A Department of Justice memo defending the appointment of Matthew Whitaker as acting attorney general is wrong, and he is "legally ineligible" to hold the position, Fox News Senior Judicial Analyst Judge Andrew Napolitano says.
“The problem comes with decisions made by Mr. Whitaker in the interim, because when his position –– not if, when his position is found to be legally ineligible, those decisions will become null and void," Napolitano told Fox News' Trace Gallagher Wednesday evening. "Put that toothpaste back in the tube."
Napolitano and other critics have argued that Whitaker is not eligible because he did not go through a Senate confirmation process for his position as former AG Jeff Sessions' chief of staff. According to the DOJ, confirmation was not required, as Whitaker's appointment is temporary.
There are two conflicting statutes, Napolitano explained. One allows the president to appoint whomever he wishes, as long as that person has been in the department for 90 days.
The other refers specifically to the DOJ, and "Congress could not have been more precise when they said the number two person, the deputy attorney general, takes over," said Napolitano. In this instance, that would be Rod Rosenstein.
The DOJ, in its memo, argued that a similar situation with a non-confirmed appointee has not occurred since 1866, and Napolitano said that the precedent is not valid.
"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," said the judge.