Fox News Legal Analyst: Trump Picking Matt Whitaker to Replace Sessions May Be Illegal

President Donald Trump named Matthew Whitaker his acting attorney general.

Trump tweeted Wednesday that Attorney General Jeff Sessions resigned and his Whitaker, his chief of staff, will take over until a permanent replacement is named.

“At your request, I am submitting my resignation,” Sessions wrote in his letter to Trump, suggesting the move was more of a firing than a resignation.

As the acting attorney general, Whitaker will now oversee special counsel Bob Mueller's investigation instead of Deputy Attorney General Rod Rosenstein, who was in the role because Sessions had recused himself.

Whitaker previously served as a pundit for CNN, where he wrote an op-ed criticizing Mueller's probe and calling for it to be severely limited.

“If he were to continue to investigate [Trump's] financial relationships without a broadened scope in his appointment, then this would raise serious concerns that the special counsel’s investigation was a mere witch hunt,” Whitaker wrote. “If Mueller is indeed going down this path, Rosenstein should act to ensure the investigation is within its jurisdiction and within the authority of the original directive.”

Whitaker also said in an appearance on the network that Donald Trump Jr. was right to accept a meeting with a Russian lawyer to obtain “dirt” on Hillary Clinton.

“You would always take the meeting,” Whitaker told CNN at the time. “You certainly want to have any advantage, any legal advantage you can” as a political candidate.

Fox News analyst warns of legal trouble: Judge Andrew Napolitano suggested that Trump may have violated the law by not selecting Rosenstein as Sessions' replacement.

“Under the law, the person running the Department of Justice must have been approved by the United States Senate for some previous position. Even on an interim post,” he said, adding that Whitaker was previously confirmed for a US Attorney job in 2004 but that still leaves him ineligible “for a leadership position in the Justice Department.”

“Who has been confirmed and who’s next in line? Deputy Attorney General Rosenstein,” he added.

Kellyanne Conway's husband agrees: George Conway, who was on the shortlist to be Trump's solicitor general, wrote an op-ed in The New York Times calling the move unconstitutional.

"A principal officer must be confirmed by the Senate," he wrote. "It means that President Trump’s installation of Matthew Whitaker as acting attorney general of the United States after forcing the resignation of Jeff Sessions is unconstitutional. It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid."


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