Judge Andrew Napolitano, a senior Fox News legal commentator, argued Wednesday that acting Attorney General Matthew Whitaker will be found to be “legally ineligible” to head the Justice Department.
“I was very disappointed to see the lawyers who work for Matthew Whitaker go back to 1866, and look for a precedent there to decide whether or not he was lawfully appointed,” Napolitano said during a segment on Fox News’ “Shepard Smith Reporting.” “I don’t care what happened in 1866, because the Congress changed the law in the 1960s and said whoever runs the Justice Department has to be nominated by the president and confirmed by the Senate because we put too much power in their hands.”
Napolitano served on New Jersey’s Superior Court for almost a decade in the 1980s and ’90s, and he is an expert in constitutional law and rule of law.
He said Wednesday that Republicans shared Democratic concerns regarding what Whitaker, an ally of President Trump, may do now that he oversees special counsel Robert Mueller’s federal Russia investigation.
[Read more: Top Republican on Matthew Whitaker: It’s not like Trump appointed Michael Avenatti, Justin Bieber]
“The problem comes with decisions made by Mr. Whitaker in the interim,” Napolitano said. “Because when his position — not if — when his position is found to be legally ineligible, those decisions will become null and void. Put that toothpaste back in the tube.”
Whitaker was fired Attorney General Jeff Sessions’ chief of staff at the department after being referred to the longtime former senator by the Trump White House. He was appointed to the top job last week following Trump asking for Sessions’ resignation.
Democrats have opposed Whitaker’s ascension to lead the department over statements he made about Mueller’s probe. In an opinion piece published last year, Whitaker said Mueller’s office had ventured beyond the scope of the inquiry and that funding could be cut to contain it.
