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By BART JANSEN and GREGORY D. KESICH, Staff Writers Sunday, March 25, 2007

The massive release of e-mails and other documents by the U.S. Justice Department last week included one that says the position of U.S. attorney for Maine is vacant. But that's news to Paula Silsby, the woman who has occupied the office for most of the past six years under unusual circumstances.

Silsby's status as the state's top federal prosecutor came into question with the release of 3,000 pages of internal government documents produced for a congressional investigation into the firings of eight other U.S. attorneys.

Unlike almost all of her 92 colleagues, she was never nominated by the president or confirmed by the U.S. Senate. Instead, according to the Justice Department documents, she is one of a handful of U.S. attorneys who were appointed by a judge through a process intended for temporary replacements, and she is by far the longest serving prosecutor in that category.

The forced resignations of U.S. attorneys last year, followed by their replacement by appointees of Attorney General Alberto Gonzales under powers granted him by the Patriot Act, has raised questions about the political independence of some U.S. attorneys' offices.

On Jan. 18, Gonzales assured the Senate Judiciary Committee that the Bush administration was committed to having "a presidentially appointed, Senate-confirmed United States attorney" in every district, because that would give them "the greater imprimatur of authority" in their communities.

But Silsby, who was appointed in the early days of the Bush administration in 2001, continues to fill the role despite her lack of Senate confirmation.

When asked why her name was never submitted to the Senate, Silsby said: "I can't speak for what happens in Washington. Every day I go in my office with the full authority of my position, and do my best for the Department of Justice and the people of Maine."

U.S. attorney is one of the most powerful federal government jobs outside Washington, with the authority to decide whether to press charges against people accused of a wide variety of federal crimes such as drug trafficking, illegal gun possession and Internet fraud.

The office also coordinates local efforts to combat terrorism, and oversees the local offices of federal law enforcement agencies, including the FBI, Drug Enforcement Administration and the Bureau of Alcohol Tobacco and Firearms.

U.S. attorney vacancies are usually filled when the Senate confirms a nomination made by the president, usually on the recommendation of that state's senior senator from the president's political party.

In 2001, Republican Sen. Olympia Snowe made such a recommendation of Silsby, who had been a prosecutor in the office for 24 years.

A DIFFERENT ROUTE TO OFFICE

Although a registered Republican, Silsby was hired in 1977 by then-U.S. Attorney George Mitchell, a Democrat, not long after she finished law school. She worked her way up to deputy U.S. attorney and chief of the criminal division under Jay McCloskey, also a Democrat, who was U.S. attorney for Maine under President Bill Clinton.

Silsby was selected by a panel of legal experts that Snowe convened to review candidates. Snowe recommended Silsby for the post in March 2001, but Silsby was never nominated by the president. Instead, she was appointed in a temporary basis by then-Attorney General John Ashcroft and eventually was appointed by the U.S District Court. She took her oath of office on Sept. 3, 2001.

Snowe said that's where it ended, and neither Snowe nor Silsby would shed any light on why the customary practice of seeking a Senate confirmation was not followed in this case.

"No formal nomination was ever made by the administration, and the matter was not pursued further, since Ms. Silsby was the person I had recommended on the advice of the search committee," Snowe said. "By all accounts, the people of Maine have been well-served by her."

Silsby said the route she took to office has made no difference in the way she does her job.

"After six years, that is an irrelevancy," she said. "I'm just focused on doing the work as the office of the United States attorney, addressing the significant issues we have been confronted with."

Under Silsby, the U.S. Attorney's Office has focused on combating domestic violence in Maine by strict enforcement of federal gun possession laws. None of the cases her office prosecuted are in jeopardy because of her status.

She said she has not been put under any political pressure from Washington in the number or types of prosecutions she has brought.

"Absolutely not, this is a fully apolitical job," she said. "Politics doesn't play any role in the work that we do. My position, like all of my colleagues, is fully independent."

Silsby has a good reputation among lawyers who practice in the federal courts. Robert Napolitano of Portland said he has tried cases against six U.S. attorneys dating back to the 1960s, and calls Silsby "the best."

"She's a great trial lawyer and a nice person. She really deserved that job," Napolitano said. "If she tells you something, it's the truth."

Still, he called her court-appointed status "a very odd situation. I've never heard of a U.S. attorney who was not confirmed."

And according to the Justice Department documents, Silsby's position is rare.

ONE OF THREE APPOINTED BY COURT

In one undated document she is listed as one of three attorneys -- the other two are William Leone of Colorado and Deborah Rhodes of Alabama -- who were appointed by courts. That same document puts "Paula Silsby (ct-apptd)" as the only name in the box marked "vacancy and pending candidacy."

In a Justice Department list of 16 "current and upcoming vacancies" for U.S. attorneys, Maine is included, with the notation that the office has been vacant since 2001. The document says the Justice Department is "still continuing to request names from senators" for the position of U.S. attorney for Maine. The document is undated but it lists one U.S. attorney's position that has been vacant since Feb. 7, 2007.

The Justice Department's Web site lists Silsby as the U.S. attorney for Maine, but her name does not have an asterisk next to it that would indicate a presidential appointment. Neither the Justice Department nor White House returned calls last week seeking clarification.

The U.S. Constitution gives the president the authority to appoint "officers of the United States" with the "advice and consent" of the Senate. It allows the president to delegate the appointment of "inferior officers" to other authorities, but the powerful U.S. attorneys have not been thought of as inferior officers, said Peter J. Smith, a professor at George Washington University Law School.

Until 2005, a federal statute allowed the attorney general to make a temporary appointment of a U.S. attorney for up to 120 days. When that period expired, a federal court had the authority to extend the appointment until a replacement is confirmed. That has been Silsby's situation for more than five years.

Smith said that Senate confirmation is an important check on the president's power because it makes it more difficult for a president to fill a vacancy with a political crony. It also makes it more difficult for a president to fire an incumbent U.S. attorney without facing political fallout.

A process of appointing officials outside the usual system creates constitutional problems, Smith said, "because they can become an end-run around the constitutional limitations of the president's power of appointment."

In 2005, a revision of the Patriot Act took away the federal court's power to appoint U.S. attorneys indefinitely and gave it to the attorney general. But the Senate voted 94-2 Tuesday with the support of Snowe and Sen. Susan Collins, R-Maine, to restore the court's power.

Collins said Silsby has her full support and that she has never heard a complaint against the prosecutor.

"Paula Silsby is a dedicated public servant who continues to serve Maine well," Collins said. "I do not know why she hasn't been confirmed."

Bart Jansen reported from Washington, D.C. Gregory D. Kesich reported from Portland.

Washington D.C. Correspondent Bart Jansen can be contacted at (202) 488-1119 or at:

Staff Writer Gregory D. Kesich can be contacted at 791-6336 or at:

gkesich@pressherald.com