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 TrumpPaul Ryan defends Navy admiral after Trump's criticism Trump discussing visit overseas to troops following criticism: report Retired Army General: Trump is ‘acting like an 8th grader’ in attacking ex-Navy SEAL who led bin Laden operation MORE named as ActingMatthew G WhitakerLaura Ingraham: 'Unforced error' for Trump 'to ridicule Adam Schiff's name' Cummings on 'Adam Schitt': 'Mr. President, please do not do that' Conway: Trump is 'not afraid' to sit down with Mueller 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 SessionsJefferson (Jeff) Beauregard SessionsMueller: Whitaker appointment has 'no effect' on ongoing legal challenge Cummings on 'Adam Schitt': 'Mr. President, please do not do that' Senate Dems sue to block Whitaker from serving as attorney general 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 RosensteinMueller: Whitaker appointment has 'no effect' on ongoing legal challenge Senate Dems sue to block Whitaker from serving as attorney general Mueller could turn easy Trump answers into difficult situation 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 WhitakerLaura Ingraham: 'Unforced error' for Trump 'to ridicule Adam Schiff's name' Cummings on 'Adam Schitt': 'Mr. President, please do not do that' Conway: Trump is 'not afraid' to sit down with Mueller 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 PelosiPoll: 40 percent of Democrats want Speaker other than Pelosi Democrats with military background offer support for Pelosi House Democrat agenda, led by minimum wage, threatens economic prosperity MORE (D-Calif.) said on Wednesday. "Congress must take immediate action to protect the rule of law and integrity of the investigation."