Napolitano: Acting AG ‘does not qualify under the law’ to take job

Fox News legal commentator Andrew Napolitano on Thursday said the man President TrumpDonald John TrumpVeterans groups demand end to shutdown: 'Get your act together' Brown launches tour in four early nominating states amid 2020 consideration Pence on border wall: Trump won't be ‘deterred’ by Dem ‘obstruction’ MORE named as acting 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 SessionsJefferson (Jeff) Beauregard Sessions5 takeaways from Barr’s testimony AG pick Barr emphasizes independence from Trump Hillicon Valley: Trump AG pick signals new scrutiny on tech giants | Wireless providers in new privacy storm | SEC brings charges in agency hack | Facebook to invest 0M in local news MORE resigned from his post at Trump's request.

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Whitaker will now oversee special counsel Robert MuellerRobert 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.

"There’s only three ways a person can become acting attorney general," Napolitano said. "One, if you are the deputy attorney general — Rod RosensteinRod Jay RosensteinLive coverage: Trump AG pick grilled on Mueller probe at confirmation hearing The Hill's Morning Report — No new negotiations as shutdown hits 25 days Democrat previews Mueller questions for Trump’s AG nominee 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 WhitakerRosenstein, DOJ exploring ways to more easily spy on journalists Pelosi takes power and sets high bar for Trump impeachment Senate sets Barr's confirmation hearing 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 PelosiNancy Patricia D'Alesandro PelosiVeterans groups demand end to shutdown: 'Get your act together' On The Money: Shutdown Day 25 | Dems reject White House invite for talks | Leaders nix recess with no deal | McConnell blocks second House Dem funding bill | IRS workers called back for tax-filing season | Senate bucks Trump on Russia sanctions Overnight Defense: Trump faces blowback over report he discussed leaving NATO | Pentagon extends mission on border | Senate advances measure bucking Trump on Russia sanctions MORE (D-Calif.) said on Wednesday. "Congress must take immediate action to protect the rule of law and integrity of the investigation."