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 TrumpTrump signs bill averting shutdown after brief funding lapse Privacy, civil rights groups demand transparency from Amazon on election data breaches Facebook takes down Trump campaign ads tying refugees to coronavirus 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 SessionsRoy Moore sues Alabama over COVID-19 restrictions GOP set to release controversial Biden report Trump's policies on refugees are as simple as ABCs MORE resigned from his post at Trump's request.

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Whitaker will now oversee special counsel Robert MuellerRobert (Bob) MuellerCNN's Toobin warns McCabe is in 'perilous condition' with emboldened Trump CNN anchor rips Trump over Stone while evoking Clinton-Lynch tarmac meeting The Hill's 12:30 Report: New Hampshire fallout 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 RosensteinMueller in rare statement pushes back on top aide's criticism of investigation This week: Senate kicks off Supreme Court fight DOJ kept investigators from completing probe of Trump ties to Russia: report 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 WhitakerEx-federal prosecutor: 'Thank God' Whitaker is gone, Barr will bring 'integrity' back to DOJ GOP pollster says Dems are relitigating 2016 election with investigations of Trump Former senior FBI official calls Whitaker hearing ‘disgraceful’ 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 PelosiTrump signs bill averting shutdown after brief funding lapse On The Money: 'One more serious try' on COVID relief yields progress but no deal | Trump tax bombshell shines light on IRS enforcement | Senate passes bill to avert shutdown hours before deadline 'One more serious try' on COVID-19 relief yields progress but no deal MORE (D-Calif.) said on Wednesday. "Congress must take immediate action to protect the rule of law and integrity of the investigation."