Fox News legal commentator Andrew Napolitano on Thursday said the man President Trump
Donald John TrumpMichelle Obama: 'I'd never forgive' Trump for 'birther' conspiracy Judge blocks Keystone XL pipeline Pelosi: Acting attorney general 'should not be there' MORE named as Acting
Matthew G WhitakerThe Hill's 12:30 Report — Presented by the Counter Extremism Project — Ginsburg hospitalized after fall | 12 people killed in SoCal mass shooting | What Sessions's ouster means for Russia probe | Why Trump thinks he won the midterms Activists plan nationwide protests to protect Mueller probe Napolitano: Acting AG ‘does not qualify under the law’ to take job MORE attorney general "does not qualify under the law" to take the job.
Napolitano's remarks come a day after Trump announced that Matthew Whitaker would take over the Justice Department as acting attorney general after Attorney General Jeff Sessions
Jefferson (Jeff) Beauregard SessionsPelosi: Acting attorney general 'should not be there' Acting AG once said courts 'are supposed to be the inferior branch' Sessions considering run for old Alabama Senate seat: report MORE resigned from his post at Trump's request.
Whitaker will now oversee special counsel Robert Mueller
Robert Swan MuellerSasse: US should applaud choice of Mueller to lead Russia probe MORE's investigation into possible ties between the Trump campaign and Russia's efforts to interfere in the 2016 presidential election, the Justice Department announced.
Napolitano, on "Fox & Friends," said Whitaker is not "legally qualified" to become acting attorney general.
Fox’s Andrew Napolitano: Trump “has chosen someone who does not qualify under the law to be the Acting Attorney General of the United States.” pic.twitter.com/gFKQBDy0vg
— Bobby Lewis (@revrrlewis) November 8, 2018
"There’s only three ways a person can become acting attorney general," Napolitano said. "One, if you are the deputy attorney general — Rod Rosenstein
Rod Jay RosensteinActing AG once said courts 'are supposed to be the inferior branch' Schiff: Dems interested in Sessions's testimony about ouster in next Congress Flake to try to force vote on bill protecting Mueller MORE — the president signs an executive order and makes you acting."
"Two is if you are already in the Department of Justice and have a job that requires Senate confirmation and you have received confirmation," Napolitano added. "That is not the case with Matt WhitakerMatthew G WhitakerThe Hill's 12:30 Report — Presented by the Counter Extremism Project — Ginsburg hospitalized after fall | 12 people killed in SoCal mass shooting | What Sessions's ouster means for Russia probe | Why Trump thinks he won the midterms Activists plan nationwide protests to protect Mueller probe Napolitano: Acting AG ‘does not qualify under the law’ to take job MORE because he’s the chief of staff. That does not require Senate confirmation."
Whitaker's most recent post was chief of staff to Sessions at the Justice Department.
"Three is a recess appointment, which is not relevant here because the Senate is not in recess," Napolitano continued.
"So with deference and respect to what the president’s trying to do — he has every right to have whoever he wants run the Justice Department — he has chosen someone who does not qualify under the law to be the acting attorney general," Napolitano added.
Trump for months has criticized Rosenstein, and reports emerged last month that he was planning to oust him from the Justice Department. The deputy attorney general ultimately stayed in his position, but some have raised concerns that Trump could fire him next.
Whitaker has been a sharp critic of Mueller's probe, prompting multiple Democratic lawmakers to raise concerns that he could undermine the Russia investigation.
"Given his record of threats to undermine & weaken the Russia investigation, Matthew Whitaker should recuse himself from any involvement in Mueller’s investigation," House Minority Leader Nancy Pelosi
Nancy Patricia D'Alesandro PelosiMother of Thousand Oaks shooting victim she says survived Las Vegas massacre: 'I want gun control' Pelosi: Gun control ‘will be a priority’ in next House Pelosi: Acting attorney general 'should not be there' MORE (D-Calif.) said on Wednesday. "Congress must take immediate action to protect the rule of law and integrity of the investigation."
