Fox News legal analyst Andrew Napolitano took Fox & Friends hosts by surprise on Thursday when he suggested that President Donald Trump’s pick for acting attorney general, Matthew Whitaker, is not legally qualified to take on the role.
When discussing Trump’s decision to fire Jeff Sessions and replace him with acting AG Matthew Whitaker, Napolitano broke down why Trump’s appointment is flatly illegal.
“You’re saying the guy the president appointed is not qualified?” host Steve Doocy asked.
“Is not legally qualified,” Napolitano clarified.
Doocy was certain Trump’s legal counsel would have examined the issue thoroughly: “The president’s got lawyers! They looked at that!”
But Napolitano was undeterred:
Napolitano then explained that there are only three ways someone can become an acting AG: If you’re already serving as the deputy AG, if you have a job at the DOJ that requires you to be confirmed by the Senate, and if you were appointed while the Senate was in recess.
Whitaker falls into none of those three categories, which means he is not legally qualified to take the role, Napolitano said.
“He has chosen someone who, under the law, does not qualify to be acting attorney general,” he concluded.
“So he’s really not the attorney general?” a confused Ainsley Earhardt asked.
“That’s correct,” Napolitano confirmed. “Which is why he did not take an oath of office.”
Host Brian Kilmeade noted that the White House said Whitaker already took an oath of office when he became Sessions’ chief of staff, so it was unnecessary to take it again.
But Napolitano wasn’t satisfied: “That’s a political response,” he said.