Fox News legal analyst: Trump attorney general pick violates the law

Trump’s decision to fire Attorney General Jeff Sessions and replace him with a Trump loyalist has been widely decried, and even Fox News legal analyst Andrew Napolitano says the move is illegal.

Trump announced the decision Wednesday afternoon, naming Matt Whitaker, Sessions’ chief of staff, as acting attorney general. On Thursday morning’s edition of “Fox & Friends,” Napolitano told the show’s hosts that Trump violated the law by selecting Whitaker.

“You’re saying that the guy the president has appointed is not qualified?” co-host Steve Doocy asked.

“Is not legally qualified,” Napolitano said, explaining that someone who is not next in line at the Justice Department can serve as acting AG is “if you are already in the Department of Justice and have a job that requires Senate confirmation, and you have received confirmation, that is not the case with Matt Whitaker.”

Napolitano added that Trump “has every right to have whoever he wants running the Justice Department,” but that Whitaker “does not qualify, under the law, to be the acting attorney general.”

He went on to say that the White House “can interpret the law that Matt Whitaker was confirmed by the Senate when he was a U.S. attorney in Iowa 10 years ago, but the statute’s pretty clear: ‘Presently occupies a job that requires Senate confirmation, and received it.'”

Napolitano is referring to the Federal Vacancies Reform Act, which states that if Trump bypasses the next person in line for the vacancy — which would be Deputy Attorney General Rod Rosenstein — he must select “a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate.”

But Napolitano’s analysis ignores the most egregious aspects of Trump’s move: that he is doing it to install a political loyalist who has repeatedly smeared special counsel Robert Mueller’s investigation and plotted ways to curtail or end it.

Since Sessions recused himself from the Russia investigation, Rosenstein has been in charge of overseeing the Mueller probe, and has pushed back on attempts to undermine it. By passing over Rosenstein for Whitaker, Trump is making a naked play to strangle the investigation that many are calling “obstruction in plain sight.”

Republican leaders have long resisted doing anything to protect the investigation from Trump’s obstruction, but when even Fox News’ top legal analyst says Trump is breaking the law, perhaps it’s time to rethink that posture.

Published with permission of The American Independent Foundation.