Matthew Whitaker has been Chief of Staff to Attorney General Sessions. When Sessions resigned today at the President’s request, Trump announced that Whitaker will serve as Acting Attorney General.

Here’s the thing.

There are limits on how you can get a Cabinet-level job. These positions are required by the Constitution and law to be submitted to the Senate for review and confirmation or rejection.

It is clearly not legal for Trump to fire Secretary of State Pompeo then name Ivanka or Jared as acting SoS. That would be the sort of runaround of Senate authority that both the Constitution and law prohibits.

There are two “escape clauses.”

The first is the normal “chain of command” with the Cabinet agency. If the Secretary is gone, the “first assistant to the office of such officer” becomes Acting Secretary, until the President nominates a new Secretary (maybe the same person) and they get confirmed. I believe the first assistant in this situation is Deputy Attorney General Rod Rosenstein.

The second escape clause is the Vacancies Act. This was passed in 1998. It says that the President may appoint someone else as acting Secretary for several months, if the Secretary “dies, resigns, or is otherwise unable to perform the duties”. But the President cannot appoint just anybody: it has to be someone who has previously been confirmed by the Senate for a different job, and currently holds that job. So Trump could install Rick Perry or Christopher Wray, but not Jared Kushner.

Mathew Whitaker has never been submitted to the Senate for confirmation to his Chief of Staff position. His Chief of Staff position doesn’t appear to be considered “first assistant” to the Attorney General: that would be the Deputy Attorney General.

It sure looks illegal to me, but I Am Not A Lawyer.

It will be interesting to see whether it looks illegal to all the lawyers who supposedly report to Whitaker now, including Rosenstein, Mueller, and Wray.