On the recordJanuary 29, 2020
I have a question to send to the desk. The CHIEF JUSTICE. Senator Thune's question is for counsel for the President: Would you please respond to the arguments or assertions the House managers just made in response to the previous questions? =========================== NOTE =========================== On page S666, January 29, 2020, first column, the following appears: Would you please respond to the arguments or assertions the House Managers just made in response to the previous questions? The online Record has been corrected to read: Would you please respond to the arguments or assertions the House managers just made in response to the previous questions? ========================= END NOTE ========================= Mr. Counsel PHILBIN. Mr. Chief Justice. Thank you, Senator, for the question. I haven't read recently the case that was cited about the missing witness rule. So I can't say specifically what is in it, but I am willing to bet that the missing witness rule does not apply when there has been a valid assertion of a privilege or other immunity for keeping the witness out of court. For example, if they tried to subpoena the defendant's lawyer and the defendant said, ``Wait, I have attorney- client privilege; you can't subpoena him,'' they are not going to be able to get an adverse inference from that.…
Source
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