Cole would not permit them to waive their attorney-client privilege. Of course if Cole had called them to the stand or if Cole himself had testified as to his dealings with them the privilege would have been waived. See United States ex rel. Mitchell v. Follette, 358 F.2d 922, 928-929 (2d Cir. 1966).