The Supreme Court will be taking up on February 8 to the arguments for or against Colorado removing Donald Trump from its ballot. Whatever your personal views, and you've made them very clear of the former president, you think that is an overreach for states to start doing stuff like that, right?

Absolutely. What's happening here is the effort to take him off the ballot and deny people the choice. And know, as I've said before, I think that's untenable as a legal matter, we can't have all the states making their own rules as to what an insurrection is and how much evidence is needed to make a determination.

All right, that's bill, though. The former attorney general under Donald Trump. Of course, the two not exactly on the same page these days, but on the same page when it comes to this potential overreach by states like Colorado that just willy nilly want to knock Donald Trump off the ballot. Maine is considering the same, and of course, a dozen other states are waiting at the gate to do the same that they can. Andy McCarthy, the former assistant U. S. Attorney, FOX News contributor Andy Bilbar's essential argument was yours. Let the people decide this, not essentially courts.

Yeah, I think that's exactly right. It's important for our polity, for all the reasons that former attorney general Barr mentioned. I think the chaos you would have, Neil, to have 50 states make ad hoc procedures about this, when in fact, section five of the 14th Amendment, which we have talked about a lot less than section three, talks about Congress making laws to enforce the 14th Amendment. And of course, they have done that in the insurrection context by enacting a criminal statute where if the prosecutors can go into court and prove beyond a reasonable doubt that somebody is guilty of insurrection, then you could absolutely see people going to a state court and say, here's this federal conviction where the person was found to be an insurrectionist under all the due process protections of the Constitution. I think that's something nobody could object to. But this idea of 50 different states, not only in connection with one election, but really two, because you're talking the primaries and the final general election, making these ad hoc rules as we go along, I just think that it's not good law and it's terrible policy.

I also spoke to the former attorney general about this gag order, that one judge is convinced that Donald Trump is crossing over by saying bad things about a lot of people, including Bill Barr. Now, Bill Barr said, whatever he says about me isn't violating a gag order. He's free for his personal opinions on anyone, including those who might or might not have anything to do with this case. I'm vastly oversimplifying what he's saying, but he's saying that the gag order thing doesn't add up. What do you think?

Well, I don't think the gag order adds up, nor do I think the reason for imposing it adds up. What Jack Smith, the prosecutor, and what some of the courts have said is this theory that the public has an interest in having this case resolved quickly, and therefore Trump's constitutional right to seek office has to bend to the needs of administration of justice. Of these court cases, particularly the one in Washington, I don't see it that way. What the public has is an interest in a just resolution of the great. There's a democratic party interest in having Trump get tried and convicted before the election, but the Constitution gives a speedy trial right to the defendant. Trump has waived that here. And what he's seeking and what I think we should all care about is that it's a just trial, not a fast trial. It's utterly inappropriate for a prosecutor to be looking at the election calendar and deciding how the trajectory of a court case could go. And if you're really interested in the administration of justice, you could easily just postpone this trial until after the election. And then once the election is over, you can have as much administration or justice as you want.

Unless he wins the said election. Right. I guess what I come back to is something you and I visited before, this idea that the delay upon delay, I know there's this immunity issue that'll take up in a court tomorrow, but is it your sense that he's running out the clock? It's a good legal strategy, and for now, it could be working for him.

Yeah, I think he's completely running out the clock now. My baggage I should put on the table. I don't think he really has a realistic chance to win. I think, in fact, if you had a Republican who didn't have his baggage, that person would be way ahead in the polls now. But he's got a very good chance to win the nomination. I don't think. In fact, I'm quite confident about this. It's not appropriate for a prosecutor to wonder, what's the impact of the election on my litigation? And what happens if he wins? And does he pardon himself or does he get the Justice Department to dismiss the case? Jack Smith's job is to present the United States case at trial when called on to do so as effectively as he can. It's not his job to look at the election calendar.

Yeah, I guess you're right there. We'll see what happens, though, because that is the big thing right in the middle of all of this. Andy, great talking to you again. Thank you.

Hi, everyone. I'm Brian Kilmeade. I want you to do me a favor. I want you to click to subscribe to the Fox News YouTube page. This is the only way that I know for sure that you're not going to miss any great commentary, any great news bites, any great interviews. Come on your way on Fox. You can get it all here on YouTube, so subscribe right now.