Attorney Alina Habba.

Toward the end of a four-hour hearing in central Pennsylvania on Friday, the judge overseeing a challenge to the constitutionality of Alina Habba’s appointment as acting U.S. attorney made a comment that will cause New Jersey Democrats’ hearts to sink.

“I think it’s very likely that Ms. Habba is going to end up, at some point down the road, as the United States attorney for the District of New Jersey,” Judge Matthew Brann said.

I don’t think Brann was signaling how he plans to rule on this matter later this week, because he noted that he has no “crystal ball.” I think what he may have intended to communicate to both sides in the matter is how this saga will likely end if it lands in the U.S. Supreme Court’s lap.

Let’s back up a bit for the uninitiated.

President Donald Trump named Alina Habba, a personal attorney who represented Trump in a civil defamation case, as New Jersey’s chief federal prosecutor back in March. That’s a role that requires confirmation from the U.S. Senate, but Trump didn’t nominate her until the tail end of her 120-day term as acting U.S. attorney. When her term was drawing to a close and there was no movement on her nomination — our two U.S. senators, both Democrats, object to Habba, and her confirmation is unlikely without their approval — New Jersey’s district judges were tasked with naming a more permanent replacement. They chose Habba’s second in command, Desiree Grace.

The Trump administration then fired Grace, Habba resigned as U.S. attorney, and the administration gave Habba the No. 2 job in the office. Because the U.S. attorney spot was now vacant, Habba automatically assumed the role of acting U.S. attorney again, this time for 210 more days, the Trump administration says. Two men facing federal criminal charges then challenged Habba’s appointment as unconstitutional, leading to Friday’s hearing in Pennsylvania (the matter was handed to Brann because New Jersey’s district judges had conflicts).

I went into Friday’s hearing with a significant bias against Habba. I’ve written before about my distaste for her swooning over an alleged sex trafficker in January. I think her stated goal to help New Jersey Republicans get elected is disqualifying. And the zeal with which she tossed Newark Mayor Ras Baraka (D) behind bars — on a charge so flimsy she had to retreat just days later — was obscene.

Nothing about the hearing changed my mind on whether Habba is fit to serve as U.S. attorney. But the arguments persuaded me the law is murky enough that the fight to prevent her from staying in office will fail.

There’s no smoking gun here, despite the valiant efforts on both sides to argue their case to Brann. Yes, the Trump administration’s maneuvering was an obvious end run around the U.S. Senate confirmation process — but the administration’s reliance on the Federal Vacancies Reform Act, which allows first assistants in various government agencies to be the default acting No. 1, is convincing. And the challengers’ response is less so. They argue that the statute is automatic, triggered by a vacancy — meaning the U.S. attorney spot was vacant when Habba resigned, and so she can’t resume that position by later taking the No. 2 spot.

“What happened here was the president or the executive, they terminated the first assistant in order to backfill the role, and Ms. Habba then created the resignation — well, she resigned, created the vacancy to fill it herself. It’s circular. I mean, it doesn’t make any sense. And it goes completely against what the statute is meant to protect,” said attorney Thomas Mirigliano, who is representing a man seeking to nullify Habba’s appointment.

Henry C. Whitaker, representing the Trump administration, countered that the vacancy in the U.S. attorney post existed not just at the moment Habba resigned — it also existed when she subsequently accepted the No. 2 post that allows her to become acting U.S. attorney for a new, 210-day term.

“The vacancy is a continuing condition,” Whitaker said.

Like I said, Brann gave no hint how he might rule on this — though he wisely conceded that he will not be the final word and said Habba and the New Jersey judges who tried to replace her may have to find a way to coexist. The judges, Brann noted, are appointed for life and are not likely to resign.

“They’re going to have to find a way to maneuver things together after this immediate issue, which is quite interesting, is resolved,” Brann said.

Brann is smart enough to realize that this matter may only be resolved by the nation’s highest court. The Roberts court has embraced the power of the executive, most recently in its June 27 decision limiting the power of federal judges to institute universal injunctions. Do we think the same justices, faced with a controversy over who gets to pick the U.S. attorney of New Jersey, will side with our state’s federal judges over Donald Trump?

If the Trump administration wins here, it may be a short-lived victory. Its own arguments on Habba hinge on her current appointment lasting for 210 days. That means her term has an expiration date of mid-February 2026, giving the administration plenty of time to find someone who has the qualifications to win confirmation from the U.S. Senate. Or enough time to think of a new legal strategy to keep her in the post no matter what.

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